Enforcing Administrative Exhaustion Requirements for Pattern-and-Practice Claims Concerning Due Process Violations During Immigration Raids

the real id act has already restricted court oversight by eradicating systematic practices and were therefore beyond the real id act's purview.55 or not limiting review of ice's actions is wise from a policy perspective, clev. st. l. rev. 11, 15-16 (2005-06) (noting class-wide immigration claims often concern practices during now, by construing the real id at a leather factory in new bedford, massachusetts where they detained several considered whether such pattern-and-practice claims "arise" from removal for example, in construing the real id act's "arising from" remedy those claims.37 individual cannot easily raise pattern-and-practice claim in administrative hearing). moreover, even if an exhaustion requirement for claims entirely collateral to underlying substantive claim); see also bernal-vallejo requirements while preserving meaningful judicial review.35 katherine f. riordan see id. at 15. in contrast, the present administrative scheme provides sufficient administrative fact-finding and process rights during immigration raids arise from removal thus triggering the implemented the removal program at large, the petitioners' right-to-counsel because their pattern-and- noting that right- enlightened the court as to the ramifications of restricting review of class-wide 22. see supra note 21 (citing instances where agencies lack authority to adjudicate claims); see also enforcement, no. 0:07-cv-01959 (d. minn. sept. 10, 2007), 2007 wl 4637327 (counterarguing real id 41. see 510 f.3d at 14-15 (distinguishing mcnary, stating ijs' "record-developing capabilities" ensure 42-44 and accompanying text. nevertheless, by raising truly systematic acts, the petitioners may have and the board of immigration appeals (bia).19 singh v. chertoff, no. c05-1454 mhp, 2005 wl 2043044, at *3 (n.d. cal. aug. 24, 2005) (holding asylum bedford raid--and failed to convincingly argue that ice uses these tactics in all raids. see id.; cf. evans, supra aff'd, 510 f.3d 1 (1st cir. 2007). removal orders); id. � 1252(b)(9) (revoking federal district courts' habeas corpus jurisdiction over claims judicial review). noted in aguilar, the real id act specifically refers to "all questions of law and fact." 510 f.3d at 15. 43. see 510 f.3d at 15-17 (distinguishing mcnary, which challenged nationwide implementation of entire the first circuit aguilar holding were to extend not only to artfully conglomerated claims but to riordan_comment_wdff status termination proceeding not part of removal proceeding and, therefore, real id act inapplicable). that ice transferred detainees to texas because, given the greater difficulty in demonstrating community ties in wl 4462095 (claiming transfer inhibited access to counsel); plaintiffs' amended complaint for declaratory judicial review, 51 n.y.l. sch. l. rev. 113, 124 (2006-07) (explaining real id act aims to overhaul saw program). however, congress retains plenary power over immigration affairs and despite the class-wide format, it could enforce the real id act's exhaustion sufficient to establish an agency's unlawful patterns and practices. family, supra note 24, at 17, 37 (noting 46. see supra note 27 and accompanying text (noting right-to-counsel claims cognizable in administrative whether it was the underlying cognizable due process claim or the conglomerated rather than systematic requirement for various reasons and suggesting main basis unclear). the first circuit's reasoning was two- case). examination, supplemental district court fact-finding was unnecessary and the immigration statutes have historically prescribed judicial-review schemes, family, another limit on federal court jurisdiction? immigrant access to class-wide injunctive relief, 53 the court also properly observed that despite the claims' constitutional nature, 476 u.s. 467, 476 (1986) (holding claim against agency's internal policy collateral to underlying substantive and courts have struggled to define the scope of such schemes and whether they process.40 immigration law--enforcing administrative exhaustion requirements for agricultural worker (saw) status; however, during the application review process, ins refused to let administrative record could provide a sufficient basis for further administrative 2007), 2007 wl 2973013 (raising right-to-counsel violations and seeking injunction enjoining ice from note, renewing the call: immigrants' right to appointed counsel in deportation proceedings, 20 b.c. third many of these statutes also 61. see fiallo v. bell, 430 u.s. 787, 792 (1977) (recognizing congress's broad authority over its breadth and applying its provisions in a way that preserves due process. judicial review of those claims.21 administrative exhaustion and significantly limits judicial review of claims underlying nature of the pattern and practice claim is cognizable within the similarly alleged due process violations; specifically, the petitioners could have (concluding ineffective-assistance-of-counsel claim not collateral to removal because bia may address claim), structure that made administrative exhaustion appropriate. see 510 f.3d at 15-18 (outlining various rationales 2b (discussing ice's motive in transferring detainees and opining harsher treatment in texas courts). separate answer of defendants at 8, arias v. u.s. immigration and customs enforcement, no. 0:07-cv-01959 mindful of enforcement, 510 f.3d 1 (1st cir. 2007) (no pet. for cert.) 42. see id. at 16 (suggesting petitioners simply draped together individual due process claims); see also record development; thus, the aguilar petitioners are less dependent on judicial fact-finding to assert their restricted judicial review, the real id act is unique in that it expansively 16. aguilar v. u.s. immigration and customs enforcement, 490 f. supp. 2d 42, 47-48 (d. mass. 2007) distinct from prior statutes, and its specific and sweeping language seems to following the new bedford raid, ice acknowledged some mistakes and, on november 16, 2007, issued "best on underlying claim arising from removal or conglomeration factor). the first circuit did not clearly state results); swan v. stoneman, 635 f.2d 97, 105 n.9 (2d cir. 1980) (advising district court to consider whether 1252(d)(1) (1996) (amended 2005) (requiring exhaustion of administrative remedies before judicial review); 8 immigration statutes have traditionally contained provisions that limit (1st cir. 2007). process.44 thus the need for district court review.48 address this nuance and to provide useful reasoning on the issue.57 19. see illegal immigration reform and immigrant responsibility act of 1996 (iirira), 8 u.s.c. � administrative proceeding can provide individual relief, without judicial review, it may be difficult to force ice v. gonzales, no. 04-3784, slip op. at 6 (6th cir. nov. 21, 2005) (holding ineffective-assistance-of-counsel after determining whether an exhaustion provision applies, courts must in response, ice argued that (2006) (discussing scope of judicial review under real id act). address ice's systematic patterns and practices; rather, they simply real id act extends to all questions of law and fact arising from removal and includes constitutional and circuit, the spectrum of "arising from" claims ranges from those with a weak connection to those directly administrative exhaustion.42 as a result, while an individual petitioner may 57. see supra notes 42-44 and accompanying text (explaining first circuit enforced exhaustion pattern-and-practice claims concerning due process violations during complaint concerned ice's systematic tactics during immigration raids.16 for example, because agencies generally lack in aguilar v. united states for the first circuit addressed class-wide claims that immigration and customs practice claims concerned ice's actions during one isolated raid, their as nuanced as previous statutes. courts continue to struggle with determining be limited means of monitoring ice's overall practices to ensure that they (arguing pattern-and-practice claims do not arise from removal and exhaustion forecloses meaningful review), on march 6, 2007, ice officials executed an immigration enforcement raid 5. id. at 5-7 (discussing alleged constitutional and statutory violations during raid in new bedford, foreclose meaningful judicial review.39 29. see am. bar ass'n, comm'n on immigration, report 107c to the house of delegates 6-9 15. aguilar v. u.s. immigration and customs enforcement, 490 f. supp. 2d 42, 43, 46 (d. mass. 2007) the arise from removal and that enforcing exhaustion of class-wide claims does not this loophole, petitioners often seek to avoid exhaustion by raising arising from removal); id. � 1252(d)(1) (requiring administrative exhaustion before judicial review). complaint). a foreign jurisdiction, petitioners may be less likely to obtain bond. id. at 48; see also yvonne abraham, immigrants' bond hearings can proceed: lawyers argue over jurisdiction, boston globe, mar. 22, 2007, at covers "all questions of law and fact including interpretation and application of ruling, he or she can appeal to the bia and then to the circuit courts. id. the first circuit concluded, however, the first and mere conglomerations of similar but purely individual claims.47 protection claims in individual hearings without demonstrating class-wide discrimination); see also family, 13. aguilar v. u.s. immigration and customs enforcement, 490 f. supp. 2d 42, 44 (d. mass. 2007) development of an adequate administrative record; as a result, without the trial court's supplemental fact- case, right-to-counsel claims are cognizable within the administrative review phoning their lawyers. complaint at 20-24, barrera v. boughton, no. 3:07-cv-01436 (d. conn. sept. 26, widespread where ins violated due process in reviewing several different saw applications). cf. morawetz, reasoned that ultimately, given its sweeping language and expansive scope, the 1252(g) (1996) (amended 2005) (prohibiting judicial review of attorney general's decision to execute removal basis for calling themselves a "class" rests on the fact that in any large-scale raid, ice's actions may affect cognizable within the administrative process.23 riordan_comment_wdff never subject to a removal order because he departed the united states prior to his voluntary-departure even if this would claim); vargas v. u.s. dep't of immigration and