                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-29-1996

Massieu v. Atty Gen United States
Precedential or Non-Precedential:

Docket 96-5125




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            UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     ____________

                     No. 96-5125
                     ____________

                   MARIO RUIZ MASSIEU

                           v.

    JANET RENO, In Her Capacity as Attorney General
  of the United States of America; WARREN CHRISTOPHER,
      In His Capacity as Secretary of State of the
     United States; UNITED STATES IMMIGRATION AND
    NATURALIZATION SERVICE; WARREN A. LEWIS, In His
    Capacity as District Director of the Immigration
 and Naturalization Service; DEMETRIUS GEORGAKOPOULOS,
    In His Capacity as Assistant District Director,
Investigations, Immigration and Naturalization Service,
                       Appellants
                  ____________________

   ON APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE DISTRICT OF NEW JERSEY
              (D.C. Civil No. 96-00104)
                 ____________________

                 Argued: May 10, 1996
Before:   GREENBERG, ALITO, and McKEE, Circuit Judges:
            (Opinion Filed: July 29, 1996)
                  ____________________

              Frank W. Hunger
              Assistant Attorney General
              Gary G. Grindler
              Stephen W. Preston
              Deputy Assistant Attorneys General
              Douglas N. Letter
              Jacob M. Lewis (Argued)
              David J. Kline
              Attorneys, Civil Division
              Department of Justice, Room 3617
              9th & Pennsylvania Avenue, N.W.
              Washington, D.C. 20530


              Attorneys for Appellants

              Cathy Fleming, Esq. (Argued)
              Camille M. Kenny, Esq.
              Fleming, Roth & Fettweis
              744 Broad Street, Suite 701
              Newark, New Jersey 07102
                  Attorney for Appellee

                        ____________________

                        OPINION OF THE COURT
                        ____________________


ALITO, Circuit Judge:


