Ayuda, Inc. v. Richard Thornburgh, Individually, and as Attorney General of the United States, (Two Cases) Ayuda, Inc. v. Richard Thornburgh , 948 F.2d 742 ( 1991 )

Opinion for the Court filed by Circuit Judge SILBERMAN.

Dissenting opinion filed by Circuit Judge WALD.

SILBERMAN, Circuit Judge:

These three consolidated cases all involve questions regarding the jurisdiction of the district court to hear claims brought by Ayuda, Inc. (along with three other organizations that advise aliens and five unnamed aliens) to prevent the Immigration and Naturalization Service (INS) from administering the Immigration Reform and Control Act (IRCA)¹ in a fashion alleged to be contrary to the statute and the Constitution. The first case (Ayuda I, No. 88-5226) is here on remand from the Supreme Court, which asked us to reconsider our opinion in Ayuda, Inc. v. Thornburgh, 880 F.2d 1325 (D.C.Cir.1989), vacated and remanded, — U.S. -, 111 S.Ct. 1068, 112 L.Ed.2d 1174 (1991), holding that the district court lacked jurisdiction, in light of the Court’s subsequent decision in McNary v. Haitian Refugee Center, Inc., — U.S. -, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). The second case (Ayuda II, No. 90-5293) involves interim relief granted by the district court in the same proceeding in which we had held the court lacked jurisdiction. The government, not surprisingly, challenges the district court’s jurisdiction to issue the interim order. Finally, in Ayuda III (No. 89-5301) the plaintiffs² appeal the district court’s denial of their request that the government be held in contempt for allegedly violating a prior district court order in this protracted proceeding. We hold, in line with our original position, that the district court lacked subject matter jurisdiction to issue the orders sought in Ayuda I and Ayuda II and that the appeal in Ayuda III is therefore moot.

Ayuda I

A.

The background to congressional passage of IRCA is set forth in our prior opinion, see Ayuda, 880 F.2d at 1326-27, and in McNary, 111 S.Ct. at 890-91. Suffice it to say that IRCA was a congressional compromise whereby new techniques for stopping the flow of illegal aliens into the United States were balanced with amnesty programs for undocumented aliens who met certain requirements.

The amnesty program at issue in this case, see 8 U.S.C. § 1255a, gave aliens the opportunity to apply for legalization during a one-year period ending on May 4, 1988. See id. § 1255a(a)(l)(A). If “nonimmi-grants” (aliens who entered the country legally but later lost that lawful status) could show, inter alia, that they were in this country unlawfully since January 1, 1982, and that their unlawful status was “known to the Government,” id. § 1255a(a)(2)(A) & (B), they were entitled to legalization. The INS promulgated a regulation stating that “known to the Government” meant “known to the INS.” Approximately seven weeks before the May 4, 1988, deadline, plaintiffs filed suit in district court, claiming that “known to the Government” was broader in its reach and meant “known to any agency of the Government.” The district court held that the INS regulation was contrary to the statute and issued a series of four orders adopting and implementing plaintiffs’ interpretation. See Ayuda, Inc. v. Meese, 687 F.Supp. 650, 666-68 (D.D.C.1988). The government did not appeal, and therefore acquiesced in the substance of these rulings.

Then, less than one week before the end of the amnesty period, the district court issued a fifth order (Supplemental Order V), this time construing the word “known” rather than the word “Government.” One class of aliens (section 265 claimants) were under pre-IRCA law³ permitted to reside in the United States so long as they periodically filed certain forms with the INS; plaintiffs sought a ruling from the district court that if an alien failed to submit these forms, knowledge of the alien’s unlawful status could be imputed to the government. Even though the INS had never promulgated an official position on whether knowledge could be inferred from the absence as opposed to the presence of information concerning an alien, and even though the INS’ Legalization Appeals Unit (LAU) had never denied an alien’s legalization application on the ground that the absence of forms was insufficient to establish knowledge, the district court granted plaintiffs’ request. See id. at 668. The government appealed this order on jurisdictional grounds.

The government, “in effect challenging the district court’s jurisdiction over the entire case,” Ayuda, 880 F.2d at 1329, argued that IRCA’s provisions respecting administrative and judicial review first require exhaustion of administrative remedies and then vest exclusive jurisdiction in the courts of appeals to review INS legalization decisions. Those provisions specify that “[tjhere shall be no administrative or judicial review of a determination respecting an application ... [for legalization] except in accordance with this subsection.” 8 U.S.C. § 1255a(f)(l). They further direct the Attorney General to “establish an appellate authority to provide for a single level of administrative appellate review of [such] a determination,” id. § 1255a(f)(3)(A), and state that “[t]here shall be judicial review of such a denial only in the judicial review of an order of deportation under section 1105a of this title [which provides for exclusive court of appeals jurisdiction],” id. § 1255a(f)(4)(A).

Plaintiffs argued that the district court had general federal question jurisdiction, see 28 U.S.C. § 1331 (as well as jurisdiction under the immigration laws, see 8 U.S.C. § 1329, and the Fifth Amendment), to provide direct review of the legality of the INS regulation — of which the “known” issue was a by-product — because the statutory sections providing exclusive court of appeals review covered only “a determination respecting an application,” 8 U.S.C. § 1255a(f)(l) (emphasis added), and therefore did not apply to “broad challenges to an INS policy or legal position that could apply to many [determinations].” Ayuda, 880 F.2d at 1330. A regulation construing the statute and agency interpretations of the regulation comprised, plaintiffs contended, just such a policy or legal position.

We rejected plaintiffs’ argument, reasoning, inter alia, that the legality of the regulation could certainly be challenged by an individual alien on appeal from a deportation order and that the regulation was therefore a determination respecting an application. We thought we would otherwise create an anomalous situation in which a single claimant challenging his deportation order on grounds that the regulation was inconsistent with the statute and that his legalization application was therefore improperly denied would be obliged to bring his appeal to the court of appeals, while some combination of potential claimants could sue directly in district court, avoiding the statutory administrative procedures and the court of appeals. See id. We relied in part on Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984), in which the Supreme Court held that plaintiffs who sought to establish a right to reimbursement for a type of operation under the Medicare Act by bringing an action in district court were obliged to pursue their administrative remedies first. The Court there defined the word “claim” under the Act to include one plaintiff’s preemptive challenge to an agency policy that allegedly would prevent him from ever getting the operation that would constitute the basis for his claim to reimbursement. See Ayuda, 880 F.2d at 1332 (citing Ringer, 466 U.S. at 621, 104 S.Ct. at 2024-25).