naturalization, 831 f.2d 906, 908 (9th cir. 1987) (noting bia 2007), 2007 wl 4462095; see also plaintiffs' amended complaint for declaratory and injunctive relief and jurisdiction-limiting provisions and administrative exhaustion requirements for carrying out its mandate.50 hearing not collateral because claim not does not challenge law's constitutionality). claim in removal proceeding arises from removal); ginters v. cangemi, 419 f. supp. 2d 1124, 1131 (d. minn. such that enforcing exhaustion would foreclose meaningful judicial review.24 collateral and should not be subject to administrative exhaustion.22 40. id. at 16-17 (emphasizing claim's nature, not structural format). lacks power to address constitutional issues). the petitioners may have enabled the court to realize that applying the real ultimately has extensive authority to prescribe a judicial-review scheme.61 49. see supra notes 41, 43-44 and accompanying text (suggesting unclear whether aguilar holding turned exhaustion preserves meaningful judicial review); mathews v. eldridge, 424 u.s. 319, 330-31 (1976) (waiving 384 suffolk university law review [vol. xlii:377 themselves limited evidentiary and record-developing needs), with 510 f.3d at 14 (noting ij and bia can triplett, supra note 10, at 2 (noting new bedford raid incidents prompted ice to evaluate its own practices). id. at 14. the court also noted that ijs can provide remedies to protect an individual's access to counsel and adjudicating agency's authority or expertise--should not be subject to attorney-client relationships and to hinder their ability to retain lawyers.11 riordan_comment_wdff 50. see family, supra note 24, at 16, 16 n.30 (stating class-wide litigation furthers broad systematic review.46 evans, court critical of feds in bianco raid, southcoasttoday.com, nov. 28, 2007, 14. aguilar v. u.s. immigration and customs enforcement, 490 f. supp. 2d 42, 47 (d. mass. 2007) 36. see 510 f.3d at 10-11 (noting congress did not intend to bar all claims or those faintly traced to 58. 8 u.s.c. � 1252(b)(9) (2006) (eradicating federal district courts' habeas corpus jurisdiction over exhaustion would not foreclose meaningful judicial review of the right-to- enforcing administrative exhaustion would not foreclose meaningful judicial enforcing the provisions would foreclose the opportunity for meaningful to-counsel claims are common in removal proceedings, the first circuit determination rather than established policy). further illegal actions); joint and separate answer of defendants at 8, arias v. u.s. immigration and customs during the raid were part of a systematic tactic to interfere with exiting considering substance over form, the 11. aguilar v. u.s. immigration and customs enforcement, 490 f. supp. 2d 42, 44 (d. mass. 2007) cv-01000 (c.d. cal. feb. 14, 2008), 2008 wl 887582 (alleging ice inhibited access to counsel during post- over ins class action given importance of discovery); jean v. nelson, 727 f.2d 957, 980 (11th cir. 1984) judicial review.6 considered whether claims that the government systematically violated due petitioners' attempt to simply conglomerate individual due process claims. see 510 f.3d at 16-17. the aguilar 2007) (inferring real id act restricts district court's jurisdiction over claims), aff'd, 510 f.3d 1 (1st cir. counsel claims because the administrative process could effectively address and withdrew their habeas petition and filed an amended complaint, structured as a require administrative exhaustion; however, as in other administrative law in construing the most recent, and perhaps most sweeping judicial-review have held that challenges to mandatory detention pending expedited removal, riordan_comment_wdff real id act of 2005, one of the most recent immigration statutes, requires massachusetts). more importantly, by framing the complaint to reveal ice's nationwide tactics, that in the present case, petitioners failed to link the alleged systematic violations with any constitutional or applicants challenge adverse evidence and failed to provide translators and to transcribe verbatim recordings of adjudicate due process violations). hearing collateral to substantive claim for benefits), with bernal-vallejo v. ins, 195 f.3d 56, 60 (1st cir. 1999) riordan_comment_wdff encapsulate the scope of a broad-based unlawful practice.26 (noting district court enjoined ice from transferring additional detainees pending court order), aff'd, 510 f.3d 1 u.s.c. � 1160(e)(3)(a) (1986) (amended 1996) (barring judicial review of agricultural immigration-status for holding). as a result, courts might apply the holding to bona fide systematic challenges simply because the 378 suffolk university law review [vol. xlii:377 many individuals. see 510 f.3d at 16. address substantive, rather than procedural, due process issues. see id. exhaust administrative remedies before seeking review by the circuit court.15 2007). other courts, while inhibit comprehensive change in ice's potentially unlawful tactics.60 53. see supra notes 47-48 and accompanying text (discussing flaws in petitioners' pattern-and-practice supra note 24, at 13 (distinguishing individual from class-wide action where plaintiff challenges individual practices" guidelines to follow during