Orquera v. Ashcroft ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ARIEL OSVALOD ORQUERA; ALDO 
AGUSTIN ORQUERA; GLADIS MABEL
ORQUERA; ARIADNA BRENDA
ORQUERA,
Petitioners,  No. 02-1327
v.
JOHN ASHCROFT, Attorney General,
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals.
(A91-207-820, A91-207-822, A91-207-823, A91-207-824)
Argued: September 23, 2003
Decided: December 1, 2003
Before MOTZ, KING, and SHEDD, Circuit Judges.
Petition for review denied by published opinion. Judge Motz wrote
the opinion, in which Judge King and Judge Shedd joined.
COUNSEL
ARGUED: Rafael A. Geigel-Vassallo, SALGADO & ASSO-
CIATES, Washington, D.C., for Petitioners. M. Jocelyn Lopez
Wright, Senior Litigation Counsel, Office of Immigration Litigation,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Robert D. McCal-
2 ORQUERA v. ASHCROFT
lum, Jr., Assistant Attorney General, David V. Bernal, Assistant
Director, Andrew C. MacLachlan, Office of Immigration Litigation,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
This case involves a question of first impression: do aliens denied
temporary resident status under the amnesty provisions of the Immi-
gration Reform and Control Act (IRCA), 8 U.S.C. § 1255a (2000),
retain a right to judicial review of that decision given the amendments
to that statute by the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009,
546-724 (1996). We conclude that the amended statute does preserve
a right to limited judicial review and therefore, when reviewing a final
deportation order, the courts of appeal continue to have jurisdiction
to review an amnesty denial. Possessing jurisdiction, we find that the
Immigration and Naturalization Service (INS) committed no error in
denying the applications for amnesty and ordering the removals at
issue in this case. Accordingly, we deny the petition for review.
I.
In May 1988, Aldo A. Orquera, his wife Gladis M. Orquera, and
their adult children, Ariel O. Orquera and Ariadna B. Orquera ("the
Orqueras"), each filed applications to become lawful temporary resi-
dents under IRCA. That statute provides for amnesty and adjustment
to lawful status for an applicant who demonstrates that he has resided
continuously in the United States in unlawful status since January 1,
1982, see 8 U.S.C. § 1255a(a)(2)(A), has been physically present in
the United States continuously since November 6, 1986, see
§ 1255a(a)(3)(A), and is otherwise admissible as an immigrant, see
§ 1255a(a)(4). Ariadna Orquera applied "as an alien who illegally
entered the U.S. prior to January 1, 1982"; the others applied as aliens
who entered the United States as nonimmigrants prior to January 1,
1982, and whose authorized stay expired before such date or whose
unlawful status was known to the Government as of January 1, 1982.
ORQUERA v. ASHCROFT 3
In their applications for amnesty, the Orqueras submitted that they
entered the United States using B-2 visitor visas issued in 1980 that
expired in 1981, and that they were therefore unlawfully present in
the United States on January 1, 1982. The INS, however, discovered
some evidence that the Orqueras, in addition to their B-2 visas, had
been accredited, as consular employees or family of such employees,
with A-2 visas. The INS accordingly requested that the Orqueras sub-
mit evidence that they were not legally present as consular employees
or family with A-2 visas.
In 1990, finding their additional submissions lacking, the Director
of the INS Regional Processing Center denied the Orqueras’ applica-
tions for amnesty. The Orqueras appealed the Director’s denials on a
number of grounds.
In 1996, the INS’s Legalization Appeals Unit ("LAU") affirmed
the denials. Although the decision as to each application varied
slightly, in essence the LAU concluded that Aldo Orquera had been
granted A-2 nonimmigrant status, and his family received derivative
A-2 status as a result of his employment by a foreign government.
The LAU found that Mr. Orquera had not demonstrated that he
"ceased to be recognized by the Department of State as being entitled
to such [A-2] classification prior to January 1, 1982," or that his qual-
ifying employment had terminated by that date, and that he, and by
extension his family, had therefore failed to show that they were in
"unlawful status," as required for eligibility under the amnesty pro-
gram.
On April 13, 1998, the Orqueras requested that the INS commence
removal proceedings against them. In their letter to the INS, the Orqu-
eras’ attorney explained that they sought commencement of removal
proceedings to challenge the denial of their applications for amnesty.
Under § 1255a(f)(4)(A), an alien may obtain judicial review of a
denial of an application for amnesty only in review of a final deporta-
tion order; thus, after the INS denied their applications for amnesty,
the Orqueras could not immediately seek judicial review, but instead
had to wait until they were subject to a removal order. Reno v. Catho-
lic Soc. Serv., 509 U.S. 43, 54-55 (1993).
On June 15, 1998, the INS commenced removal proceedings
against the Orqueras. On November 9, 1998, the Orqueras appeared
4 ORQUERA v. ASHCROFT
before an immigration judge; they stated that they sought "to appeal
the legalization [amnesty] decision knowing that this Court does not
have jurisdiction over it, but nevertheless, having to come here before
you to be able to proceed to the next level at which we can have the
case reviewed on the merits." The Orqueras admitted that they were
removable and the judge entered orders of voluntary departure and
removal.
