dissenting:
Washington, D.C. is the seat of the United States Government. It also has over 30,000 lawyers, a higher per capita percentage of lawyers than any other city in the United States — or, for that matter, the world. Not surprisingly, the federal courts in the District encounter an extraordinary number of cases that Congress meant to be brought at a different time in a different place. This is one such case.
I.
Like my colleagues, I find the government’s basic position — that it may issue an exclusion order against a permanent resident alien “returning” to this country based on secret information in a summary *208proceeding under section 235 of the Immigration Act — to be profoundly troubling. Nevertheless, as I read the relevant provisions of the statute, the district court lacked jurisdiction to entertain the plaintiff’s action under the Administrative Procedure Act.1 Rafeedie, by Congress’ command, is obliged to exhaust the administrative procedures available to him, whatever they may be. See 8 U.S.C. § 1105a(c) (1982). Thereafter, if the government issues an order excluding Rafeedie from entering the country, he may challenge the legality of that order only in a habeas corpus proceeding in the appropriate federal district court (presumably in the Sixth Circuit).
A.
Although our jurisdiction vel non turns on the proper interpretation of section 106 of the Immigration Act, which includes an administrative exhaustion requirement (subsection 106(c)) and an exclusive procedure for judicial review (subsection 106(b)), it is necessary first to understand the nature and structure of "the particular administrative scheme at issue.” Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2467, 45 L.Ed.2d 522 (1975). Section 236 of the Immigration Act, 8 U.S.C. § 1226 (1982), entitled “Exclusion of Aliens — Proceedings,” sets forth the normal “plenary” procedures the Attorney General must follow in excluding aliens. Section 235, 8 U.S.C. § 1225 (1982), entitled “Inspection by Immigration Officers — Powers of Officers,” for the most part describes the Attorney General’s authority to preliminarily detain and question entering aliens. Subsection 235(c), however, contains a blend of inspection and exclusion authority. It requires the INS’s “special inquiry officer” to detain and order “temporarily excluded” any alien who appears “to be excludable under paragraphs (27), (28), or (29) of section 1182(a)____” Id. § 1225(c).2 The same subsection authorizes the Attorney General, in the exercise of his discretion, in reliance on “confidential” information “and after consultation with the appropriate security agencies,” to exclude and deport without any further inquiry any “temporarily excluded” alien whose entry would be prejudicial to the public interest, safety, or security of the country. Id. § 1225(c). Subsection 236(b) refers twice to this summary procedure under 235(c). Significantly, it is stated that “[ejxcept as provided in section [235(c) ] of this title [a decision to exclude an alien] shall be rendered solely upon the evidence *209adduced before the special inquiry officer.” Id. § 1226(b).
In this case, as the majority describes, the government initially sought to exclude Rafeedie under section 236 and then, in the midst of those proceedings, allegedly relying on recently obtained confidential information, switched to a section 235 summary proceeding. In this setting, Rafeedie was offered an opportunity to explain his activities when outside the country, but he was directed to do so without access to the information upon which the government was apparently prepared to rely in charging him as an excludable alien. Instead, he sued in federal district court in the District of Columbia to enjoin the INS from proceeding at all. As the majority puts it, “Rafeedie is in the unusual position of challenging a process not entirely before, and certainly not after, it has taken its course, but effectively in its midst.” Maj. op. supra, at 524.
That course, in my view, was not open to Rafeedie, in part because subsection 106(c) of the Immigration Act unequivocally states:
An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations ....
8 U.S.C. § 1105a(c) (1982) (emphasis added). If that provision covers aliens in Rafeedie’s position, there can be no question that the district court lacked jurisdiction. An explicit statutory exhaustion requirement is jurisdictional; it deprives federal courts of general federal question jurisdiction to entertain an ancillary action under the APA prior to exhaustion. See Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 2467, 45 L.Ed.2d 522 (1975); see also Coit Indep. Joint Venture v. Fed’l Savings & Loan Ins. Corp., - U.S. -, 109 S.Ct. 1361, 1372, 103 L.Ed.2d 602 (1989). In other words, if subsection 106(c) applies to Rafeedie, it is not open to the court to engage in its balancing analysis, see Maj. op. supra, at 513-19, to determine whether the harm to Rafeedie’s interests in requiring him to submit to prescribed administrative procedures outweighs the general interest in delaying review until such procedures have been exhausted. For if subsection 106(c) applies, that is the end of the inquiry. See Coit Indep. Joint Venture, 109 S.Ct. at 1372. It is not even necessary, if subsection 106(c) applies, to consider which court might have jurisdiction to review an exclusion order issued after Rafeedie has exhausted the administrative procedures available to him. No matter which federal court ultimately has jurisdiction, no federal court has jurisdiction to intervene at this stage in the exclusion proceedings.
The majority concludes that it is “doubtful that Congress intended that § 106(c) ever apply to exclusion proceedings under section 235(c).” Maj. op. supra, at 511. But the plain language of subsection 106(c) draws no distinction between orders of exclusion issued under section 235 and those issued under section 236. Indeed, it applies broadly to “an order of deportation or of exclusion.” 8 U.S.C. § 1105a(c) (1982). Nor is there a shred of legislative history to suggest that Congress meant something other than what it so clearly said in that section. The majority pays scant attention to subsection 106(c). Instead, the majority treats all of section 106 as an undifferentiated whole, concluding that subsection 106(c) is merely “derivative” of subsection 106(b) (a provision, to which I shall shortly turn, respecting habeas corpus review of exclusion orders). See Maj. op. supra, at 511. But whatever the proper interpretation of subsection 106(b), there can be no warrant for us to ignore the jurisdictional implications of an independent statutory exhaustion requirement whose plain terms cover Rafeedie.3
Rafeedie argues that Congress intended subsection 106(c) to provide no greater restraint on the timing of judicial review than traditional prudential exhaustion requirements, replete with the exceptions drawn for futility and so forth. See, e.g., Atlan*210tic Richfield Co. v. Dep’t of Energy, 769 F.2d 771, 782 (D.C.Cir.1984); see also NLRB v. Indus. Union of Marine and Shipbuilding Workers, 391 U.S. 418, 426 n. 8, 88 S.Ct. 1717, 1723 n. 8, 20 L.Ed.2d 706 (1968). This contention, on which the majority takes no position,4 is drawn from a single passage in the House Report accompanying the 1961 amendments to the Immigration and Nationality Act (“INA”) to the effect that subsection 106(c) “simply restates an established principle of judicial procedure.” H.R. Rep. No. 1086, 87th Cong., 1st Sess. 29 (1961), U.S.Code Cong. & Admin.News 1961, p. 2973 (hereinafter “House Report”). But Rafeedie’s argument is premised on a faulty assumption: that Congress intended to codify a “principle of judicial procedure” does not mean Congress intended to codify the entire body of law on prudential exhaustion requirements, including the judicially-crafted exceptions. Weinberger v. Salfi suggests precisely the opposite: when Congress incorporates an administrative exhaustion requirement into a statutory scheme, satisfaction of the exhaustion requirement is a prerequisite to judicial review. 422 U.S. at 766, 95 S.Ct. at 2467. “The requirement is ... something more than simply a codification of the judicially developed doctrine of exhaustion, and may not be dispensed with merely by a judicial conclusion of futility____” Id.5 The Supreme Court’s most recent restatement of this principle leaves no doubt that “exhaustion of administrative remedies is required where Congress imposes an exhaustion requirement by statute.” Coit Indep. Joint Venture, 109 S.Ct. at 1372 (emphasis added).
