Federation for American Immigration Reform, Inc. v. Janet Reno, Attorney General of the United States

Opinion for the Court filed by Circuit Judge WILLIAMS.

Dissenting Opinion filed by Circuit Judge ROGERS.

STEPHEN F. WILLIAMS, Circuit Judge:

For decades Cuban citizens have taken dramatic — often fatal — risks to leave Cuba and get to the United States. When the United States rescued them at sea it would routinely “parole” (release) them into the country and issue them work authorization, in contrast to the standard practice under international law of requiring a threshold showing of refugee status. But in August Í994 the Cuban government dropped its policy of forcibly preventing its citizens from emigrating to the United States by boat, and thousands of Cubans seized the opportunity. Our government in turn quickly changed its policy, barring Cubans rescued at sea from entering the United States. Instead they were transported to the Guantanamo Bay Naval Station and other safe havens, where they were held pending further developments.

One month later, in September 1994, both countries again changed their policies, issuing a Joint Communique Concerning Normalizing Migration Procedures, State Dep’t No.94-232, 1994 WL 621,517. According to the Communique, Cuba agreed “to take effective measures in every way it possibly can to prevent unsafe departures,” and the United States agreed to admit at least 20,000 Cubans per year as legal immigrants, not including immediate relatives of United States citizens. Shortly after the signing of the Communique, the Commissioner of the Immigration and Naturalization Service announced that the floor on legal immigration of Cubans would be achieved in part by “paroling” several thousand Cubans into the country each year under § 212(d)(5) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1182(d)(5), and then permitting them to apply for an adjustment of status to that of lawful permanent resident under the Cuban Adjustment Act, Pub.L. No. 89-732, 80 Stat. 1161 (1966) (reproduced as historical note to 8 U.S.C. § 1255).

The Federation for American Immigration Reform filed suit challenging the proposed implementation of the Communique. The Federation is dedicated to “ensuring that levels of legal immigration are consistent with the absorptive capacity of the local areas where immigrants are likely to settle.” Brief for Appellant at 6. Its members include approximately 1,400 dues-paying members who live in the Miami area, where many Cuban immigrants have settled in the past. Its complaint alleges that the scheme for parole and adjustment of status of Cuban nationals contravenes various provisions of the INA and other immigration laws, and that such actions will impair the quality of life enjoyed by its members in the Miami area by, for example, diminishing employment opportunities and crowding public schools and other government facilities and services. The district court dismissed the complaint, finding that the Federation failed to establish the “traceability” and “redressa-bility” elements of Article III standing. Federation for Am. Immigration Reform v. Reno, 897 F.Supp. 595 (D.D.C.1995); see Valley Forge Christian College v. Americans United for the Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).

On appeal, the government argues, as it did in district court, that the Federation’s challenge presents nonjusticiable political questions and that the Federation lacks constitutional and prudential standing. Because we find that the Federation lacks prudential standing, we need not consider the issue of constitutional standing or the political question doctrine.

Standing of an association as a representative of members requires that at least some of the members would have standing to sue in their own right, and also that the interests the association seeks to advance are germane to its purposes and that neither its claim nor the relief requested is such as to require participation in the suit by individual members. United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., — U.S. -, -, 116 S.Ct. 1529, 1534, 134 L.Ed.2d 758 (1996); Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). Neither of the latter (association-specific) requirements is in question here, so the Federation has standing if some of its members would.

The Federation brought its challenge under § 10(a) of the Administrative Procedure Act, which allows standing for one “aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702; see also Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). A party meets that standard if it is “arguably within the zone of interests” that Congress sought to protect or regulate under the statute in question. Data Processing, 397 U.S. at 153, 90 S.Ct. at 830. As the Federation’s members are not regulated by the immigration provisions it believes the government has violated, its claim necessarily rests on the idea that its members’ interests are among those Congress sought to protect. In light of the Supreme Court’s decision in Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987), we have viewed parties as showing a protected interest if either they were intended by Congress as “beneficiaries” of the statute or we could infer that Congress intended them as a “suitable challenger.” Hazardous Waste Treatment Council v. EPA, 861 F.2d 277, 283 (D.C.Cir.1988). To qualify as the latter, a party must show “less than an intent to benefit but more than a ‘marginal ] relationship]’ to the statutory purposes.” Id. (quoting Clarke, 479 U.S. at 399, 107 S.Ct. at 757).