The Orqueras then appealed the orders of removal to the Board of
Immigration Appeals ("BIA"). Although the Orqueras recognized that
the BIA did not have jurisdiction to review the denials of their appli-
cations for amnesty, they submitted a brief to the BIA that argued the
merits of their amnesty claim "in order to supplement the record for
the Fourth Circuit Court of Appeals as this court has jurisdiction to
review these applications." The Orqueras argued that Aldo Orquera
had accepted unauthorized employment in violation of the conditions
of his A-2 visa prior to January 1, 1982, that the Government knew
of this unauthorized employment, and that the Orqueras were there-
fore in unlawful status as required by the amnesty eligibility rules.
The BIA dismissed the Orqueras’ appeal, finding it had no jurisdic-
tion to "review the propriety of the Service’s decision to deny . . . an
alien’s temporary resident status" and ordered the Orqueras to depart
the United States voluntarily within 30 days from the date of the
order, February 26, 2002.
The Orqueras then petitioned for review of their orders of removal
to this court. Once again, they contend that INS should have granted
them amnesty in May 1988 and that, if they had been granted
amnesty, they would now be lawfully present in the United States and
so not subject to removal. Our decision whether to uphold the orders
of removal and deny the petition for review accordingly turns on
whether INS properly denied their applications for amnesty. Before
addressing this question, however, we must determine if we have
jurisdiction to consider this appeal.
II.
Separate provisions of Title 8 govern our jurisdiction to review a
final order of removal generally and, in the course of such review, to
look back and review a prior amnesty denial: § 1252 provides us with
ORQUERA v. ASHCROFT 5
jurisdiction to review a final order of removal and § 1255a(f)(4)(A)
provides us with jurisdiction to review the denial of amnesty in cer-
tain limited circumstances. The parties agree that § 1255a(f)(4)(A)
empowers us with jurisdiction to review the amnesty denials in this
case. The parties cannot, however, create subject matter jurisdiction
or waive its absence. See Ins. Corp. of Ireland, Ltd. v. Compagnie des
Bauxites de Gainee, 456 U.S. 694, 702 (1982) ("[N]o action of the
parties can confer subject matter jurisdiction upon a federal court.
Thus the consent of the parties is irrelevant."). We therefore under-
take an independent analysis of our jurisdiction to review the amnesty
denials at issue here.
IRCA provides at the outset of its judicial review subsection that
"[t]here shall be no administrative or judicial review of a determina-
tion respecting an application for adjustment of status under this sec-
tion except in accordance with this subsection." § 1255a(f)(1). Thus,
a court can review the denial of an application for amnesty only as
provided in subsequent jurisdictional provisions set forth in IRCA at
§ 1255a(f)(4)(A)-(C).
Section 1255a(f)(4)(A) governs judicial review of individual
amnesty denials. From the time of the enactment of IRCA in 1986
until its 1996 amendment by IIRIRA, § 1255a(f)(4)(A) provided:
Limitation to review of deportation. There shall be judicial
review of such denial only in the judicial review of an order
of deportation under section 1105a of this title.
8 U.S.C. § 1255a(f)(4)(A) (1994) (prior to IIRIRA amendment)
(emphasis added). Section 1105a set forth the scope of judicial review
of orders of deportation generally — "the procedure prescribed by,
and all the provisions of chapter 158 of Title 28 [providing for appel-
late review of final agency orders] shall apply to, and shall be the sole
and exclusive procedure for, the judicial review of all final orders of
deportation."
Prior to the 1996 IIRIRA amendment, a significant body of case
law considered the interplay between the judicial review provisions
of § 1255a(f)(4)(A) and § 1105a (what is often referred to as the "ex-
clusive review scheme" of IRCA). Ultimately the Supreme Court held
6 ORQUERA v. ASHCROFT
that these judicial review provisions generally mean that (1) district
courts do retain jurisdiction to hear challenges to the processes and
procedures adopted by the INS in administering IRCA, provided that
such review does not encompass the denial of any individual applica-
tion and that the claims are ripe but (2) courts of appeal have exclu-
sive jurisdiction to review amnesty denials in individual cases in the
course of review of a final order of deportation. See, e.g., McNary v.
Hatian Refugee Ctr., 498 U.S. 479 (1991); Catholic Soc. Serv., 509
U.S. 43.
In 1996, with its enactment of IIRIRA, Congress overhauled
numerous sections of the Immigration and Naturalization Act, 8
U.S.C. § 1101 et seq., and insulated from judicial review many of the
Executive’s discretionary decisions.1 IIRIRA repealed § 1105a and
replaced it with § 1252 instituting new, and more restrictive, judicial
review provisions governing review of orders of deportation. See
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,
475 (1999) ("Congress passed IIRIRA which, inter alia, repealed the
old judicial-review scheme set forth in § 1105a and instituted a new
(and significantly more restrictive) one in 8 U.S.C. § 1252."). In
doing so, Congress left the reference to § 1105a in § 1255a(f)(4)(A)
in place, but added the phrase emphasized below:
1
Congress passed IIRIRA on September 30, 1996, but ultimately
denominated April 1, 1997, as the effective date of both the amendment
repealing § 1105a and replacing it with § 1252 and the amendment
adding the parenthetical language to § 1255a(f)(4)(A). See IIRIRA
§ 309(a) and note to 8 U.S.C. § 1101; IIRIRA § 306(c)(1) (as amended
by Pub. L. No. 104-302, 110 Stat. 3656 (1996)) and note to 8 U.S.C.