It is true, as the concurrence argues, see Concurrence supra, at 526-28, that the Supreme Court has subsequently concluded that a significant portion of the implied exhaustion requirement at issue in Salfi may be excused by courts in certain circumstances. See, e.g., Bowen v. City of New York, 476 U.S. 467, 483, 106 S.Ct. 2022, 2031, 90 L.Ed.2d 462 (1986); Mathews v. Eldridge, 424 U.S. 319, 330-32, 96 S.Ct. 893, 900-01, 47 L.Ed.2d 18 (1976). But this is due to the structure of the Social Security Act provision there under review, and does not detract from the principle announced in Salfi that when Congress makes exhaustion a jurisdictional prerequisite, the requirement cannot be done away with, for example, “by a judicial conclusion of futility.” Salfi, 422 U.S. at 766, 95 S.Ct. at 2467. Section 405(g) of the Social Security Act, the provision examined in Salfi, does not explicitly require submission to all available administrative procedures; it simply makes available judicial review to a claimant “after any final decision of the Secretary made after a hearing to which he was a party....” 42 U.S.C. § 405(g) (1982 & Supp. IV 1986). (Another provision in the Social Security Act makes the section 405(g) procedures the exclusive means of judicial review of benefit determinations. See 42 U.S.C. § 405(h) (1982 & Supp. IV 1986).) It was this statutory prerequisite of a “final decision” that the Court found impliedly to require exhaustion of administrative remedies. Yet the statute does not itself define the administrative procedures applicable to claims for benefits; instead, it leaves their definition to the Secretary of Health and Human Services. One year after Salfi, in Mathews v. Eldridge, the Court reasoned that Congress, because it had not specified mandatory administrative procedures for claimants to follow, did not intend to leave the contours of “finality” to the unfettered discretion of the Secretary. See Eldridge, 424 U.S. at 330, 96 S.Ct. at 900. The Court therefore concluded that the judiciary could, on rare occasions, excuse *211full compliance with certain of the procedures established by the Secretary’s regulations.6
The Immigration Act, in sharp contrast, expressly creates administrative machinery for determining the status of entering aliens, see 8 U.S.C. §§ 1225(c), 1226 (1982), and by its terms directs exhaustion by individual aliens. Congress has specified certain procedural minima in the Act, which the Commissioner of the INS (unlike the Secretary of Health and Human Services with respect to the Social Security Act) has no apparent discretion to eliminate. No inference can thus be drawn from either the plain language of the Immigration Act or its legislative history that the courts— or, for that matter, even the Commissioner — may ignore the statutorily created jurisdictional prerequisite of exhaustion of administrative remedies made available by the statute. Congress has unambiguously codified the required procedures and unambiguously mandated their exhaustion. Although the issue confronting the court is not, as the concurrence notes, “ ‘Jurisdiction’ writ large” (in the constitutional sense), see Concurrence supra, at 529; see also United States v. Kember, 648 F.2d 1354, 1358-59 (D.C.Cir.1980), it does concern jurisdiction writ statutory. Statutory jurisdictional questions cannot be dispensed with merely by invoking prudential principles. If Congress has directed in unmistakable terms that federal courts withhold the exercise of jurisdiction until the prospective plaintiff has satisfied certain conditions, we have no power to redact this command. See, e.g., I.A.M. Nat’l Pension Fund v. Stockton Tri Indus., 727 F.2d 1204, 1208 & n. 11 (D.C.Cir.1984) (suggesting that “clear congressional statement” that courts may not hear a case until agency comes to a final decision constitutes “absolute” jurisdictional bar until condition is satisfied).
B.
Subsection 106(b), in my view, presents another jurisdictional barrier to Rafeedie’s . action. It states:
Notwithstanding the provisions of any other law, any alien against whom a final order of exclusion has been made heretofore or hereafter under the provisions of section [236] or comparable provisions of any prior Act may obtain judicial review of such order by habeas corpus proceedings and not otherwise.
8 U.S.C. § 1105a(b) (1982) (emphasis added). Thus, even if Rafeedie is for some reason excused from exhausting administrative remedies, he is in the wrong court.
To, be sure, by mentioning- within the body of subsection 106(b) only section 236 exclusion orders and omitting any reference to exclusion orders entered under section 235, Congress created an ambiguity as to whether it intended section 235 exclusion orders to be unreviewable altogether, reviewable in any “court of competent jurisdiction” under the APA, 5 U.S.C. § 703 (1982), or reviewable in the same manner as section 236 exclusion orders. The government contends that although Congress may well have intended there to be no review of summary exclusion orders, it could not possibly have meant the most dangerous categories of excludable aliens to have greater review rights than other aliens excludable under section 236. Rafeedie — this time relying on the actual language of the statute — argues, on the other hand, that since subsection 106(b) does not explicitly confine review of section 235 exclusion orders under the APA to the “special statutory review proceeding” of habeas corpus, id., the district court has jurisdiction to issue declaratory and injunctive relief now. The majority tentatively agrees with Rafeedie, relying on Supreme Court cases holding that a cause of action under the APA to challenge agency action lies unless a statute precludes such judicial re*212view by “clear and convincing evidence.” Maj. op. supra, at 511. I do not.
Although the statute could be read to preclude judicial review of summary exclusion orders under section 235 altogether, I think the better reading is that which the government prefers — that subsection 106(b) applies to both section 235 and section 236 exclusion orders. As I noted at the outset, subsection 235(c) seems misplaced; although it deals with exclusion orders, it was not put in the section entitled “Exclusion of Aliens — Proceedings” (section 236) but rather at the end of the immediately preceding section entitled “Inspection by Immigration Officers — Powers of Officers.” Yet subsection 236(b) twice cross-references subsection 235(c) in a manner suggesting that section 236 would, but for the cross-references, apply to subsection 235(c). Therefore, there is substantial support to reject what is perhaps the most obvious interpretation of these provisions of the IN A — that Congress intended no judicial review of section 235 exclusion orders at all. Apart from these textual references, were section 235 orders intended by Congress to be completely unreviewable, we would be presented with grave constitutional issues insofar as the application of that section to aliens who could claim due process rights (such as permanent residents) was concerned. See Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 2053, 100 L.Ed.2d 632 (1988). It is our obligation, of course, to construe statutes — given legitimate ambiguities — so as to avoid constitutional questions. See Heckler v. Mathews, 465 U.S. 728, 741-44, 104 S.Ct. 1387, 1396-97, 79 L.Ed.2d 646 (1984); Johnson v. Robison, 415 U.S. 361, 366-67, 94 S.Ct. 1160, 1165-66, 39 L.Ed.2d 389 (1974). But cf. United States v. Locke, 471 U.S. 84, 96, 105 S.Ct. 1785, 1793, 85 L.Ed.2d 64 (1985) (“We cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.”) (quoting Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed. 1265 (1933)).
