RENO v. CATHOLIC SOC. SVCS., INC.(1993)

No. 91-1826

Argued: January 11, 1993Decided: June 18, 1993

Under the alien legalization program created by Title II of the Immigration Reform and Control Act of 1986, an alien unlawfully present in the United States who sought permission to reside permanently had to apply first for temporary resident status by establishing, inter alia, that he had resided continuously in this country in an unlawful status and had been physically present here continuously for specified periods. After the Immigration and Naturalization Service (INS) issued regulations construing particular aspects of, respectively, the “continuous physical presence” and “continuous unlawful residence” requirements, two separate class actions were brought, each challenging one of the regulations on behalf of aliens whom it would render ineligible for legalization. In each instance, the District Court struck down the challenged regulation as inconsistent with the Reform Act and issued a remedial order directing the INS to accept legalization applications beyond the statutory deadline. The Court of Appeals, among other rulings, consolidated the INS’s appeals from the remedial orders, rejected the INS’s argument that the Reform Act’s restrictive judicial review provisions barred district court jurisdiction in each case, and affirmed the District Courts’ judgments.

Held:

The record is insufficient to allow this Court to decide all issues necessary to determine whether the District Courts had jurisdiction. Pp. 53-67.

(a) The Reform Act’s exclusive review scheme – which applies to “determination[s] respecting an application for adjustment of status,” 8 U.S.C. 1255a(f)(1), and specifies that “a denial” of such adjustment may be judicially scrutinized “only in the . . . review of an order of deportation” in the Courts of Appeals, 1255a(f)(4)(A) – does not preclude district court jurisdiction over an action which, in challenging the legality of an INS regulation, does not refer to or rely on the denial of any individual application. The statutory language delimiting the jurisdictional bar refers only to review of such an individual denial. McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 494 . Pp. 9-12.

[509 U.S. 43, 44]

render his claim “ripe” for judicial review, as is required by, e.g., Abbott Laboratories v. Gardner, 387 U.S. 136, 148 -149. The regulations impose no penalties for violating any newly imposed restriction, but limit access to a benefit created by the Reform Act but not automatically bestowed on eligible aliens. Rather, the Act requires each alien desiring the benefit to take further affirmative steps, and to satisfy criteria beyond those addressed by the disputed regulations. It delegates to the INS the task of determining on a case-by-case basis whether each applicant has met all of the Act’s conditions, not merely those interpreted by the regulations in question. In these circumstances, a class member’s claim would ripen only once he took the affirmative steps that he could take before the INS blocked his path by applying a regulation to him. Ordinarily, that barrier would appear when the INS formally denied the alien’s application on the ground that a regulation rendered him ineligible for legalization. But a plaintiff who sought to rely on such a denial to satisfy the ripeness requirement would then still find himself at least temporarily barred by the Reform Act’s exclusive review provisions, since he would be seeking “judicial review of a determination respecting an application” under 1255a(f)(1). Pp. 56-61.

[509 U.S. 43, 45]

new jurisdictional determinations and, if appropriate, remedial orders. Pp. 61-67.

966 F.2d 914, vacated and remanded.

SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. O’CONNOR, J., filed an opinion concurring in the judgment, post, p. 67. STEVENS, J., filed a dissenting opinion, in which WHITE and BLACKMUN, JJ., joined, post, p. 77.

Ronald J. Mann argued the cause for the United States. With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Mahoney, and Michael Jay Singer.

Ralph Santiago Abascal argued the cause for respondents. With him on the brief were Stephen A. Rosenbaum, Peter A. Schey, and Carlos R. Holguin. *

[ Footnote * ] Briefs of amici curiae urging affirmance were filed for the city of Chicago et al. by Lawrence Rosenthal, John Payton, O. Peter Sherwood, Leonard J. Koerner, and Stephen J. McGrath; for the American Bar Association by J. Michael McWilliams, Ira Kurzban, Robert A. Williams, and Carol L. Wolchok; for the American Civil Liberties Union et al. by Lucas Guttentag, Steven R. Shapiro, John A. Powell, and Carolyn P. Blum; and for Church World Service et al. by Steven L. Mayer.

JUSTICE SOUTER delivered the opinion of the Court.