§ 1252. Additionally, these amendments (and most other IIRIRA amend-
ments) do not apply to individuals in deportation proceedings before
April 1, 1997. See IIRIRA § 309(c)(A)-(B) and note to 8 U.S.C. § 1101("Subject to the succeeding provisions of this subsection, in the case of
an alien who is in exclusion or deportation proceedings before the title
III-A effective date — (A) the amendments made by this subtitle shall
not apply, and (B) the proceedings (including judicial review thereof)
shall continue to be conducted without regard to such amendments.").
The INS commenced removal proceedings against the Orqueras on June
15, 1998, and entered final orders of removal against them on February
26, 2002; therefore § 1252 governs judicial review of the removal orders
and § 1255a(f)(4)(A) (as amended by IIRIRA) governs judicial review of
the amnesty denials in this case.
ORQUERA v. ASHCROFT 7
Limitation to review of deportation. There shall be judicial
review of such denial only in the judicial review of an order
of deportation under section 1105a of this title (as in effect
before October 1, 1996).
§ 1255a(f)(4)(A) (emphasis added). We must determine whether
courts of appeal continue to have jurisdiction under § 1255a(f)(4)(A)
to review amnesty denials when § 1252, and not § 1105a, governs
review of the underlying order of deportation.
We review questions of statutory construction de novo. Ramey v.
Director, Office of Workers’ Compensation Programs, 326 F.3d 474,
476 (4th Cir. 2003). See generally Salve Regina College v. Russell,
499 U.S. 225, 231-33 (1991) (discussing de novo review of state stat-
ute). The "first step" of statutory interpretation "is to determine
whether the language at issue has a plain and unambiguous meaning"
by looking to "the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole."
Robinson v. Shell Oil Co., 519 U.S. 337, 340-41 (1997).
Turning to the language of § 1255a(f)(4)(A), two possible interpre-
tations emerge upon examination of the statutory text. The first of
these would preserve forward-going judicial review (the "status quo
interpretation") and the second would bar forward-going judicial
review (the "jurisdiction-stripping interpretation").
The parties adopt the status quo interpretation and contend that by
preserving the reference to § 1105a and adding the language "as in
effect before October 1, 1996," Congress’ amendment to
§ 1255a(f)(4)(A) in IIRIRA resurrected § 1105a by reference, thereby
maintaining forward-going judicial review consistent with the "exclu-
sive review" scheme previously set forth in § 1255a(f) and § 1105a.2
The parties argue that the amendment to § 1255a(f)(4)(A) adding the
2
Because our sole concern is whether we have jurisdiction, we need
not and do not consider the possible incorporation of other, "appropriate
or applicable" portions of repealed § 1105a. 1A Norman J. Singer, Stat-
utes and Statutory Construction § 22.25, at 335-36 (6th ed. 2002)
("[S]tatutes of ‘specific reference’ incorporate only those parts of the
statute referred to that are appropriate or applicable.").
8 ORQUERA v. ASHCROFT
language "as in effect before October 1, 1996" functions to freeze in
place the previously existing scope of judicial review and does not
require that the order of deportation being considered actually be sub-
ject to review "under" § 1105a (i.e., the order of deportation does not
have to arise from deportation proceedings begun before April 1,
1997, such that it is actually governed by the old judicial review pro-
visions of § 1105a).
In § 1255(f)(4)(A), the phrase "as in effect before" can reasonably
be read in conjunction with "under" in this manner.3 Legislators fre-
quently employ this phrasing to preserve through incorporation by
reference a concept, definition, or specific analytic structure set out
in a repealed or pre-amendment statute. See, e.g., 26 U.S.C.
§ 951(a)(1)(A)(ii) (2000) ("If a foreign corporation is a controlled for-
eign corporation . . . every person who is a United States shareholder
. . . shall include in his gross income . . . (A) the sum of . . . (ii) his
pro rata share (determined under section 955(a)(3) as in effect before
the enactment of the Tax Reduction Act of 1975) of the corporation’s
3
In fact, several cases appear to have read the statute this way.
Although no case has directly considered the meaning of
§ 1255a(f)(4)(A) after its amendment by IIRIRA, the Ninth Circuit has
repeatedly assumed that the statute continues to provide for judicial
review of individual amnesty denials. See Immigrant Assistance Project
v. I.N.S., 306 F.3d 842, 862 (9th Cir. 2002) (observing, in upholding dis-
trict court jurisdiction over class action, that "[a]s a rule, such appeals of
deportation orders must be brought individually before a Circuit Court of
Appeals, rather than — as here — as a class action before a District
Court. See 8 U.S.C. § 1105a (repealed by Illegal Immigration Reform
and Immigrant Responsibility of 1996).") (emphasis in original); Ortiz v.
