510
Souter, J., dissenting
finding a right of action before the district court in a constitutional challenge to procedures of the Immigration and Naturalization Service. Respondents' challenge to the constitutionality of their prosecution was filed prior to the entry of a final order of deportation, and so district court jurisdiction was appropriate here.4
II
The approach I would take in this case avoids a troubling problem that the Court chooses to address despite the fact that it was not briefed before the Court: whether selective prosecution claims have vitality in the immigration context. Of course, in principle, the Court's approach itself obviates the need to address that issue: if respondents' suit is barred by § 1252(g), the Court need not address the merits of their claims. Yet the Court goes on, in what I take as dictum,5 to
argue that the alien's interest in avoiding selective treatment in the deportation context "is less compelling than in criminal prosecutions," ante, at 491, either because the alien is not
4 Respondents' challenge fell outside the scope of § 1105a, and was not subject to the requirement of exhaustion contained therein in the former § 1105a(c). As in McNary, the waiver of sovereign immunity is to be found in 5 U. S. C. § 702, which waives the immunity of the United States in actions for relief other than money damages. This waiver of immunity is not restricted by the requirement of final agency action that applies to suits under the Administrative Procedure Act. See The Presbyterian Church (U. S. A.) v. United States, 870 F. 2d 518, 523-526 (CA9 1989).
5 The Court says it "must address" respondents' various contentions, ante, at 487, and on that basis it takes up the selective prosecution issue. Notwithstanding the usefulness of addressing the parties' arguments, a line of argument unnecessary to the decision of the case remains dictum. See United States v. Dixon, 509 U. S. 688, 706 (1993) (quoting with approval United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439, 463, n. 11 (1993), on " 'the need to distinguish an opinion's holding from its dicta' "). Respondents' contention that their speech has been impermissibly chilled cannot require the Court to say that no action for selective prosecution may lie in this case; a claim of chilled speech cannot place the selective prosecution claim within the statutory jurisdiction that § 1252(g) forecloses on the Court's view.
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