We found it unnecessary to decide a second jurisdictional objection raised by the government — the organizational plaintiffs’ standing. The district court seemed to have determined that the individual plaintiffs, singularly or in groups, could not sue in district court to raise a legal question that could be resolved in the courts of appeals, but that organizations such as Ay-uda — “qualified designated entities” (QDEs) recognized under the statute as having a counseling role for illegal aliens— could sue because they were, of course, not subject to deportation and therefore had no right to judicial review in the courts of appeals. See id. at 1339 & n. 15. We did not decide the standing issue because we concluded that, as in Block v. Community Nutrition Institute, 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984), the statutory review provisions revealed a congressional purpose to preclude judicial review of issues that could be raised in an appeal from a deportation order on the part of an organization that was, in effect, acting as a representative of individual aliens even though it was asserting an “organizational injury.” See Ayuda, 880 F.2d at 1339-40.

We then held alternatively that the district court also lacked jurisdiction to issue its order concerning the INS ’ “policy” regarding section 265 claimants because that policy was neither final nor ripe. Only “final agency action” is reviewable, 5 U.S.C. § 704, but all the alleged “policy” amounted to was that “at most, some local INS offices were informing aliens that the office would recommend denial of applications based on the section 265 theory.” Ayuda, 880 F.2d at 1342 (emphasis in original). Because “all recommended denials [would be] referred to an adjudicator, whose decision [would be] subsequently reviewable by the Legalization Appeals Unit,” which had never actually decided a case involving the issue, it was clear that “such a recommendation, let alone a prior indication that such a recommendation would be made, does not constitute final agency action.” Id. (emphasis in original).

The lack of a clear INS position also contributed heavily to our decision that the section 265 issue was unripe for review. See id. at 1343-46. The word “known” is ambiguous, and it “follows naturally from Chevron [U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984),]” that “when dealing with an ambiguous statutory term ..., a court should not impose its own interpretation of the term before the agency has an opportunity to consider the issue and fix its own statutory construction.” Ayuda, 880 F.2d at 1343-44 (emphasis in original). We concluded that the “compelling reasons for postponing judicial intervention” clearly outweighed “the alleged hardship to [the plaintiffs] if deprived of a rapid clarification of ‘known to the Government,’ ” especially because the hardship alleged confused the plaintiff QDEs’ organizational interests with the interests of non-party aliens and, in any event, glossed over the fact that aliens inevitably faced the risk of coming forward to challenge a denial of legalization, without any guarantees of success. Id. at 1345-46.

Subsequently, the Supreme Court decided McNary and we are now to consider whether, and to what extent, McNary obliges us to reexamine our opinion.

B.

McNary, dealing with IRCA’s Special Agricultural Workers (SAW) amnesty program, required the Court to interpret a parallel administrative and judicial review section of IRCA, 8 U.S.C. § 1160(e), and to mark the reach of the phrase “a determination respecting an application,” id. § 1160(e)(1). The Supreme Court held that that wording did not refer to “general collateral challenges to unconstitutional practices and policies used by the agency in processing applications,” 111 S.Ct. at 896, and therefore did not preclude an action brought in district court to redress such practices.

The plaintiffs in McNary claimed, and for purposes of Supreme Court review it was undisputed, that the INS was engaging in “a pattern or practice of procedural due process violations ... in its administration of the SAW [amnesty] program.” Id. Ill S.Ct. at 892. It was alleged, for example, that applicants were not afforded an opportunity to challenge material adverse evidence or to present witnesses, that competent interpreters were not provided, and that there were no recordings of applicant interviews. See id. at 894. Crucial to the Court’s reading of section 1160(e)(1) was its focus on a companion provision that provides that “judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority [within the INS].” 8 U.S.C. § 1160(e)(3)(B) (emphasis added). The Court concluded that the record created during the SAW administrative review process would be inadequate for any meaningful appellate review of the serious procedural constitutional questions raised. See McNary, 111 S.Ct. at 896 (“[T]he administrative appeals process does not address the kind of procedural and constitutional claims respondents bring in this ac-tion_”). The Court noted that the courts of appeals lack the fact-finding and record-developing capacities necessary to correct this deficit. Therefore, Congress would not have intended that those sort of claims be subject to administrative exhaustion and limited to court of appeals review. See id. at 896-97, 898-99.⁴

The Court distinguished Ringer on two grounds. The first was that in Ringer the claim raised in district court was not collateral to the plaintiffs’ substantive entitlement to reimbursement for the operations; whereas, in McNary the Court observed that even if the plaintiffs prevailed, they would only be entitled to have their “applications reconsidered in light of the newly prescribed INS procedures.” Id. at 898. Second, in Ringer, the Court believed that the plaintiffs, if they exhausted their administrative procedures, would get adequate judicial review; whereas, in McNary, as the Court pointed out:

[T]he District Court found, because of the lack of recordings or transcripts of LO [Legalization Office] interviews and the inadequate opportunity for SAW applicants to call witnesses or present other evidence on their behalf, the administrative appeals unit of the INS, in reviewing the decisions of LOs and regional processing facilities, and the courts of appeals, in reviewing SAW denials in the context of deportation proceedings, have no complete or meaningful basis upon which to review application determinations.

Id. at 898 (emphasis added).

McNary, like Ayuda, did not decide whether QDE organizational plaintiffs have standing. In fact, the Supreme Court did not consider at all whether those organizations have any independent litigation role under IRCA. See McNary, 111 S.Ct. at 891-92, 894 & n. 8. Instead, the Court appears to have assumed that it was unnecessary to consider those issues because there were individual aliens as plaintiffs in the action and, presumably, the organizational plaintiffs would have no greater right (if, indeed, they had any right) to sue than did the individual plaintiffs.

C.

In reargument plaintiffs assert that McNary obliges us to alter our original opinion and now determine that the district court properly exercised jurisdiction over the case. They believe that McNary has confined the special judicial review provisions of IRCA to the case of an individual challenging a deportation order on the ground that his legalization application was improperly denied. The government, on the other hand, reads McNary as creating an exception to the statutory review provisions limited strictly to collateral procedural challenges to the legalization process, regardless of the number of plaintiffs.

Although it is certainly true that the Supreme Court’s reading of the words “a determination respecting an application” is narrower than was ours in our original opinion,⁵ we believe that the Court’s reasoning — and particularly its distinction of Ringer — leaves our case on the Ringer side of the analytical divide. In the first place, this lawsuit is an indirect but nevertheless obvious effort to adjudicate the plaintiff aliens’ ultimate eligibility for legalization. We do not encounter a collateral challenge, the resolution of which does not necessarily confer eligibility.