Meissner, 179 F.3d 718, 719-20 n.1, 720-21, 724 (9th Cir. 1999)
(upholding district court’s exercise of jurisdiction and its ruling that work
authorization must be extended only during the pendency of administra-
tive review of amnesty application and not during the pendency of judi-
cial review of a final order of deportation and citing amended
§ 1255a(f)(4)(A)); Proyecto San Pablo v. INS, 189 F.3d 1130, 1136 (9th
Cir. 1999) (upholding district court jurisdiction over class action proce-
dural challenges to INS policies in administering IRCA and citing to
§ 1255a(f)(4)(A) and "§ 1105a (as in effect before Oct. 1, 1996)" for the
general principle that "[j]udicial review of orders of deportation is con-
fined to the courts of appeals.").
ORQUERA v. ASHCROFT 9
previously excluded subpart F income") (emphasis added); 26 U.S.C.
§ 2010(b) (2000) ("The amount of the credit allowable under subsec-
tion (a) shall be reduced by an amount equal to 20 percent of the
aggregate amount allowed as a specific exemption under § 2521 (as
in effect before its repeal by the Tax Reform Act of 1976) with respect
to gifts made by the decedent after September 8, 1976.") (emphasis
added).
Under the status quo interpretation, therefore, the text of
§ 1255a(f)(4)(A) employs "as in effect before" and "under" to place
two limits on review of an amnesty decision. Namely, section
1255a(f)(4)(A) provides that courts can review an amnesty decision
only: (1) in the context of an order of deportation, and (2) to the
extent that § 1105a, preserved by the "as in effect" language, permits
review of an order of deportation.
However, the phrase "as in effect" employed in conjunction with
"under" can also be used to indicate that an order must actually arise
under or be subject to the referenced statute section. E.g., 8 U.S.C.
§ 1229b(b)(4)(A) ("The Attorney General shall grant parole under
section 1182(d)(5) of this title to any alien who is a — (i) child of an
alien granted relief under section 1229b(b)(2) or section 1254(a)(3)
of this title (as in effect before the title III-A effective date in section
309 of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996)) (emphasis added). This suggests another possible inter-
pretation of § 1255a(f)(f)(a) — the jurisdiction-stripping interpreta-
tion — in which use of the phrasing "under" and "as in effect before"
would function to refer the reader back to orders of deportation actu-
ally subject to judicial review set forth in the pre-IIRIRA judicial
review section (§ 1105a).
Section 1255a(f)(4)(A) provides that there shall be judicial review
of an amnesty decision "only in the judicial review of an order of
deportation under section 1105a of this title (as in effect before Octo-
ber 1, 1996)." (emphasis added). Because § 1105a provides a scheme
for judicial review, the specification in the text that review is avail-
able only as to an order of deportation "under" § 1105a could indicate
that a court must, in the first instance, be reviewing an order of depor-
tation that is subject to judicial review pursuant to the provisions of
§ 1105a. See generally Webster’s Third New International Dictionary
10 ORQUERA v. ASHCROFT
2487 (3d ed. 1993) (defining "under" as meaning: "in or into a condi-
tion of subjection, regulation, or subordination."); see also Ardestani
v. INS, 502 U.S. 129, 135 (finding that "the most natural reading" of
the Equal Access to Justice Act, which defines adversary adjudica-
tions as adjudications "under section 554" of the Administrative Pro-
cedure Act, is that "proceedings must be ‘subject to’ or ‘governed by’
§ 554" to fall within the definition of adversary adjudication) (empha-
sis added).
Pursuant to the jurisdiction-stripping interpretation, § 1255a(f)
(4)(A) would be read to mean that courts can review amnesty denials
only when an individual is subject to an order of deportation, judicial
review of which is actually governed by § 1105a; if an alien is not
subject to an order of deportation actually subject to review pursuant
to § 1105a, then § 1255a(f)(4)(A) does not provide for judicial review
of that alien’s amnesty denial. This would effectively preclude
forward-going judicial review under § 1255a(f)(4)(A).
Confronted with two plausible readings of § 1255a(f)(4)(A), we
examine the statutory text in its broader context to discern whether an
interpretation of that text "makes sense of the statutory scheme as a
whole." American-Arab, 525 U.S. at 487 (interpreting the meaning of
§ 1252(g) of IIRIRA). When we engage in this examination, it
becomes clear that the jurisdiction-stripping interpretation, which
would permit no forward-going judicial review of amnesty denials,
creates two problems with respect to the broader statutory scheme.
First, interpreting § 1255a(f)(4)(A) to preclude forward-going judi-
cial review would render the phrase "as in effect before October 1,
1996," highly curious, and quite possibly surplusage. This is so
because neither that phrase (an amending parenthetical to
§ 1255a(f)(4)(A)) nor the repeal of § 1105a applies to aliens against
whom the INS commenced deportation proceedings before April 1,
1997. See IIRIRA § 309(c)(1)(A) (providing that "the amendments
made by this subtitle shall not apply" to "an alien who is in . . . depor-
tation proceedings before the title III-A effective date"). Since the
amending parenthetical applies only to aliens whose deportation pro-
ceedings commenced after April 1, 1997, it applies only to those
aliens whose orders of deportation are subject to § 1252. See IIRIRA
§ 309(c) and note to 8 U.S.C. § 1101. Because the amending paren-
ORQUERA v. ASHCROFT 11
thetical does not apply to any individual subject to an order of depor-
tation governed by § 1105a, it does not provide continued judicial
review of amnesty denials to any aliens.