         This is an appeal from an order of the district court
declaring unconstitutional   241(a)(4)(C)(i) of the Immigration
and Nationality Act (the "INA" or the "Act"), 8 U.S.C.
1251(a)(4)(C)(i), and enjoining further deportation proceedings
against plaintiff under that provision. Entertaining
jurisdiction over plaintiff's constitutional claims under 28
U.S.C.   1331, the district court held that   241(a)(4)(C)(i)
violates the Due Process Clause because it is impermissibly vague
and deprives aliens such as plaintiff of a meaningful opportunity
to be heard. In addition, the court held that    241(a)(4)(C)(i)
represents an unconstitutional delegation of legislative power.
         We do not reach the merits of the constitutional
questions decided by the district court. Instead, we hold that
the district lacked jurisdiction to entertain plaintiff's claims.
Under   106 of the INA, 8 U.S.C.   1105a, if plaintiff wished to
challenge the efforts to deport him, he was required to exhaust
available administrative remedies and then petition for review in
this court. Accordingly, we reverse the district court's order,
and we remand to the district court with an instruction to
dismiss plaintiff's complaint.
                                I.
         A. The relevant allegations of plaintiff's complaint,
which were set forth in detail by the district court, see Massieu
v. Reno, 915 F. Supp. 681 (D.N.J. 1996), may be summarized as
follows. Plaintiff Mario Ruiz Massieu ("plaintiff" or "Ruiz
Massieu") is a citizen of Mexico who has spent most of his adult
life working as an academic or government official. From 1990
until 1993, he was Mexico's Ambassador to Denmark; for part of
1993, he served as the Deputy Attorney General; in 1994, he was
the Undersecretary for the Department of Government; and from May
until November of 1994, he again held the position of Deputy
Attorney General.
         Plaintiff's brother, Jose Francisco Ruiz Massieu, was
the Secretary General of the governing Institutional
Revolutionary Party. In September 1994, plaintiff's brother was
assassinated in Mexico City. Plaintiff, as the Deputy Attorney
General, requested permission from President Salinas and
President-elect Zedillo to allow his office to lead the
investigation into his brother's death.
         Plaintiff led the investigation for approximately two
months before resigning both his position as Deputy Attorney
General and his membership in the Institutional Revolutionary
Party. In a November 1994 speech, plaintiff announced his
resignations and attributed them to efforts by the party to block
the investigation into his brother's death. The speech and other
criticisms of the government were published in February 1995 in
plaintiff's book, I Accuse: Denunciation of a Political Crime.
         On March 2, 1995, Mexican authorities interrogated
plaintiff concerning criminal activities allegedly committed
while he was in office. Later that day, plaintiff and his family
entered the United States in Houston, Texas. Plaintiff was
granted a six-month non-immigrant visitor visa. He and his
family stayed overnight at plaintiff's Houston home, which he has
owned since October 1994. The next day, plaintiff travelled to
Newark en route to Spain. He was arrested in Newark by United
States Customs officials and charged with failing to report all
currency in his possession in violation of 31 U.S.C.   5316.
Specifically, plaintiff was charged with failing to report about
$26,000 of the roughly $44,000 in cash that he was carrying with
him. A few days later, the Mexican government charged plaintiff
with several violations of Mexican criminal law.
         Over the next nine months, the United States government
brought four extradition proceedings seeking plaintiff's
extradition to Mexico. These were filed in March, June, August,
and October 1995, and they sought extradition on charges of
obstruction of justice and embezzlement. However, two United
States Magistrate Judges, sitting as extradition judges under 18
U.S.C.   3184 and Rule 40.B.12 of the General Rules for the
District of New Jersey, concluded that there was insufficient
evidence to support a finding of probable cause to believe that
plaintiff had committed the crimes for which his extradition was
sought. The extradition complaints were therefore dismissed.
         The final extradition complaint was dismissed on
December 22, 1995. On the same day, the government instituted a
deportation proceeding against plaintiff through the service of
an order to show cause and notice of hearing. The government
alleged that plaintiff was subject to deportation under 8 U.S.C.
  1251(a)(4)(C)(i), which provides that "[a]n alien whose
presence or activities in the United States the Secretary of
State has reasonable grounds to believe would have potentially
serious adverse foreign policy consequences for the United States
is deportable." On December 27, 1995, plaintiff moved for bail
pending completion of the deportation proceeding. After
briefing, the immigration judge denied bail on January 11, 1996.
The first stage of the deportation proceeding was scheduled to
begin on January 19, 1996.
         B. On January 17, 1996, however, plaintiff sought to