In this regard, we are not sure that the government is correct in focusing on the Supreme Court’s repeated use of the word “procedure” as setting forth a strict procedural/substantive dichotomy; we think the Court was instead drawing a distinction between collateral issues (which might normally be procedural) and those that go to the heart of an applicant’s claim. As in Ringer, plaintiffs here seek “the invalidation of the current [agency] policy” as contrary to statute and a “declaration” of what they believe is the proper statutory interpretation. Ringer, 466 U.S. at 614, 104 S.Ct. at 2021. The individual aliens whose interests are at stake, we are told, are persons whose presence in the United States was “known to the Government” and who are able to satisfy the other statutory requirements for legalization. Thus, if plaintiffs’ interpretation of that statutory phrase were to be accepted, the decision would “have the effect of establishing their entitlement” to legalization. McNary, 111 S.Ct. at 898. To permit plaintiffs to bring in federal district court an action designed to resolve the core issue of law that they will encounter in a legalization proceeding, and perhaps in an appeal from a deportation order, “ ‘would allow claimants substantially to undercut Congress’ carefully crafted scheme for administering the [IRCA].’ ” McNary, 111 S.Ct. at 898 n. 13 (quoting Ringer, 466 U.S. at 621, 104 S.Ct. at 2025). That is why in Ringer the Court thought it mattered not whether a plaintiff had actually made a claim or was suing in anticipation of filing a claim; in either event, the action was construed as a “claim arising under” the Medicare Act because to hold otherwise would be to allow mere form to defeat congressional purpose. Ringer, 466 U.S. at 621, 104 S.Ct. at 2024-25.

Second, plaintiffs have not shown why they cannot be assured complete and adequate review in the courts of appeals, after exhaustion of administrative procedures, of the issue — the definition of “known to the Government” — that they would have the district court decide. We are not faced here with the problem of an inadequate record for appellate review, which troubled the Supreme Court in McNary and led it to conclude that Congress could not have intended to limit judicial review of the procedural challenges involved there. The question in this case is whether an agency ’s alleged interpretation of a statute is contrary to law, a question courts of appeals quite frequently decide on direct review of agency action. No one contends that a court of appeals would have any difficulty deciding whether any INS interpretation of IRCA as it related to section 265 claimants was good law or not. And it cannot be seriously suggested that a court of appeals would be hampered by considering such a legal question in specific factual contexts — that is, as applied to particular aliens. In short, if the administrative and judicial review procedure that Congress provided is adequate to provide full relief of individual aliens’ legal claim — and we believe that it is, see Ayuda, 880 F.2d at 1339 & n. 15 — there is no reason to permit plaintiffs to circumvent the statutory procedure.

This is not, as should be apparent, a garden variety exhaustion of administrative remedies case, in which a reviewing court can dispense with (“waive”) exhaustion if the court determines that resort to the agency procedures would be inadequate or futile. See Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 105-07 (D.C.Cir.1986). Congress here expressly provided that an alien could challenge the government’s refusal to grant legalization under the statute only if the government sought to deport the alien and then only in the courts of appeals. See Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 2467, 45 L.Ed.2d 522 (1975) (holding that “a statutorily specified jurisdictional prerequisite” is “something more than simply a codification of the judicially developed doctrine of exhaustion, and may not be dispensed with merely by a judicial conclusion of futility”). The Supreme Court thought that Congress did not intend that procedure to preclude district court authority to remedy INS practices that could not adequately be reviewed in the courts of appeals on appeal of a deportation order. Insofar as the Supreme Court examined the adequacy of the INS’ administrative procedures in McNary, it was only to determine whether an adequate record would be compiled to provide a court of appeals with the wherewithal for meaningful review. Neither the Court nor Congress has granted us an open-ended commission to judge for ourselves the “adequacy” of the administrative procedures, short of judicial review, that are available to remedy an alleged INS misunderstanding of IRCA.

Nor is there, notwithstanding the implications in the dissenting opinion, any general right stemming from either administrative or constitutional law to challenge agency regulations or, as in this case, interpretations of regulations facially rather than on an as-applied, case-by-case basis.

The case-by-case approach that this [principle that only individual agency actions and not entire “programs” can be challenged requires] is understandably frustrating. ... But this is the traditional, and remains the normal, mode of operation of the courts. Except where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific “final agency action” has an actual or immediately threatened effect [citation omitted]. Such an intervention may ultimately have the effect of requiring a regulation ... to be revised in order to avoid the unlawful result that the court discerns. But it is assuredly not a swift or as immediately far-reaching a corrective process as those interested in systemic improvement would desire. Until confided to us, however, more sweeping actions are for the other Branches.

Lujan v. National Wildlife Fed’n, — U.S. -, 110 S.Ct. 3177, 3191, 111 L.Ed.2d 695 (1990). Of course, if an alien prevailed in the court of appeals challenging the INS’ interpretation of section 265 as a “rule of broad applicability,” the result could well be “that the rule is invalidated, not simply that the court forbids its application to a particular individual.” Id. 110 S.Ct. at 3201 (Blackmun, J., dissenting).

As far as we can tell, neither the plaintiffs nor the dissent fix upon any real inadequacy that has developed or could be expected to develop in the administrative record of any of the plaintiffs for purposes of judicial review. Apparently, none of the individual plaintiffs has gone through the legalization process and none is subject to a deportation order. To be sure, the plaintiffs suggest that some aliens were denied an opportunity even to file their applications for legalization. Were that the case, we would agree that McNary would apply and the district court would have had jurisdiction to order the INS’ local offices to accept applications. (Indeed, the government’s initial brief conceded as much.) Otherwise, an alien in that position would not have been able to develop any sort of administrative record on which, if the government initiated deportation proceedings and obtained a deportation order, the alien could rely in the court of appeals. But that is not this case; there was no evidence presented that any aliens (much less any of the five individual alien plaintiffs) were prevented from filing an application. See Ayuda, 880 F.2d at 1341-42. Some local INS offices may well have told some section 265 claimants that if they applied (which required a hefty $185 fee) the office would recommend that legalization be denied. To the extent that occurred, some aliens may have been discouraged or deterred from filing, just as they would have been discouraged if a QDE (or, for that matter, a lawyer) gave the same advice, but that hardly suffices to give the district court jurisdiction to preempt the INS and issue its own declaratory judgment on the legal issue. The distinction between giving advice on a difficult legal question — advice that may or may not turn out to be wrong — and literally closing the INS’ office doors in aliens’ faces — foreclosing judicial review under the statutory scheme — is, under McNary, decisive whether or not “subtle.” Dissent at 761 n. 3.