Under the jurisdiction-stripping interpretation, § 1255a(f)(4)(A)’s
sole function is to establish the rule that only individuals subject to
orders of deportation reviewable pursuant to § 1105a can obtain judi-
cial review of amnesty denials. However, the addition of the amend-
ing parenthetical does not in any way change, limit, or further this
result. Indeed, the statute would have been more clear that review was
only available to such individuals had Congress never added the par-
enthetical. In sum, under the jurisdiction-stripping interpretation, the
addition of the amending parenthetical does not seem to have any
function. In light of judicial reluctance to read a statute to create sur-
plusage, Ratzlaf v. United States, 510 U.S. 135, 141 (1994), and our
charge to "make[ ] sense" of the statutory scheme as a whole,
American-Arab, 525 U.S. at 487, this argues against adopting the
jurisdiction-stripping interpretation.4
Second, interpreting § 1255a(f)(4)(A) to bar forward-going review
of amnesty denials would significantly negate a portion of a related
statute enacted by Congress in 2000. See Legal Immigration Family
Equity ("LIFE") Act, Pub. L. No. 106-553, 114 Stat. 2762A, 149
§ 1104(f) (2000). The LIFE Act permits qualified members of three
class action suits to apply anew (or in some cases for the first time)
for amnesty. Id. § 1104.5 The statute provides that "the provisions of
4
We note that elsewhere in IIRIRA when Congress limited judicial
review, it did so expressly. See, e.g., § 1252(a)(2)(B) ("Notwithstanding
any other provision of law, no court shall have jurisdiction to review . . .
any judgment regarding the granting of relief under section 1182(h),
1182(i), 1229b, 1229c, or 1255 of this title. . . ."). Given this sort of
explicit limitation, we find it hard to imagine that Congress would have
undertaken to bar jurisdiction in § 1255a(f)(4)(A) in the circuitous
jurisdiction-stripping manner.
5
In these cases, litigants challenged INS practices and policies in
applying IRCA that they contended had resulted in the litigants’ applica-
tions for amnesty being wrongly denied, or wrongly rejected prior to
consideration on the merits, or litigants being dissuaded from applying
in the first instance. See LIFE Act, § 1104(b)(1) and LIFE Act Amend-
12 ORQUERA v. ASHCROFT
subparagraphs (A) and (B) of section 245A(f)(4) of the Immigration
and Nationality Act (8 U.S.C. 1255a(f)(4)) shall apply to administra-
tive or judicial review of a determination under this section or of a
determination respecting an application for adjustment of status under
section 245A of the Immigration and Nationality Act filed pursuant
to this section." Id. § 1104(f).
We recognize the possibility that in certain instances a qualified
class member may be subject to deportation proceedings commenced
before April 1, 1997, and that review of that class member’s deporta-
tion order would continue to be governed by § 1105a such that the
class member would still have access to § 1255a(f)(4)(A) review
under the jurisdiction-stripping interpretation. But Congress’ incorpo-
ration by reference of § 1255a(f)(4)(A) surely demonstrates a belief
that § 1255a(f)(4)(A) would provide forward-going judicial review
for all class members covered by the LIFE Act and the expectation
appears to have been that a good number of LIFE Act applicants were
not subject to deportation proceedings beginning before April 1,
1997. Otherwise, there would seem to be little reason for Congress to
expressly incorporate the confidentiality provision of § 1255a — a
provision designed primarily to protect aliens not yet in deportation
proceedings — into the LIFE Act. The confidentiality provision evi-
dences obvious concern for class members whose illegal status was
still unknown to the INS, and who were not, therefore, already subject
to orders of deportation.6
ments, Pub. L. No. 106-554, 114 Stat. 2763A, 324 § 1503(a)(3) (2000)
(incorporating Catholic Soc. Serv., Inc. v. Meese, vacated sub nom. Cath-
olic Soc. Serv., Inc., 509 U.S. 43; League of United Latin Am. Citizens
v. INS, vacated sub nom. Catholic Soc. Serv., Inc., 509 U.S. 43; Zam-
brano v. INS, vacated sub nom. INS v. Zambrano, 509 U.S. 918 (1993)).
6
The confidentiality provision set forth at § 1255a(c)(5)(A)-(E) pre-
vents information provided by an individual in his amnesty application
from being used to identify the applicant and begin deportation proceed-
ings. Proyecto San Pablo, 189 F.3d at 1134-35 n.1 ("IRCA expressly for-
bids the INS from using the legalization process to lure illegal aliens into
its control for the purposes of deportation. In order to encourage aliens
to use the IRCA process, a firewall of sorts is erected between IRCA
applications and deportation proceedings. The INS must learn about an
alien’s unlawful presence independently of any legalization application
in order to initiate deportation proceedings.").
