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MASSIEU v. RENO

February 28, 1996

MARIO RUIZ MASSIEU, Plaintiff,
v.
JANET RENO, In Her Capacity as the Attorney General of the United States; WARREN CHRISTOPHER, In His Official Capacity as Secretary of State of the United States; UNITED STATES DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE; WARREN A. LEWIS, In His Capacity as District Director of the Immigration and Naturalization Service; and DEMETRIUS GEORGAKOPOULOS, In His Capacity as Assistant District Director, Investigations, Defendants.



The opinion of the court was delivered by: BARRY

 BARRY, District Judge

 Plaintiff, Mario Ruiz Massieu, seeks a permanent injunction enjoining the deportation proceeding instituted against him pursuant to 8 U.S.C. § 1251(a)(4)(C)(i) and a declaration that the statute, which has not previously been construed in any reported judicial opinion, is unconstitutional. That statute, by its express terms, confers upon a single individual, the Secretary of State, the unfettered and unreviewable discretion to deport any alien lawfully within the United States, not for identified reasons relating to his or conduct in the United States or elsewhere but, rather, because that person's mere presence here would impact in some unexplained way on the foreign policy interests of the United States. Thus, the statute represents a breathtaking departure both from well established legislative precedent which commands deportation based on adjudications of defined impermissible conduct by the alien in the United States, and from well established precedent with respect to extradition which commands extradition based on adjudications of probable cause to believe that the alien has engaged in defined impermissible conduct elsewhere.

 Make no mistake about it. This case is about the Constitution of the United States and the panoply of protections that document provides to the citizens of this country and those non-citizens who are here legally and, thus, here as our guests. And make no mistake about this: Mr. Ruiz Massieu entered this country legally and is not alleged to have committed any act within this country which requires his deportation. Nor, on the state of this record, can it be said that there exists probable cause to believe that Mr. Ruiz Massieu has committed any act outside of this country which warrants his extradition, for the government has failed in four separate proceedings before two Magistrate Judges to establish probable cause. Deportation of Mr. Ruiz Massieu is sought merely because he is here and the Secretary of State and Mexico have decided that he should go back.

 The issue before the court is not whether plaintiff has the right to remain in this country beyond the period for which he was lawfully admitted; indeed, as a "non-immigrant visitor" he had only a limited right to remain here but the right to then go on his way to wherever he wished to go. The issue, rather, is whether an alien who is in this country legally can, merely because he is here, have his liberty restrained and be forcibly removed to a specific country in the unfettered discretion of the Secretary of State and without any meaningful opportunity to be heard. The answer is a ringing "no".

 I.

 The facts of this case read more like a best-selling novel than a typical deportation proceeding. Mario Ruiz Massieu, a citizen of Mexico, is a member of one of Mexico's most influential and politically active families, and, in recent years, has occupied several positions at the upper-most echelons of the Mexican government. For much of the past twenty years, Mr. Ruiz Massieu lived an academic life both as a professor and director of the National University of Mexico. During that time, he authored a number of books on topics such as education, history, law and politics. In 1993, however, Mr. Ruiz Massieu was thrust into the vanguard of Mexican politics as a member of the Institutional Revolutionary Party ("the PRI"), Mexico's only established ruling party. He was appointed Deputy Attorney General in 1993, Under Secretary for the Department of Government in 1994, and Deputy Attorney General, again, in May of 1994. *fn1"

  On September 28, 1994, Mr. Ruiz Massieu's brother, Jose Francisco Ruiz Massieu -- Secretary General of the PRI and an outspoken critic of the Mexican political system -- was assassinated. *fn2" Within hours, Mario Ruiz Massieu, as Deputy Attorney General, began an investigation into his brother's murder. In the ensuing weeks, fourteen people were apprehended and indicted as part of a conspiracy uncovered through Mr. Ruiz Massieu's investigatory efforts. Many of the arrested conspirators named Manuel Munoz Rocha, a PRI official, as the architect of the conspiracy. Mr. Munoz Rocha, however, was shielded by official immunity, and could not be interviewed by the Attorney General's office in connection with the case. Mr. Ruiz Massieu requested that President Carlos Salinas de Gortari waive Rocha's immunity, a request that the PRI vigorously opposed. Eventually, the immunity was waived, but not before Mr. Munoz Rocha had disappeared. He was never interviewed or arrested, and remains unaccounted for to this day.