future raids. id. it appears, however, that the best-practices guidelines 2009] case comment 385 practice claims--even those that truly concern ice's systematic tactics.49 immigration and customs enforcement,4 artfully conglomerated claims did not truly constitute a pattern-and-practice the court held that although framed as a pattern-and-practice from removal and therefore require exhaustion.33 bell, 430 u.s. 787, 792-94 (1977) (acknowledging congress's plenary power over immigration affairs and through class actions). real id act extends to a wide range of claims associated with removal and real id act's restrictive provisions.34 counsel.12 effectively preclude review of ice's policies, practices, and approaches in systematically violated due process are collateral to administrative proceedings possibly, by altering their litigation approach, the petitioners could have 30. see supra note 3 (presenting text of real id act's judicial-review scheme). compare iirira, 8 parcel of the removal proceeding itself and were cognizable within the administrative process. id. the court rights during deportation proceedings). removal proceedings), aff'd, 510 f.3d 1 (1st cir. 2007). the district court clarified that the real id act does facility in ayer, massachusetts.8 damages at 24, arias v. u.s. immigration and customs enforcement, no. 0:07-cv-01959 (d. minn. sept. 27, class-wide claim, alleging that ice had a pattern and practice of violating due 25. pauw, supra note 24, at 780 (stating exception to exhaustion rare and not universally applied). (discussing ice's motion to dismiss), aff'd, 510 f.3d 1 (1st cir. 2007). the first circuit morawetz, back to back to the future? lessons learned from litigation over the 1996 restrictions on class-wide actions that truly concern ice's systematic tactics, it would 60. see supra notes 50 and accompanying text (discussing ability to review systematic tactics). but cf. u.s.c. � 1252(d)(1) (1996) (amended 2005) (barring judicial review of claims "arising from" removal orders), federal district court jurisdiction over administrative appeals and require applications and not to class-wide pattern-and-practice claims alleging systematic due process violations. id. holding facilities or otherwise obstructed their access to counsel.54 raid), aff'd, 510 f.3d 1 (1st cir. 2007). iirira's "arising from" language requires tighter nexus than "related to" language). according to the fifth relief not available). (d. minn. sept. 10, 2007), 2007 wl 4637327 (arguing real id act stripped district court of jurisdiction over connected with removal. id. at 943. 54. see complaint for declaratory and injunctive relief, nat'l lawyers guild v. chertoff at 4, no. 2:08- the real id act applied, the court held that enforcing administrative jurisdiction over all such cases, jurisdiction depends on underlying claim). and judicial review.38 proceedings); see aguilar v. u.s. immigration and customs enforcement, 490 f. supp. 2d 42, 48 (d. mass. jurisdiction scheme). the court's the claims arose from removal and that pursuant to the real id act, the circuit agreed that the claims arose from removal and held that enforcing mindful of the real id act's claims. id. process claim does not have talismanic effect of waiving exhaustion). compare bowen v. city of new york, 39. id. at 14-15 (forbidding petitioners from bypassing exhaustion requirements by strategically framing 2007) (asserting ice also violated substantive due process by failing to ensure minor children supervised post- mcnary v. haitian refugee ctr., inc., 498 u.s. 479, 492 (1991). the mcnary court held that because the the petitioners failed to demonstrate the systematic nature of ice's tactics and courts have recently revisited this issue with respect to the real id act's accordingly, the record developed during an individual holding also turned, however, on the fact that the underlying right-to-counsel claims were cognizable within the "arising" from immigration removal proceedings.3 in aguilar v. united states immigration and customs enforcement, one of 3. see 8 u.s.c. � 1252(a)(5) (2006) (granting federal circuit courts exclusive judicial review over final some courts hold that class-wide claims should not be this tactic and their rulings hinge on whether the particular due process claim is 2009] case comment 387 (noting inefficiency of postponing judicial review of claims affecting large classes until individuals exhaust their claims because rather than challenging an individual removal order, their the court explained that if congress intended to preclude judicial review of pattern-and-practice claims, it were subject to the real id act's exhaustion requirements.17 27. see kai wu chan v. reno, 916 f. supp. 1289, 1307 (s.d.n.y. 1996) (declining to extend mcnary to rejecting the petitioners' argument, the district court held that although systematic practices. see family, supra, at 13 (explaining halting class action would foreclose use of fed. r. 34. cf. complaint for declaratory and injunctive relief at 4, nat'l lawyers guild v. chertoff, no. 2:08- statutory rights typically bestowed on aliens during immigration proceedings. id. at 48. but see beth j. werlin, note 14 (noting 361 workers detained during new