The dissent also argues — although plaintiffs never did — that the INS’ prosecutorial discretion to decide when, against whom, and in which circuit it should bring deportation proceedings that would raise statutory interpretation questions gives the INS inappropriate power to control judicial review. But that kind of authority is inherent in prosecutorial discretion, and it is surely late in the day for it to be challenged by a circuit judge. See Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985) (“This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce ... is a decision generally committed to an agency’s absolute discretion.”). Our colleague goes on to suggest in a footnote, see Dissent at 767-768 n. 8, that the government might actually refuse to deport aliens who were denied legalization on disputable legal grounds — even someone who requested deportation in order to obtain judicial review — just to frustrate judicial review. Of course, we have not seen a shred of evidence that the INS has ever considered such a despicable course, but even if it were to occur, we think that the McNary exception would again apply. Aliens faced with that effort to circumvent the plain congressional scheme by denying them any meaningful judicial review could certainly rely on McNary to sue directly in district court.⁶

The only real argument that plaintiffs make to the effect that the statute’s judicial review procedure is inadequate (besides that it is burdensome) is that aliens would have to come forward, lose anonymity, and risk deportation in order to obtain judicial review of an INS statutory interpretation that governed legalization determinations. It is important to recognize in this regard that under the statutory scheme, aliens run no risk when applying for legalization because the INS may not use any information gained through the application or the administrative review of the application to initiate or prosecute a deportation proceeding against the alien. See 8 U.S.C. § 1255a(c)(5). Still, a denial of legalization surely causes some injury and the only way under the statute that an alien can challenge the denial is to provoke a deportation proceeding. The Supreme Court did say that “that price is tantamount to a complete denial of judicial review for most undocumented aliens,” McNary, 111 S.Ct. at 898, but we do not see how that observation could be extended to the holding in the case. If it were, even an individual alien could sue in federal district court at any point prior to a deportation order to challenge any action of the INS that bore on his legalization and to obtain a judicial opinion that would make the INS’ decision on his actual application a mere formality. That would make a hash of the legislative scheme, which envisioned an alien not only coming forward (and losing anonymity) but also becoming the subject of an actual deportation order as prerequisites to judicial review. See id. at 893.⁷ Judge Wald contends, however, that aliens should have the right to bring “test cases” in federal district court so that they could know whether their applications would ultimately lead to legalization before the statutory period for filing applications expired. See Dissent at 765. The short and complete answer to this contention, in our view, is that Judge Wald’s desired statute is not the one Congress enacted.

It certainly can be argued as a matter of policy that Congress should not have put aliens whose applications are denied to the difficult choice of either courting deportation or not seeking judicial review. See generally Kanstroom, Judicial Review of Amnesty Denials: Must Aliens Bet Their Lives to Get Into Court?, 25 Harv. C.R.C.L.L.Rev. 53 (1990).⁸ But Congress did, and “[i]t is not our task to make an imperfect statute perfect.” Central Vermont Ry. v. Brotherhood of Maintenance of Way Employees, 793 F.2d 1298, 1303 (D.C.Cir.1986). In Ringer, it was also argued that the statutory exhaustion requirement (jurisdictional, not waivable) could deprive a claimant of meaningful administrative and judicial review because he might not be able to afford an operation for which a reimbursement claim would be made — and his doctor might not be willing to assume the risk of nonpayment by the government. That concern, expressed in the dissenting opinion, led the Court’s majority to respond that “Congress ... surely could have provided a scheme whereby claimants could obtain declaratory judgments about their entitlements to bene-fits_” Ringer, 466 U.S. at 625, 104 S.Ct. at 2027. Similarly, here Congress could have provided for a declaratory judgment procedure to ascertain an alien’s entitlement to legalization, or at least for direct review of a denial of legalization. But Congress did not, and we do not read McNary to say otherwise.

Essentially, the analytical difficulty with plaintiffs’ position and, with all due respect, the flaw in our dissenting colleague’s reasoning, lie in an inability to describe those situations not covered by the McNary exception to IRCA’s judicial review procedures. The dissent, for instance, tells us that anyone — even an individual alien — may seek a declaratory judgment or injunction interfering with the INS’ administration of IRCA simply by framing the challenge as “directed at a general policy and not an individualized determination,” Dissent at 763 n. 4 — something any competent lawyer could surely do. As such, the dissent runs afoul of the same problem the dissenters in Ringer encountered, that the exception would inevitably swallow the rule. See Ringer, 466 U.S. at 625-26, 104 S.Ct. at 2027-28; see also supra note 5. We therefore do not think Judge Wald’s approach is a fair interpretation of the Supreme Court’s opinion in McNary; the Court thought that Congress created an implied exception to the restrictive judicial review of legalization denials— on review of deportation orders in the courts of appeals — only for those cases in which, for structural reasons, court of appeals review would be inadequate.

If McNary were not read as focused on the structural inadequacy of court of appeals review of the collateral constitutional claims presented in that case, we would create a hopeless jumble of confusion as to which IRCA cases come to the district court and which to the courts of appeals. The dissent does not, and in our view could not, contend that should a case come to us or any other court of appeals on an appeal from a deportation order raising the section 265 claim, we would have any difficulty in examining the INS’ interpretation of the statute — in other words, reviewing the case. Judge Wald’s reading of McNary, accordingly, runs squarely against (without any explanation) an important principle governing judicial review of agency action: the same question may not he brought into either the court of appeals or the district court at the litigant’s pleasure. See Ayuda, 880 F.2d at 1338; Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 77-79 (D.C.Cir.1984) (TRAC).

In sum, we believe McNary holds that if the statutory administrative and judicial review scheme provides meaningful court of appeals review of an alien’s legal claim, then Congress intended that scheme to be exclusive — ousting the district court of jurisdiction to hear the sort of claim at issue here. It is only when a collateral issue, typically a procedural practice, cannot be adequately presented to the courts of appeals that the exclusivity of section 1255a(f)(1) gives way. We do not dispute the “well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action.” McNary, 111 S.Ct. at 898. Plaintiffs’ claims will receive full judicial review — but only after exhaustion of the administrative process that Congress provided and only in the court that Congress provided.⁹

In the best of all worlds, immediate judicial access for all of these parties might be desirable. But Congress, in [the statute], struck a different balance, refusing declaratory relief and requiring that administrative remedies be exhausted before judicial review of the Secretary’s decisions takes place. Congress must have felt that cases of individual hardship resulting from delays in the administrative process had to be balanced against the potential for overly casual or premature judicial intervention in an administrative system that processes literally millions of claims every year, [footnote omitted]. If the balance is to be struck anew, the decision must come from Congress and not from this Court.

Ringer, 466 U.S. at 627, 104 S.Ct. at 2028.

D.

Our original opinion in this case rested on alternative holdings, both jurisdictional in character. We concluded that the INS “policy” that plaintiffs sought to attack had not been adopted or applied by the agency in a definitive enough fashion, if at all, to permit judicial review — even assuming the district court had jurisdiction to hear the claim. Ayuda, 880 F.2d at 1341-46. We see nothing in McNary that impacts at all on our finality and ripeness alternative holding.