This petition joins two separate suits, each challenging a different regulation issued by the Immigration and Naturalization Service in administering the alien legalization program created by Title II of the Immigration Reform and Control Act of 1986. In each instance, a District Court struck down the regulation challenged and issued a remedial order directing the INS to accept legalization applications beyond the statutory deadline; the Court of Appeals consolidated the INS’s appeals from these orders, and affirmed the District Courts’ judgments. We are now asked to consider whether the District Courts had jurisdiction to hear the challenges, and whether their remedial orders were permitted [509 U.S. 43, 46] by law. We find the record insufficient to decide all jurisdictional issues, and accordingly vacate and remand for new jurisdictional determinations and, if appropriate, remedial orders limited in accordance with the views expressed here.

I

On November 6, 1986, the President signed the Immigration Reform and Control Act of 1986, Pub.L. 99-603, 100 Stat. 3359, Title II of which established a scheme under which certain aliens unlawfully present in the United States could apply, first, for the status of a temporary resident and then, after a 1-year wait, for permission to reside permanently. 1 An applicant for temporary resident status must have resided continuously in the United States in an unlawful status since at least January 1, 1982, 8 U.S.C. 1255a(a)(2)(A); must have been physically present in the United States continuously since November 6, 1986, the date the Reform Act was enacted, 1255a(a)(3)(A); and must have been otherwise admissible as an immigrant, 1255a(a)(4). The applicant must also have applied during the 12-month period beginning on May 5, 1987. 1255a(a)(1). 2 [509 U.S. 43, 47]

The two separate suits joined before us challenge regulations addressing, respectively, the first two of these four requirements. The first, Reno v. Catholic Social Services, Inc. (CSS), et al., focuses on an INS interpretation of 8 U.S.C. 1255a(a)(3), the Reform Act’s requirement that applicants for temporary residence prove “continuous physical presence” in the United States since November 6, 1986. To mitigate this requirement, the Reform Act provides that “brief, casual, and innocent absences from the United States” will not break the required continuity. 1255a(a)(3)(B). In a telex sent to its regional offices on November 14, 1986, however, the INS treated the exception narrowly, stating that it would consider an absence “brief, casual, and innocent” only if the alien had obtained INS permission, known as “advance parole,” before leaving the United States; aliens who left without it would be “ineligible for legalization.” App. 186. The INS later softened this limitation somewhat by regulations issued on May 1, 1987, forgiving a failure to get advance parole for absences between November 6, 1986, and May 1, 1987. But the later regulation confirmed that any absences without advance parole on or after May 1, 1987, would not be considered “brief, casual, and innocent,” and would therefore be taken to have broken the required continuity. See 8 CFR 245a.1(g) (1992) (“Brief, casual, and innocent means a departure authorized by [the INS] (advance parole) subsequent to May 1, 1987 of not more than thirty (30) days for legitimate emergency or humanitarian purposes”).

The CSS plaintiffs challenged the advance parole regulation as an impermissible construction of the Reform Act. After certifying the case as a class action, the District Court eventually defined a class comprising “persons prima facie eligible for legalization under [8 U.S.C. 1255a] who departed [509 U.S. 43, 48] and reentered the United States without INS authorization (i.e., “advance parole”) after the enactment of the [Reform Act] following what they assert to have been a brief, casual and innocent absence from the United States.” 3 No. Civ. S-81343 LKK (ED Cal., May 3, 1988) (App. 50). On April 22, 1988, 12 days before the end of the legalization program’s 12-month application period, the District Court granted partial summary judgment invalidating the regulation and declaring that “brief, casual, and innocent” absences did not require prior INS approval. No. Civ. S-81343 LKK (ED Cal., Apr. 22, 1988) (Record, Doc. No. 161); see Catholic Social Services, Inc. v. Meese, 685 F.Supp. 1149 (ED Cal. 1988) (explaining the basis of the April 22 order). No appeal was taken by the INS (by which initials we will refer to the Immigration and Naturalization Service and the Attorney General collectively), and after further briefing on remedial issues the District Court issued an order on June 10, 1988, requiring the INS to extend the application period to November 30, 1988 4 for class members who “knew of [the INS’s] unlawful regulation and thereby concluded that they [509 U.S. 43, 49] were ineligible for legalization and by reason of that conclusion did not file an application.” 5 No. Civ. S-81343 LKK (ED Cal., June 10, 1988) (App. to Pet. for Cert. 25a). Two further remedial orders issued on August 11, 1988, provided, respectively, an alternative remedy if the extension of the application period should be invalidated on appeal, and further specific relief for any class members who had been detained or apprehended by the INS or who were in deportation proceedings. 6 No. Civ. S-81343 LKK (ED Cal.) (Record, Doc. Nos. 187, 189). The INS appealed all three of the remedial orders. 7