ORQUERA v. ASHCROFT 13
Put simply, in 2000 Congress incorporated § 1255a(f)(4)(A) into
the LIFE Act as a mechanism for providing judicial review for all
individuals qualified to proceed through the amnesty process under
that Act. Congress, therefore, understood § 1255a(f)(4)(A) to provide
for forward-going judicial review of amnesty denials, and this under-
standing is "entitled to significant weight." Seatrain Shipbuilding
Corp. v. Shell Oil Co., 444 U.S. 572, 596 (1980) (explaining that,
although views of a subsequent Congress as to the meaning of a prior-
enacted statute "cannot overrule the unmistakable intent of the enact-
ing one," they are "entitled to significant weight."). Furthermore,
"[t]he general rule is that prior and later statutes dealing with the same
subject matter . . . should as far as reasonably possible be construed
in harmony with each other so as to allow both to stand and to give
force and effect to each." Singer, § 46.05, at 175-76. The jurisdiction-
stripping interpretation would create a discontinuity between IRCA
and the LIFE Act; thus, it is disfavored.
For these reasons, we believe that although when viewed narrowly
both interpretations of § 1255a(f)(4)(A) are plausible, the jurisdiction-
stripping interpretation does not make sense when viewed in light of
the statutory scheme as a whole. The status quo interpretation, how-
ever, fits comfortably within the broader statutory landscape. This,
without more, would likely tip the scales in favor of finding that
§ 1255a(f)(4)(A) provides for forward-going judicial review. See
Robinson, 519 U.S. at 341 (when analyzing statutory language, courts
should "reference . . . the language itself, the specific context in which
that language is used, and the broader context of the statute as a
whole.") (emphasis added).
The scales are not, however, weighted evenly in the present case.
We conduct our analysis here subject to the "well-settled presumption
favoring interpretations of statutes that allow judicial review of
administrative action . . . ." Haitian Refugee Ctr., 498 U.S. at 496; see
also INS v. St.Cyr, 533 U.S. 289, 298 (2001) ("For the INS to prevail
it must overcome . . . the strong presumption in favor of judicial
review of administrative action. . . ."); Catholic Soc. Serv., 509 U.S.
at 63-4 (declining to "impute to Congress an intent to preclude judi-
cial review of the legality of INS action [in an amnesty proceeding]
entirely" because "we will . . . find an intent to preclude such [judicial
review of administrative action] only if presented with clear and con-
14 ORQUERA v. ASHCROFT
vincing evidence.") (internal quotations marks and citations omitted).
We perceive no clear and convincing evidence that Congress intended
to preclude judicial review of forward-going amnesty determinations.
To the contrary, all evidence suggests that Congress added the paren-
thetical amendment to § 1255a(f)(4)(A) to ensure continued judicial
review.
Finally, we note that this conclusion avoids possible retroactivity
concerns caused by stripping individuals of their "latent right" to judi-
cial review, see St. Cyr, 533 U.S. at 314-26, without running counter
to the intent of IIRIRA. Although IIRIRA did limit judicial review in
many respects, the "theme of the legislation" was protecting the Attor-
ney General’s discretionary decisions from judicial review.
American-Arab, 525 U.S. at 486 ("[M]any provisions of IIRIRA are
aimed at protecting the Executive’s discretion from the courts —
indeed, that can fairly be said to be the theme of the legislation.").
Relief under IRCA is mandatory, not discretionary. The statute pro-
vides that the "Attorney General shall adjust the status of an alien"
if the alien meets the statutory requirements. § 1255a(a) (emphasis
added). Thus, our holding that § 1255a(f)(4)(A) provides judicial
review going forward does not conflict with IIRIRA’s "theme."
For the above reasons, we conclude that courts of appeal continue
to have jurisdiction to review amnesty determinations in individual
cases, even when that review is sought pursuant to an order of depor-
tation subject to § 1252. We therefore turn to address the merits.
III.
The Orqueras challenge the determination that they failed to show
that they were in "unlawful status" because they were lawfully present
in the United States pursuant to A-2 visas. Mr. Orquera’s family
comes under the umbrella coverage of his status as an A-2 visa holder
and we therefore focus on the treatment of his application.
A.
Principally, the Orqueras contend that the INS "erred" in interpret-
ing its regulations to deny their applications for amnesty. Congress
ORQUERA v. ASHCROFT 15
has circumscribed our review of denials of amnesty applications, pro-
viding that:
[J]udicial review [of an amnesty denial] shall be based
solely upon the administrative record established at the time
of the review by the appellate authority and the findings of
fact and determinations contained in such record shall be
conclusive unless the applicant can establish abuse of dis-
cretion or that the findings are directly contrary to clear and
convincing facts contained in the record considered as a
whole.
8 U.S.C. § 1255(f)(4)(B).
The "appellate authority" in this case is the LAU. Moosa v. INS,
171 F.3d 994, 1004 (5th Cir. 1999) ("We review the decision by the
appellate authority (i.e., the LAU), not that of the initial adjudicatory
entity (i.e., the Legalization Director)."). We must regard the LAU’s
"findings of fact and determinations" as "conclusive," unless the
Orqueras establish either that the LAU abused its discretion, or that
those findings are "directly contrary to clear and convincing facts
contained in the record considered as a whole." § 1255(f)(4)(B).