 Fifty-seven days after his brother's assassination, Mr. Ruiz Massieu resigned as Deputy Attorney General and withdrew his membership in the PRI. In a dramatic and widely publicized speech on November 23, 1994, Mr. Ruiz Massieu announced that he was resigning from both his office and his party because of the PRI's continuous efforts to frustrate his investigation into his brother's murder. Specifically, he alleged that the PRI was obstructing his search for the persons who might have ordered former Deputy Munoz Rocha to act -- persons whom Mr. Ruiz Massieu alleged to be very high-ranking members of the PRI.

 In February of 1995, Mr. Ruiz Massieu published a book elaborating on the themes of his resignation address entitled Yo Accuso: Denuncia De Un Crimen Politico ("I Accuse: Denunciation of a Political Crime"). Immediately, Mexican authorities alleged that Mr. Ruiz Massieu committed the crimes of intimidation, concealment and "against the administration of justice" (a crime analogous to obstruction of justice in this country) in connection with the investigation of his brother's assassination. Contemporaneously, Mr. Ruiz Massieu claimed that he and his family began to receive both death and kidnapping threats. On March 2, 1995, he appeared for an official interrogation before Mexican authorities concerning the allegations of his criminal activity committed while in office. (See 1/11/96 Bond Memorandum, Fleming Aff. Exh. K.)

 Later that same day, Mr. Ruiz Massieu and his family lawfully entered the United States as non-immigrant visitors at Houston, Texas, where they have owned a home since October of 1994. After remaining at their Houston home for the night, the family boarded a plane en route to Spain. When the plane touched down at Newark Airport on March 3, 1995, Mr. Ruiz Massieu was arrested by United States Customs officials, pursuant to 31 U.S.C. § 5316, on a charge of reporting only approximately $ 18,000 of the $ 44,322 in his possession. The charge was never pursued and was subsequently dismissed at the government's request.

 On March 5, 1995, two days after his arrest in Newark, a Mexican court issued an arrest warrant for Mr. Ruiz Massieu charging him with intimidation, concealment, and "against the administration of justice." The following day, at Mexico's request, the United States presented a complaint for Mr. Ruiz Massieu's provisional arrest and sought his extradition to face the charges set forth in the Mexican arrest warrant. On June 9, 1995, a Mexican court consolidated the allegations into a single charge of "against the administration of justice". *fn3"

 Significantly, Magistrate Judge Hedges also found that many of the statements submitted by the government were "incredible and unreliable", id., and might have been altered to remove certain recantations and exculpatory statements. In addition, he found, and the government did not deny, that multiple statements were procured by torture inflicted by the Mexican authorities, including the inculpatory testimony of one of the government's primary affiants. Id. at 73, 79.

 The government had lost its case, but not its will. On June 20, 1995, two days before Magistrate Judge Hedges issued his initial opinion, Mexico filed its second request for extradition based on newly filed charges of embezzlement. (Complaint #6082G-01 filed June 20, 1995.) The charges focused on the $ 9,000,000 in the Houston bank account and 2,500,000 pesos allegedly disbursed without adequate documentation while Mr. Ruiz Massieu was in office. (Opinion of 9/25/95, Fleming Aff. Exh. B.) In an opinion filed September 25, 1995, Magistrate Judge Hedges again declined to issue a certificate of extraditability on the ground that the government had failed to demonstrate probable cause, or present any evidence whatsoever, that the funds had been illegally obtained or disbursed. Id.