enjoin the deportation proceeding by filing a complaint in the
United States District Court for the District of New Jersey.
Named as defendants were Janet Reno, Attorney General of the
United States; Warren Christopher, Secretary of State of the
United States; the United States Immigration and Naturalization
Service ("the Service"); Warren A. Lewis, District Director of
the Service; and Demetrius Georgakopoulos, Assistant District
Director of the Service. Plaintiff's complaint sought to enjoin
the deportation proceeding on three grounds: (1) "illegal de
facto extradition," App. 19-22; (2) "selective enforcement," App.
22-24; and (3) the "unconstitutionality of 8 U.S.C.
1251(a)(4)(C)," App. 24-25. On January 19, 1996, and January 24,
1996, the district court granted plaintiff's applications for
temporary restraints and a preliminary injunction, essentially
staying the deportation proceeding pending consideration of
plaintiff's request for a permanent injunction.
         On February 28, 1996, the district court issued an
order declaring   241(a)(4)(C)(i) unconstitutional on three
separate grounds. First, the court held that the provision is
void for vagueness because it does not provide adequate notice to
aliens of the standards with which they must conform and does not
furnish adequate guidelines for law enforcement. Second, the
court held that   241(a)(4)(C)(i) violates procedural due
process; the court reasoned that the provision deprives an alien
of a meaningful opportunity to be heard since the Secretary of
State's determination that he falls within the statutory standard
is allegedly unreviewable. Finally, the court held that
241(a)(4)(C)(i) represents an unconstitutional delegation of
legislative power because it lacks "sufficiently intelligible
standards to direct the Secretary's exercise of discretion and to
enable the court to review the exercise thereof." 915 F. Supp.
at 707. The court thus entered an order declaring the provision
unconstitutional and enjoining deportation proceedings against
plaintiff based on that provision. The court also ordered that
plaintiff be discharged from custody, but the court stayed its
order until March 1, 1996.
         Defendants appealed to this court and requested a stay
pending appeal. On March 1, 1996, we granted defendants' motion
for a temporary stay, and on March 5, 1996, we granted plaintiff
bail with conditions pending appeal. We then granted expedited
review, and we now reverse.
                               II.
         The defendants in this case contend that the district
court lacked jurisdiction to entertain plaintiff's constitutional
claims. According to the defendants, if the plaintiff wished to
contest his deportation, he was required to exhaust the
administrative remedies available under the INA and then petition
for review in this court.
         A. 1. In assessing this argument, our controlling
concern is congressional intent. See, e.g., Patsy v. Florida Bd.
of Regents, 457 U.S. 496, 501-02 & n.4 (1982) ("[L]egislative
purpose . . . is of paramount importance in the exhaustion
context because Congress is vested with the power to prescribe
the basic procedural scheme under which claims may be heard in
federal courts. . . . [T]he initial question whether exhaustion
is required should be answered by reference to congressional
intent."). If Congress intended to delay federal court review of
claims by aliens against whom deportation proceedings have been
instituted until the conclusion of the administrative
proceedings, then neither the district court nor this court can
override that decision. See, e.g., McCarthy v. Madigan, 503 U.S.
140, 144 (1992) (Bivens claim) ("Of `paramount importance' to any
exhaustion inquiry is congressional intent. Where Congress
specifically mandates, exhaustion is required. But where
Congress has not clearly required exhaustion, sound judicial
discretion governs.") (citations omitted); Giammario v. Hurney,
311 F.2d 285, 287-88 (3d Cir. 1962) ("The recent amendment
providing for exclusive review of final orders of deportation in
the courts of appeals of the United States, 8 U.S.C.A.
1105a(a), is challenged in petitioner's brief as violating his
constitutional rights[.] [W]e see no merit to [this argument].
It is well settled that Congress may provide whatever procedure
that it deems appropriate for judicial review of administrative
orders.") (citation omitted); see also McCarthy v. Madigan, 503
U.S. at 152 ("Because Congress has not required exhaustion of a
federal prisoner's Bivens claim, we turn to an evaluation of the
individual and institutional interests at stake in this case.")
(emphasis in original); Coit Independence Joint Venture v. FSLIC,
489 U.S. 561, 579-80 (1989); Patsy v. Florida Bd. of Regents, 457
U.S. at 502 n.4 ("Of course, exhaustion is required where
Congress provides that certain administrative remedies shall be
exclusive.") (citing Meyers v. Bethlehem Shipbuilding Corp., 303
U.S. 41 (1938)); Commonwealth of Virginia v. United States, 74
F.3d 517, 523 (4th Cir. 1996) ("It is settled that `when Congress
has chosen to provide the circuit courts with exclusive
jurisdiction over appeals from agency [actions], the district
courts are without jurisdiction over the legal issues pertaining
