A framework for analyzing the constitutionality of restrictions on federal court jurisdiction in immigration cases

University of Memphis Law Review, The, Winter 1999 by Chemerinsky, Erwin

Oestereich was a full-time student at a theological school preparing for the ministry and was, therefore, entitled to a draft exemption under federal statutes. But after he participated in an antiwar protest, he was reclassified I-A, ready for induction. Despite the federal statute appearing to preclude jurisdiction, the Court held that Oestereich could bring a suit challenging the legality of his reclassification. The Court held that the law limiting judicial review was not meant to apply to a clearly lawless action by a draft board.67 Justice Harlan, in a concurring opinion, stated that "[i]t is doubtful whether a person may be deprived of his personal liberty without the prior opportunity to be heard by some tribunal competent fully to adjudicate his claims."68

Many of these cases involving narrow construction of laws that appeared to preclude judicial review have been in the immigration law context. In United States v. Mendoza-Lopez,69 the Court held that an alien who is prosecuted for illegal entry following deportation may assert in the constitutional proceeding the invalidity of the underlying administrative deportation order. In narrowly construing statutes that appeared to preclude judicial review, the Court declared: "[W]here the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to conclusively establish an element of a criminal offense."70

In McNary v. Haitian Refugee Center, Inc.,71 the Supreme Court interpreted a federal statute to avoid finding that it precluded judicial review. The Immigration Reform and Control Act of 1986 created a special amnesty program for specified alien farmworkers and barred judicial review of"a determination respecting an application," except in the federal court of appeals as part of judicial review of a deportation order.72 The Supreme Court declared that there is a "well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action."73 The Court noted that it assumed that Congress was aware of this presumption; therefore, "it is most unlikely that Congress intended to foreclose all forms of meaningful judicial review."74 Hence, the Court concluded that the statute should be interpreted as not precluding judicial review.

Likewise, in Reno v. Catholic Social Services,75 the Court refused to find a preclusion of jurisdiction in INS regulations implementing the legalization program for illegal immigrants under the Immigration Reform and Control Act. The Court explained that to find preclusion of review, it "would have to impute to Congress an intent to preclude judicial review of the legality of [the] INS action entirely under those circumstances."76 The Court noted that there is a "`well-settled presumption"'77 in favor of interpreting statutes to allow judicial review and that it "will accordingly find an intent to preclude such review only if presented with `clear and convincing evidence.'"78