The second of the two lawsuits, styled INS v. League of United Latin American Citizens (LULAC) et al., goes to the INS’s interpretation of 8 U.S.C. 1255a(a)(2)(A), the Reform Act’s “continuous unlawful residence” requirement. The Act provides that certain brief trips abroad will not break an alien’s continuous unlawful residence (just as [509 U.S. 43, 50] certain brief absences from the United States would not violate the “continuous physical presence” requirement). See 1255a(g)(2)(A). Under an INS regulation, however, an alien would fail the “continuous unlawful residence” requirement if he had gone abroad and reentered the United States by presenting “facially valid” documentation to immigration authorities. 8 CFR 245a.2(b)(8) (1992). 8 On the INS’s reasoning, an alien’s use of such documentation made his subsequent presence “lawful” for purposes of 1255a(a)(2)(A), thereby breaking the continuity of his unlawful residence. Thus, an alien who had originally entered the United States under a valid nonimmigrant visa, but had become an unlawful resident by violating the terms of that visa in a way known to the Government before January 1, 1982, was eligible for relief under the Reform Act. If, however, the same alien left the United States briefly and then used the same visa to get back in (a facially valid visa that had in fact become invalid after his earlier violation of its terms), he rendered himself ineligible.

In July, 1987, the LULAC plaintiffs brought suit challenging the reentry regulation as inconsistent both with the Act and the equal protection limitation derived from Fifth Amendment due process. With this suit still pending, on November 17, 1987, some seven months into the Reform [509 U.S. 43, 51] Act’s 12-month application period, the INS modified its reentry policy by issuing two new regulations. 9 The first, codified at 8 CFR 245a.2(b)(9) (1992), specifically acknowledged the eligibility of an alien who “reentered the United States as a nonimmigrant . . . in order to return to an unrelinquished unlawful residence,” so long as he “would be otherwise eligible for legalization and . . . was present in the United States in an unlawful status prior to January 1, 1982.” 52 Fed.Reg. 43845 (1987). The second, codified at 8 CFR 246a.2(b)(10) (1992), qualified this expansion of eligibility by obliging such an alien to obtain a waiver of a statutory provision requiring exclusion of aliens who enter the United States by fraud. Ibid.

Although the LULAC plaintiffs then amended their complaint, they pressed their claim that 8 CFR 245a.2(b)(8) (1992), the reentry regulation originally challenged, had been invalid prior to its modification. As to that claim, the District Court certified the case as a class action, with a class including

[509 U.S. 43, 52]

On July 15, 1988, 10 weeks after the end of the 12-month application period, the District Court held the regulation invalid, while reserving the question of remedy. Ibid. (App. 224-225). Again, the INS took no appeal. The LULAC plaintiffs then sought a remedial order extending the application period for class members to November 30, 1988, 11 and compelling the INS to publicize the modified policy and the extended application period. They argued that the INS had effectively truncated the 12-month application period by enforcing the invalid regulation, by publicizing the regulation so as to dissuade potential applicants, and by failing to give sufficient publicity to its change in policy. On August 12, 1988, the District Court granted the plaintiffs’ request for injunctive relief. 12 No. 87-4757-WDK (JRx) (CD Cal., Aug. 12, 1988) (App. to Pet. for Cert. 50a). The INS appealed this remedial order.

In its appeals in both CSS and LULAC, the INS raised two challenges to the orders of the respective District Courts. First, it argued that the restrictive judicial review provisions of the Reform Act barred district court jurisdiction over the claim in each case. It contended, second, that each District Court erred in ordering an extension of the 12-month application period, the 12-month limit being, it maintained, a substantive statutory restriction on relief beyond the power of a court to alter. [509 U.S. 43, 53]

The Ninth Circuit eventually consolidated the two appeals. After holding them pending this Court’s disposition of McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), it rendered a decision in February, 1992, affirming the District Courts. 13 Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (1992). We were prompted to grant certiorari, 505 U.S. 1203 (1992), by the importance of the issues, and by a conflict between circuits on the jurisdictional issue, see Ayuda, Inc. v. Thornburgh, 292 U.S. App. D.C. 150, 156-162, 948 F.2d 742, 748-754 (1991) (holding that the Reform Act precluded district court jurisdiction over a claim that INS regulations were inconsistent with the Act), cert. pending, No. 91-1924. We now vacate and remand.

