Debra A. Howell v. Immigration and Naturalization Service

WALKER, Circuit Judge,

concurring:

I concur in the result based upon my conclusion that the case is not ripe for judicial review, not on the majority’s reasoning that exhaustion of remedies applies. In my view, the regulation to which the majority cites, 8 C.F.R. § 245.2(a)(5)(ii), does not satisfy the requirements of Darby v. Cisneros, — U.S. —, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993). There, the Supreme Court held that under the APA the doctrine of exhaustion applies “only when expressly required by statute or when an agency rule requires appeal before [judicial] review and the administrative action is made inoperative pending that review.” Id. at -, 113 S.Ct. at 2548. Writing for the Court, Justice Blackmun noted that the APA “has limited the availability of the doctrine of the exhaustion of administrative remedies to that which the statute or rule clearly mandates.” Id. at -, 113 S.Ct. at 2544. Section 245.2(a)(5)(ii) only states that “[n]o appeal lies from the denial of an application by the director, but the applicant retains the right to renew his or her application in [deportation proceedings].” I read this language as simply spelling out the appeal procedures that are available to an alien within the INS. I do not think that it satisfies the stringent requirements that Darby placed upon agencies that seek to condition judicial review upon exhaustion of remedies.

Although in my view exhaustion is not required, I believe that the issue presented in this case is not ripe for judicial review. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967); Occidental Chem. to. Corp. v. FERC, 869 F.2d 127, 129 (2d Cir.1989). Once deportation proceedings have begun there will be no direct and immediate impact until after the final decision in the deportation proceedings, judicial review would interfere with the INS’s adjudication process, the factual record has not been fully developed, and there is no final agency action. Therefore, I concur in the result on the ground that, once deportation proceedings began and until they are completed, Howell’s case is not ripe for judicial review. See Massignani v. INS, 438 F.2d 1276, 1277-78 (7th Cir.1971) (per curiam).