to final [actions].") (alterations in Commonwealth) (citation
omitted); Maxon Marine v. Director, OWCP, 39 F.3d 144, 146 (7th
Cir. 1994) ("When a statute specifies a procedure for obtaining
judicial review of a federal agency's actions, that procedure
normally is exclusive.") (citations omitted); see generallySaulsbury
Orchards & Almond Processing, Inc. v. Yeutter, 917 F.2d
1190, 1194 (9th Cir. 1990) (Agricultural Marketing Agreement Act)
("We are also mindful of the fact that the exhaustion requirement
in this case is statutorily provided and not judicially created.
Although judicially developed exhaustion requirements might be
waived for discretionary reasons by courts, statutorily created
exhaustion requirements bind the parties and the courts. `When a
statute requires exhaustion, a petitioner's failure to do so
deprives this court of jurisdiction. Only if there is no
statutory exhaustion requirement may we exercise our discretion
to apply judicially-developed exhaustion rules.'") (quoting Reid
v. Engen, 765 F.2d 1457, 1462 (9th Cir. 1985)); II Kenneth Culp
Davis et al., Administrative Law Treatise   15.3 at 318 (3d ed.
1994) ("Most agency organic acts do not address exhaustion. When
they do, however, courts are not free simply to apply the common
law exhaustion doctrine with its pragmatic, judicially defined
exceptions. Courts must, of course, apply the terms of the
statute.").
         2. We turn then to the question whether Congress has
expressed an intention to preclude an alien in plaintiff's
position from initially asserting his constitutional claims in an
action in district court and to require the alien instead to
exhaust administrative remedies and then petition for review in
the appropriate court of appeals. Our analysis of this question
is guided by the Supreme Court's decision in Thunder Basin Coal
Co. v. Reich, 114 S. Ct. 771 (1994). Thunder Basin involved a
statutory-review scheme similar to that of the INA. Under the
statute at issue in Thunder Basin, the Federal Mine Safety and
Health Amendments Act of 1977 (the "Mine Act"), 30 U.S.C.   801
et seq., challenges to the Secretary of Labor's enforcement
actions are subject to review by the Federal Mine Safety and
Health Review Commission, 30 U.S.C.    815, 823, and final orders
of the Commission are reviewable by means of a petition for
review filed in the appropriate court of appeals. 30 U.S.C.
816. In Thunder Basin, a mine operator filed an action in
district court seeking pre-enforcement injunctive relief on
constitutional grounds, but the court of appeals held that the
Act's scheme of enforcement and administrative review precluded
district court jurisdiction over the mine operator's claims.
         In reviewing this decision, the Supreme Court began by
observing:
              In cases involving delayed judicial
         review of final agency actions, we shall find
         that Congress has allocated initial review to
         an administrative body where such intent is
         "fairly discernible in the statutory scheme."
         Whether a statute is intended to preclude
         initial judicial review is determined from
         the statute's language, structure, and
         purpose, its legislative history, and whether
         the claims can be afforded meaningful review.
114 S. Ct. at 776 (citations and footnote omitted). Applying
these factors, the Court found that "the Mine Act's comprehensive
enforcement structure, combined with the legislative history's
clear concern with channeling and streamlining the enforcement
process, establishes a `fairly discernible' intent to preclude
district court review in the present case." 114 S. Ct. at 780-81
(citation omitted). The Court added that "[n]othing in the
language and structure of the Act or its legislative history
suggests that Congress intended to allow mine operators to evade
the statutory-review process by enjoining the Secretary from
commencing enforcement proceedings." Id. at 781.
         Under the Thunder Basin test, we must consider the
language of   106 of the INA, its stated purpose, its legislative
history, and the overall structure of the administrative process,
as well as whether plaintiff will be able to secure meaningful
review of his claims after exhaustion. We find that all of these
factors suggest that, whenever an alien is the subject of
deportation proceedings,   106 is intended to delay judicial
review until after administrative exhaustion. We thus conclude
that there is a "fairly discernible" congressional intent to
delay federal court review in the circumstances present in this
case.
         3. Under    106(c) of the INA, 8 U.S.C.   1105a(c), "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." Section 106(a) of the Act, 8 U.S.C.    1105a(a),
further provides that, subject to statutory exceptions not
invoked here, "the sole and exclusive procedure for . . . the
judicial review of all final orders of deportation" is by the
filing of a petition for review in the appropriate court of
appeals pursuant to the Hobbs Act, 28 U.S.C.   2342. In
addition,   242(b) of the Act, 8 U.S.C.   1252(b) -- which sets
forth a "specialized administrative procedure applicable to
deportation proceedings," Marcello v. Bonds, 349 U.S. 302, 308