 Undeterred, on August 31, 1995, the government refiled its initial request for extradition based on the charge of "against the administration of justice". (Complaint #95-0612G-01 filed August 31, 1995.) Although the government produced nine new statements allegedly incriminating Mr. Ruiz Massieu, Magistrate Judge Hedges remained unpersuaded. By letter opinion dated November 13, 1995, the court again ruled that there was no probable cause to believe that Mr. Ruiz Massieu committed the acts alleged, and dismissed the complaint. (Fleming Aff. Exh. C.)

 On October 10, 1995, the government instituted yet a fourth extradition proceeding by refiling its prior application based on the previously rejected embezzlement charges. This time, the application was heard before Magistrate Judge Stanley R. Chesler. Both Mr. Massieu and the government submitted new documentary evidence and presented live testimony. Near the end of the hearings, the government produced evidence which "clearly established" that 800,000 of the alleged 2.5 million pesos embezzled were not, in fact, proceeds of the alleged embezzlement. (Transcript of 12/22/95 at 13, Fleming Aff. Exh. D.) Thereafter, the United States Attorney's Office for the District of New Jersey withdrew from further representation of the Mexican government.

 With the United States Attorney's Office out of the case, the United States Department of Justice stepped in and continued to press for Mr. Ruiz Massieu's extradition on the embezzlement charges. Like Magistrate Judge Hedges before him, Magistrate Judge Chesler issued a lengthy opinion denying the certification of extraditability. (Transcript of 12/22/95 at 22, Fleming Aff Exh. D.) Focusing on the government's paucity of evidence, Magistrate Judge Chesler stated that "the bottom line is that the government's efforts to establish an inference of criminality on the basis of unexplained wealth fails because it does not rise to the level where any nexus between those funds and the funds which Mr. Massieu is alleged to have embezzled has been established." Id. at 13-14. On January 11, 1996, a Mexican court dismissed the embezzlement charges. *fn4"

 
the Secretary of State has made a determination that, pursuant to Section 241(a)(4)(C) of the Immigration and Nationality [sic] Act, 8 U.S.C. § 1251(a)(4)(C), there is reasonable ground to believe your presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States;

 (Fleming Aff. Exh. H.) No further explanation of the ground for Mr. Ruiz Massieu's alleged deportability was tendered.

 Sometime after notice was served on Mr. Ruiz Massieu, the INS produced an October 2, 1995 letter addressed to Attorney General Janet Reno from Secretary of State Warren Christopher. *fn5" (Fleming Aff. Exh. I.) The letter urged the Attorney General to effect Mr. Ruiz Massieu's "expeditious deportation" "to Mexico" based on the Secretary's conclusion that Mr. Ruiz Massieu's presence in the United States will have potentially serious adverse foreign policy consequences for the United States. Id. The letter referenced the "serious allegations" that are pending in Mexico against Mr. Ruiz Massieu and the recent strides that both governments have taken in "our ability to cooperate and confront criminality on both sides of the border." Id. At bottom, the Secretary's request was premised on the proposition that "our inability to return to Mexico Mr. Ruiz Massieu -- a case the Mexican Presidency has told us is of the highest importance -- would jeopardize our ability to work with Mexico on law enforcement matters. It might also cast a potentially chilling effect on other issues our two governments are addressing." Id.

 The relevant deportation statute, § 241(a)(4)(C)(i) of the Immigration and Naturalization Act ("INA"), provides simply that "an alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable". 8 U.S.C. § 1251(a)(4)(C)(i). Because an indication of the Secretary of State's belief is all that the statute by its terms requires, the October 2, 1995 letter, alone, comprised (and remains) the universe of evidence that the INS has offered to support its charge of Mr. Ruiz Massieu's deportability. A master calendar proceeding, the first stage of deportation hearings held pursuant to section 242 of the INA, was scheduled to begin on January 19, 1996. On January 17, 1996, however, Mr. Ruiz Massieu filed a complaint in this court requesting that the deportation proceedings be preliminarily and permanently enjoined, and that section 241(a)(4)(C) of the INA be declared unconstitutional.

