UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


AMER IMGRTN LAW ASSN

v.

RENO, JANET


98-5463a

D.C. Cir. 2000


*	*	*


Randolph, Circuit Judge: The Illegal Immigration Reform  and Immigrant
Responsibility Act of 1996 ("IIRIRA"), Pub.  L. No. 104-208, 110 Stat.
3009, established a system for  expediting the removal of aliens who
arrive at the border but  are not eligible for admission. Congress
permitted judicial  review of the new system, but set a deadline: all
actions had  to be "filed no later than 60 days after the date the
chal- lenged section, regulation, directive, guidance, or procedure 
... is first implemented."1 8 U.S.C. s 1252(e)(3)(A)-(B).  Ten
organizations and twenty aliens, some added after the  deadline
expired, brought constitutional, statutory, and inter- national law
challenges after the Attorney General issued 




__________

n 1 8 U.S.C. s 1252 provides the exclusive jurisdictional basis for 
challenging the removal procedures: "Except as provided in this 
section and notwithstanding any other provision of law, no court 
shall have jurisdiction to hear any cause or claim by or on behalf of 
any alien arising from the decision or action by the Attorney  General
to commence proceedings, adjudicate cases, or execute  removal orders
against any alien under this Act." 8 U.S.C.  s 1252(g).


regulations under the new law. The district court disposed of  the
cases mainly on jurisdictional grounds, although it did  reject the
claims of two of the alien plaintiffs on the merits.  See American
Immigration Lawyers Ass'n v. Reno, 18  F. Supp. 2d 38 (D.D.C. 1998).
We hold that the organization- al plaintiffs lacked standing to
litigate the rights of aliens not  parties to the lawsuits and that
the judgment of the district  court should be affirmed in all other


I


A


Every person who arrives at a United States port of entry  undergoes
primary inspection during which immigration offi- cers review the
individual's documents. In fiscal year 1996,  the Immigration and
Naturalization Service conducted 475  million primary inspections. 62
Fed. Reg. 10,312, 10,318  (1997). Returning citizens produce their
passports; aliens  must show a valid visa or other entry document. If
the  immigration officer is unable to verify an alien's admissibility,
 the alien is referred to secondary inspection for a more  thorough
examination of eligibility to enter.


Before IIRIRA, if immigration officials could not verify an  alien's
admissibility at secondary inspection, the alien was  entitled to
defend his eligibility at an exclusion hearing before  an immigration
judge. See 8 U.S.C. ss 1225(b), 1226(a)  (1994). The alien had the
right to counsel at the hearing, id.  s 1362(a), could examine
witnesses, id., and was provided  with a list of persons providing
free representation, 8 C.F.R.  s 236.2(a) (1994). If the ruling were
adverse, the alien could  appeal to the Board of Immigration Appeals
and, ultimately,  federal court. See 8 U.S.C. ss 1105a(b), 1226(b)


IIRIRA reformed the secondary inspection process in or- der to
"expedite the removal from the United States of aliens  who
indisputably have no authorization to be admitted...."  H.R. Conf.
Rep. No. 104-828, at 209 (1996). To that end, the  statute provides
that "if an immigration officer determines  that an alien ... is
inadmissible" because the alien possesses  fraudulent documentation,
see 8 U.S.C. s 1182(a)(6)(C), or has 


no valid documentation, see id. s 1182(a)(7), "the officer shall  order
the alien removed from the United States without  further hearing or
review...." Id. s 1225(b)(1)(A)(i). An  alien removed for these
reasons is barred from reentry for a  period of five years. Id. s
1182(a)(9)(A)(i).


The statute exempts from immediate removal aliens who  "indicate[ ]
either an intention to apply for asylum ... or a  fear of
persecution." Id. IIRIRA directs immigration offi- cers to refer such
aliens to an interview with an asylum  officer. See id. s
1225(b)(1)(A)(ii). If the asylum officer  "determines that an alien
does not have a credible fear of  persecution, the officer shall order
the alien removed from  the United States...." Id. s
1225(b)(1)(B)(iii)(I).2 Upon the  alien's request, an immigration
judge will review the removal  decision. See id. s
1225(b)(1)(B)(iii)(III). The alien is given  an opportunity to be
heard and questioned in an expedited  proceeding: "the review shall be
concluded ... to the maxi- mum extent practicable within 24 hours, but
in no case later  than 7 days after the [asylum officer's]
determination...."  Id. If the immigration judge overturns the asylum
officer's  finding, the alien is given a hearing under 8 U.S.C. s
1229a.  If the immigration judge affirms the asylum officer's finding,