bedford raid). in fact, it is possible that petitioners' sole detention pending expedited removal proceeding under 8 c.f.r. � 235.3(b)(4) arises from removal); feldman that ice used similar tactics in several other immigration raids, the petitioners 26. see mcnary v. haitian refugee ctr., inc., 498 u.s. 479, 484, 487-88 (1991) (allowing district court the united states court of appeals rather than challenging the manner in which ice administrative adjudication would sufficiently allow a reviewing circuit court 28. see mcnary v. haitian refugee ctr., inc., 498 u.s. 479, 501 (1991) (rehnquist, j., dissenting) http://www.southcoasttoday.com/apps/pbcs.dll/article?aid=/20071128/news/711280360/-1/special21 proceedings, thus triggering the real id act's provisions, and whether 55. see supra note 43 and accompanying text (discussing mcnary and challenges to nation-wide judicial review.25 if the given the emerging trend of enforcing immigration laws through large-scale can grant continuances and order changes of venue. id. further, if an individual is dissatisfied with an ij's the first cases to examine ice's tactics during workplace raids, the first circuit finding and record development, an individual could not possibly prove ins's unlawful patterns and practices. 45. see supra note 3 (stating real id act text); supra notes 36, 44 and accompanying text (discussing district court for the district of massachusetts.13 real id act may extend to pattern-and-practices cases where the underlying broad yet nuanced holding to restrict district court review of all pattern-and- legalization applications unless exclusion or deportation order); 8 u.s.c. � 1105a(c) (1970) (repealed 2006) exhaustion by artfully framing pleadings as class-wide complaints.28 previous legislation, under the real id act more claims, including petitioners' right-to-counsel claims, may removal, including appeals from the decisions of both immigration judges (ijs) conglomerated their individual due process claims in an attempt to bypass that until petitioners exhaust administrative remedies, the court lacks jurisdiction over their claims. id. at 13, judicial review, claimants must adhere to the statutorily prescribed review (alleging ice's deliberate strategy to defeat jurisdiction), aff'd, 510 f.3d 1 (1st cir. 2007). petitioners argued (suggesting case expanded to consider ice's treatment of individuals during raids). practices). these courts are often wary of attempts to bypass the petitioners claimed that following the cognizable within administrative process); triplett, supra note 10, at aa-1 (suggesting few cases address ice exhaustion requirement if compliance with requirement forecloses meaningful judicial review); mathews v. the judicial review.18 extend to pattern-and-practice cases. at first glance, the real id act seems underlying individual claims are cognizable. but see id. at 17 (stating while act does not strip district court has created yet another barrier to reviewing ice's actions.59 tactics during raids). in contrast, courts civ. p. 23 against unconstitutional actions); robert pauw, judicial review of "pattern and practice" cases: indeed, by courts have held that "collateral claims"--claims that are beyond the 382 suffolk university law review [vol. xlii:377 supra note 36, at 128-29 (discussing potentially dangerous applications of real id act's exhaustion and claims concerned only one aspect of the removal process.43 meaningful review by bia and reviewing court). in mcnary, ins's regular practices precluded the supra notes 39-40 and accompanying text (noting courts wary of individuals attempting to bypass exhaustion statutory claims. see 510 f.3d at 15. constitutional and statutory provisions."30 all pattern-and-practice cases). the chan court held that although framed as a pattern-and-practice claim of immigration claims.1 to change its harsh tactics. id. cv-01000 (c.d. cal. feb. 14, 2008), 2008 wl 887582 (claiming ice prohibited consultations with legal act revoked district court jurisdiction over claims); cf. naranjo-aguilera v. ins, 30 f.3d 1106, 1113 (9th cir. also acknowledged that the real id act is far more expansive than prior immigration statutes and that a surrounding one particular immigration raid, the petitioners could have what to do when the ins acts unlawfully, 70 wash. l. rev. 779, 780, 780 n.8 (1995) (defining type of class hundred undocumented aliens and held them at ft. devens immigration holding workplace raids, courts will likely encounter this issue in the future. action and stating district court's jurisdiction over pattern and practice unclear). held that despite the class-wide format, the underlying right-to-counsel claims riordan_comment_wdff of district courts' fact-finding and record-developing capabilities would foreclose meaningful judicial review. order's validity). (holding exhaustion provisions inapplicable to class action alleging ins's systematic abuse). exempt from exhaustion); ravindran v. ins, 976 f.2d 754, 762 (1st cir. 1992) (noting act of raising due administrative record would be flawed and inadequate and would prevent individuals from proving an unlawful riordan_comment_wdff claims arising from removal). contexts, courts have waived exhaustion requirements in certain situations.20 judicial-review provision referred to "an application," it applied only to claims concerning individual 48. see id. at 16 (discussing attempt to bypass exhaustion by framing individual claims as class-wide). subject to exhaustion because a single administrative record cannot effectively ijs and the bia possess the fact-finding and evidentiary capacities to properly evaluate right to counsel claims. 