The Federation’s complaint alleges violations of several statutory provisions. Its primary claim is that the scheme for parole and adjustment of Cuban nationals is inconsistent with the temporal limits on the parole authority granted to the Attorney General under 8 U.S.C. § 1182(d)(5)(A):

The Attorney General may ... in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

Id. The Federation contends, as we understand it, that the Attorney General’s treatment of the Cuban nationals violates the statute’s mandate that parole “shall not be regarded as an admission of the alien.” The Federation also argues that the adjustment of the Cubans’ status to that of lawful permanent resident violates 8 U.S.C. § 1254a(g), which says that certain provisions by which the Attorney General may permit aliens to remain in the United States temporarily because of their nationality are the exclusive means to that end. It further claims that the parole and adjustment scheme has the effect of discriminating on the basis of nationality in the issuance of immigrant visas in violation of 8 U.S.C. § 1152(a)(1). Finally, it says that the adjustment of paroled Cubans to the status of immigrants lawfully admitted for permanent residence violates § 1 of the Cuban Adjustment Act of 1966, as amended (reproduced as historical note to 8 U.S.C. § 1255), because the paroled individuals do not satisfy its requirement that they be eligible to receive immigrant visas.

The Federation’s theory of injury — which we assume to have satisfied the demands of constitutional standing — is that a rush of immigrants adversely affects the welfare of the Federation’s members by generating unemployment and wage reductions and by placing burdens on public services such as hospitals and schools, especially in the Miami area. But cf. David Card, “The Impact of the Mar-iel Boatlift on the Miami Labor Market,” 43 Indus. & Lab. Rel. Rev. 245, 250 (1990) (finding no effect on non-Cuban residents’ wages from the influx of 125,000 “Mariel” Cubans in 1980). As to prudential standing, the Federation’s idea is that because congressional limitations on immigration reflect concern over just such effects, the interests of Federation members must be within the zone of interests sought to be protected. The Federation presents two facets of the argument, one framed in nationwide terms and the other region-specific — focused on the Miami area, which has absorbed large numbers of Cuban immigrants over the past two decades. We turn to the latter argument first.

Interest in Limiting Immigration to Impacted Regions.

The Federation argues that “it would be hard to imagine for whose benefit Congress imposed the INA’s limitations if not for the benefit of persons living in the localities where immigrants would settle if allowed to immigrate, notably the [Miami area] in the ease of immigration from Cuba.” The problem with this argument is that the Federation has pointed to neither language in the statutes on which it relies (8 U.S.C. §§ 1152, 1182, and 1254a and the Cuban Adjustment Act) nor, with the trivial exceptions discussed just below, legislative history that even hints at a concern about regional impact. And intent to protect residents of impacted regions does not appear so plausible from the statute itself that we will infer it without more.

Of the various pieces of legislative history cited by the Federation, only two brief passages allude to regional (as opposed to national) effects of immigration at all. One passage, contained in a Senate Report on the Immigration Reform and Control Act of 1986, mentions regional effects in a general discussion of various “current problems” related to that act, which itself is not the source of any of the Federation’s claims. The relevant passage in the report reads in full:

[National immigration] figures actually underestimate the impact of immigration. Since it is concentrated in only a few regions of the country, the impact on these regions is of much greater significance than the overall figure suggests. For example, ... assuming continuance of existing settlement patterns, the population of California would double by 2080. Over one-half of that State’s population would consist of post-1980 immigrants and their descendants.

S.Rep. No. 132, 99th Cong., 1st Sess. 5 (1985). The Federation’s second passage concerning regional effects is also drawn from the legislative history of the 1986 Act and this time involves a funding provision of that act (again, not connected in any way to the provisions invoked by the Federation) under which the federal government was to provide partial reimbursement of costs incurred by states due to participation of “legalized” aliens (presumably those legalized by the Act) in various public programs. H.R. Conf. Rep. No. 1000, 99th Cong., 2d Sess. 93 (1986). The passage notes that funds were authorized to be used for “programs of public assistance, programs of public health assistance, and services provided by local educational agencies.” Id. These brief references to regional effects do little to establish that individuals living in immigration-impacted areas are either beneficiaries of, or otherwise suitable challengers under, the apparently unrelated statutory provisions that the Federation claims the government violated here.

General Interest in Limiting Immigration.

