dissents.
With all respect, I cannot agree with the majority’s disposition of this matter.
We have jurisdiction of this petition for review pursuant to former 8 U.S.C. § 1105a(a)(l). The repeal of that section does not apply to this deportation proceeding, commenced before April 1,1997. IIRIRA § 309(c)(1). Although no court has jurisdiction of a “cause of action or claim” under § 1255a unless the person “attempted to file a complete application and application fee with ... the Service but had the *458application and fee refused,” I do not think that provision deprives us of the power to determine, on petition for review of a deportation order, whether the INS procedure has been sufficient to support the order.
The hearing before the Immigration Judge, March 30, 1993, was full of confusion as to whether Siddiqui had filed an application for legalization or an application for CSS class membership, whatever sort of procedure the latter may be. The significant difference is that there can be judicial review of a denial of the former as part of judicial review of the deportation order. 8 U.S.C. § 1255a(f)(4)(A). Siddiqui’s then attorney told the judge that she was contesting deportation on the ground that he “is an applicant [for legalization] under class membership of CSS v. Meese. ” She referred to two INS file numbers and the judge asked the INS attorney about them. She replied, in part, that “He left the country in April of ’92.” That appeared not to be true. It developed that it was the INS trial attorney’s position that there had been a number of work authorization numbers in Siddiqui’s case, and the INS determined that one of them was an invalid number; that he had applied for “legalization” in June of 1992 and that application was denied by the INS. Later she referred to this as “an application in June ’92 for CSS.” In response to a question from the Immigration Judge about the denial of the “legalization application,” the trial attorney said she had a note of it, but no copy of the denial; that she didn’t have the portion of the file dealing with legalization. The Judge later said to Siddiqui’s attorney, “I’d have to see your authority for that ... for that proposition that the Service cannot bring charges against ... against an alien who had filed an application for legalization which was denied for a CSS class membership.” In a signed decision, entitled “Oral decision of the Immigration Judge,” the Judge referred to the application as an “application for legalization.”
Notwithstanding the confusing oral references by both counsel and the court to the nature of the application, I read the Judge’s decision as premised in part on the fact that an application for “legalization” had been denied and in part on his conclusion that the CSS court order would at most prohibit deportation, but not deportation proceedings. In any event, orderly procedure would have required the production of the denial, particularly because the denial could be judicially reviewed “only in the judicial review of an order of deportation.” 8 U.S.C. § 1255a(f)(4)(A).
I note that the counsel who represented Siddiqui before the BIA referred to the application at times as one for legalization and at times as one for class membership. INS counsel, however, referred to it as “his application for legalization.” The BIA decision referred to “his legalization application,” but focused on the proposition that there was no longer a court order protecting the CSS class. The Department of Justice Attorney representing the INS in this court insists that it was an application for class membership in CSS. Respondent’s brief, page 3.
Although Siddiqui was not called to testify, and there was no evidence before the Immigration Judge that Siddiqui had been “front-desked,” we have before us as an attachment to Siddiqui’s motion in this court for stay of deportation his affidavit, dated May 4, 2000, stating as facts that he had been “front-desked” at an INS legalization office in Chicago in December 1987 or January 1988. If these asserted facts be correct, a court is not barred from jurisdiction to hear his claim. See generally Catholic Social Services, Inc. v. INS, 232 F.3d 1139 (9th Cir.2000).
In oral argument the attorney for the INS again asserted that Siddiqui had nev*459er filed a legalization application. He stated his belief that Siddiqui’s front-desking questionnaire has been denied. Asked if the denial could be judicially reviewed, he replied that it could be in a review of a subsequent deportation proceeding. Asked if we could take judicial notice of the denial, he said he would argue that we could not do so because it is a separate proceeding.
I would vacate the order under review in the hope that in further proceedings all the relevant facts could be assembled with clarity.