B


The Attorney General issued Interim Regulations, effective  April 1,
1997, setting forth procedures implementing the  summary removal
system. See, e.g., 8 C.F.R. ss 208.30, 235.  This started the
statutory time limit for judicial review run- ning. Any action
challenging the statute or the Interim  Regulations had to be filed no
later than sixty days after  April 1. See 8 U.S.C. s 1252(e)(3)(B).
Organizations who  represent and assist aliens seeking to enter the
United States  filed two complaints challenging IIRIRA and the Interim




__________

n 2 If the asylum officer finds that there is a credible fear of 
persecution, the alien is given a full hearing under 8 U.S.C. s


3 At this juncture, habeas corpus review on a limited number of  issues
is available. See id. s 1252(e)(2).


Regulations as they apply to asylum-seeking aliens.4 The 
cases--American Immigration Lawyers Ass'n (AILA) and  Liberians United
for Peace and Democracy (LUPD)--were  consolidated. A few of the same
organizations joined with  the Dominican American National Foundation
(Miami area)  and aliens to assert claims against the summary removal 
system as it applied to non-asylum seekers. This third 
case--Wood--focused on determinations, at the secondary  inspection
stage, that aliens lacked proper documentation.  The AILA and LUPD
complaints challenged the same stage  of summary removal, but also
focused on the "fear of persecu- tion" determination and the
procedures available to asylum  seekers. In the Wood case, an amended
complaint filed on  August 28 added individual plaintiffs who were
removed after  the sixty-day deadline. The district court consolidated


The complaints raised a host of contentions. Some plain- tiffs claimed
that IIRIRA violated the due process and equal  protection rights of
aliens seeking to enter the United States,  that the Attorney
General's regulations were not consistent  with IIRIRA, and that
summary removal violated internation- al treaties protecting children
and refugees. Plaintiffs rested  their due process and statutory
claims on the following allega- tions: the summary removal procedures
banned communica- tion with family, friends, or attorneys; failed to
notify aliens  of the reasons for removal and the procedures available
for  challenging removal; failed to provide adequate language 
interpretation; and limited review of removal decisions. 




__________

n 4 The organizations, each of which is an appellant, are the Ameri-
can Immigration Lawyers Association, a 4500 member association  of
immigration lawyers, and the following groups which assist either 
particular nationalities of aliens or aliens arriving in a particular 
area of the United States: Florida Immigration Advocacy Center;  Human
Rights Project (Los Angeles area); Liberians United for  Peace and
Democracy; National Coalition for Haitian Rights; New  York
Immigration Coalition; Northern California Coalition for Im- migration
Rights; World Tamil Coordinating Committee; and  Washington Lawyers'
Committee for Civil Rights and Urban Af- fairs.


Plaintiffs also challenged the procedures as applied to specific 
individual plaintiffs, claiming that immigration officials were  not
following IIRIRA or the Interim Regulations. The only  claim asserted
on behalf of the organizations in their own  right was that the First
Amendment entitled their members  to have access to persons subject to
summary removal proce- dures.


The district court dismissed each of the complaints. With  respect to
individuals who missed the statutory deadline, the  court dismissed
for lack of jurisdiction, pursuant to Federal  Rule of Civil Procedure
12(b)(1). Two remaining individual  plaintiffs--Perlina Perez and Flor
Aquino de Pacheco, both  non-asylum seekers--filed within the
sixty-day window, but  the court dismissed their claims for failure to
state a cause of  action, under Federal Rule of Civil Procedure
12(b)(6).5 See  18 F. Supp. 2d at 46-47, 52-60. The court found that
the  Attorney General's regulations actually provided more proce-
dural safeguards than the statute required, id. at 52-57, that  the
individuals did not have sufficient contacts with the  United States
to invoke due process rights, id. at 58-60, and  that they failed to
make the prima facie case of discrimina- tion necessary for their
equal protection challenge, id. at 60.6  With respect to the validity
of the regulations "as applied" to  these plaintiffs, the court held
that IIRIRA provided review  only for written procedures and thus
there was no jurisdiction  to challenge the particular practices of




__________

n 5 Plaintiffs did not challenge the constitutionality of the sixty-day
 limit, 18 F. Supp. 2d at 47 n.8, perhaps in recognition of the 
longstanding principle that determining the conditions governing  the
admission of aliens is "so exclusively entrusted to the political 
branches of government as to be largely immune from judicial  inquiry
or interference." Bruno v. Albright, 1999 WL 1082957, at  *5 (D.C.
Cir. Dec. 3, 1999) (quoting Harisiades v. Shaughnessy, 342  U.S. 580,
588-89 (1952)).