 The complaint contains three core constitutional claims: (1) the deportation proceeding evidences selective enforcement in retaliation for Mr. Ruiz Massieu's exercise of his First Amendment right to criticize the Mexican political system; (2) the deportation proceeding represents a "de facto" extradition and is an attempt to overrule, albeit indirectly, four federal court decisions, in violation of the separation of powers; and (3) section 241(a)(4)(C)(i) of the INA is unconstitutionally vague, in violation of the due process clause of the Fifth Amendment. The United States Department of Justice, on behalf of all defendants, has responded that section 241(a)(4)(C)(i) withstands constitutional attack both facially and as applied to Mr. Ruiz Massieu. In addition, it has taken the position that this court lacks jurisdiction to hear the case on the grounds that (1) what is at issue is a nonjusticiable political question; (2) Mr. Ruiz Massieu has failed to exhaust his administrative remedies under the INA; and (3) the doctrine of constitutional avoidance counsels against this court reaching the ultimate issues presented in Mr. Ruiz Massieu's complaint.

 On January 18, 1996, this court held a hearing on Mr. Ruiz Massieu's motion for a temporary restraining order. At that hearing, this court stayed the deportation proceedings -- a stay that remains in force -- so that the parties could have adequate time to brief the complex issues raised, and so that this court could consider the issue of its jurisdiction as well as the issues the parties had raised. Having carefully reviewed the parties' submissions, and having held a further hearing, it is clear that the court has jurisdiction and has jurisdiction to decide, as it now does, that § 241(a)(4)(C)(i) of the INA, 8 U.S.C. § 1251(a)(4)(C)(i), is void for vagueness; deprives Mr. Ruiz Massieu, and any other alien similarly situated, of the due process right to a meaningful opportunity to be heard; and is an unconstitutional delegation of legislative power. The remainder of this opinion will be limited strictly to a discussion of jurisdiction and to these three bases for concluding that the statute cannot pass constitutional muster.

 II.

 A. Jurisdiction

 The government has argued that this court lacks jurisdiction over the entirety of plaintiff's complaint. Accordingly, it is to that issue that this court must first direct its attention. The jurisdictional quagmire resulting from the unique procedural setting of this case is complex to say the least. Clearly, as plaintiff suggests, this court is authorized under 28 U.S.C. § 1331 to exercise subject matter jurisdiction over claims arising under the Constitution of the United States. Were that the end of the matter, the issue would be an easy one. "Federal courts are vested with a virtual 'unflagging obligation' to exercise the jurisdiction given them." McCarthy v. Madigan, 503 U.S. 140, 146, 117 L. Ed. 2d 291, 112 S. Ct. 1081 (1992). When a federal agency is involved, however, the court must look beyond its general grant of subject matter jurisdiction to determine whether Congress has removed a particular case from within the ambit of the court's jurisdiction through the general judicial review provisions of the Administrative Procedure Act ("the APA"), 5 U.S.C. § 701, et seq. and the more specific provisions of the relevant agency statute, here, the INA, 8 U.S.C. § 1105a.

 The APA provides for judicial review to one "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute," 5 U.S.C. § 702, as long as no statute precludes such relief or the action is not one committed to agency discretion by law, 5 U.S.C. § 701(a). Section 703 of the APA further limits judicial review by providing that "the form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action... in a court of competent jurisdiction." 5 U.S.C. § 703. Interpreting these provisions, the Supreme Court has long held that the APA embodies a presumption favoring the availability of judicial review and that only upon a showing of "clear and convincing evidence" of contrary legislative intent should the courts restrict access to a federal forum. Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967).