2009] case comment 381 2. see thunder basin coal co. v. reich, 510 u.s. 200, 212-13 (1994) (noting court may waive habeas corpus review in removal cases.58 enforcement, 490 f. supp. 2d 42, 47-48 (d. mass. 2007), aff'd, 510 f.3d 1 (1st cir. 2007). it held, however, and claims concerning ijs' discretionary findings that impact removal do arise v. ins, 195 f.3d 56, 64 (1st cir. 1999) (waiving exhaustion where agency lacked adjudicatory power over from removal). claims arising from removal.29 fashioned as a class-wide complaint, the claims did arise from removal and remedies). raid detention); complaint at 23-24, barrera v. boughton, no. 3:07-cv-01436 (d. conn. nov. 26, 2007), 2007 not class-wide cases). the administrative record produced in an individual removal proceeding may not be immigration statutes typically limit judicial review of claims associated with riordan_comment_wdff the petitioners initially filed a habeas corpus petition in the united states id act's judicial-review provisions.62 claims as pattern-and-practice). eldridge, 424 u.s. 319, 330-31 (1976) (dispensing exhaustion requirement where adequate administrative immigration raids--aguilar v. united states immigration and customs the first circuit correctly realized that in the present case, the petitioners' decision, the first circuit properly applied the standard set forth by the real recognizing such procedural difficulties, simply consider whether the but not to claims that no such order ever existed. id.; hernandez v. gonzales, 424 f.3d 42, 42-43 (1st cir. clarify its scope. as evidenced in aguilar, however, the real id act is just customs enforcement, 490 f. supp. 2d 42, 48 (d. mass. 2007) (noting no sixth amendment right to counsel in jurisdiction-stripping provisions). riordan_comment_wdff the first circuit then addressed the claims' pattern and practice aspect and 62. see supra note 47 and accompanying text (arguing first circuit properly applied real id act). the petitioners' complaint merely concerned one underlying incident--ice's actions during and after the new 31. see humphries v. various fed. usins employees, 164 f.3d 936, 942-43 (5th cir. 1999) (holding (explaining raid targeted michael bianco, department of defense subcontractor who employed undocumented labor group raid). the barrera petitioners claimed that two days after a connecticut raid, ice transferred underlying right-to-counsel claims were still administratively cognizable. see id. at 18; see also supra notes shortly thereafter, they raid, ice denied access to several volunteer attorneys who arrived at the 7. see id. at 9, 18 (concluding although fashioned as class action, procedural due process claims arose previous immigration laws governing judicial review). 1994) (holding class-wide lawsuit in district court most appropriate method of challenging ins's nationwide immigration matters). judicial review of those claims.7 vindicate his personal claims through the administrative process, there would alleging that ins systematically discriminated against chinese nationals in processing status-adjustment petitioners alleged that ice's tactics violated their due process right to considered such provisions and determined the circumstances in which the whether ice transferred several aliens to detention facilities in texas, where they had process). compare mcnary v. haitian refugee ctr., inc., 498 u.s. 479, 496 (1991) (stating ins tactics court reasoned that whether structured as an individual or pattern-and-practice increasing deference to ice not only limits review of ice's practices, but may 21. see thunder basin coal co. v. reich, 510 u.s. 200, 207, 212-13 (1994) (considering whether as in other areas of administrative law, courts have warrant district court review. see supra notes 42-44 and accompanying text. reform). authority to review constitutional claims, courts often hold that such claims are saw interviews. id. moreover, the relevant irca provision limited judicial review of saw determinations. language, courts have held that detention-condition complaints and challenges and ravindran v. ins, 976 f.2d 754, 762 (1st cir. 1992) (holding claim of inadequate translation during humanitarian reasons). noting immigration statutes entitled to great deference). right to counsel during large scale immigration raids.5 38. id. at 15 (holding, unlike in mcnary, exhaustion requirement in present case preserves meaningful court should waive exhaustion requirements and extend judicial review.2 9. aguilar v. u.s. immigration and customs enforcement, 490 f. supp. 2d 42, 44 n.4 (d. mass. 2007) reasoned that the petitioners' claims were not tenuous, but were "inextricably (discussing cases considering propriety of waiver). wide format using district court's efficient fact-finding); cf. jean v. nelson, 727 f.2d 957, 980 (11th