6 Perez and Aquino appeal only the dismissal of their statutory 
claims. See Opening Brief of Plaintiffs-Appellants at 14.


7 The district court did not reach the international law claim  because
it found that neither the "organizational [n]or individual 


Id. at 57-58 (citing 8 U.S.C. s 1252(e)(3)(A)).


As to the organizational plaintiffs, the district court recog- nized,
and the government conceded, standing for their First  Amendment
claim. See 18 F. Supp. 2d at 50. The court  rejected that claim on its
merits. See id. at 60-62 (citing  Ukranian-American Bar Ass'n, v.
Baker, 893 F.2d 1374 (D.C.  Cir. 1990)). With regard to the other
claims, the court found  that the organizations alleged "speculative"
injuries and did  "not meet the causation and redressability
requirements" of  Article III standing. See 18 F. Supp. 2d at 49-50.


II


A


As the cases now stand, we have appeals by the individual  aliens who
filed late and for that reason had their claims  dismissed, and by the
two non-asylum seekers (Perez and  Aquino) who filed timely but lost
for failure to state a cause of  action. We see no reason to disturb
the district court's  analysis, and so we affirm the dismissal of
these claims  substantially for the reasons stated in the court's
thorough  opinion. See 18 F. Supp. 2d at 46-47, 52-60.


As to the organizational plaintiffs, they have not pressed  their First
Amendment claim on appeal. This leaves only  their contentions that
the new system violates, not their  rights or the rights of their
members, but the constitutional  and statutory rights of unnamed
aliens who were or might be  subject to the statute and regulations.
In discussing why  they do not have prudential standing to litigate
these claims,  we will not distinguish between the organizations and
their  members. See Hunt v. Washington State Apple Adver.  Comm'n, 432
U.S. 333, 342-43 (1977). The district court  rightly observed that,
with one exception, the organizations  and their members alleged
identical injuries. The court  rejected as too speculative the one
injury asserted for associa- tional standing but not for
organizational standing--the claim  that members of the associations
might some day be subject  to summary removal. See 18 F. Supp. 2d at


__________

n plaintiffs have standing to assert the International Law claim." 18 
F. Supp. 2d at 52 n.14. The plaintiffs' brief does not discuss 
standing under the treaties, so we do not consider this ruling.


with the court's conclusion and will say no more on that  subject.


B


Each of the organizational plaintiffs seeks to vindicate the  rights of
unnamed third parties--namely, aliens who have  been or will be
processed pursuant to the new law and  regulations.8 Yet one of the
"judicially self-imposed limits on  the exercise of federal
jurisdiction" is "the general prohibition  on a litigant's raising
another person's legal rights." Allen v.  Wright, 468 U.S. 737, 751
(1984). The district court, though  holding that the individual
plaintiffs could not assert the  rights of third parties, see 18 F.
Supp. 2d at 47, did not  directly address third party standing with
regard to the  organizational plaintiffs. Instead, the court discussed
the  "zone of interests" test, an aspect of prudential standing 
distinct from third party standing. See id. at 47-49. The  zone of
interest test looks at the nature of the claims assert- ed; third
party standing focuses on who is asserting the claim  and why the
holder of the asserted right is not before the  court. Compare
Campbell v. Louisiana, 523 U.S. 392, 397- 400 (1998), with National
Credit Union Admin. v. First Nat'l  Bank & Trust Co., 522 U.S. 479,
488-99 (1998). Satisfying  the "zone of interests" test is usually
easy when the plaintiff  is able to establish third party standing:
"if the litigant  asserts only the rights of third parties, then he
may satisfy  the zone of interests requirement by reference to the
third  parties' interest if the court determines both that the
litigant  has third party standing and that the third parties'
interests  fall within the relevant zone of interests." Haitian
Refugee  Ctr. v. Gracey, 809 F.2d 794, 811-12 (D.C. Cir. 1987) (citing


The government's brief contained nothing on third-party  standing.
Government counsel said at oral argument that 




__________

n 8 Because the district court dismissed for lack of standing, there 
has been no ruling on the merits of the AILA/LUPD challenges to  the
provisions of IIRIRA dealing with aliens seeking asylum. With  respect
to Wood, there remains a due process challenge on behalf of 
non-asylum seekers having allegedly sufficient contacts with the 
United States (for example, returning legal permanent residents).