(1955) -- expressly states that "[t]he procedure so prescribed
shall be the sole and exclusive procedure for determining the
deportability of an alien under this section." 8 U.S.C.
1252(b). Furthermore, even where an alien is attempting to
prevent an exclusion or deportation proceeding from taking place
in the first instance and is thus not, strictly speaking,
attacking a final order of deportation or exclusion, it is well
settled that "judicial review is precluded if the alien has
failed to avail himself of all administrative remedies," one of
which is the deportation or exclusion hearing itself. See, e.g.,
Xiao v. Barr, 979 F.2d 151, 153 (9th Cir. 1992); see also 3
Charles Gordon & Stanley Mailman, Immigration Law and Procedure
81.02[2], at 81-26-28 (1996) ("A person against whom a
deportation proceeding is brought may feel that the proceeding is
unjustified and illegal but generally has no right to go to court
immediately to stop the proceeding. Congress has provided an
administrative device for passing upon an alien's deportability,
and generally there must be a final administrative ruling before
judicial review can be initiated.").
         According to the legislative history of   106, the
purpose of this section is "to create a single, separate,
statutory form of judicial review of administrative orders for
the deportation and exclusion of aliens from the United States,
by adding a new section 106 to the Immigration and Nationality
Act." H.R. Rep. No. 1086, 87th Cong., 1st Sess., reprinted in,
1961 U.S.C.C.A.N. 2950, 2966 (1961). "[T]his section would vest
exclusive jurisdiction in the Federal courts of appeals to review
deportation orders," id. at 2971, and, "[i]n an effort to
curtail, if not to eliminate repetitious and unjustified appeals
to courts for interference with the enforcement of deportation
orders, the section declares that an order of deportation or of
exclusion shall not be reviewed by a court if the alien has not
exhausted his administrative remedies." Id. at 2971-72; see alsoFoti v.
INS, 375 U.S. 217, 224-25 (1963) ("The fundamental
purpose behind   106(a) was to abbreviate the process of judicial
review of deportation orders in order to frustrate certain
practices which had come to the attention of Congress, whereby
persons subject to deportation were forestalling departure by
dilatory tactics in the courts. . . . The key feature of the
congressional plan directed at this problem was the elimination
of the previous initial step in obtaining judicial review -- a
suit in a District Court -- and the resulting restriction of
review to the Courts of Appeals, subject only to the certiorari
jurisdiction of this Court."); id. at 232 ("We believe that the
controlling intention of Congress, in enacting   106(a), was to
prevent delays in the deportation process by vesting in the
Courts of Appeals sole jurisdiction to review `all final orders
of deportation.'").
         The administrative regulation of deportation
proceedings is detailed and comprehensive. See generally 8
U.S.C.    1251-1254; 8 C.F.R.    241-244; see also, e.g., United
States v. Jalilian, 896 F.2d 447, 449 (10th Cir. 1990). But for
present purposes, a broad overview will suffice.
         Deportability determinations are made initially by an
immigration judge after a formal hearing. See 8 U.S.C.
1252(b); 8 C.F.R.   242.16(a). If the immigration judge decides
that the alien should be deported from the United States, the
alien may pursue an administrative appeal to the Board of
Immigration Appeals. See 8 C.F.R.    242.21. The Board's
decision is administratively final unless the case is referred to
the Attorney General for review. See 8 C.F.R.    3.1(d)(2), (h).
Following final administrative action, the "sole and exclusive
procedure" for obtaining judicial review of deportation orders is
by direct review in the appropriate United States Court of
Appeals. See 8 U.S.C.    1105a(a).
         A court of appeals may review a final order of
deportation made against an alien within the United States and
"all matters on which the validity of the final order is
contingent." See INS v. Chada, 462 U.S. 919, 937-39 (1983).
Thus, the courts of appeals generally may provide meaningful
review as to any properly exhausted claims directly attacking a
final order of deportation. See id.; see generally Gottesman v.
INS, 33 F.3d 383, 386-87 (4th Cir. 1994).
         Based on the above, we conclude that Congress intended
to delay federal court review of claims by aliens against whom
deportation proceedings have been instituted until the conclusion
of the administrative proceedings. Thus, plaintiff must exhaust
his administrative remedies and, if he still so desires, file a
petition for review in this court. By filing suit in the
district court to enjoin the deportation proceeding, Ruiz
Massieu, like the plaintiff in Maxon Marine, not only failed to
exhaust his administrative remedies, but sought review in the
wrong court. See Maxon Marine, 39 F.3d at 147. Put simply,
Congress has removed jurisdiction over plaintiff's claims from
the district courts and has vested exclusive federal court
jurisdiction in this court after the exhaustion of available
administrative remedies.
         B. In Thunder Basin, the Court recognized that a