Another possibility is that the zone of interests protected by the statutory provisions invoked in the complaint includes the interest that legal residents throughout the United States may have in preventing immigration-related unemployment and stresses on the provision of government services. But the widespread nature of this alleged interest, indeed its near universality, suggests to us a negative answer to Clarke’s question whether Congress intended that persons having the interest should be “heard to complain” in federal court of alleged interferences with it. 479 U.S. at 399, 107 S.Ct. at 757. The injury (if any) to a citizen qua citizen from admission of an alien is an injury common to the entire population, and for that reason seems particularly well-suited for redress in the political rather than the judicial sphere. Small-scale violations of the law are unlikely to do much harm, and large-scale ones are likely to be picked up by the political process. As the Supreme Court said in Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975), “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.... In both [its constitutional and its prudential] dimensions [standing doctrine] is founded in concern about the proper — and properly limited — role of the courts in a democratic society.” (Emphasis added.) See also id. at 508 n. 18, 95 S.Ct. at 2210 n. 18 (“[C]itizens dissatisfied with provisions of [particular] laws need not overlook the availability of the normal democratic process.”) Where the question is whether Congress intended to grant a right to a particular class of individuals to enforce a statute or other provision of law in federal court, the near-universality of the class at least hints at a negative answer.

This is of course not to say that Congress is unable to enact statutes enforceable by any member of the public. As long as the requirements for Article III standing are met, Congress may permit suit by persons who would otherwise be barred by prudential standing requirements. Warth, 422 U.S. at 501, 95 S.Ct. at 2206. And, although the Article III requirements will not be met if the alleged injury is to an abstract or generalized interest, such as the interest in the proper operation of government, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 573, 112 S.Ct. 2130, 2143, 119 L.Ed.2d 351 (1992); Allen v. Wright, 468 U.S. 737, 760, 104 S.Ct. 3315, 3329, 82 L.Ed.2d 556 (1984), they may be satisfied even though the alleged injury is widespread or universal, so long as it is concrete, see United States v. Students Challenging Regulatory Agency Procedures (“SCRAP”), 412 U.S. 669, 686-88, 93 S.Ct. 2405, 2415-16, 37 L.Ed.2d 254 (1973). The question under the zone-of-interests test of § 702 is simply whether the language of the statutes invoked by the plaintiff or the supporting legislative history suggests a congressional intent to permit the plaintiffs suit.

Apart from the near-universal character of the asserted interest of citizens qua citizens in assuring that employment opportunities are not impaired and public services and facilities not overburdened, we see little that pushes us one way or the other in discerning whether Congress intended to permit suit by members of this broad class. As the Federation’s counsel stated in oral argument, “[i]f it is not to protect the people who live in the few communities where immigrants tend to settle, it would be hard to know for whose benefit those limitations were enacted, because Congress never mentions anybody else.” (Emphasis added). We have already seen that Congress failed to mention citizens, living in immigration-impacted areas in any relevant connection, so we are left facing something of a vacuum. We do not believe that an affirmative signal of Congressional intent to permit a suit is required for a finding of prudential standing; a different conclusion would be difficult to reconcile with the Court’s statement in Clarke that “[t]he [zone-of-interests] test is not meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff.” 479 U.S. at 399-400, 107 S.Ct. at 757 (emphasis added). But we have also held that the absence of a clear indication of congressional intent to forbid the suit does not automatically confer standing on the plaintiff. National Fed’n of Fed. Employees v. Cheney, 883 F.2d 1038, 1052 (D.C.Cir.1989) (explicitly rejecting idea that parties “have standing unless the statutes or their legislative histories reveal a congressional intent to preclude reliance on this particular class of plaintiffs”).

The immigration context suggests the comparative improbability of any congressional intent to embrace as suitable challengers in court all who successfully identify themselves as likely to suffer from the generic negative features of immigration. If it were likely that the Immigration and Naturalization Service might be subjected to acute pressure from powerful pro-immigration interest groups, a congressional contemplation of universal litigative champions would perhaps be a likely inference. But in fact the people most directly affected by the agency’s behavior, the would-be immigrants, are exceptionally ill-placed to mount such pressures. Environmental legislation is a sharp contrast. Although it often has champions who have near-universal interests (breathing clean air, for example), it also works in an area with obvious and powerful domestic interest groups, the regulated firms, which Congress might fear as a source of distorting influence over the relevant agencies. In that context, the inference that Congress contemplated universal champions seems far more reasonable.

Moreover, we do not understand the Federation’s concept of its members’ injury to be at all analogous to the injury suffered by a broad public as a result of an increase in air pollution — each extra particle (or alien) causing a marginal increase in hazard. The Federation makes no such xenophobic suggestion, which in any event we would be most reluctant to impute to Congress as the injury it sought to avert (and thus the obverse of the interest to be protected). Rather, the injury asserted appears no different from the crowding effect that might be expected from any abrupt surge in the adult population. And under that view the injury is as diffuse as can be imagined. It is, for example, suffered even by those Cuban immigrants who would secure entrance to the United States if the program attacked by the Federation were dismantled. The asserted injury is thus borderless and universal in a way that even environmental injury is not.