there was no intention to waive an objection on this ground.  Normally
the proper method of preserving an argument on  appeal is to make it.
But in this circuit we treat prudential  standing as akin to
jurisdiction, an issue we may raise on our  own, in part because the
doctrine serves the "institutional  obligations of the federal
courts." Animal Legal Defense  Fund v. Espy, 23 F.3d 496, 499 (D.C.
Cir. 1994); see also  Steffan v. Perry, 41 F.3d 677, 697 & n.20 (D.C.
Cir. 1993) (en  banc); cf. United States v. Pryce, 938 F.2d 1343, 1351
(D.C.  Cir. 1991) (Randolph, J., concurring).


Since we will consider third party standing sua sponte, a  preliminary
question needs to be addressed. "Congress may  grant an express right
of action to persons who would other- wise be barred by prudential
standing rules." Warth v.  Seldin, 422 U.S. 490, 501 (1975); see also
Havens Realty  Corp. v. Coleman, 455 U.S. 363, 372 (1982); Fair
Employ- ment Council of Greater Washington, Inc. v. BMC Mktg.  Corp.,
28 F.3d 1268, 1278 (D.C. Cir. 1994). Has it done so  here? We think
not. Nothing in IIRIRA supports the idea  that Congress intended to
allow litigants to assert the rights  of others, and there are
indications that Congress meant to  preclude such suits.


The statute permits judicial review of the "implementation"  of 8
U.S.C. s 1225(b), the provision spelling out the proce- dures for
inspecting applicants for admission to the United  States. 8 U.S.C. s
1252(e)(3)(A). The judicial review section  states that such lawsuits
may be brought only in the United  States District Court for the
District of Columbia; that the  lawsuits are limited to determining
whether the statute or  regulations are constitutional, and whether
the regulations or  other guidelines are consistent with the statute
or other law;  and that the lawsuits must be brought within the
sixty-day  period we have described earlier. 8 U.S.C. ss 1252(e)(3)(A)
 & 1252(g). We cannot see anything in these provisions  allowing
litigants--whether individuals or organizations--to  raise claims on
behalf of those not party to the lawsuit.


The district court, in ruling that Congress had relaxed the  zone of
interest test, stressed the sixty-day time limit on 


judicial review: "such an action would probably not be  brought in time
if Congress intended that only aliens subject  to summary removal
orders be allowed to bring such an  action." 18 F. Supp. 2d at 49.
This is a large stretch,  especially in light of the fact that some
aliens did bring suit  within the period. A sixty-day limit is
commonplace for  judicial review of agency action. The Hobbs Act, 28
U.S.C.  s 2344, is a well-known example. No one has ever thought  that
this time limit, in itself, amounted to a legislative repudi- ation of
prudential standing. See, e.g., Reytblatt v. NRC, 105  F.3d 715, 720
(D.C. Cir. 1997); Water Transport Ass'n v. ICC,  819 F.2d 1189, 1193 &
n.33 (D.C. Cir. 1987); National  Treasury Employees Union v. Merit
Sys. Protection Bd., 743  F.2d 895, 910 (D.C. Cir. 1984); United
States v. FMC, 655  F.2d 247, 251 (D.C. Cir. 1980). In each of the
cases just cited  the sixty-day period for judicial review under the
Hobbs Act  applied and yet we still required the petitioners to
satisfy  prudential standing requirements.


We have also considered another argument, although it was  not
mentioned in the district court's opinion. Washington,  D.C., one
might suppose, is hardly a convenient forum for an  alien removed
from, say, a port of entry in Hawaii or Califor- nia or Florida.
Yet--to continue the argument--Congress  restricted judicial review to
actions brought in the federal  court in the District of Columbia, see
8 U.S.C. s 1252(e)(3)(A),  thereby signifying that organizations,
rather than (or perhaps  in addition to) individual aliens, may bring
suit. The argu- ment is not very telling. For one thing, plaintiffs
themselves  alleged that Washington is one of the "major locations for
 summary removal cases." LUPD/AILA Amended Complaint  p 85. For
another, aliens who have been summarily removed  might be from
anywhere in the world, regardless of where  they attempt to enter the
country. When they have been  returned to their native country,
Washington, D.C. is not  necessarily less convenient than any other
forum. And once  again, it has been common for Congress to designate
the  District of Columbia as the exclusive venue for judicial review 
of agency action. See, e.g., 12 U.S.C. s 2278a-3b (Farm  Credit System
Assistance Board); 30 U.S.C. s 1276(a)(1)  (Surface Mining Act


(Clean Air Act regulations); 47 U.S.C. s 402(b) (FCC licens- ing
decisions). The purpose is obvious and has nothing to do  with
prudential standing. By confining judicial review to one  venue,
Congress avoids conflicting decisions about the validity  of
particular regulations or statutes.


