60
Opinion of the Court
Ordinarily, of course, that barrier would appear when the INS formally denied the alien's application on the ground that the regulation rendered him ineligible for legalization. A plaintiff who sought to rely on the denial of his application to satisfy the ripeness requirement, however, would then still find himself at least temporarily barred by the Reform Act's exclusive review provisions, since he would be seeking "judicial review of a determination respecting an application." 8 U. S. C. § 1255a(f)(1). The ripeness doctrine and the Reform Act's jurisdictional provisions would thus dovetail neatly, and not necessarily by mere coincidence. Congress may well have assumed that, in the ordinary case, the courts would not hear a challenge to regulations specifying limits to eligibility before those regulations were actually applied to an individual, whose challenge to the denial of an individual application would proceed within the Reform Act's limited scheme. The CSS and LULAC plaintiffs do not
affirmative steps, or about their satisfaction of the Reform Act's other conditions. The end of the application period may mean that the plaintiffs no longer have an opportunity to take the steps that could make their claims ripe; but this fact is significant only for those plaintiffs who can claim that the Government prevented them from filing a timely application. See infra, at 61-64 (discussing the INS's "front-desking" practice).
Justice O'Connorís ripeness analysis encounters one further difficulty. In her view, the plaintiffs' claims are ripe because "[i]t is certain that an alien who now applies to the INS for legalization will be denied that benefit because the period has closed." Post, at 72 (emphasis in original). In these circumstances, she suggests, it would make no sense to require "the would-be beneficiary [to] make the wholly futile gesture of submitting an application." Ibid. But a plaintiff who, to establish ripeness, relies on the certainty that his application would be denied on grounds of untimeliness, must confront § 1255a(f)(2), which flatly bars all "court[s] of the United States" from reviewing "denial[s] of adjustment of status . . . based on a late filing of an application for such adjustment." We would almost certainly interpret this provision to bar such reliance, since otherwise plaintiffs could always entangle the INS in litigation over application timing claims simply by suing without filing an application, a result we believe § 1255a(f)(2) was intended to foreclose in the ordinary case.
Page: Index Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: October 4, 2007