cir. 1984) removal). as the first circuit recognized, the real id act does not apply to claims that are wholly real id act's sweeping language). because the language of � 1252(b)(9) is far more expansive than that in focusing on ice's actions during one isolated event--the new bedford raid-- claims, the court wisely discerned between bona fide pattern-and-practice cases the court also remarked that in their complaint, the petitioners did not truly riordan_comment_wdff aliens to a massachusetts detention facility and that for several days or weeks, ice prohibited aliens from holding facility to offer legal services.9 riordan_comment_wdff deadline. id. the eleventh circuit held that the real id act applies to challenges to final removal orders, act to restrict judicial review of pattern-and-practice claims, the first circuit claims "arise" from removal; as long as there is an opportunity for meaningful 51. see supra notes 25-27 and accompanying text (discussing exhaustion appropriate in individual, but the court could enforce the real id act without foreclosing meaningful most recently, courts have 2005) (affirming district court's habeas corpus jurisdiction over detention claims independent of removal); receive evidence, issue subpoenas, call witnesses, and allow for cross- removal); supra note 44 (comparing irca with real id act). while irca's jurisdiction-stripping 17. 510 f.3d at 7, 13 (deeming right-to-counsel claims inextricably intertwined with removal 47. see 510 f.3d at 16 (stating class-wide complaint does not warrant waiving exhaustion). scrutiny of its systematic, and perhaps strategic, tactics.56 20. see illegal immigration reform and immigrant responsibility act of 1996 (iirira), 8 u.s.c. � service providers during post-raid detention); complaint at 20-24, barrera v. boughton, no. 3:07-cv-01436 52. see pauw, supra note 24, at 788, 791 (arguing pattern-and-practice claims best addressed in class- 8. aguilar v. u.s. immigration and customs enforcement, 490 f. supp. 2d 42, 43 (d. mass. 2007) 2006) (holding challenge to sham-marriage finding indirectly arises from removal because impacts removal undocumented aliens similarly alleged that ice transferred them to distant (precluding judicial review of deportation decisions unless alien exhausts all administrative remedies). held that the petitioners' right-to-counsel claims arose from removal and that ravindran v. ins, 976 f.2d 754, 762 (1st cir. 1992) (claiming procedural error regarding translation collateral 35. see 510 f.3d at 13-14 (holding court lacks jurisdiction because claims arose from removal and claims statute at issue in mcnary restricted "judicial review of a determination respecting an application . . . ." process during large-scale immigration raids.14 23. see jupiter v. ashcroft, 396 f.3d 487, 492 (1st cir. 2005) (pointing out due process claims rarely "arise" from removal. see supra note 33 and accompanying text (listing various claims deemed arising from cv-01959 (d. minn. july 27, 2007), 2007 wl 2973013 (raising right-to-counsel violations); joint and id act to class-wide claims could effectively shield ice from all review and claim for disability benefits), and mathews v. eldridge, 424 u.s. 319, 330-31 (1976) (holding demand for intertwined" with and therefore arose from removal.36 review of pattern-and-practice class-action claim). under the 1986 irca, aliens could apply for special 10. see michael r. triplett, first circuit chides ice, but sees no basis for examining post-raid made at the "initial decision-making level." id. at 496. it reasoned that because of ins procedures, the (noting ice later let attorneys visit thirty detainees), aff'd, 510 f.3d 1 (1st cir. 2007). scheme in the immigration context, the first circuit properly realized that the 1252(d)(1) (1996) (amended 2005) (requiring administrative exhaustion); infra note 21 and accompanying text 2009] case comment 383 world l.j. 393, 398 (2000) (pointing out supreme court recognizes some fifth amendment due process 44. see id. at 15 (comparing real id act's expansive language with narrower statute in mcnary). the class claim added solely to avoid exhaustion). by showing courts have also considered whether class-wide claims that the government inapplicable where alien claiming not "subject to" removal order). the madu petitioner argued that he was district court lacked jurisdiction over the claims and the petitioners must comport with due process.51 59. cf. morawetz, supra note 36, at 128 (discussing ramifications of restricting judicial review). 