The LAU concluded that, under the relevant regulation, an A-2 visa
holder was not in "unlawful status" as of January 1, 1982, unless prior
to that date the employment underlying the issuance of the A-2 visa
had terminated, or the Secretary of State had withdrawn recognition
of the A-2 visa. The LAU relied on INS regulations that identify "cat-
egories of aliens" eligible to file for amnesty, including:
A nonimmigrant who entered the United States for duration
of status ("D/S") is one of the following classes, A, A-1, A-
2, G, G-1, G-2, G-3 or G-4, whose qualifying employment
terminated or who ceased to be recognized by the Depart-
ment of State as being entitled to such classification prior
to January 1, 1982, and who has thereafter continued to
reside in the United States in unlawful status.
8 C.F.R. § 245a.2(b)(11) (1994) (emphasis added). Applying this reg-
ulation to Mr. Orquera, the LAU concluded that Mr. Orquera had
16 ORQUERA v. ASHCROFT
failed to show that he was eligible for amnesty because he had not
submitted evidence demonstrating that his qualifying employment ter-
minated or that the State Department had ceased to recognize his sta-
tus as an A-2 visa holder prior to January 1, 1982.
The Orqueras do not argue (or point to any evidence in the record
that would indicate) that as of January 1, 1982, Mr. Orquera did not
have an A-2 visa, that his qualifying employment terminated, or that
the Secretary of State no longer recognized his A-2 visa. Thus, the
LAU’s findings are certainly not "directly contrary to clear and con-
vincing facts contained in the record considered as a whole."
However, the Orqueras apparently do contend that the LAU abused
its discretion in "misinterpret[ing]" the controlling regulation,
§ 245a.2(b)(11). That argument must fail. The LAU reasoned that to
be eligible for amnesty under IRCA and § 245a.2(b)(11), an A-2 visa
holder must show that the Secretary of State no longer recognized the
A-2 visa or that the qualifying employment had terminated. The LAU
noted that the fact that an A-2 visa holder "violate[d] the terms of his
or her admission," did not change this calculus and so rendered irrele-
vant Mr. Orquera’s claim to have engaged in unauthorized employ-
ment.7 This interpretation of the regulation fully accords with: (1) the
plain language of § 245a.2(b)(11); (2) related statutory provisions
exempting A-2 visa holders from deportation, 8 U.S.C. §§ 1101, 1102
(1994); and (3) the INS’s practice in previous cases of not recogniz-
ing an A-2 visa holder who engaged in unauthorized employment to
be in "unlawful status" under IRCA. See, e.g., Ayuda, Inc. v. Thorn-
burgh, 948 F.2d 742, 759-60 (D.C. Cir. 1991), judgment vacated, 509
U.S. 916 (1993), on remand to, 7 F.3d 246 (D.C. Cir. 1993), cert.
denied, 513 U.S. 815 (1994). Accordingly, LAU did not abuse its dis-
cretion by "misinterpreting" controlling law.
7
The Orqueras also contend inter alia that because they obtained their
B-2 and A-2 visas improperly and violated the terms of each on grounds
in addition to engaging in unauthorized employment, they were in
unlawful status even though they technically remained under the aus-
pices of an A-2 visa. Assuming the Orqueras preserved these and related
arguments, we must reject them given our holding that the LAU did not
abuse its discretion in misinterpreting § 245a.2(b)(11) to preclude such
arguments.
ORQUERA v. ASHCROFT 17
B.
Alternatively, the Orqueras maintain that § 245a.2(b)(11) conflicts
with IRCA and violates the Constitution.8
As best we can understand the Orqueras’ statutory argument, they
contend that IRCA requires that the "unlawful status" prerequisite for
amnesty be determined in the same way for A-2 visa holders as for
other aliens. Because other groups of aliens attain "unlawful status"
as soon as they commit status violations, the Orqueras argue that
IRCA requires that A-2 visa holders also attain "unlawful status"
immediately upon committing a status violation. Thus, they maintain,
the regulation’s directive that A-2 visa holders enter unlawful status
making them eligible for amnesty only when their "qualifying
employment [is] terminated" or the Secretary of State "cease[s] to . . .
recognize[ ]" their visa, is at odds with IRCA. But IRCA does not
define "unlawful status" at all, let alone in a way contrary to
§ 243a.2(b)(ll). Accordingly, we must defer to the regulation if it is
a "permissible construction" or "reasonable interpretation" of IRCA.
See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 843-44 (1984); United States v. Deaton, 332 F.3d 698, 708-09
(4th Cir. 2003). Section 243a.2(b)(11) undoubtedly constitutes a rea-
sonable construction of IRCA.
In applying IRCA, the INS effectively indexes unlawful status to
susceptibility to imminent deportation. Thus, the INS generally con-
siders an applicant to be in unlawful status (and hence eligible under
8
We note that the Orqueras do not appear to have raised these argu-
ments before the LAU; ordinarily, failure to do so would constitute
waiver. See Farrokhi v. INS, 900 F.2d 697, 700 (4th Cir. 1990). How-
ever, it may be that the LAU has no power to invalidate an INS regula-
tion as unconstitutional or contrary to the authorizing statute. If that is
the case, failure to raise these arguments with the LAU would have been
futile. See Selgeka v. Carroll, 184 F.3d 337, 345 (4th Cir. 1999) ("[A]
claim is not waived when it would be futile to raise it."); see also John-
son v. Robeson, 415 U.S. 361, 366-74 (1974). Because these arguments
are in any event totally meritless we need not here resolve the difficult
waiver issue. See Farrokhi, 900 F.2d at 701 (following the same course
when faced with a similar waiver issue).