II

The Reform Act not only sets the qualifications for obtaining temporary resident status, but provides an exclusive scheme for administrative and judicial review of “determination[s] respecting . . . application[s] for adjustment of status” under the Title II legalization program. 8 U.S.C. 1255a(f)(1). Section 1255a(f)(3)(A) directs the Attorney General to “establish an appellate authority to provide for a single level of administrative appellate review” of such [509 U.S. 43, 54] determinations. Section 1255a(f)(4)(A) provides that a denial of adjustment of status is subject to review by a court “only in the judicial review of an order of deportation under [8 U.S.C. 1105a]”; under 1105a, this review takes place in the Courts of Appeals. Section 1255a(f)(1) closes the circle by explicitly rendering the scheme exclusive: “There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.

Under this scheme, an alien denied adjustment of status by the INS in the first instance may appeal to the Associate Commissioner for Examinations, the “appellate authority” designated by the Attorney General pursuant to 1255a(f)(3)(A). See 8 CFR 103.1(f)(1)(xxvii), 245a.2(p) (1992). Although the Associate Commissioner’s decision is the final agency action on the application, an adverse decision does not trigger deportation proceedings. On the contrary, because the Reform Act generally allows the INS to use information in a legalization application only to make a determination on the application, see 8 U.S.C. 1255a(c)(5), 14 an alien whose appeal has been rejected by the Associate Commissioner stands (except for a latent right to judicial review of that rejection) in the same position he did before he applied: he is residing in the United States in an unlawful status, but the Government has not found out about him yet. 15 [509 U.S. 43, 55] We call the right to judicial review “latent” because 1255a(f)(4)(A) allows judicial review of a denial of adjustment of status only on appeal of “an order of deportation.” Hence the alien must first either surrender to the INS for deportation 16 or wait for the INS to catch him and commence a deportation proceeding, and then suffer a final adverse decision in that proceeding, before having an opportunity to challenge the INS’s denial of his application in court.

The INS takes these provisions to preclude the District Courts from exercising jurisdiction over the claims in both the CSS and LULAC cases, reasoning that the regulations it adopted to elaborate the qualifications for temporary resident status are “determination[s] respecting an application for adjustment of status” within the meaning of 1255a(f)(1); because the claims in CSS and LULAC attack the validity of those regulations, they are subject to the limitations contained in 1255a(f), foreclosing all jurisdiction in the district courts, and granting it to the Courts of Appeals only on review of a deportation order. The INS recognizes, however, that this reasoning is out of line with our decision in McNary v. Haitian Refugee Center, Inc., supra, where we construed a virtually identical set of provisions governing judicial review within a separate legalization program for agricultural workers created by Title III of the Reform Act. 17 There, as [509 U.S. 43, 56] here, the critical language was “a determination respecting an application for adjustment of status.” We said that “the reference to “a determination” describes a single act, rather than a group of decisions or a practice or procedure employed in making decisions.” Id., at 492. We noted that the provision permitting judicial review only in the context of a deportation proceeding also defined its scope by reference to a single act: “`judicial review of such a denial.'” Ibid. (emphasis in original) (quoting 8 U.S.C. 1160(e)(3)); see 1255a(f)(4)(A) (using identical language). We therefore decided that the language setting the limits of the jurisdictional bar “describes the denial of an individual application,” 498 U.S., at 492 , and thus “applies only to review of denials of individual . . . applications.” Id., at 494. The INS gives us no reason to reverse course, and we reject its argument that 1255a(f)(1) precludes district court jurisdiction over an action challenging the legality of a regulation without referring to or relying on the denial of any individual application.

Section 1255a(f)(1), however, is not the only jurisdictional hurdle in the way of the CSS and LULAC plaintiffs, whose claims still must satisfy the jurisdictional and justiciability requirements that apply in the absence of a specific congressional directive . To be sure, a statutory source of jurisdiction is not lacking, since 28 U.S.C. 1331, generally granting federal question jurisdiction, “confer[s] jurisdiction on federal courts to review agency action.” Califano v. Sanders, 430 U.S. 99, 105 (1977). Neither is it fatal that the Reform Act is silent about the type of judicial review those plaintiffs seek. We customarily refuse to treat such silence “as a denial of authority to [an] aggrieved person to seek appropriate relief in the federal courts,” Stark v. Wickard, 321 U.S. 288, 309 (1944), and this custom has been “reinforced by the enactment of the Administrative Procedure Act, which [509 U.S. 43, 57] embodies the basic presumption of judicial review to one “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967) (quoting 5 U.S.C. 702).