Here, without either a clear indication of congressional intent or any obvious tie-breaking rule, we infer from the universality of the proposed class of plaintiffs and the above characteristics of the immigration context that Congress did not intend to permit suit in federal court by all members of the proposed class.

Employment-based Interest in Limiting Immigration.

In International Union of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798 (D.C.Cir.1985), we held that domestic workers fell within the zone of interests of INA § 212(a)(4), 8 U.S.C. § 1182(a)(14), which specifically excluded from the United States “alien workers whose entry ‘will ... adversely affect the wages and working conditions of the workers in the United States similarly employed.’ ” Bricklayers, 761 F.2d at 804 (quoting 8 U.S.C. § 1182(a)(14)). The Federation suggests, as an alternative to its primary arguments, that under Bricklayers a narrowed class of prospective plaintiffs, including only those persons for whom more immigration may imply a prospect of increased competition in the job market — and thus a lower wage or an increased risk of unemployment — falls within the zone of interests of the statutory provisions named in the complaint.

The INA contains various numerical limits on immigration. E.g., 8 U.S.C. § 1153. At least in some instances, these limits reflect a clear concern about protecting the job opportunities of United States citizens. A clear example is § 1153(b)(3)(A), which restricts visas for various types of workers to individuals capable of performing work for which “qualified workers are not available in the United States.” Assuming that the Federation’s members fall within the zone of interests of the numerical limit provisions, and thus would have prudential standing to complain of direct violations of those provisions, it does not follow that they have standing to complain about violations of the statutory provisions they in fact assert. See Lujan v. National Wildlife Fed’n, 497 U.S. 871, 883, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (1990).¹ If a plaintiff were permitted to bring a claim for violation of a particular statutory provision whenever he or she came within the zone of interests of some provision contained within the same act, the zone-of-interests test could be “deprive[d] ... of virtually all meaning.” Air Courier Conference of Am. v. American Postal Workers Union, 498 U.S. 517, 529-30, 111 S.Ct. 913, 921, 112 L.Ed.2d 1125 (1991).

In applying the zone-of-interests test, we do not look at the specific provision said to have been violated in complete isolation. In Clarke the Court looked not only to the provision allegedly violated but also to one to which it was an exception. 479 U.S. at 401-02, 107 S.Ct. at 758-59. And in Bricklayers we found that labor unions had standing to challenge the admission of aliens classified as “B-l’s” on the ground that their admission violated the limits on use of “H-2” visas, where both of the relevant statutory provisions appeared in a common subsection of the INA, § 101(a)(15), and concerned the same subject matter, entry specially for work purposes. 761 F.2d at 804-05. But in Air Courier the Supreme Court emphasized that it would look only to provisions having an “integral relationship” with the provisions under which the suit was brought. 498 U.S. at 530, 111 S.Ct. at 921. It thus refused to permit labor unions to challenge the “Postal Express Statutes” (governing use of private mailing services) on the basis of certain labor-management provisions — within whose zone of interests the unions presumably fell — contained in the same piece of legislation, the Postal Reorganization Act. Id. “None of the documents constituting the [Act’s] legislative history suggest that those concerned with postal reforms saw any connection between the [Postal Express Statutes] and the provisions of the [Act] dealing with labor-management relations.” Id.

The numerical limits in the INA do not seem to have the sort of “integral relationship” with the parole, nationality-preference, and visa-eligibility provisions invoked by the Federation that would permit the numerical limits to be considered in .establishing standing for the Federation’s members. Of course every immigration provision is in a broad sense part of the framework of every other provision. But if that were enough, then every provision constraining the admission of anyone under any circumstances (including any provision allowing the admission of anyone, for all such permissive provisions necessarily have their limits) would be pertinent in applying the zone-of-interests test to any provision. This does not seem the sort of relationship the Supreme Court had in mind in Air Courier.

Because Congress, in the various immigration provisions that the Federation says have been violated, did not seek to protect the interests of the Federation’s members by intending them as beneficiaries or as suitable challengers of violations, the judgment dismissing the complaint is

Affirmed.

1 . The Federation's complaint does refer to (unspecified) "numerical limits” on immigration, but we do not read the complaint to allege a claim for relief for violation of § 1153 or any similar provision.