Agreeing with my colleagues that it is appropriate to conclude that Congress intended there to be some judicial review of summary exclusion orders, I nevertheless find it impossible to ascribe to Congress an intent to permit the aliens whom Congress regarded as the least deserving of entry to have full recourse under the APA to challenge actions (or even threatened actions) that no other allegedly excludable aliens would enjoy in the context of section 236 exclusion proceedings. No “talismanic” incantation like “clear and convincing evidence” can justify such an obvious frustration of congressional purpose. Lindahl v. Office of Personnel Mngt., 470 U.S. 768, 778, 105 S.Ct. 1620, 1626, 84 L.Ed.2d 674 (1985). The Supreme Court has recently made quite clear that a congressional intent to prohibit any judicial review under the APA for a class of litigants can and should be drawn from the structure of the statute:
Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.
* # # * * *
In the context of preclusion analysis, the “clear and convincing evidence” standard is not a rigid evidentiary test but a useful reminder to courts that, where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling.
Block v. Community Nutrition Inst., 467 U.S. 340, 345, 351, 104 S.Ct. 2450, 2453-54, 2456-57, 81 L.Ed.2d 270 (1984) (emphasis added). Here the question is not whether Rafeedie is subject to exclusion from the United States without judicial review; it is merely whether he can avoid the habeas procedure — in APA terms, “the special statutory review proceeding ... specified by statute,” 5 U.S.C. § 703 (1982) — that Congress deliberately prescribed for aliens challenging exclusion orders. It thus follows a fortiori from Block that we cannot confine our analysis of the statute to a search for a clear statement by Congress that judicial review is limited to a specific *213proceeding. Viewed in context, I do not think subsection 106(b) can reasonably be construed to permit Rafeedie’s circumvention of the habeas procedure.
The majority appears to acknowledge the weakness of Rafeedie’s proffered construction of subsection 106(b). See Maj. op. supra, at 512. So rather than resting its jurisdictional holding exclusively on such an anomalous interpretation of subsection 106(b), it also relies on an alternative interpretation of section 106 — not argued or even suggested by any party — that the bulk of section 106 of the Immigration and Nationality Act does not apply to permanent resident aliens. I hardly know where to begin, for the majority’s position, if I understand it correctly, has enormous consequences.7
First, an appellate procedural concern. This court has held time and time again that we will not entertain an argument not properly put forth by a party to an appeal. “The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983); see also Alabama Power Co. v. Gorsuch, 672 F.2d 1, 7 n. 34 (D.C.Cir.1982) (collecting cases). We have even suggested that it is proper to decline to reach an argument raised for the first time in. an appellant’s reply brief. See Reyes-Arias v. INS, 866 F.2d 500, 504 n. 2 (D.C.Cir.1989). It follows that the court itself may not — must not — rely on an entire argument not briefed or alluded to at all by the parties.
Often, it must be acknowledged, the court’s ultimate treatment of an argument it accepts may differ in analysis from the manner in which it was presented by a party. That, however, is not this case; the principal argument upon which the majority rests its holding regarding the district court’s subject matter jurisdiction was not even hinted at by Rafeedie or, for that matter, amici. While Rafeedie did argue, as the majority notes, see Maj. op. supra, at 513, both that subsections 106(b) and (c) do not apply to summary exclusion proceedings and that permanent resident aliens cannot, lawfully be subjected to such summary proceedings, he never suggested that the subsection 106(b) habeas procedure and the subsection 106(c) exhaustion requirement do not cover permanent residents.
The Supreme Court has often stated that a court is obliged to reach questions of subject matter jurisdiction sua sponte, and may undertake review of the merits of a dispute only if the court is satisfied such jurisdiction exists. See, e.g., Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740, 96 S.Ct. 1202, 1204, 47 L.Ed.2d 435 (1976); see also Denton v. Merit Systems Protection Bd., 768 F.2d 422, 423 (D.C.Cir.1985). But I find it exceedingly troubling that the majority rests an affirmative finding of subject matter jurisdiction on a basis not even remotely suggested to the court by either party, without at least offering the parties an opportunity — as we traditionally do — to submit supplemental briefs on the question. See, e.g., Athens Community Hosp., Inc. v. Schweiker, 686 F.2d 989, 992 (D.C.Cir.1982); Amusement and Music Operators Ass’n v. Copyright Royalty Tribunal, 636 F.2d 531, 533 n. 2 (D.C.Cir.1980). It is especially unfair to the government in this instance, since it is Rafeedie who bears the burden of demonstrating that subject matter jurisdiction exists in this action. See, e.g., McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Georgiades v. Martin-Trigona, 729 F.2d 831, 833 n. 4 (D.C.Cir.1984).
*214Turning to the substance of the question, the principle underlying the majority’s suggestion — that subsections 106(b) and (c) do not apply to permanent resident aliens— seems plainly at odds with the language of the statute, is contrary to an explicit Supreme Court assumption as well as other judicial acknowledgments, and promises great confusion in the administration of the Act. As. the majority recognizes, see Maj. op. supra, at 510-11, when Congress amended the judicial review provisions of the Immigration and Nationality Act and added section 106 to title 8 of the Code, it explicitly stated that it was “implementfing] and apply[ing]” section 703 of the APA by “creat[ing] a single, separate, statutory form of judicial review of administrative orders for the deportation and exclusion of aliens.” House Report at 22, U.S.Code Cong. & Admin.News 1961, p. 2966. The language of section 106 applies by its terms, moreover, to all aliens; there is no distinction drawn between those who are permanent residents and those who are not. As the government notes, when Congress has determined to make available unique protections to permanent resident aliens, it has done so expressly. See 8 U.S.C. § 1182(a)(25) (1982) (exempting aliens “lawfully admitted for permanent residence” from exclusion on grounds of illiteracy); id. § 1182(c) (exempting returning permanent residents, under certain conditions, from most of the substantive grounds of excludability set forth in 8 U.S. C. § 1182(a)).