As we said in Abbott Laboratories, however, the presumption of available judicial review is subject to an implicit limitation: “injunctive and declaratory judgment remedies,” what the respondents seek here, “are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy “ripe” for judicial resolution, 18 387 U.S., at 148 , that is to say, unless the effects of the administrative action challenged have been “felt in a concrete way by the challenging parties,” id., at 148-149. In some cases, the promulgation of a regulation will itself affect parties concretely enough to satisfy this requirement, as it did in Abbott Laboratories itself. There, for example, as well as in Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167 (1967), the promulgation of the challenged regulations presented plaintiffs with the immediate dilemma to choose between complying with newly imposed, disadvantageous restrictions and risking serious penalties for violation. Abbott Laboratories, supra, at 152-153; Gardner, supra, at 171-172. But that will not be so in every case. In Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158 (1967), for example, we held that a [509 U.S. 43, 58] challenge to another regulation, the impact of which could not “be said to be felt immediately by those subject to it in conducting their day-to-day affairs,” id., at 164, would not be ripe before the regulation’s application to the plaintiffs in some more acute fashion, since “no irremediabl[y] adverse consequences flow[ed] from requiring a later challenge,” ibid. See Lujan v. National Wildlife Federation, 497 U.S. 871, 891 (1990) (a controversy concerning a regulation is not ordinarily ripe for review under the Administrative Procedure Act until the regulation has been applied to the claimant’s situation by some concrete action).

The regulations challenged here fall on the latter side of the line. They impose no penalties for violating any newly imposed restriction, but limit access to a benefit created by the Reform Act but not automatically bestowed on eligible aliens. Rather, the Act requires each alien desiring the benefit to take further affirmative steps, and to satisfy criteria beyond those addressed by the disputed regulations. 19 It [509 U.S. 43, 59] delegates to the INS the task of determining on a case-by-case basis whether each applicant has met all of the Act’s conditions, not merely those interpreted by the regulations in question. In these circumstances, the promulgation of the challenged regulations did not itself give each CSS and LULAC class member a ripe claim; a class member’s claim would ripen only once he took the affirmative steps that he could take before the INS blocked his path by applying the regulation to him. 20 [509 U.S. 43, 60]

Ordinarily, of course, that barrier would appear when the INS formally denied the alien’s application on the ground that the regulation rendered him ineligible for legalization. A plaintiff who sought to rely on the denial of his application to satisfy the ripeness requirement, however, would then still find himself at least temporarily barred by the Reform Act’s exclusive review provisions, since he would be seeking “judicial review of a determination respecting an application.” 8 U.S.C. 1255a(f)(1). The ripeness doctrine and the Reform Act’s jurisdictional provisions would thus dovetail neatly, and not necessarily by mere coincidence. Congress may well have assumed that, in the ordinary case, the courts would not hear a challenge to regulations specifying limits to eligibility before those regulations were actually applied to an individual, whose challenge to the denial of an individual application would proceed within the Reform Act’s limited scheme. The CSS and LULAC plaintiffs do not [509 U.S. 43, 61] argue that this limited scheme would afford them inadequate review of a determination based on the regulations they challenge, presumably because they would be able to obtain such review on appeal from a deportation order, if they become subject to such an order; their situation is thus different from that of the “17 unsuccessful individual SAW applicants” in McNary, 498 U.S., at 487 , whose procedural objections, we concluded, could receive no practical judicial review within the scheme established by 8 U.S.C. 1160(e), id., at 496-497.

This is not the end of the matter, however, because the plaintiffs have called our attention to an INS policy that may well have placed some of them outside the scope of 1255a(f)(1). The INS has issued a manual detailing procedures for its offices to follow in implementing the Reform Act’s legalization programs and instructing INS employees called “Legalization Assistants” to review certain applications in the presence of the applicants before accepting them for filing. See Procedures Manual for the Legalization and Special Agricultural Worker Programs of the Immigration Reform and Control Act of 1986 (Legalization Manual or Manual). 21 According to the Manual, “[m]inor correctable deficiencies such as incomplete responses or typographical errors may be corrected by the [Legalization Assistant].” Id., at IV-6. “[I]f the applicant is statutorily ineligible,” however, the Manual provides that “the application will be rejected by the [Legalization Assistant].” Ibid. (emphasis added). Because this prefiling rejection of applications [509 U.S. 43, 62] occurs at the front desk of an INS office, it has come to be called “front-desking.” 22 While the regulations challenged in CSS and LULAC were in force, Legalization Assistants who applied both the regulations and the Manual’s instructions may well have “front-desked” the applications of class members who disclosed the circumstances of their trips outside the United States, and affidavits on file in the LULAC case represent that they did exactly that. 23 See n. 26, infra. [509 U.S. 43, 63]