When we examine other subsections of 8 U.S.C. s 1252(e)  dealing with
judicial review, we find signs that Congress  meant to allow actions
only by aliens who have been subjected  to the summary procedures
contained in s 1225(b) and its  implementing regulations. Section
1252(e)(1)(B) provides:  "Without regard to the nature of the action
or claim and  without regard to the identity of the party or parties
bringing  the action, no court may ... certify a class under Rule 23
of  the Federal Rules of Civil Procedure in any action for which 
judicial review is authorized under a subsequent paragraph of  this
section." Contrast this prohibition on class actions with  the
allegations of the organizational plaintiffs. The LUPD/ AILA amended
complaint (pp 96, 99, 103) raises claims on  behalf of all "bona fide
refugees" and "all aliens who may be  eligible" for asylum interviews.
The Wood amended com- plaint (pp 1, 6, 79, 80, 85) raises claims on
behalf of the alien  "clients" of the organizational plaintiffs and
"those persons  similarly situated who have been and will be harmed by
the  new expedited removal proceedings created by INA s 235  and
governed by the Interim Rules and Defendants' other  implementing
policies and procedures," a group that includes  "United States
citizens, lawful permanent residents ('LPRs'),  and those other
persons eligible for admission to the United  States, including
non-immigrant visa holders with facially  valid visas, parolees,
unaccompanied minors, refugees, asy- lees, those persons for whom
documents are not required for  admission, and those potentially
eligible for admission  through waivers, adjustment of status or other


Such unbounded allegations sweep in nearly all aliens  anywhere in the
world who have tried or will try to enter the  United States. The
situation of any particular alien is of no  moment, and imposes no
confining influence on the scope of  the lawsuit. What portions of the
statute and regulations will 


be challenged, and on what grounds, are totally in the control  of the
organizations and their lawyers. Should we suppose  that Congress,
having barred class actions, intended to per- mit actions on behalf of
a still wider group of aliens, actions in  which no class
representative appears as a party and the  plaintiffs are
unconstrained by the requirements of Federal  Rule of Civil Procedure
23? From all we can gather, Con- gress must have contemplated that
lawsuits challenging its  enactment would be brought, if at all, by
individual aliens  who--during the sixty-day period--were aggrieved by
the  statute's implementation. We come to this conclusion not  only in
light of the statute's ban on class actions, but also  because
Congress restricted injunctive relief in the following  terms: "no
court (other than the Supreme Court) shall have  jurisdiction or
authority to enjoin or restrain the operation of  [the expedited
secondary inspection provisions] other than  with respect to the
application of such provisions to an  individual alien against whom
the proceedings under such  chapter have been initiated." 8 U.S.C. s
1252(f)(1). The  jurisdictional provision provides still further
proof: "Except  as provided in this section and notwithstanding any
other  provision of law, no court shall have jurisdiction to hear any 
cause or claim by or on behalf of any alien arising from the  decision
or action by the Attorney General to commence  proceedings, adjudicate
cases, or execute removal orders  against any alien under this Act." 8
U.S.C. s 1252(g). One  cannot come away from reading this section
without having  the distinct impression that Congress meant to allow
litiga- tion challenging the new system by, and only by, aliens 


What we have just written about congressional intent influ- ences our
analysis of the judicially-created third party stand- ing doctrine as
it applies to the cases before us. We will get  to this in a moment,
but first we need to look at developments  in this circuit and in the
Supreme Court. The place to begin  is Judge Bork's opinion in Haitian
Refugee Center v. Gracey,  809 F.2d 794 (D.C. Cir. 1987), which
describes a lawsuit quite  similar to the cases before us. There,
organizations chal- lenged a presidential proclamation ordering
interdiction of  boats carrying undocumented aliens attempting to