6. id. at 5-6, 10 (noting pattern-and-practice issue raises novel and important questions concerning act's may have convinced the court that their claims truly concerned ice's id.; accord naranjo-aguilera v. ins, 30 f.3d 1106, 1113 (9th cir. 1994) (permitting district court jurisdiction 24. see infra note 26 and accompanying text (discussing pattern-and-practice cases); see also jill e. practices). exhaustion would not foreclose the petitioners' opportunity for meaningful 18. see 510 f.3d at 10 (affirming district court's decision); see also aguilar v. u.s. immigration and cited the recent raids in connecticut, california, and minnesota, where not have changed aguilar's outcome, it may have prompted the first circuit to according to the petitioners, ice's actions applications, it was cognizable within the administrative process because the bia could review aliens' equal- enforcement (ice) has a pattern and practice of violating aliens' due process provision--the provision at issue in mcnary--merely barred judicial review of saw determinations, the the petitioners, however, maintained that the real id act did not apply to prompted the court to clarify the main basis for its holding and to explain which pattern-and-practice claims accordingly, despite the potentially harmful ramifications of the aguilar to asylum hearing). no opportunity for legal advice.10 protection claims during individual administrative hearings. id. (holding each individual could allege equal- and 8 u.s.c. � 1160(e)(3)(a) (1986) (repealed 1996) (barring judicial review of "an application for adjustment 32. see madu v. u.s. att'y. gen., 470 f.3d 1362, 1367 (11th cir. 2006) (holding real id act detention claims, 229 daily lab. rep. (bna), at aa-1 (nov. 29, 2007) (suggesting ice prevented access to consider whether enforcing the exhaustion requirement forecloses meaningful while previous immigration laws similarly 386 suffolk university law review [vol. xlii:377 administrative process. see id. at 17-18. while citing other immigration raids may have been helpful, it may administrative process.27 complaints regarding ineffective assistance of counsel during removal hearings, 1. see, e.g., illegal immigration reform and immigrant responsibility act of 1996, 8 u.s.c. � on ice's systematic practices.53 33. see sissoko v. rocha, 509 f.3d 947, 949 (9th cir. 2007) (holding claim concerning mandatory 18. administrative exhaustion because exhaustion would foreclose meaningful (reviewing petitioners' alleged collective denial of rights), aff'd, 510 f.3d 1 (1st cir. 2007); see also becky w. they also claimed that two days later, claims while also strengthening their own case.52 that the petitioners' due process claims clearly fell within the act's purview.45 aliens), aff'd, 510 f.3d 1 (1st cir. 2007); id. at 43 n.3 (noting ice immediately released some workers for sweeping language, courts struggle to construe the precise meaning of the to termination of asylum status do not arise from removal.32 orders). not preclude jurisdiction over all pattern-and-practice claims. aguilar v. u.s. immigration and customs not have changed the outcome because even if the petitioners established ice's systematic tactics, the and injunctive relief and damages at 24-25, arias v. u.s. customs and immigration enforcement, no. 0:07- complaint resembled an artfully framed pleading rather than a bona fide attack action, the underlying right-to-counsel claims "arose" from removal, and that would have used broader language such as "all questions of law and fact." id. at 494. as the first circuit expanded their class to include aliens detained during raids in other states who collateral to removal. id. at 13, 18. the court explained, however, that the petitioners' claims were part and constitutional due process claims in district court; however, courts are wary of counsel). 4. 510 f.3d 1 (1st cir. 2007). 2009] case comment 379 after determining that individuals to exhaust administrative remedies before seeking judicial review event at issue.31 action; in future cases, however, courts may mistakenly interpret aguilar's the court reasoned that because ijs administer oaths, 56. see mcnary v. haitian refugee ctr., inc., 498 u.s. 479, 487-88 (1991) (implying ins's actions enforcement raids). class-wide actions may prevent the government from exercising unconstitutional to determine whether ice's pre- and post-raid practices violate due process.41 id. at 488. the supreme court noted that review of administrative decisions is usually confined to the record broader range of claims may "arise" from removal under the real id act. id. at 9. see generally nancy systematic pattern and practice. id. at 497. the court held that given the circumstances, depriving individuals (criticizing attempts to bypass judicial review restrictions by attacking general policies rather than individual fold: first, it noted the petitioners' failure to identify any systematic tactics on the part of ice and, second, the that the phrase means something more than a weak or tenuous connection to the 380 suffolk university law review [vol. xlii:377 *82-149 (d. conn. sept. 26, 2007), 2007 wl 4462095 (alleging questionable actions by ice following day- 12. see aguilar v. u.s. immigration and customs enforcement, 490 f. supp. 2d 42, 43-44 (d. mass. 37. see 510 f.3d at 14, 18 (holding no irreparable harm in enforcing exhaustion). the court reasoned that most significantly, by identifying the true nature of the petitioners' phrase "arising from" and, as in other administrative contexts, generally hold adequately preserves procedural due process. rather than focusing their claims on events ultimately, courts will be forced to consider whether the real id act of status"), with real id act of 2005, 8 u.s.c. � 1252(b)(9) (2006) (addressing claims arising from removal "including interpretation and application of constitutional and statutory provisions"). see generally fiallo v.