To be sure, subsection 1255a(f), on which our jurisdiction discussion centers, is a statutory provision that does two things. It requires exhaustion of administrative procedures before going to any court, and it limits review of administrative determinations that are or could be decided in that process to the courts of appeals. Exhaustion, as a doctrine of administrative law, overlaps with ripeness and finality. See generally Ticor Title Ins. Co. v. FTC, 814 F.2d 731 (D.C.Cir.1987). All three are designed, in part, to permit an agency of the Executive Branch to decide issues of administrative law fully before a court intervenes. Insofar as McNary concluded that section 1160(e) did not bar collateral challenges to unconstitutional procedures adopted by the INS in processing applications, it determined that Congress did not intend that section to require exhaustion of administrative procedures with regard to those claims. But that, as we have discussed, was because those issues could not be adequately addressed in the courts of appeals since the record compiled in the administrative process was inadequate. Under those circumstances, the Court did not believe that Congress intended that those sorts of issues had to be fully litigated through an administrative process that was not really equipped to deal with a constitutional challenge to the agency’s practices and procedures. The issues litigated in McNary were also clearly final and ripe for judicial review as collateral challenges to the agency’s undisputed systemic practices. See McNary, 111 S.Ct. at 895. The McNary plaintiffs’ claims did not ask the district court to preempt the INS’ efforts to interpret IRCA’s ambiguous provisions; the Ayuda plaintiffs’ claims do.

In our original opinion we discussed at length why we thought the section 265 issue presented to the district court was not final or ripe (our ripeness discussion included, of course, a hardship analysis). After examining McNary, we stand by our views on that question. See Ayuda, 880 F.2d at 1341-46. Judge Wald, however, abandons her original position, see Ayuda, 880 F.2d at 1362-64 (Wald, C.J., dissenting) (“[T]hfe INS had a formal, final policy on § 265 violators.... ”), and now agrees that the INS had “not yet articulated the agency’s policy with regard to § 265 IRCA applicants” — had not yet acted — but contends nevertheless that the case was “ripe” for judicial “review” because of the severe hardship that the plaintiff aliens would otherwise suffer. Dissent at 769-770. We simply do not understand how the district court could be thought to have authority to “review” actions or positions not yet taken by an agency. To be sure, under the Administrative Procedure Act (APA), judicial review is available to determine whether agency action has been “unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). See Public Citizen Health Research Group v. Commissioner, FDA, 740 F.2d 21, 32 (D.C.Cir.1984). But the plaintiffs have never claimed that the INS was dilatory or in any way unreasonably delayed action. On the contrary, the agency seems to have been moving with alacrity to process applicants during the statutory window period. Moreover, as we noted in our previous opinion, the INS was not obliged, nor could it reasonably have been expected, to announce in advance of the receipt of applications its position on all the many, perhaps infinite, variations of legal issues that could arise in the interpretation of IRCA. See Ayuda, 880 F.2d at 1332-33. Indeed, as we also noted, Congress did not direct the agency to issue any regulations (with one exception not relevant here) that would set forth the agency’s interpretations of the statute, so it can be assumed that Congress expected those interpretations would issue in case-by-case legalization determinations. See id. The agency, by issuing a regulation when it did not have to do so, attracted this litigation. But that regulation did not, as Judge Wald now agrees, resolve the question raised by the section 265 claimants. See id, at 1342-43. We therefore do not see how the cause of action created by the APA, authorizing judicial intervention when an agency unreasonably delays action, has anything to do with this case— much less cures its jurisdictional defects. See TRAC, 750 F.2d at 76 (“APA [§ 706(1)] unquestionably does not confer an independent grant of jurisdiction_”). The case was not ripe nor was the agency’s action final.

Nor do we understand how the All Writs Act, 28 U.S.C. § 1651(a), could have provided authority to the district court to have issued its extraordinary orders. In the first place, the Act was not relied upon as a basis for relief by either the plaintiffs or the district judge. Even more important, however, it can never provide jurisdiction to a court that does not and would not otherwise have jurisdiction. See TRAC, 750 F.2d at 76 (“[I]t is firmly established that section 1651 does not expand the jurisdiction of a court....”); see also id. at 77 & n. 33 (“Because the District Court has no present or future jurisdiction over agency actions assigned by statute to appellate court review, it can contemplate no exercise of jurisdiction that mandamus might aid.”). This court did, in the TRAC case, use the All Writs Act to protect our prospective appellate jurisdiction. But, we did so only to protect our jurisdiction to review final FCC agency action against encroachment by the district court. See id. at 76-77. It seems then that the only arguably appropriate use of the Act in this case would have been at the instance of the government against the plaintiffs to protect our appellate jurisdiction.

If we understand our dissenting colleague, she contends that the district court could do the reverse—issue an order effectively preventing the court of appeals from gaining jurisdiction over a claim that the district court wished to adjudicate. That would seem to be the effect of the court’s order “enjoin[ing the INS] from denying legalization” to section 265 claimants, since it clearly preempts the government from denying legalization, issuing a deportation order, and defending the denial in the court of appeals in accordance with the statutory scheme. We think Judge Wald’s argument is premised on a rather peculiar view of the interrelationship of the two courts and is, in any event, a misreading of TRAC. We did not, in that case, take jurisdiction of the underlying agency proceeding; we simply prevented the district court from interfering with a case that could eventually come to the court of appeals. Here, the dissent—although not the plaintiffs or the district judge—would have the district court use the All Writs Act in an entirely unprecedented way, allowing the district court to become, in effect, the temporary administrator or overseer of this portion of IRCA. That is not permissible. As we have explained, even if the McNary exception applied to this case, the district court still lacked jurisdiction to issue its order directing the INS to act on the section 265 issue because the agency’s “policy” on that issue had not crystallized to the point of finality and ripeness. Surely a district court may not use the All Writs Act to exercise jurisdiction over an agency (rather than against an encroaching court) before a case is ripe or the agency’s action is final. Otherwise, district courts could easily circumvent those jurisdictional bars.

It may well be that some aliens suffered harm by not filing applications for legalization during the one-year grace period. That would be so, of course, only if they were section 265 claimants who were dissuaded from applying because they did not believe they could establish that they had willfully failed to file the section 265 quarterly reports or, even if they could, that that would not prove their illegal status was “known” to the government, see Ayuda, 880 F.2d at 1344-45—and that it will ultimately turn out that they were wrong. That would eertainly be regrettable, even sad, but it is not apparent to us who bears the blame. The Congress provided a risk-free method of filing legalization applications. Any undocumented alien who had a plausible claim to legalization should have at least filed a timely application. Everyone in our society bears the risk of getting bad legal advice. And we all also bear the risk of relying on an incorrect district court judgment.

Ayuda II

A.

There was not much time left before the May 4, 1988, statutory deadline for legalization applications when the district court issued its orders interpreting “known to the Government”; in the case of the section 265 applicants, there were only two days remaining. Just before the grace period was to expire, the plaintiffs moved to toll the deadline for the aliens affected by the court’s orders. On May 4, the district court ostensibly denied this request but nevertheless retained jurisdiction to provide “relief” to aliens who missed the deadline because the INS had “dissuaded” them from applying. Ayuda, Inc. v. Meese, 687 F.Supp. at 669-70. About a month later, the court ordered the INS to undertake a publicity campaign asking aliens who had not filed before the deadline to send a statement detailing their reasons for not filing and their eligibility for legalization to the plaintiffs’ counsel. See id. at 671-74.