statutory-review scheme such as that contained in the Mine Act
does not prevent the district courts from exercising jurisdiction
over claims that are not of the type intended to be reviewed
under that scheme, especially if such claims could not otherwise
receive meaningful judicial review. Thunder Basin, 114 S. Ct. at
779. Specifically, the Court stated:
         This Court previously has upheld district
         court jurisdiction over claims considered
         "wholly `collateral'" to a statute's review
         provisions and outside the agency's
         expertise, particularly where a finding of
         preclusion could foreclose all meaningful
         judicial review. . . . An analogous
         situation is not presented here.
Id.
         Plaintiff argues that this "exception" applies here,
but we disagree. First, plaintiff's constitutional challenge to
the statute is not like the types of claims that courts in past
cases have considered "wholly collateral" to the administrative
review process. Second, delaying plaintiff's constitutional
challenge until after he exhausts his administrative remedies
will in no way foreclose meaningful judicial review.
         1. Plaintiff's constitutional challenge is not
collateral to the provisions governing an alien's right to
administrative and judicial review of decisions made in
deportation proceedings. Our analysis of this issue is guided by
McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991),
which was discussed in both Thunder Basin and the district
court's decision in this case.
         In McNary, plaintiffs filed a class action challenging
the Immigration and Naturalization Service's implementation of
the Special Agricultural Workers Program. The "narrow issue"
before the Court was whether a section of the Immigration and
Nationality Act that barred judicial review (except in
deportation proceedings) of individual agency determinations of
adjustment of status applications seeking Special Agricultural
Workers status also foreclosed a general challenge to alleged
unconstitutional practices by the Service in processing the
applications. Id. at 491. The Court held that the district
court had jurisdiction to hear plaintiffs' claims.
         In reaching this decision, the Court stressed three
important points, each of which counselled in favor of district
court jurisdiction in that case and each of which counsels
against district court jurisdiction here. First, the Court
concluded that the plaintiffs' claims did not fall within the
language of the provision of the statute that was said to
preclude district court jurisdiction. The Court noted that the
relevant statutory language referred to "the process of direct
review of individual denials" of Special Agricultural Workers
status and did not address "general collateral challenges to
unconstitutional practices and policies used by the agency in
processing applications." Id. at 492. Second, the Court
emphasized that the plaintiffs' challenge did not go to the
merits of their applications for adjustment of status. Id. at
495. And third, the Court found that, absent jurisdiction in the
district court, the plaintiffs would not have been able to obtain
any meaningful judicial review. Id. at 496-98.
         Not one of these points assists plaintiff here: Ruiz
Massieu directly challenges his deportability, and his claim is
squarely governed by the statutory scheme; his district court
suit goes directly to the merits of his deportability; and his
claims will receive meaningful judicial review, if necessary, in
this court after administrative exhaustion. The Court's decision
in McNary thus does not aid Ruiz Massieu here.
         Our interpretation of McNary is consistent with our
decision in Yi v. Maugans, 24 F.3d 500 (3d Cir. 1994), aff'g,
Yang v. Reno, 852 F. Supp. 316 (M.D. Pa. 1994). Yi v. Mauganswas an
exclusion case implicating    1105a(b) & (c). We held that
"in enacting     1105a(b) and (c), Congress permitted judicial
challenges of orders of exclusion solely by way of habeas
proceedings and only to those aliens who have exhausted their
administrative remedies." Id. at 504. We distinguished McNaryand refused
to condone plaintiffs' attempted "`end-run around the
administrative process.'" Id. at 507 (citation omitted). We
explained as follows:
               Nor would any of the other cases cited
         by Pan provide the court with authority to
         ignore the explicit requirements of    1105a
         in favor of a general grant of authority
         under    1331. Courts invoking    1331
         jurisdiction have done so only when the
         challenged administrative practice, policy or
         regulation precluded adequate development of
         the administrative record and consequently
         meaningful review through the procedures set
         forth in    1105a, and/or when the challenged
         practice was collateral and divorced from the
         substantive aspects underlying the alien's
         claim[.] In this sense, the holdings are
         similar to McNary, and thus would be
         inapplicable in circumstances, as those
         present here, where judicial review is
         adequate and where the challenge relates to
