Perales v. Thornburgh

We initially decided this appeal in Perales v. Thornburgh, 967 F.2d 798 (2d Cir. 1992). The Supreme Court granted certiorari and vacated the case and remanded it to us for further consideration in light of Reno v. Catholic Social Services, Inc., 509 U.S. -, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). Reno v. Perales, — U.S. -, 113 S.Ct. 3027, 125 L.Ed.2d 716 (1993).

In Catholic Social Services, the Court held that aliens challenging regulations promulgated pursuant to the Immigration Reform and Control Act of 1986, Pub.L. No. 99-603, 100 Stat. 3359 (the “Act”), but who had not applied for adjustment of status under the Act, did not make out ripe claims merely because the challenged regulations were promulgated or because they believed the regulations made them ineligible for adjustment of status. The Court noted that this was true whether the alien had heard of the challenged regulations from an- attorney, word-of-mouth, or from a “QDE,” a private organization such as a community center or church that is designated by the Attorney General pursuant to the Act to disseminate information about the Act and assist in the preparation of applications. Catholic Social Services, 509 U.S. at ----n. 19, 113 S.Ct. at 2491 n. 19. However, the Court held that aliens whose applications were “front-desked,” that is, turned away by Immigration and Naturalization Service employees and never processed because the applicant would be ineligible under the challenged regulations, would have ripe claims. Id., 509 U.S. at---, 113 S.Ct. at 2497. The Court also noted: “Although we think it unlikely, we cannot rule out the possibility that further facts would allow class members who were not front-desked to demonstrate that the front-desking policy was nevertheless a substantial cause of their failure not to apply, so that they can be said to have had the [challenged regulations] applied to them in a sufficiently concrete manner to satisfy ripeness concerns.” Id., 509 U.S. at-n. 28, 113 S.Ct. at 2500 n. 28.

In this case, the plaintiffs also challenge regulations promulgated under the Act. As in Catholic Social Services, there are not facts in the record sufficient for us to determine which, if any, of the members of the plaintiff class were front-desked or otherwise had the challenged regulations applied to them “in a sufficiently concrete manner to satisfy ripeness concerns.” We therefore remand this case to the district court for further proceedings consistent with Catholic Social Services and this opinion.