The majority’s tentative construction of subsections 106(b) and (c), moreover, has unfortunate side effects, for it upsets Congress’ carefully crafted scheme for judicial review of deportation- orders as well. Subsection 106(c) requires aliens to exhaust administrative remedies prior to obtaining review of both exclusion and deportation orders. See 8 U.S.C. § 1105a(c) (1982). If the majority believes that subsection 106(c) does not apply to permanent resident aliens, that would mean that permanent resident aliens, unlike other aliens, are not obliged to exhaust administrative remedies before seeking review of deportation orders in the courts of appeals under section 106(a). Although the courts that have addressed this latter question have done so only obliquely, they have rejected that interpretation. See Sotelo Mondragon v. Ilchert, 653 F.2d 1254, 1255 (9th Cir.1980); Hernandez-Almanza v. Dep’t of Justice, 547 F.2d 100, 103 (9th Cir.1976). In any event, the logic of the majority’s suggestion — that subsections 106(b) and (c) were meant to apply only to aliens who do not possess constitutional rights — would seem equally applicable to subsection 106(a), a provision which limits APA review for aliens in a manner similar to subsection 106(b) by erecting exclusive procedures for judicial review of deportation orders in the courts of appeals. At the very least, it is incumbent upon the majority to explain how and why Congress would have used the term “alien” in all three subsections of section 106 with an entirely different, understanding of the word’s meaning in the latter two subsections than it had in mind in drafting the first.
The Supreme Court has certainly never suggested that the judicial review provisions embodied in section 106 — including subsection 106(b)’s prescription of habeas corpus — were not meant to cover permanent resident aliens. Indeed, only recently in Landon v. Plasencia, the Court stated otherwise: “an alien can challenge an exclusion order only by a petition for writ of habeas corpus.” 459 U.S. 21, 26, 103 S.Ct. 321, 326, 74 L.Ed.2d 21 (1982). Plasencia was, in fact, a permanent resident alien. She claimed, unsuccessfully, that upon her return to the country after a brief trip to Mexico, the INS could not proceed against her in an exclusion hearing but rather only in a deportation proceeding.' She did not claim, to be sure, that the judicial review provisions of subsections 106(b) and (c) did not apply to permanent resident aliens; instead, she wished the added protections of deportation proceedings as against those provided in exclusion proceedings.8 Never*215theless, on petition for writ of habeas corpus, the Supreme Court rejected her argument, one quite similar to that which the majority accepts here, and held that permanent resident aliens, like other aliens, are subject to exclusion proceedings when seeking reentry into the United States:
The language and history of the Act [ ] clearly reflect a congressional intent that, whether or not the alien is a permanent resident, admissibility shall be determined in an exclusion hearing. Nothing in the statutory language or the legislative history suggests that the respondent’s status as a permanent resident entitles her to a suspension of the exclusion hearing or requires the INS to proceed only through a deportation hearing.
Plasencia, 459 U.S. at 28, 103 S.Ct. at 326-27. Although that case dealt with the appropriate administrative procedure to be applied to a returning permanent resident alien (i.e., deportation or exclusion proceedings), the Court's rationale for refusing to draw a categorical distinction between permanent resident aliens and other aliens in order to determine the propriety of exclusion proceedings seems applicable here. And the Court expressly assumed that which the majority disputes, that a habeas corpus proceeding is the exclusive means of gaining judicial review of an exclusion order under the Immigration Act.9
Several courts of appeals have come even closer to a direct holding that permanent resident aliens — like other aliens — may seek judicial review of an exclusion order solely through habeas. For instance, the Fifth Circuit, in Delgado-Carrera v. INS, 773 F.2d 629 (5th Cir.1985), seemed to echo Plasencia when it flatly stated that “a resident alien who goes abroad and returns is differently situated from one whose residency is uninterrupted. Any appeal from an exclusion proceeding, even one that challenges the appropriateness or due process of that proceeding, can only be brought by a habeas corpus petition to the district court.” Id. at 632 (emphasis added). See also Maldonado-Sandoval v. INS, 518 F.2d 278, 280 n. 3 (9th Cir.1975) (“No matter how long [the alien] may have resided [in the United States] before his brief departure or how deserving his case may be, the alien ..., [i]f ordered excluded, ... [may obtain] judicial review ... ‘by habeas corpus proceedings and not otherwise.’ ”); Hernandez-Almanza, 547 F.2d at 103 (subsection 106(c) precluded claim of permanent resident alien who had failed to exhaust administrative remedies); Sotelo Mondragon, 653 F.2d at 1255 (same). That no court has squarely held on the point, I dare say, is a reflection of the argument’s tenuous basis; it has apparently never even been presented.
The majority reasons from the proposition that Congress never meant to apply subsections 106(b) and (c) to aliens who have constitutional rights of due process. The majority’s suggestion is not, it should be noted, based on the notion that either the exhaustion requirement or habeas corpus review is constitutionally infirm, i.e., that somehow either of those sections, because of their operation, unconstitutionally impairs the protection of constitutional rights. Rather, it is that the image of an alien Congress had in mind when drafting subsection 106(b) was of a person who had no constitutional right to any process at all when seeking admission. Therefore, subsections 106(b) and (c) (and perhaps subsection 106(a)) do not apply to permanent resident aliens because they manifestly do have constitutional rights, rights which the Supreme Court had recognized prior to Congress’ enactment of section 106. See Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 73 S.Ct. 472, 477, 97 L.Ed. 576 (1953).
This deduction, which appears to be the core of the majority’s jurisdictional analy*216sis, is based on only a fragment of legislative history:
Such a restriction to habeas corpus does not deprive the alien of any constitutional rights. It is well settled that aliens seeking admission to the United States cannot demand that their application for entry be determined in a particular manner or by use of a particular type of proceedings. For those aliens, the procedure fixed by Congress is deemed to be due process of law. (Knauff v. Shaughnessy, 338 U.S. 537 [70 S.Ct. 309, 94 L.Ed. 317] (1950)).
Maj. op. at 512 (quoting House Report at 32) (emphasis added by majority). There is nothing particularly relevant in the first two sentences. It is not suggested, nor could it be, that habeas corpus itself is constitutionally inadequate; the report itself recognizes that no alien, not even a permanent resident alien who is concededly entitled to constitutional protection, may demand that her immigration rights be determined in a particular proceeding. See also Plasencia, 459 U.S. at 31-32, 103 S.Ct. at 328-29. And Congress understood habeas corpus and declaratory judgment proceedings to offer the same scope of review. House Report at 32. It is upon the last sentence that the majority fixes its attention. That sentence is admittedly ambiguous. The majority takes it to imply that the aliens covered by this statute are only those who lack constitutional rights, and, as such, the procedure fixed by Congress is all the process that is due;10 it may be, however, that Congress misunderstood (or disagreed with) prior Supreme Court cases. (On occasion even the judiciary itself seems to misunderstand Supreme Court cases.) Be that as it may, it is not open to the court, in my view, to prefer an ambiguous sentence in a House Report not squarely on point to the plain language of the statute. See, e.g., Burlington Northern R.R. v. Oklahoma Tax Comm’n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1859, 95 L.Ed.2d 404 (1987).