As respondents argue, see Brief for Respondents 17, n. 23, a class member whose application was “front-desked” would have felt the effects of the “advance parole” or “facially valid document” regulation in a particularly concrete manner, for his application for legalization would have been blocked then and there; his challenge to the regulation should not fail for lack of ripeness. Front-desking would also have a further, and untoward, consequence for jurisdictional purposes, for it would effectively exclude an applicant from access even to the limited administrative and judicial review procedures established by the Reform Act. He would have no formal denial to appeal to the Associate Commissioner for Examinations, nor would he have an opportunity to build an administrative record on which judicial review might be based. 24 Hence, to construe 1255a(f)(1) to bar district court jurisdiction over his challenge, we would have to impute to Congress an intent to preclude judicial review of the legality of INS action entirely under those circumstances. As we stated recently in McNary, however, there is a [509 U.S. 43, 64] “well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action,” McNary, 498 U.S., at 496 ; and we will accordingly find an intent to preclude such review only if presented with “`clear and convincing evidence,'” Abbott Laboratories, 387 U.S., at 141 (quoting Rusk v. Cort, 369 U.S. 367, 379 -380 (1962)). See generally Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 -673 (1986) (discussing the presumption in favor of judicial review).

There is no such clear and convincing evidence in the statute before us. Although the phrase “a determination respecting an application for adjustment of status” could conceivably encompass a Legalization Assistant’s refusal to accept the application for filing at the front desk of a Legalization Office, nothing in the statute suggests, let alone demonstrates, that Congress was using “determination” in such an extended and informal sense. Indeed, at least one related statutory provision suggests just the opposite. Section 1255a(f)(3)(B) limits administrative appellate review to “the administrative record established at the time of the determination on the application”; because there obviously can be no administrative record in the case of a front-desked application, the term “determination” is best read to exclude front-desking. Thus, just as we avoided an interpretation of 8 U.S.C. 1160(e) in McNary that would have amounted to “the practical equivalent of a total denial of judicial review of generic constitutional and statutory claims,” McNary, supra, at 497, so here we avoid an interpretation of 1255a(f)(1) that would bar front-desked applicants from ever obtaining judicial review of the regulations that rendered them ineligible for legalization.

Unfortunately, however, neither the CSS record nor the LULAC record contains evidence that particular class members were actually subjected to front-desking. None of the named individual plaintiffs in either case alleges that he or [509 U.S. 43, 65] she was front-desked, 25 and while a number of affidavits in the LULAC record contain the testimony of immigration attorneys and employees of interested organizations that the INS has “refused,” “rejected,” or “den[ied] individuals the right to file” applications, 26 the testimony is limited to such general assertions; none of the affiants refers to any specific incident that we can identify as an instance of front-desking. 27 [509 U.S. 43, 66]

This lack of evidence precludes us from resolving the jurisdictional issue here, because, on the facts before us, the front-desking of a particular class member is not only sufficient to make his legal claims ripe, but necessary to do so. As the case has been presented to us, there seems to be no reliable way of determining whether a particular class member, had he applied at all (which, we assume, he did not), would have applied in a manner that would have subjected him to front-desking. As of October 16, 1987, the INS had certified 977 Qualified Designated Entities which could have aided class members in preparing applications that would not have been front-desked, see 52 Fed.Reg. 44812 (1987); n. 21, supra, and there is no prior history of application behavior on the basis of which we could predict who would have applied without Qualified Designated Entity assistance, and therefore been front-desked. Hence, we cannot say that the mere existence of a front-desking policy involved a “concrete application” of the invalid regulations to those class members who were not actually front-desked. 28 Because only those class members (if any) who were front-desked have ripe claims over which the District Courts should exercise jurisdiction, we must vacate the judgment of the Court of Appeals, and remand with directions to remand to the respective [509 U.S. 43, 67] District Courts for proceedings to determine which class members were front-desked.

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