Reno v. Catholic Social Services, Inc. Page 2

Reno v. Catholic Social Services, Inc. general information

Media for Reno v. Catholic Social Services, Inc.

Audio Transcription for Oral Argument - January 11, 1993 in Reno v. Catholic Social Services, Inc.

Ronald J. Mann:

The claims at issue in McNary were claims that could not have been reviewed in the court of appeals on the administrative record, but the fundamental claim was that INS was deciding... denying applications on the basis of evidence that was not in the record.

And so if the court of appeals had reviewed the administrative record it could not have ascertained whether or not the claim was correct and would not have been able to evaluate it.

And if that was the only remedy that the aliens had, they really would not have had effective judicial review.

By contrast, the claims here are that INS would have improperly denied applications for legalization, and the only thing that the court of appeals needs to know to evaluate that claim is the core information that's required to determine whether he's statutorily eligible.

And that information would be in the administrative record.

That's the information that's put on the form I-687, the application that the alien files.

He would file the application.

It would be denied, probably denied by the LAU.

The court of appeals would have that application and it would be perfectly capable of making its own decision as to whether or not those facts were sufficient to justify relief under the act.

Sandra Day O'Connor:

Well, I guess the operative language in section 1255 (a)(f) is a determination respecting an application.

Ronald J. Mann:

Yes, ma'am.

Sandra Day O'Connor:

And it certainly is arguable, anyway, that that means a determination that the INS itself could make.

Ronald J. Mann:

That's correct, and in our view the determination in this... the determination in this case is the regulation which INS made.

INS determined that certain things had to be true for an alien to be entitled to relief.

The determination relates to an application of a member of the respondent class because the only claim that the respondents can make is that if they filed an application it would have been denied, or that they did file an application and that they expected that it would be denied.

So because they're challenging its effect on them it's a determination respecting each of their individual applications, and that's how we read the statutory language to apply.

David H. Souter:

Mr. Mann, is there a... is there a different problem with impossibility as a result of the INS's practice... I think it was called front desking, that is to say simply not accepting the applications of those that they were satisfied under the regs would fail?

So that as a matter fact, given the front desking procedure, there is... there was no way that a given applicant could get his application to the point of a final determination, subject to review.

Ronald J. Mann:

Now that goes to the second question, the remedial question, but--

David H. Souter:

It does go to that.

Ronald J. Mann:

--Yes.

David H. Souter:

Doesn't it also go to the question of the appropriateness of applying McNary here on... in effect on an impossibility of review theory otherwise?

Ronald J. Mann:

No, we don't really think it does.

In our view the jurisdictional question is... this case was filed in November of 1986 several months before the application period started.

The district court is presented with a complaint and the question is whether it has jurisdiction over that complaint.

Now, at that time there were 18 months, more or less, maybe 17 months left before the application period was going to expire.

And we don't think that there's any way that the district court could have determined at that time that there was no way these people could file, particularly if you look at the... so I don't think that's really relevant to the jurisdictional question.

The jurisdictional question, it seems to me, turns on whether this is a... whether the determination they challenged, which is the regulation, is a determination respecting an application in light of the way that this Court interpreted that phrase in McNary.

Now--

David H. Souter:

With respect to the possible application or, in your view, extension of McNary, in McNary what if the... what if the... what if the action in this case had been filed after the 1-year period began and the period... and the practice of front desking was known and, in fact, was... was pleaded, would that affect the appropriateness of a McNary kind of jurisdictional determination?