The majority’s presumptive construction of section 106, moreover, hardly fits with the rest of the immigration statute. There is no question that Congress authorized the Attorney General to use exclusion procedures under section 236 against permanent resident aliens. See Plasencia, 459 U.S. at 27-28, 103 S.Ct. at 326-27. The majority presumes, however, that when Congress fashioned the judicial review provisions that would apply, inter alia, to exclusion orders, it determined to omit coverage of exclusion orders that were directed against permanent resident aliens, leaving the nature of those judicial review proceedings to be developed piecemeal by the judiciary under the APA. In the face of Congress’ express purpose to “occupy the field,” this approach is — in my view — a virtually inconceivable appraisal of congressional intent.
The majority’s analysis, relying as it does on the notion that returning resident aliens with constitutional rights to due process are not bound by the strict judicial review procedures of section 106, introduces grave (and unnecessary) uncertainty into a relatively settled field of law governing review of deportation and exclusion orders. The majority speaks of aliens with constitutional rights as if they wear a telltale emblem readily confirming their entitlement to due process, but, alas, this is not the case. While the Supreme Court has held that a continuously present resident alien is entitled to due process in deportation proceedings, see, e.g., United States ex rel. Tisi v. Tod, 264 U.S. 131, 133-34, 44 S.Ct. 260, 260-61, 68 L.Ed. 590 (1924), and that a returning resident alien in some circumstances is similarly entitled to due process in exclusion proceedings, compare Kwong Hai Chew, 344 U.S. at 596, 73 S.Ct. at 477, with Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 214-15, 73 S.Ct. 625, 630, 97 L.Ed. 956 (1953), it is far from clear where the lines of “assimilation” to the status of one with constitutional rights are drawn in other settings. Not only may an extended absence from our shores draw *217the constitutionally protected status of a returning resident alien into question, see id.., the status of a continuously present resident alien may likewise be the subject of heated debate. See, e.g., Bae v. INS, 706 F.2d 866 (8th Cir.1983) (alien challenging withdrawal of permanent resident status in review of deportation order); Jacobe v. INS, 578 F.2d 42 (3d Cir.1978) (alien challenging cancellation of “permanent immigration visa” in review of deportation order).
Which court — the federal district court in which a habeas petition would be lodged or any district court of “competent jurisdiction” — would have jurisdiction, it might be asked, if the alien’s constitutional status were in dispute? And at what stage of the relevant administrative proceedings? Under the majority’s provisional view, it is impossible to resist the conclusion that all aliens subject to deportation or exclusion would be entitled to proceed to district court (without exhausting administrative remedies) for a declaration on the threshold question of their status. This strikes me as a rather peculiar way — to say the least —for Congress to draw jurisdictional lines for federal courts. The complexities seem endless. Even had Congress not manifested an intention, when passing section 106, to “create a single, separate, statutory form of judicial review of administrative orders for the deportation and exclusion of aliens,” House Report at 22, U.S.Code Cong. & Admin.News 1961, p. 2966 (emphasis added), that result would be anomalous.
Nevertheless, the majority believes that its supposition that permanent resident aliens are not obliged to seek review of an exclusion order only through habeas corpus proceedings is authorized in part because there is “some question” as to whether Congress intended subsections 106(b) and (c) to apply to that class of aliens; thus, plenary APA review of exclusion orders likely remains available. As I have indicated, I think the evidence to support the proposition resisted by the majority is more than clear and convincing; I think, even if it were appropriate to use the evidentiary model, the applicability of section 106 is manifest beyond a reasonable doubt, and the case upon which the majority seems to rely, Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962), is inadequate support for the majority’s conclusion.
In Cort, the Supreme Court held, under a provision of the Immigration Act not at issue here, that an American physician who allegedly left the country to avoid the draft during the Korean war was entitled to seek a judicial declaration that the Passport Office had incorrectly determined that he had lost his citizenship and was thus not entitled to a passport. The 1952 Immigration Act provided a method by which a person abroad claiming citizenship could seek a certificate of identity which, if granted, allowed the person to come to the United States. If the Attorney General determined that such a person was not entitled to admission, the person could seek review of that exclusion “by habeas corpus and not otherwise.” Cort, 369 U.S. at 374, 82 S.Ct. at 791. The Court held that the exclusive habeas provision applied only to persons who utilized the specific procedure involving presentation at the border — a procedure that was permissive, not mandatory — and since Cort had not so elected, he could file for a declaratory judgment. Congress had erected the former procedure, according to the statute’s legislative history, not to force those living abroad who claimed citizenship to travel to the United States to make their claim, but rather only to ensure that those who in fact made citizenship claims when seeking entry at the border were able to obtain review of denials of these claims “in habeas corpus proceedings and not otherwise.” 8 U.S.C. § 1503(c) (1982).
The Supreme Court admittedly seemed to permit its understanding of the exclusivity vel non of the habeas provision to be influenced by Cort’s plight, but the latter was understandable in jurisdictional terms. If the government’s construction of that statute had prevailed, Cort would have been obliged to travel to the United States, be detained, and only then challenge the legality of the State Department’s determination that he had lost his citizenship. Since all he wished was an American pass*218port, not re-entry into the United States,11 the government’s interpretation would have required travel to the United States as part of a de facto exhaustion requirement, which would be quite strange. That was particularly so because the section of the Immigration Act before the Court in that case did not itself contain any exhaustion requirement — like subsection 106(c)— to which habeas corpus review was appended. See 8 U.S.C. § 1503(b) & (c) (1982). According to the Supreme Court, Congress’ elimination several years earlier of a provision entitling aliens to declaratory judgments was designed simply to prevent persons traveling to the United States from making spurious citizenship claims to forestall their exclusion — exactly what Cort did not do. (Congress repealed this declaratory judgment provision with the understanding Jthat the provision was merely a codification of existing law. 369 U.S. at 377, 82 S.Ct. at 793.) In Rusk v. Cort, in contrast to this case, it thus could fairly be said that Congress did not intend to relegate those in Cort’s position to habeas corpus proceedings. Whatever the proper interpretation of Rusk v. Cort, moreover, the Supreme Court, as noted earlier, has recently indicated that the “clear and convincing” standard by which judicial review for a class of persons may be completely precluded is more easily satisfied than the majority believes is implied by that earlier case. See Block v. Community Nutrition Inst., 467 U.S. at 351, 104 S.Ct. at 2456.
The majority appears sorely troubled, as am I, by the prospect of section 235 summary proceedings being employed against a permanent resident alien who, it may be assumed, enjoys protection under the Constitution.12 But the question of whether subsection 235(c) may lawfully be applied to Rafeedie — as compared to the threshold jurisdictional issue — goes to the merits of Rafeedie’s claim, and Rafeedie is fully entitled to raise that issue in a habeas corpus proceeding. Whether or not Congress explicitly envisioned subsection 235(c) as being available to INS to be used against a permanent resident alien with constitutional rights, we have no warrant to hold that the exhaustion requirement of subsection 106(c) and the statutory review proceeding in subsection 106(b) simply disappear when we are faced with an ancillary action by a permanent resident alien.