 Applying the APA's standards to the case at bar, it cannot seriously be argued that plaintiff has not been "adversely affected" by agency action. 5 U.S.C. § 702. He currently is imprisoned as a result of action taken by the INS and has been declared deportable by the Secretary of State. Thus, as the APA directs, this court next must examine the relevant provisions of the INA to determine whether judicial review at this time is statutorily foreclosed. Section 106(a) of the INA provides that "the sole and exclusive procedure" for review of a final order of deportation is the procedure provided for in chapter 158 of Title 28 of the United States Code (the Hobbs Act). 8 U.S.C. § 1105a(a). The Hobbs Act, in turn, provides the now-familiar procedure by which review of final agency action may be had exclusively in the appropriate court of appeals. *fn6" 28 U.S.C. § 2342 et seq. In addition, the INA provides that "an order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations...." 8 U.S.C. § 1105a(c). Thus, reading the INA in the context of section 701 of the APA and its recognized presumption in favor of judicial review, it is obvious that Congress did not intend to preclude all judicial review of deportation determinations. *fn7" The ultimate jurisdictional question presented by this unique case, then, is whether this court has jurisdiction over plaintiff's constitutional claims prior to the issuance of a final deportation order and the exhaustion of his administrative remedies.

 The issue of when and where a constitutional claim arising during the course of an administrative proceeding should be heard is one of the most vexing questions in administrative law. As a threshold matter, it should be noted that both parties, as well as this court, agree that the immigration judge ("IJ") presiding over the deportation proceeding would be without jurisdiction to hear plaintiff's constitutional challenge to section 241(a)(4)(C) of the INA. See Thunder Basin Coal Co. v. Reich, U.S. , 127 L. Ed. 2d 29, 114 S. Ct. 771, 780 (1994) ("we agree that adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies"); McCarthy v. Madigan, 503 U.S. 140, 147-48, 117 L. Ed. 2d 291, 112 S. Ct. 1081 (1992) ("an agency, as a preliminary matter, may be unable to consider whether to grant relief because it lacks institutional competence to resolve the particular type of issue presented, such as the constitutionality of a statute"); Mathews v. Diaz, 426 U.S. 67, 76, 48 L. Ed. 2d 478, 96 S. Ct. 1883 (1976) (noting that constitutional question was beyond the competence of the Secretary of Health, Education and Welfare.)

 Conceding that much, the government relies on INS v. Chadha, 462 U.S. 919, 77 L. Ed. 2d 317, 103 S. Ct. 2764 (1983), for the proposition that constitutional questions which cannot be raised before an IJ can only be raised and addressed in the appropriate court of appeals when the remedies made available within the agency have been exhausted and a final agency determination has been rendered. In Chadha, the Supreme Court interpreted the term "final orders" of deportation in § 106(a) of the INA to include "all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing." Id. at 938. Thus, because § 106(a) provides that "final orders" may be reviewed in the court of appeals, the court of appeals could likewise hear an alien's constitutional claim which the IJ could not consider. Accordingly, the government argues that because plaintiff will be able to raise his constitutional claims in the court of appeals following a final determination of deportability, the INA's exclusive review provisions foreclose any other means of judicial review.

 The government's argument is not without precedential support. In Thunder Basin Coal Co., 114 S. Ct. at 780, the Supreme Court held that the district court lacked jurisdiction to hear the petitioner's due process challenge to the Federal Mine Safety and Health Act ("the Mine Act") because such claims could be meaningfully addressed in the court of appeals. Thunder Basin Coal is distinguishable from the case at bar, however, for two reasons. First, unlike the INS, there was evidence that the Mine Safety and Health Administration ("the MSHA") had considered certain constitutional claims in the past. Id. Second, the plaintiff in Thunder Basin Coal had brought, in addition to constitutional claims, certain statutory claims under the Mine Act that were uniquely within the MSHA's field of expertise. Id. Here, plaintiff has raised no statutory claims whatsoever but only claims which the INS concededly cannot consider.

 The government's argument may be reduced to the proposition that if the court of appeals can hear a constitutional challenge after a plaintiff has exhausted his administrative remedies, a district court is without jurisdiction to intervene. While the government's position accurately reflects the general rule, it ignores, however, a long line of precedent in which courts have excused administrative exhaustion and finality requirements and have recognized the jurisdiction of the district courts to hear certain constitutional challenges in extraordinary cases.