The government soon moved to vacate this order on the authority of the Supreme Court’s intervening decision in INS v. Pangilinan, 486 U.S. 875, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988), which, the government argued, precludes courts from extending or otherwise disregarding a statutory deadline. The district court initially decided that Pangilinan did prevent it from extending the deadline, but then held that decision — as well as its earlier decision to deny plaintiffs’ motion to toll the deadline — “in abeyance” and appointed special masters to determine whether any aliens had in fact been dissuaded from applying because of misinformation received from the INS and whether those aliens could otherwise make out a prima facie case of eligibility for legalization. Ayuda, Inc. v. Meese, 700 F.Supp. 49, 51-53 (D.D.C.1988). This court denied the government’s effort to obtain a writ of mandamus directing the district court to withdraw its appointments, see In re Thornburgh, 869 F.2d 1503 (D.C.Cir.1989), but when we then held in Ayuda that the district court lacked jurisdiction over the entire matter, the district court stayed most — but not all — of the proceedings involving the special masters.

After filing a petition for certiorari in Ayuda, the plaintiffs asked the district court to order the INS to provide interim relief, including work authorizations, to aliens who the plaintiff organizations decided had been dissuaded from applying and were eligible for legalization. Notwithstanding that under the law of this circuit he had no jurisdiction to hear any aspect of this case, the district judge granted the requested injunction “pending a final disposition by the United States Supreme Court of Ayuda, Inc. v. Thornburgh ... and further Order of this Court.” Ayuda, Inc. v. Thornburgh, 744 F.Supp. 21, 22 (D.D.C.1990). We granted the government’s motion for a stay of that preliminary injunction, see Ayuda, Inc. v. Thornburgh, 919 F.2d 153 (D.C.Cir.1990), and now consider the government’s appeal.¹⁰

B.

The propriety of interim injunctive relief turns on four familiar factors: (1) the plaintiffs’ likelihood of success on the merits; (2) the threat of irreparable harm to the plaintiffs if interim relief is denied; (3) the threat of substantial harm to others if the relief is granted; and (4) the public interest. See, e.g., Ambach v. Bell, 686 F.2d 974, 979 (D.C.Cir.1982) (per curiam). We normally review the district court’s balancing of these factors for abuse of discretion. See, e.g., Foundation on Economic Trends v. Heckler, 756 F.2d 143, 151 (D.C.Cir.1985). But we do not afford deference when the appeal presents a substantial argument that the trial court’s decision was premised upon an erroneous legal conclusion. See id. at 152; Ambach, 686 F.2d at 979-80; see also Delaware & H. Ry. v. United Transp. Union, 450 F.2d 603, 620 (D.C.Cir.), cert. denied, 403 U.S. 911, 91 S.Ct. 2209, 29 L.Ed.2d 689 (1971) (such legal premises are “reviewable fully and de novo”). Indeed, this Court has held that “substantial doubt” as to district court jurisdiction provides a basis for suspending a preliminary injunction. See Southern Ry. v. Brotherhood of Locomotive Firemen, 384 F.2d 323, 326 (D.C.Cir.1967) (per curiam).

This appeal, of course, does raise serious questions concerning the district court’s power to order the INS to grant work authorizations to aliens who did not tender legalization applications before the statutory deadline. We conclude, on two separate grounds, that the district court lacked jurisdiction to issue such an order.

C.

Drawing upon the same analysis we developed in the first part of this opinion, we do not think that the district court’s exercise of authority in this ancillary proceeding was any more authorized by the McNary exception to IRCA’s statutory review procedures than it was in Ayuda I. We do not view this case as a “collateral” challenge to an INS practice or procedure. Instead, we agree with the government that a “[tjimely application” is one of the four congressionally mandated substantive eligibility “requirements,” see 8 U.S.C. § 1255a(a)(l)-(4), for entitlement to legalization and work authorization for undocumented nonimmigrant aliens. See id. § 1255a(e)(2); see also Perales v. Thornburgh, 762 F.Supp. 1036, 1067 (S.D.N.Y.1991). The timeliness of an alien’s application, therefore, contributes to the ultimate determination of the merits of his application no less than the other criteria listed in the statute. For aliens whose applications satisfy those other criteria so that they could present an otherwise “pri-ma facie application for adjustment of status,” 8 U.S.C. § 1255a(e)(2), success in this action “would have the practical effect of also deciding their claims for benefits on the merits,” rather than merely reopening their files for reconsideration in light of new procedural protections. McNary, 111 S.Ct. at 897; see also Ringer, 466 U.S. at 614, 104 S.Ct. at 2021.

The review process established in section 1255a(f), moreover, appears entirely able to address plaintiffs’ challenges (assuming judicial review of plaintiffs’ claims is available at all, see infra Part II-D). See Ringer, 466 U.S. at 617, 104 S.Ct. at 2022-23; cf. McNary, 111 S.Ct. at 898. We see no reason why the courts of appeals would encounter any unusual difficulty in considering the propriety of the INS’ interpretation of section 1255a to allow or disallow late or “constructive” filings. Nor have plaintiffs argued that the fact-finding capabilities of the district court are essential because the administrative process would not produce a record that would allow meaningful judicial review of their claims. Cf. McNary, 111 S.Ct. at 896, 898-99. And the courts of appeals are clearly able to afford plaintiffs whatever relief — legal or equitable — their claims merit.

In short, plaintiffs cannot establish district court jurisdiction simply by presenting their claims as a group and refusing to file the individual applications that would allow the administrative process to operate. Limiting the aliens in this case to the con-gressionally established review process is appropriate because it would not constitute “the practical equivalent of a total denial of judicial review.” Id. at 899. And, as we decided before, the statute will not allow the organizational plaintiffs a broader opportunity than that of the aliens whom they assist to obtain district court declaratory judgments controlling the INS' treatment of those aliens. See Ayuda, 880 F.2d at 1339-40.

D.

Even if the plaintiffs had presented a claim that fell within the McNary exception, we would reach the same result because a separate jurisdictional limitation in this section of IRCA unequivocally bars the district court’s jurisdiction. In addition to providing the administrative and judicial review structure at issue in McNary and Ayuda I, section 1255a also directs that “[n]o denial of adjustment of status under this section based on a late filing of an application for such adjustment may be reviewed by a court of the United States or of any State or reviewed in any administrative proceeding of the United States Government.” 8 U.S.C. § 1255a(f)(2). This provision, which is not included in the statutory review provisions considered in McNary¹¹ and which emphasizes the congressional intent that the amnesty period come to an end as scheduled, could not in our opinion indicate more plainly that the district court has no power to order the INS to grant work authorizations to aliens who failed to file applications on time. Despite the government’s repeated reference to this provision, which speaks directly to the district court’s jurisdiction over this case, plaintiffs’ brief does not attempt to explain why this language does not constitute a separate bar to this proceeding. That, as the dissent argues, Dissent at 773, there have not yet been actual “denial[s]” due to late filing because the plaintiff aliens preempted administrative action by filing in district court cannot defeat this bar; otherwise, aliens who missed the deadline could circumvent Congress’ clear purpose of preventing them from coming to court after losing before the INS on this issue simply by going to court before filing with the agency. See McNary, 111 S.Ct. at 898 n. 13; Ringer, 466 U.S. at 621, 104 S.Ct. at 2024-25. Therefore, that we cannot know for certain whether the INS will reject these applications is wholly irrelevant.