The majority repeatedly emphasizes, see Maj. op. supra, at 512, 513, that it does not “hold” that subsections 106(b) and (c) do not apply to permanent resident aliens. Instead, it suggests merely that “there is a reasonable question.” Id. at 512. If this is so, I am unable to identify the principles underlying the majority’s holding. The majority does not embrace warmly the argument Rafeedie presses so strongly — that subsections 106(b) and (“derivatively”) 106(c) do not encompass summary exclusion proceedings — in part because of the “argument from anomaly” I find persuasive. Without the analysis concerning the applicability of subsections 106(b) and (c) to permanent residents, therefore, the majority’s holding rests exclusively — and precariously — on the force of Rafeedie’s position on the merits of the dispute, e.g., whether subsection 235(c) may constitutionally be applied to him. I do not think it proper to permit the strength of Rafeedie's case on the merits (or the unpalatability of the government’s merits position) to drive the court’s jurisdictional analysis. That the government has singled out Rafeedie to test the improbable proposition that a permanent resident alien in Rafeedie's position can be barred from reentering our country without due process of law does not license the court to single out this case for special jurisdictional treatment not authorized by Congress.
By lapsing, in essence, into analysis of “the totality of the circumstances” — by resting its jurisdictional holding on a series *219of propositions no one of which alone permits the result obtained — the majority invites future ad hoc jurisdictional determinations under the Immigration Act. The majority’s failure to provide a “firm rule of decision” in its opinion sacrifices the important interests of uniformity and predictability in service of the unattainable goal of “perfection” in the exercise of judicial power. See A. Scalia, “The Rule of Law as a Law of Rules,” Oliver Wendell Holmes Bicentennial Lecture, Harvard Law School (Feb. 14, 1989) (to be published in 56 U. Chi.L.Rev.). Although the effect of the majority’s analysis — so carefully limited— may only be to issue Rafeedie “a restricted railroad ticket, good for this day and train only,” Smith v. Allwright, 321 U.S. 649, 669, 64 S.Ct. 757, 768, 88 L.Ed. 987 (1944) (Roberts, J., dissenting), this sort of opinion in the long run has dangerous if subtle consequences for the development of the law.
In sum, I do not believe the statute, its legislative history, or any case law justifies the majority’s jurisdictional analysis. Since I believe the district court lacked jurisdiction because of the independent operation of subsections 106(b) and (c), it is not necessary for me to entertain Rafeedie’s claim that his remedies under subsections 106(b) and (c) are in some sense “inadequate” and, therefore, under McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), this court should, as a matter of prudence, permit him to escape those provisions. I do so, nevertheless, because I disagree with the majority’s treatment of that question as well.
II.
Having determined that subsections 106(b) and (c) do not even apply to Rafeedie, a permanent resident alien, the majority labors long and hard at prudential exhaustion analysis. Yet if Congress never intended subsection 106(c)’s exhaustion requirement or subsection 106(b)’s exclusive habeas procedure to apply to permanent resident aliens, I doubt whether it is open to the court to impose one or the other on Rafeedie on “prudential” grounds. To do so, under the majority’s interpretation of the statute, would seem directly contrary to congressional intent.13 Rafeedie, on the other hand, argues that subsections 106(b) and (c) permit declaratory actions in circumstances where administrative remedies are inadequate. The majority rejects Rafeedie’s implicit premise, that section 106 applies to him, and takes no position on his explicit assumption that its strictures can be avoided by a claim of inadequate administrative remedies, but, paradoxically, extensively analyzes the adequacy of his administrative remedies. Whatever the foundation for its analysis, I think the majority incorrect in concluding those remedies are legally inadequate. And I believe habeas corpus provides Rafeedie an opportunity for complete relief for any defect, constitutional or otherwise, that develops in the administrative proceedings.
First, in my view, it is not at all certain that, assuming Rafeedie is constitutionally entitled to due process, the government will fail to supply it. Of course, as the majority points out, by bringing section 235 proceedings against Rafeedie at all, the government has determined that it may lawfully proceed against Rafeedie under this section. The majority reasons from that common-sense observation that Rafeedie cannot be given the process that is constitutionally due him in the context of section 235 proceedings, because the *220government is not authorized to conclude that subsection 235(c) is unconstitutional as applied to a permanent resident alien. I think the majority’s reasoning is faulty. The government has already granted Rafeedie more process under subsection 235(c) than its provisions require. In the face of the constitutional argument Rafeedie presents to this court — but did not present to the INS — I see absolutely no bar to the government’s deciding that he is, indeed, entitled to more extensive procedural protections, even in a summary proceeding, than he has been offered to date. Cf. Plasencia, 459 U.S. at 34-37, 103 S.Ct. at 330-32; Kwong Hai Chew, 344 U.S. at 601-02, 73 S.Ct. at 480. I would think the Attorney General has an obligation to provide Rafeedie that process which the Attorney General believes the Constitution requires. Cf. Meredith Corp. v. FCC, 809 F.2d 863, 872 (D.C.Cir.1987) (agency has obligation to address constitutional challenge to enforcement proceeding). In a closely related context, Congress has specifically required the Attorney General to undertake a preliminary assessment of constitutional questions. See Pub.L. 100-204, § 901(a), 100 Stat. 1331, 1399-1400 (1987) (prohibiting Attorney General from excluding or deporting aliens or denying them a visa on the basis of any “beliefs, statements, or associations which, if engaged in by a United States citizen in the United States, would be protected under the Constitution”). Surely it cannot be suggested that the Attorney General is precluded from adding to subsection 235(c)’s vague specifications whatever he thinks is necessary to pass constitutional muster (assuming he concludes Rafeedie is entitled to constitutional protections). (The Immigration Act expressly permits the Attorney General to direct “such ... further inquiry” into the excludability of the alien subject to section 235 proceedings as he desires. See 8 U.S.C. § 1225(c) (1982).) Nor can we assume that the INS would not consult with the Attorney General or others in the Justice Department with expertise in constitutional law. Thus, the majority’s assumption that Rafeedie could not possibly expect any relief from the Regional Commissioner or anyone else in the Justice Department seems incorrect.