         the merits of the final order.
24 F.3d at 506 (citations omitted). We concluded that we had to
deny district court jurisdiction "where, as here, the challenge
by the aliens is neither procedural nor collateral to the merits
and where application of the specific statutory provisions would
not preclude meaningful judicial review." Id. at 507 (footnote
omitted).
         As examples of true procedural challenges collateral to
the merits, we cited the following: a class challenge alleging
systematic inadequate translations of proceedings; a class
challenge to actions of an immigration judge who refused to
accept certain documents; and a class challenge to the Service's
failure to give notice of the right to apply for asylum. Id. at
506-07. It is clear to us that Ruiz Massieu's challenge in this
case is neither procedural nor collateral in any of these senses;
on the contrary, this is a direct challenge, by an alien who is
the subject of deportation proceedings, to the substantive ground
of deportation and thus to the merits of the eventual final
order.
         2. Second, there is no doubt that plaintiff's claims
can be afforded meaningful judicial review in this court after
exhaustion. Although the immigration judge is not authorized to
consider the constitutionality of the statute, this court can
hear that challenge upon completion of the administrative
proceedings under INS v. Chadha, 462 U.S. at 938 (review by court
of appeals of final order of deportation includes "all matters on
which the validity of the final order is contingent"); see alsoNaranjo-
Aguilera v. INS, 30 F.3d 1106, 1114 (9th Cir. 1994)
("Petitioners appealing order of deportation routinely bring
statutory and constitutional challenges to INS regulations and
policies.") (citations omitted); cf. Kreschollek v. Southern
Stevedoring Co., 78 F.3d 868 (3d Cir. 1996) (permitting district
court jurisdiction over claim under Longshore and Harbor Workers'
Compensation Act where plaintiff's "claim that he has a
constitutional right to a pretermination hearing is entirely
collateral to his claim of entitlement to benefits" and where
plaintiff "has alleged a sufficiently serious irreparable injury
to lead us to conclude that the administrative review process is
insufficient to afford him full relief"). Although plaintiff
would prefer to have his claim heard by this court now rather
than after the conclusion of the administrative process, we
cannot upset the scheme created by Congress to provide plaintiff
with a faster decision. See, e.g., Maxon Marine, 39 F.3d at 147
("[D]elay is not a valid ground for bypassing the procedures
established by Congress for obtaining judicial review of agency
action, procedures that include a mandatory resort to such
administrative remedies as remain open to the aggrieved party,
unless those remedies are palpably inadequate, which Maxon has
not shown, resulting in serious injustice, which Maxon also has
not shown."); see also Yang v. Reno, 852 F. Supp. at 326
(exhaustion required "even if another scheme might at times prove
more speedy or efficient").
         C. 1. The district court found that notwithstanding
the "express congressional intent" and "exclusive language of
106(a) and (c)," courts "have excused exhaustion under the INA
for certain constitutional challenges." 915 F. Supp. at 692
(citing McNary v. Haitian Refugee Center, Inc., 498 U.S. 479
(1991); Sewak v. INS, 900 F.2d 667 (3d Cir. 1990); Rafeedie v.
INS, 880 F.2d 506 (D.C. Cir. 1989)). The court then weighed "the
purposes underlying the exhaustion requirement against the
potential injury to the plaintiff if he is forced to exhaust his
administrative remedies." 915 F. Supp. at 693 (citations
omitted). The court concluded that the "exhaustion balance in
this unusual case tips powerfully in plaintiff's favor." Id. at
697.
         We find this method of analysis misplaced in the
circumstances of this case. In light of the clear statutory
language and congressional intent, we do not think that the
courts possess the authority to excuse exhaustion whenever they
conclude that a balancing of the relevant factors tips in that
direction. Rather, we believe that exhaustion is not required
only if the claim asserted comes within the exception discussed
in part II.B of this opinion, and as we have explained, this
exception applies only if a plaintiff can establish that the
claim being asserted is entirely collateral to the statute's
review procedures. Moreover, even if the plaintiff can make that
showing, the plaintiff may also have to establish that meaningful
review would be foreclosed absent initial review in the district
court. As already discussed, plaintiff in this case has failed
to make either showing. We emphasize here that resort to a
general exhaustion balancing test should be avoided where -- as
the district court recognized is true here -- Congress has
expressly required exhaustion of administrative remedies by
statute.
         2. We have held above that under the Immigration and
Nationality Act plaintiff is required to pursue his
administrative remedies and, if served with a final order of
deportation, bring his challenge in this court thereafter. Given
the congressional intent to require exhaustion of administrative