The “well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action,” McNary, 111 S.Ct. at 898; see also Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670-73, 106 S.Ct. 2133, 2135-37, 90 L.Ed.2d 623 (1986), is, of course, just that — a presumption — and it can be overcome by a sufficiently clear congressional directive. See Bowen, 476 U.S. at 673, 106 S.Ct. at 2137; Block v. Community Nutrition Inst., 467 U.S. at 349, 351, 104 S.Ct. at 2455, 2456.¹² It is difficult to see how Congress could have made any clearer its intention to prevent judicial intervention into the INS’ enforcement of the application deadline; we do not see a plausible alternative interpretation of the language Congress used that would allow judicial review in this case. Certainly this provision is far more explicit in its preclusion of review than the statutes at issue in cases such as Block, 467 U.S. at 348-52, 104 S.Ct. at 2455-57, or Morris v. Gressette, 432 U.S. 491, 501-07, 97 S.Ct. 2411, 53 L.Ed.2d 506 (1977), which made no reference at all to preclusion of review. And we are directed to nothing in the legislative history that would lead us to a different conclusion. Indeed, the legislative history seems to support the plain language. We noted in our original opinion that:

Congress intended aliens to come forward during the 12-month eligibility period because “this is the first call and the last call, a one shot deal.” 132 Cong. Rec. S16,888 (daily ed. Oct. 17, 1986) (remarks of Sen. Simpson). If aliens did not make a legalization claim during that window period, it was lost forever.

Ayuda, 880 F.2d at 1333. Furthermore, in late April 1988, with the deadline fast approaching, Congress refused to extend the grace period, despite well-ventilated concerns that last-minute court decisions had confused aliens. See 134 Cong.Rec. 9291-96 (1988).¹³

We hold that both 8 U.S.C. § 1255a(f)(l) and (f)(2) deny the district court jurisdiction to order injunctive relief that effectively eliminates the timely application requirement for work authorization. We therefore do not reach the government’s remaining arguments.

Ayuda III

“A” and “G” nonimmigrant visas are provided to certain foreign diplomats, officials, representatives, and their families and employees; the visas restrict the type of work their holders may perform while in this country. See 8 U.S.C. § 1101(a)(15)(A) & (G). Certain “A” and “G” visaholders who had violated the work restrictions applied to the INS for legalization, contending that the unauthorized work made their presence unlawful and that the government knew of their status. The INS denied the applications on the ground that the claimants’ status was not unlawful because the State Department had not revoked their visas. Plaintiffs then sought to hold the INS in civil contempt of the district court’s orders construing “known to the Government”; the district court denied the motion. Plaintiffs appealed, then asked our court to hold their appeal in abeyance pending further appellate review of our first opinion in Ayuda; the government moved to dismiss, arguing first that the district court’s ruling was not an appealable final order and then, after the McNary decision, that the district court had no jurisdiction over this matter. The issue before us is thus both the district court’s jurisdiction to hear plaintiffs’ motion and our jurisdiction to hear plaintiffs’ appeal, but not the merits of the motion.¹⁴

In Ayuda I, however, we hold that the district court was without jurisdiction to issue the orders of which the INS is allegedly in contempt. We accordingly view this appeal as moot. Civil contempt, unlike criminal contempt, is imposed not to vindicate the authority of the court but to enforce the rights deemed by the court as belonging to the opposing party. See United States v. Spectro Foods Corp., 544 F.2d 1175, 1182 (3d Cir.1976); 11 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2960, at 583-87 (1973 & Supp. 1991). As we have concluded that the district court had no power to determine plaintiffs’ rights in this context, there is no longer a basis for holding the government in civil contempt. See United States v. United Mine Workers, 330 U.S. 258, 295, 67 S.Ct. 677, 696-97, 91 L.Ed. 884 (1947) (“The right to remedial relief [for civil contempt] falls ... a fortiori when the injunction ... was beyond the jurisdiction of the [district] court.”); Spectro Foods, 544 F.2d at 1182 (collateral bar rule inapplicable to civil contempt).

We hold that the district court was without jurisdiction to issue Supplemental Order V and to order interim injunctive relief in plaintiffs’ suit to extend the filing deadline. We also hold that plaintiffs’ appeal of the district court’s denial of their motion to hold the government in civil contempt is moot.

It is so ordered.

1 . Immigration Reform and Control Act of 1986, Pub.L. No. 99-603, 100 Stat. 3359.

2 . As none of the parties is appellant or appellee in all three consolidated cases, we will refer to the undocumented aliens and the organizations supporting them as the "plaintiffs.”

3 . See Immigration and Nationality Act (INA) § 265, 8 U.S.C. § 1305 (1976), amended by 8 U.S.C. § 1305 (1982); see also 8 C.F.R. § 265.1 (1981).

4 . The Court also believed that a “collateral challenges" exception to the statutory review limitations was indicated by the “abuse of discretion” standard of judicial review under section 1160(e)(3)(B), which, although “appropriate for judicial review of an administrative adjudication of the facts of an individual application ...[,] does not apply to constitutional or statutory claims, which are reviewed de novo by the courts.” McNary, 111 S.Ct. at 897. We have, however, commonly understood “abuse of discretion” standards to allow unrestricted appellate review for legal error, see, e.g., Pappas v. FCC, 807 F.2d 1019, 1023 (D.C.Cir.1986); Jaimez-Revolla v. Bell, 598 F.2d 243, 246 (D.C.Cir.1979); we do not think the Court meant to disagree with that proposition. And in any case, the Court's concern does not appear to be implicated by the claims presented here, since such statutory interpretation questions are clearly governed by the standard of review set forth in Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82.

5 . The Court seemed to read the "determination respecting an application" language as barring direct district court review only of "a single [INS] act" or "individual denials of SAW status” and not of "a group of [INS] decisions" or “general collateral challenges." McNary, 111 S.Ct. at 896 (emphases added). But if this were the case, two aliens (two being a "group”) or any class of aliens with similar claims could freely choose between filing declaratory judgment actions in district court and filing individual legalization applications with the INS — or, presumably, both. This reading would transform what the Court agreed were provisions "limit[ing] review,” id. at 898, into provisions bestowing upon aliens a choice of forum. Seen against the remainder of the Court's analysis, and in light of Ringer’s directive that review provisions “must be construed” to prevent forum-shopping, 466 U.S. at 621, 104 S.Ct. at 2024-25, we do not think this individual/group distinction is controlling. See infra at 752-753.