Assuming arguendo that we could properly conclude that the INS (supported by the Attorney General) would proceed “hell bent for election” to issue an exclusion order against Rafeedie under subsection 235(c) based on classified information which it would not permit Rafeedie to rebut, I fail to see why a habeas corpus proceeding is, in any fashion, an inadequate judicial procedure to challenge the constitutionality of that course of action. Rafeedie claims that if he were forced to submit to available administrative procedures (in particular, subsection 235(c) proceedings), his First Amendment rights would in the meantime be chilled, because he might ultimately be subject to an exclusion order entered under procedures which are unconstitutional as applied to him. Although my colleagues appear to accept this argument, I find it sheer gossamer. If, as Rafeedie claims, the INS’s use of section 235 proceedings against him would violate his constitutional rights, any exclusion order arising out of that procedure would be overturned by the habeas corpus court. I do not see how we can assume otherwise, without denigrating the competence of the district court in which Rafeedie would be entitled to file his petition. And if that must be deemed to be so, Rafeedie’s activities in the meantime (a very short meantime if the majority’s expectation concerning INS’s behavior is correct) could not be chilled, because he would have the certain knowledge that the administrative procedures could not hurt him.14
*221The majority accepts another of Rafeedie’s subtle arguments — one which I regard as a good deal more clever than real — that he would be obliged in a subsection 235(c) proceeding to volunteer information about his activities abroad without knowing the government’s case against him; thus, even if he were able to prevail in subsequent habeas corpus proceedings and gain an order directing the INS to use section 236 instead, he would be deprived of a “substantial practical litigation advantage” in follow-on administrative proceedings. If he were to remain silent before the Regional Commissioner now, on the other hand, and later be unsuccessful in waging his claim of a constitutional entitlement to due process in a subsequent habeas proceeding, he might forever be barred from submitting a factual defense to his excludability. Under the circumstances, however, I believe Rafeedie can completely avoid the procedural problem he posits by remaining silent before the Regional Commissioner during section 235 proceedings. For I cannot imagine that a district court — one that had, on petition for writ of habeas corpus, held the government’s use of subsection 235(c) unconstitutional — would fail to direct the INS, if it still wished to exclude Rafeedie, to start over with a plenary section 236 proceeding in which Rafeedie would enjoy all the litigating advantages he fears losing. Of course, if the government offered no more “process” and Rafeedie were to put on no defense before the Regional Commissioner and subsequently lose in habeas corpus on the constitutional issue, contrary to the majority’s view, it is possible — though I still think highly unlikely— that Rafeedie would be foreclosed from making a factual defense in federal court. But in that event, the value of the opportunity Rafeédie would have foregone — the opportunity to “shadow box” the government’s classified exclusion case before the Regional Commissioner — could not be regarded as substantial. The concurrence’s position on this question, see concurrence supra, at 535 n. 9, reduces to the notion that if Rafeedie is destined to lose on his constitutional claim, he is entitled to an advisory opinion to that effect from this court prior to submitting to the administrative process. I do not agree. If the government’s use of an unadorned section 235 proceeding against Rafeedie is constitutional, his “litigating strategy” in that proceeding is of little if any significance.
Finally, Rafeedie claims and the district court found (it is unclear exactly how the majority treats this argument, see Maj. op. supra, at 518) that Rafeedie would lose his liberty and right to work in the United States once an exclusion order under subsection 235(c) was entered against him. That would be true, however, only if for some miraculous and awful reason the district court in which he would be entitled to petition for habeas corpus were to disappear. The majority’s discussion of the likelihood of parole, in that regard, seems beside the point. INS regulations oblige the service to allow an alien against whom an exclusion order is directed 72 hours to petition for habeas corpus, see 8 C.F.R. § 237.2 (1988), so Rafeedie would not, in my view, have any reason to fear even a brief detention.15
* * * * * *
Although Rafeedie may have sought a tactical litigating advantage in seeking an injunction barring the government from subjecting him to exclusion proceedings, his primary purpose, it seems to me, and *222certainly the primary effect of his action, was to shift the case from a district court in Cleveland, where Rafeedie lives and where he could seek habeas review of any exclusion order, to the District of Columbia.16 That result was precisely what Congress wished to avoid when it passed section 106:
Of special significance is the fact that habeas corpus actions are necessarily determined in the locality where the alien is, where he has been excluded, and where he is ‘knocking at the door.’ This prevents a process of ‘shopping around’ by an applicant for admission for a court in which he may seek to file repetitive declaratory judgment actions.
In particular, no sound reason appears to the committee why excluded aliens arriving at the various ports in the United States should be permitted to burden an already overburdened court system in the District of Columbia by there instituting a declaratory judgment action against the Attorney General or the Commissioner of Immigration and Naturalization.
House Report at 33, U.S.Code Cong. & Admin.News 1961, p. 2977.
Of course, the INS did not detain Rafeedie at his port of re-entry; it paroled him into the country — as it apparently often does — pending his deferred inspection. But if an action such as that brought here can impair the INS’s ability to conduct exclusion proceedings without interruption, it seems rather obvious that the INS will be obliged to be more careful of who it “paroles” into the country. The Supreme Court, when confronted thirty years ago with the argument that an alien’s presence within the country’s borders pursuant to parole should immunize him from exclusion proceedings, noted the obvious implications of accepting that argument:
The acceptance of petitioner’s position in this case, ... with its inherent suggestion of an altered parole status, would be quite likely to prompt some curtailment of current parole policy — an intention we are reluctant to impute to the Congress.
Leng May Ma v. Barber, 357 U.S. 185, 190, 78 S.Ct. 1072, 1075, 2 L.Ed.2d 1246 (1958).
I believe that the District of Columbia district court lacked jurisdiction, and, therefore, I respectfully dissent.
. Jurisdiction in the district court was apparently based on 28 U.S.C. § 1331 (1982), as well as on 8 U.S.C. § 1329 (1982), which provides:
The district courts of the United States shall have jurisdiction of all causes, civil and criminal, arising under any of the provisions of this subchapter.
The Administrative Procedure Act was thought to provide Rafeedie a cause of action.
. Section 235(c) provides in relevant part:
Any alien ... who may appear to the examining immigration officer or to the special inquiry officer during the examination before either of such officers to be excludable under paragraphs (27), (28), or (29) of section 1182(a) of this title shall be temporarily excluded, and no further inquiry by a special inquiry officer shall be conducted until after the case is reported to the Attorney General together with any such written statement and accompanying information, if any, as the alien or his representative may desire to submit in connection therewith and such an inquiry or further inquiry is directed by the Attorney General.
8 U.S.C. § 1225(c) (1982). Paragraphs (27), (28), and (29) of section 1182(a) provide, respectively, that the following classes of aliens are excludable from the United States: "[alliens who ... seek to enter the United States ... to engage in activities which would be prejudicial to the public interest, or endanger [the nation’s] welfare, safety, or security,” id. § 1182(a)(27); "[ajliens who advocate or teach ... the unlawful assaulting or killing of any officer ... of any ... organized government ... or ... the unlawful ... destruction of property ... or ... sabotage,” id. § 1182(a)(28)(F); and "[ajliens [who] ... would, after entry, engage in ... espionage, sabotage, public disorder, or in other activity subversive to the national security, [or] in any activity a purpose of which is the opposition to, ... or overthrow of, the Government of the United States, by force, violence, or other unconstitutional means.” Id. § 1182(a)(29). Rafeedie was initially charged as excludable under all three of these provisions. When the INS shifted to summary proceedings, it amended the charging document to allege excludability only under §§ 1182(a)(27) and (a)(28)(F).