remedies and to delay judicial review until the end of the
administrative process, we need not consider whether sound
judicial discretion counsels in favor of or against requiring
exhaustion. Congress has already made that determination. We
nonetheless note that, contrary to plaintiff's assertions, there
are important and potentially dispositive issues that should be
resolved in the administrative process, e.g., asylum, withholding
of deportation, and the adjudication of the statutory exception
contained in 8 U.S.C.    1251(a)(4)(C)(ii).
         Plaintiff has at numerous times in this proceeding
indicated an intention to seek asylum in this country. See,
e.g., Plf. Opp. to Stay filed 3/1/96, at 2, 23, 25, Exh. 1, &
Exh. 2. It is clear that any asylum claim would be heard by the
immigration judge who was presiding over the deportation
proceeding and that a failure to assert the asylum claim in the
deportation proceeding would likely result in waiver of that
claim. See 8 C.F.R.     208.4(c)(1) & (4). Combined with
plaintiff's statements that he intends to pursue an asylum claim,
the regulations indicate to us that, absent the district court's
injunction, the immigration judge would have had occasion to
consider both asylum and withholding of deportation arguments.
While the asylum claim is within the discretion of the Attorney
General, withholding of deportation shall be granted if the alien
satisfies the relevant standards. 8 U.S.C.     1253(h)(1).
Moreover, despite plaintiff's claim that the Attorney General has
predetermined the asylum issue, we have no way of determining
whether the Attorney General will change her mind regarding
plaintiff's deportation after plaintiff presents the evidence
supporting his asylum and withholding-of-deportation claims.
         Also, plaintiff argued in the district court that he
came within the statutory exception contained in
241(a)(4)(C)(ii). Under that exception, an alien who shows that
he is being deported because of past statements that would be
lawful within the United States shall not be deportable unless
the Secretary of State personally determines that non-deportation
would compromise a compelling United States foreign policy
interest. See    241(a)(4)(C)(ii), 8 U.S.C.    1251(a)(4)(C)(ii)
(incorporating 8 U.S.C.    1182(a)(3)(C)(ii) & (iii)).
Plaintiff's statutory exception argument is not frivolous, and we
have no way of knowing whether the Secretary would have made the
necessary statutory finding. These issues could and should have
been litigated before the immigration judge and the Board of
Immigration Appeals.
         In light of the above, we cannot agree with the
district court's statement that "[n]ot one of the purposes
underlying the doctrine would be served by requiring exhaustion."
915 F. Supp. at 697. There are certainly issues to which the
immigration judge and the Board of Immigration Appeals will be
able to apply their expertise, and the resolution of a number of
those issues could well resolve this matter without the need for
any involvement by the federal courts. If this matter does end
up in this court, at that point there will be no lingering doubt
as to the administrative disposition of plaintiff's claims for
asylum and withholding of deportation. Moreover, the court
presumably will have the benefit of an administrative record
applying the statute and perhaps the statutory exception. A
number of the issues to be resolved through administrative
exhaustion could entirely moot plaintiff's constitutional
challenge, and this consideration cannot be deemed insignificant.
E.g., Davis, supra,   15.5, at 332 ("[T]he Court has declined to
resolve constitutional questions because of the petitioner's
failure to exhaust administrative remedies. Moreover, those
decisions are based on the important prudential principle that a
court should not resolve a constitutional question if a dispute
can be resolved on another basis that avoids the need to resolve
the constitutional question.") (citations omitted).
         Thus, even if a balancing test were appropriate in this
case, we would find that exhaustion is required.
                               III.
         In sum, we hold that there is a fairly discernible
congressional intent to delay federal court review of claims by
aliens against whom deportation proceedings have been instituted
until the conclusion of the administrative proceedings. We
conclude that plaintiff must therefore exhaust his available
administrative remedies prior to federal court consideration of
his claims. We also hold that plaintiff's claims are not
collateral to the Act's review provisions and that, if necessary,
plaintiff will receive meaningful review of his claims in this
court after final administrative action. In these circumstances,
we hold that the balancing test applicable in cases of prudential
exhaustion is improper here. Finally, although in no way
essential to our holdings, we note that exhaustion in this case
will serve important purposes and may even moot the need for any
involvement by the federal courts.
         For these reasons, we reverse the district court's
order, and we remand this matter to the district court with a
direction that plaintiff's complaint be dismissed.