18 ORQUERA v. ASHCROFT
IRCA) if the applicant’s legal status has expired or otherwise termi-
nated, e.g., § 245a.2(b)(6), (12), or if the applicant has violated the
terms of his legal status such that he is "amenable to deportation pro-
ceedings." See generally Matter of H, 20 I. & N. Dec. 693 (1993)
(holding that individual may show unlawful status through failure to
satisfy address reporting requirements). Both of these conditions
(expiration or violation of status) place an individual in direct jeop-
ardy of deportation. See 8 U.S.C. § 1227(a)(1).
By contrast, Congress has statutorily directed that holders of A-2
visas, as "employees who have been accredited by a foreign govern-
ment . . . [and] accepted by the Secretary of State," cannot be
deported, except on certain security grounds, "so long as they con-
tinue in [that] nonimmigration class." See 8 U.S.C. § 1101(a)(15);
§ 1102. Thus, an A-2 visa holder faces imminent deportation only
after his qualifying employment terminates or the State Department
ceases to recognize his visa. Section 245a.2(b)(ll) properly mirrors the
Congressional intent to protect the lawful status of an A-2 visa holder
as long as he is in this "nonimmigrant class." Id.9 Additionally, not-
withstanding the Orqueras’ contention, see Brief of Petitioners at 32-
33, this arrangement entirely accords with IRCA’s legislative history.
That history indicates that it was the threat of imminent deportation
that legislators sought to alleviate by granting amnesty to aliens in
"unlawful status." See, e.g., H.R. REP. NO. 99-682, at 49 (1986),
reprinted in 1986 U.S.C.C.A.N. 5649, 5653 (observing that undocu-
mented aliens "live in fear, afraid to seek help when their rights are
violated, when they are victimized by criminals, employers or land-
lords or when they become ill.").
The Orqueras’ constitutional arguments fare no better. First, they
maintain that § 245a.2(b)(ll) violates the Equal Protection Clause. A
classification not involving a suspect class "must be upheld against
9
The Orqueras also seem to challenge as contrary to IRCA the applica-
tion of § 245a.2(b)(11) to low-level employees of a foreign government,
like Mr. Orquera. See Brief of Petitioners at 30. That argument ignores
Congress’ express directive extending special status to individuals in Mr.
Orquera’s position who are "employees who have been accredited by a
foreign government"; and to "attendants, servants, personal employees"
of such persons described. §§ 1101(a)(15)(A)(ii), (iii).
ORQUERA v. ASHCROFT 19
equal protection challenge if there is any reasonably conceivable state
of facts that could provide a rational basis for the classification." FCC
v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). As dis-
cussed above, there is certainly a rational basis for treating A-2 visa
holders differently under IRCA — violations of status by A-2 visa
holders do not place them in jeopardy of deportation while similar
violations by holders of other immigrant visas do place them in jeop-
ardy of deportation. To the extent that the Orqueras argue that there
is no rational basis for treating individuals who qualify for A-2 visas
differently in the first instance, we reject this argument as well. The
INS acted rationally in treating employees of foreign governments
present in the United States as a special group subject to rules
designed to accommodate foreign relations considerations.10
Finally, subjecting § 245a.2(b)(11) to the balancing test set forth in
Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the Orqueras argue
that the regulation denies them due process because their interests in
obtaining temporary resident status under IRCA outweigh the govern-
ment’s interest in treating A-2 visa holders differently. This conten-
tion turns the due process inquiry on its head. The INS must afford
amnesty "status applicants due process of law" in the processing of
their applications. Haitian Refugee Ctr., 498 U.S. at 491. However,
§ 245a.2(b)(11), as a reasonable construction of IRCA, sets forth the
extent of the Orqueras’ interest under that statute and cannot be said
to deny them due process merely because under its provisions they do
10
The Orqueras rely heavily on Immigration Assistance Project v. INS,
306 F.3d 842, 871-73 (9th Cir. 2002). There, the Ninth Circuit held that
the INS regulations allowing certain student visa holders to satisfy the
"known to the government" requirement of IRCA merely by overstaying
their student visas while mandating that other student visa holders exten-
sively document their violations of status to establish that they were
"known to the government," violated the Equal Protection Clause. The
IAP court could find no rational basis for requiring extensive documenta-
tion of some student visa status violations and not others. "Whether a stu-
dent has taken a required number of class hours can be just as easily
verified as whether a student has graduated." Id. at 872. In contrast here,
as noted above, a rational basis exists for distinguishing A-2 visa holders
from other nonimmigrants for purposes of IRCA — A-2 visa holders
who violate status, unlike other nonimmigrants who commit the same
violations, do not face imminent deportation.
20 ORQUERA v. ASHCROFT
not qualify to receive amnesty. To state a due process claim, the
Orqueras must first demonstrate that they have a protected interest,
and the Orqueras have such an interest only as set out in IRCA and
§ 245a.2(b)(11). The INS did not violate the Orqueras’ due process
rights merely by applying § 245a.2(b)(11) to them through the admin-
istrative procedures provided for in IRCA.
IV.
For all of these reasons, we deny the petition for review.
PETITION FOR REVIEW DENIED