6 . The dissent cites two recent Ninth Circuit cases, Campos v. Nail, 940 F.2d 495 (9th Cir.1991), and El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 941 F.2d 950 (9th Cir.1991), as support for district court jurisdiction over this case. See Dissent at 766-767 & n. 7. Each of those cases, however, involved not IRCA but rather section 106 of the INA, 8 U.S.C. § 1105a. See Campos, 940 F.2d at 497; El Rescate, 941 F.2d at 953. As we discussed in our prior opinion, the question "whether there is a ‘program’ exception to section 106[] for constitutional and statutory claims" raised before the initiation of deportation proceedings remains open in this circuit. Ayuda, 880 F.2d at 1335-37. We noted, however, that although the judicial review provision of IRCA incorporates the machinery of section 106, it also expressly provides that an alien may seek judicial review of a denial of legalization only in the context of a section 106 proceeding. See 8 U.S.C. § 1255a(f)(4)(a). Whatever the reach of the McNary exception regarding IRCA cases, then, it might well be broader with respect to non-IRCA immigration cases. See Ayuda, 880 F.2d at 1337-38. Indeed, the El Rescate court did not even cite McNary.

In any event, we think that the results — if not the reasoning — of Campos and El Rescate are consistent with our reading of McNary. Campos involved an Immigration Judge (IJ) who continued, despite two reversals by the court of appeals, to employ a blanket practice of denying venue changes to aliens faced with deportation proceedings. The Ninth Circuit determined that it could not effectively control the “rogue" IJ through judicial review of individual deportation orders, so it upheld the district court’s jurisdiction to enjoin the IJ’s misbehavior and to require him to consider the individual merits of the aliens' requests. El Rescate involved an INS practice of providing incompetent and incomplete interpretation to aliens during immigration court hearings — one of the very practices at issue in McNary.

7 . It is also not apparent why even a preemptive suit would necessarily preserve an alien plaintiff’s anonymity. See generally 2A J. Moore, J. Lucus & G. Grotheer, Jr., Moore’s Federal Practice ¶ 10.02, at 10-6 to 10-8 (1991) (discussing the general presumption against the use of fictitious names for plaintiffs except where a "threat of actual physical harm” or a “strong privacy interest" is at stake); Hotel & Restaurant Employees Union, Local 25 v. Smith, 846 F.2d 1499, 1518 (D.C.Cir.1988) (opinion of Silberman, J.) (noting problems in analyzing standing and ripeness when plaintiffs are not identified).

8 . The plaintiffs do not argue that the statutory judicial review scheme itself violates their constitutional rights.

9 . The dissent’s invocation of Bowen v. Michigan Academy of Family Practitioners, 476 U.S. 667, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986), misses the mark. As we noted in our original opinion, see Ayuda, 880 F.2d at 1336-37 n. 11, Michigan Academy dealt with whether Congress had intended to preclude all judicial review of certain Medicare claims, not, as here, with whether the courts must respect the scheme of judicial review that Congress specifically provided. Our prior opinion also explained why International Union, UAW v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), relied on by plaintiffs then and by the dissent now, see Dissent at 768-69, is inapposite. See Ayuda, 880 F.2d at 1338.

10 . The dissent argues that this appeal is moot because there has been “a final disposition by the United States Supreme Court of Ayuda" and because the order’s language regarding a “further Order of this Court" is mere "boiler-plate” since "only the issuing court can vacate its own Order.” Dissent at 771-772 & n. 15. The Supreme Court has indeed disposed of Ayuda, but there is no indication whatsoever that the district court had "vacate[d] its own Order.” We cannot glibly presume that the interim relief "has come to an end,” Dissent at 772; the issue thus remains properly before us.

11 . In fact, 8 U.S.C. § 1255a(f)(2) is the only part of the review subsection at issue in the Ayuda cases, see id. § 1255a(f)(l)-(4), that is not duplicated in the review subsection at issue in McNary, see id. § 1160(e)(1) — (3).

12 . To be sure, elimination of judicial review over constitutional claims presents a serious constitutional question and the presumption in that context may therefore be more difficult to overcome. See, e.g., Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 2053-54, 100 L.Ed.2d 632 (1988); Johnson v. Robison, 415 U.S. 361, 373-74, 94 S.Ct. 1160, 1168-69, 39 L.Ed.2d 389 (1974). Plaintiffs make mention of a “due process theory” based on the idea that the government violated the Constitution by affording "many Ayuda-AigúAe aliens ... no meaningful opportunity to apply for legalization" before the statutory deadline. Pl.Br. at 30. This is a conclusion, however, and not an argument — and it also seems merely to restate the statutory issue in constitutional terms. Plaintiffs do not explain why the "opportunity to apply for legalization" is a constitutionally protected entitlement, nor — assuming it is, but see Lyng v. Payne, 476 U.S. 926, 942, 106 S.Ct. 2333, 2343, 90 L.Ed.2d 921 (1986) (“We have never held that applicants for benefits, as distinct from those already receiving them, have a legitimate claim of entitlement protected by the Due Process Clause_”) — why the plaintiffs did not receive the process constitutionally due under the circumstances. Furthermore, plaintiffs do not even hint that this "due process theory" acts to override Congress’ specific preclusion of judicial authority to review late filings. Rather, plaintiffs’ theory is raised only in the context of "distinguishing Pangilinan,” Pl.Br. at 28, a case that involved extension of a statutory deadline rather than evasion of an express statutory bar to judicial review.

13 . Plaintiffs cite Senator Grassley’s comments during the 1988 debate as support for the idea of judicial power to disregard the deadline:

There may very well be equitable reasons to allow these individuals to apply [after the deadline]; but there is no doubt that the courts are well equipped to evaluate equitable considerations.

Id. at 9295. But no other senator spoke in support of this conception of judicial power, and Senator Simpson, among others, flatly rejected such a view:

We asked the people to trust us and the trust was "Here it is. It is 1 year." ... "It is a onetime shot and here it is; one time only.” That is what we expressed and that is what the people of the United States know....

... We have to have finality — and that is what we must produce here, one way or the other— finality in the procedures; that this is it and if you want to live the dream, here is your chance and you do it by midnight, May 4, and that is it and it will never come again.

Id. at 9293-94.

14 . It bears mention, however, that the visahold-ers’ complaint with the INS seemingly has nothing whatsoever to do with the district court’s orders — the visaholders are quarreling about the meaning of "unlawful status,” whereas the court orders concern the meaning of “known to the Government.” See Ayuda, Inc. v. Thornburgh, Civ. Action No. 88-0625, slip op. at 3 & n. 1 (D.D.C. June 29, 1989).