. I do not find the “apparently plain [statutory] language” the majority insists must be “overcome” to conclude that the exhaustion requirement covers Rafeedie. See Maj. op. supra, at 512.
. As the majority notes, see Maj. op. supra, at 511, there is a split in the circuits on this question.
. When Congress intends that exceptions to statutory exhaustion be available, it expressly incorporates those exceptions in the substantive statute involved. See, e.g., 15 U.S.C. § 717r(b) (1982) (Natural Gas Act),("[n]o objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do.”); 16 U.S.C. § 825/ (b) (1982) (Federal Power Act) (same).
. At the same time, the Supreme Court has repeatedly emphasized that the Social Security Act embodies an absolute jurisdictional prerequisite — that a claim for benefits must have been filed with the Secretary prior to instituting litigation. See Salfi, 422 U.S. at 766-67, 95 S.Ct. at 2467; see also City of New York, 476 U.S. at 482-83, 106 S.Ct. at 2031-32; Eldridge, 424 U.S. at 328, 96 S.Ct. at 899. The logic of the concurring opinion would compel the conclusion that even this part of the Social Security Act’s implicit exhaustion mandate is not "absolute."
. The majority insists that it does not reach the question of the applicability of §§ 106(b) and (c) to permanent residents. Maj. op. supra, at 512, 513. But the "wrinkle” on which it relies to support its rejection of the "strong argument from anomaly” — respecting the extension of a fuller complement of judicial review rights to those aliens least deserving of entry — is that Rafeedie is a permanent resident alien, and that this fact somehow has jurisdictional consequences under § 106. (Whether this makes a difference insofar as the applicability of § 235(c) is concerned is a "merits” question that has no bearing on our jurisdictional inquiry.) Without the § 106 argument, the majority's analysis runs against the "argument from anomaly” it purports to find so strong.
. The INA extends aliens against whom orders of deportation have been entered pursuant to deportation proceedings a number of rights not extended to aliens excluded under §§ 235 or *215236. Not only may such aliens be able to depart voluntarily to a country of their own choosing (subject to some restrictions), see 8 U.S.C. §§ 1253(a), 1254(e) (1982), but they are also entitled to seek suspension of their deportation. Id. § 1252(e). See generally Plasencia, 459 U.S. at 26, 103 S.Ct. at 325.
. Interestingly, the only federal case in which the question of whether permanent resident aliens may be excluded without due process, United States ex rel. Kasel de Pagliera v. Savoretti, 139 F.Supp. 143 (S.D.Fla.1956), arose in habeas corpus. See id. at 145.
. The paragraph can in no event be ascribed significance in the interpretation of § 106 generally; it is contained in the portion of the House Report discussing the operation of § 106(b). Thus, even if the paragraph is given the majority’s interpretation, § 106(c)’s exhaustion requirement would remain applicable to permanent residents.
. He would have faced an indictment for draft evasion in this country. See Cort, 369 U.S. at 369, 82 S.Ct. at 788.
. The government's argument that a permanent resident alien loses his constitutional protection simply when he leaves the country for a nefarious purpose seems difficult to accept; but, in my view, it is inappropriate to reach that issue.
. Salfi holds that when Congress makes exhaustion a "jurisdictional prerequisite," it "may not be dispensed with merely by a judicial conclusion of futility.” Salfi, 422 U.S. at 766, 95 S.Ct. at 2467. In the absence of a congressional statement as to exhaustion of administrative remedies, the balancing analysis set forth in McKart, 395 U.S. at 197, 89 S.Ct. at 1664, governs whether prudential exhaustion — or its "numerous exceptions" — will be applied to “the particular administrative scheme involved.” Id. at 193, 89 S.Ct. at 1662. Where Congress consciously declines to impose a statutory exhaustion requirement on a discrete class of litigants, as the majority’s interpretation of the Immigration Act suggests, it seems inconsistent with congressional intent for courts nevertheless to impose an exhaustion requirement of their own making on those litigants. Cf. Salfi, 422 U.S. at 766-67, 95 S.Ct. at 2467-68 (highlighting relevance of congressional intent to analysis of exhaustion requirements).
. The concurrence’s characterization of the § 235 proceeding pending against Rafeedie as a "sword of Damocles" is colorful but inapt. If one believes Rafeedie's allegations, e.g., that the Regional Commissioner’s eventual entry of an exclusion order is a foregone conclusion, the "sword of Damocles" the concurrence pictures cannot chill Rafeedie’s interim First Amendment activity, for the sword is sure to "drop” regardless of any such interim conduct. Moreover, if Rafeedie’s claim of First Amendment chill stems in large measure from his allegation of the facial unconstitutionality of 8 U.S.C. § 1182(a)(28)(F) (see supra note 2), as I think it *221does, it seems immaterial whether Rafeedie is subject to summary or ordinary exclusion proceedings. Neither the Regional Commissioner in section 235 proceedings nor an Immigration Judge in section 236 proceedings has the authority to determine the facial constitutionality of the Immigration Act's provisions. Rafeedie’s claim of incremental First Amendment chill, to that extent, is fictional.
. Even were we to assume that Rafeedie would be detained briefly before a district court could order his release, that could not be thought to render habeas corpus "inadequate” as a constitutional matter.
. The federal judicial district in which Rafeedie would be required to lodge his habeas petition upon detention is the district (or districts) in which personal jurisdiction could be asserted over Rafeedie’s custodian or "jailer." See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 495, 93 S.Ct. 1123, 1129, 35 L.Ed.2d 443 (1973); Chatman-Bey v. Thornburgh, 864 F.2d 804, 813 (D.C.Cir.1988) (en banc). The question of who would constitute the alien's custodian in this setting has long since been settled. Because under the terms of the federal habeas statute "the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained," 28 U.S.C. § 2243 (1982), we have held "that the custodian is the person having a day-to-day control over the prisoner." Guerra v. Meese, 786 F.2d 414, 416 (D.C.Cir. 1986). And we have specifically rejected the argument that the Attorney General may properly be considered the custodian of federal prisoners by virtue of his supervision of the Federal Bureau of Prisons. See Sanders v. Bennett, 148 F.2d 19, 20 (D.C.Cir. 1945); cf. Demjanjuk v. Meese, 784 F.2d 1114, 1116 (D.C.Cir. 1986) (Bork, J., in chambers). Because 28 U.S.C. § 1391(e)’s provision for nationwide service of process— and thus nationwide personal jurisdiction — in a "civil action in which each defendant is an officer or employee of the United States” has been held not to apply in the habeas context, see Schlanger v. Seamans, 401 U.S. 487, 490 n. 4, 491, 91 S.Ct. 995, 997 n. 4, 998, 28 L.Ed.2d 251 (1971); Chatman-Bey, 864 F.2d at 813 n. 7, upon his detention (prior to deportation) Rafeedie would be permitted to file his habeas petition only in those courts having personal jurisdiction over the federal officer who holds the key to Rafeedie's cell.