 Although exhaustion and finality requirements are often referred to as "jurisdictional," they are not unyielding. Rather, while the court's inquiry must always be guided by the congressional intent behind the particular administrative statute, "application of the exhaustion doctrine is 'intensely practical' and should be guided by the policies underlying the exhaustion requirement." Bowen v. City of New York, 476 U.S. 467, 90 L. Ed. 2d 462, 106 S. Ct. 2022 (1986) (quoting Mathews v. Eldridge, 424 U.S. 319, 331 n.11, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976)). See also Abbott Laboratories v. Gardner, 387 U.S. 136, 149-50, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967) (stating that doctrine of finality must be applied in a "pragmatic" and "flexible" way); Rice v. United States Dep. of Alcohol, Tobacco and Firearms, 68 F.3d 702, 708 (3d Cir. 1995) ("[a] district court cannot consider a case without subject matter jurisdiction, but failure to exhaust is not always fatal"); Lester H. v. Gilhool, 916 F.2d 865, 869 (3d Cir. 1990) (excusing exhaustion requirement where requiring exhaustion would be "futile"), cert. denied, Chester Upland Sch. Dist. v. Lester H., 499 U.S. 923, 113 L. Ed. 2d 250, 111 S. Ct. 1317 (1991).

 When Congress adopted § 106 of the INA, its stated intention was to remove from the district courts "the growing frequency of judicial actions being instituted by undesirable aliens whose cases... are brought solely for the purpose of preventing or delaying indefinitely their deportation from this country." H.R. No. 1086, 87th Cong., 1st Sess., reprinted in 1961 U.S. Code Cong. & Admin. News 2950, 2967. Notwithstanding this express congressional intent and the exclusive language of §§ 106(a) and (c), however, courts have excused exhaustion under the INA for certain constitutional challenges. See McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 112 L. Ed. 2d 1005, 111 S. Ct. 888 (1991) (holding that district court had jurisdiction to hear constitutional challenge to INS procedures that was collateral to individual determinations); Sewak v. INS, 900 F.2d 667, 670 (3d Cir. 1990) ("the exhaustion of administrative remedies [under § 106(c)] is not always required when petitioner advances a due process claim"); Rafeedie v. INS, 279 U.S. App. D.C. 183, 880 F.2d 506 (D.C. Cir. 1989) (R. Ginsberg, J., concurring) (recognizing jurisdiction of district court to hear alien's due process challenge to § 235(c) of INA).

 "In determining whether exhaustion is required, federal courts must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion. 'Administrative remedies need not be pursued if the litigant's interests in immediate judicial review outweigh the government's interest in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further.'" McCarthy, 503 U.S. at 146. Thus, to determine whether exhaustion may be excused in the case at bar, this court must balance the purposes underlying the exhaustion requirement against the potential injury to the plaintiff if he is forced to exhaust his administrative remedies. See McCarthy v. Madigan, 503 U.S. 140, 117 L. Ed. 2d 291, 112 S. Ct. 1081 (1992); Rafeedie, 880 F.2d at 513 (opinion of the court).

 A review of the objectives underlying the exhaustion requirement reveals that none of those objectives is served here. The exhaustion requirement "serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency." McCarthy, 503 U.S. at 145. The first of these purposes "applies with special force" when the action under review involves an act of agency discretion or calls upon the agency to apply its unique expertise. Id. By declaring § 241(a)(4)(C)(i) of the INA unconstitutional, this court is in no way interfering with the discretionary judgment of the INS or with the application of the agency's special expertise. *fn8" Nor is the court imposing its own interpretation of the statute upon the INS. Rather, the only question presented here is whether the INS's application of the statute at issue denies plaintiff due process of law. See Rafeedie, 880 F.2d at 515. *fn9"

 Thus, plaintiff's constitutional claim is entirely collateral to the merits of his deportability under the statute. "The Service must apply the statute as it believes Congress intended, and it has made clear [as will be discussed below] what it believes Congress to have wanted." Id. If its application of the statute is unconstitutional, "only a court can so declare." Id. Here, plaintiff does not ask this court to decide whether the criteria of § 241(a)(4)(C) -- such as they are -- have been met. Rather, he claims that the statute cannot constitutionally be applied to him or, for that matter, to anyone else. "The agency has neither institutional competence nor expertise to bring to bear on the question whether [the statute] may constitutionally be applied...." Id. (holding that district court had jurisdiction to hear alien's due process claim prior to exhaustion of administrative remedies).

 Second, exhaustion furthers judicial economy by affording the agency the opportunity to develop a factual record that may be relied upon by a reviewing court. 503 U.S. at 145. Here, the government has conceded that plaintiff's claims under § 241(a)(4)(C)(i) present "pure questions of law" for which no agency fact-finding would be required or even marginally illuminating. (Def.'s Opp. to Pl.'s Mot. for Temp. Restr. Order at 5). Under these circumstances, sending the case to the INS so that the IJ may find facts that do not exist or say that there are no facts to be found would be futile in the extreme. See Lester H. v. Gilhool, 916 F.2d at 869 (excusing administrative exhaustion requirement where district court is presented with a pure question of law); Rafeedie, 880 F.2d at 516, 529-30. *fn10"

 Finally, the Supreme Court has recognized two unique sets of circumstances under which exhaustion may be excused because the purposes of the exhaustion requirement cannot be advanced almost by definition. The first is "where the challenge is to the adequacy of the agency procedure itself, such that 'the question of the adequacy of the administrative remedy... is for all practical purposes identical with the merits of the plaintiff's lawsuit.'" McCarthy, 503 U.S. at 148 (quoting Barry v. Barchi, 443 U.S. 55, 63 n.10, 61 L. Ed. 2d 365, 99 S. Ct. 2642). This is just such a case. § 241(a)(4)(C)(i) virtually prohibits the agency from affording an alien, such as plaintiff, the procedural due process which he is constitutionally guaranteed. Thus, the question of the "adequacy of the administrative procedure itself" is the "merits of the plaintiff's lawsuit." Id.

 In Rafeedie, the Court of Appeals for the District of Columbia likewise was faced with an alien's due process challenge to the adequacy of the procedures available to him under the INA. 279 U.S. App. D.C. 183, 880 F.2d 506. There, then-Judge Ruth Ginsberg recognized that "it would be pointless to require him to exhaust an administrative procedure which all three members of this court seem to agree is not applicable to him merely so he can receive, in the end, the correct procedure." 880 F.2d at 528 n.6 (citing Bowen v. City of New York, 476 U.S. 467, 484-85, 90 L. Ed. 2d 462, 106 S. Ct. 2022 (1986) ("We should be especially sensitive to this kind of harm where the Government seeks to require claimants to exhaust administrative remedies merely to enable them to receive the procedure they should have been afforded in the first place"). In the case at bar, it would not only fail to further judicial economy, but would be an affirmative affront to it, if this court were to require plaintiff to subject himself to the inadequate procedures complained of for the sole purpose of subsequently allowing a court to declare those procedures unconstitutional.

 The second extraordinary set of circumstances under which the Court has explicitly excused exhaustion is where the administrative body has "predetermined the issue before it." McCarthy, 503 U.S. at 148 (citing Houghton v. Shafer, 392 U.S. 639, 640 n. 14, 20 L. Ed. 2d 1319, 88 S. Ct. 2119 (in view of Attorney General's submissions that the challenged rules of the prison were "validly and correctly applied to petitioner," requiring administrative review through a process culminating with the Attorney General "would be to demand a futile act")). This situation arose most starkly in Mathews v. Diaz, 426 U.S. 67, 48 L. Ed. 2d 478, 96 S. Ct. 1883 (1976). There, a number of aliens brought suit challenging a Social Security Act provision which made resident citizens eligible for medical insurance but denied eligibility to aliens who had not resided in this country for at least five years. The plaintiff aliens applied to the administration for medical insurance benefits and were denied. Thereafter, without having exhausted their administrative remedies, the ...


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