United States. The organizations complained that the inter- diction
program violated the rights of the aliens under the  Refugee Act of
1980, the due process clause of the Fifth  Amendment, and various
treaties. See 809 F.2d at 797-98.  Because the litigants asserted the
rights of third party aliens,  Judge Bork conducted a thorough
examination of cases in  which the Supreme Court made exceptions to
the traditional  prohibition against third party standing. See id. at
807-11.  The analysis led to the following conclusion: "If the govern-
ment has directly interfered with the litigant's ability to  engage in
conduct together with the third party, for example,  by putting the
litigant under a legal disability with criminal  penalties, and if a
statute or the Constitution grants the third  party a right to engage
in that conduct with the litigant, the  litigant has standing to
challenge the government's interfer- ence by invoking the third
party's rights." Id. at 808. Most  of the cases allowing third party
standing involved laws that  imposed legal sanctions on the litigant.9
Third party stand- ing was allowed because "enforcement of the
challenged  restriction against the litigant" resulted "in the
violation of  the third parties' rights." Id. (quoting Warth, 422 U.S.
at  510)). This circumstance eliminates one of the concerns  animating
the third party prohibition: courts should not  decide disputes if
third parties will be able to exercise their  rights regardless of the
litigant's success. See Singleton v.  Wulff, 428 U.S. 106, 114 (1976)




__________

n 9 As examples, see Secretary of State of Maryland v. J.H. Mun- son
Co., 467 U.S. 947, 955-59 (1984), in which a fundraiser had  standing
to raise the First Amendment rights of donors because the  statute
penalized fundraisers for receiving commissions; Craig v.  Boren, 429
U.S. 190, 194-97 (1976), in which the Court recognized  standing for a
beer vendor to assert the equal protection claims of  males who were
not allowed to purchase beer until they turned 21,  although women
could purchase beer upon turning 18; Doe v.  Bolton, 410 U.S. 179,
188-89 (1973), in which doctors were allowed  to assert the privacy
interests of patients because the statute  imposed criminal penalties
on doctors performing abortions; and  Eisenstadt v. Baird, 405 U.S.
438, 443-46 (1972), in which vendors  of contraceptives had standing
to assert purchasers' privacy inter- ests because the statute
criminalized selling contraceptives.


U.S. 288, 345-48 (1936) (Brandeis, J., concurring)). The  direct impact
of the law on the litigant also mitigates the  concern that third
parties would be better proponents of their  own rights. See id.
(citing Holden v. Hardy, 169 U.S. 366,  397 (1898)).


The Supreme Court has also recognized third party stand- ing when a
law, though not punishing the litigant, directly  interferes with a
protected relationship between the litigant  and third party.
Singleton v. Wulff, in which doctors chal- lenged a law that
prohibited Medicaid payments for abortions  that were not "medically
indicated," is such a case. See 428  U.S. at 106. In a plurality
opinion,10 Justice Blackmun found  that the law was "specifically
intended to burden the third  party's relationship with their
physicians." Haitian Refugee  Ctr., 809 F.2d at 810 (citing Singleton,
428 U.S. at 106).  Because the right being asserted--the third party
patient's  Roe v. Wade right--was a right protecting the patient's 
access to physicians, the Court recognized third party stand- ing.


In contrast, the interdiction law at issue in Haitian Refugee  did not
directly interfere with the relationship between Hai- tians and the
litigants who were trying to help them. See id.  Impeding contact
between the two groups was only an indi- rect effect of the
interdiction program's aim of preventing the  entry of Haitians. See
id. at 809-10. Yet "allowing standing  for unintended side effects of
programs would involve the  court in the continual supervision of more
governmental  activities than separation of powers concerns should
permit."  Id. Moreover, the constitutional rights asserted--the Hai-
tians' due process rights--did not protect a relationship be- tween
the litigants and the aliens. See id. at 809. The same  is true in our
case. The organizations faced no legal sanction  from the statute or
the regulations. The claimed violation of  aliens' rights--impeded
access to attorneys--is but a side  effect of the expedited removal


In addition to the factual congruity between Haitian Refu- gee and this
case, the rule of decision Judge Bork announced 




__________

n 10 Justice Stevens, the fifth vote for standing, wrote separately on 
the grounds that the doctors were asserting their own rights.


for the court11 would foreclose the organizational plaintiffs  from
litigating the due process rights of unnamed aliens.  Haitian Refugee
held: "A litigant therefore could never have  standing to challenge a
statute solely on the ground that it  failed to provide due process to
third parties not before the  court." Id.12


Nonetheless, plaintiffs argue that one of our recent deci- sions is
squarely at odds with the rule of Haitian Refugee  just quoted. They
have a point. A few months ago, this  court--without mentioning
Haitian Refugee--allowed a liti- gant to assert the due process rights
of third parties. See  Lepelletier v. FDIC, 164 F.3d 37 (D.C. Cir.
1999). The  plaintiff in Lepelletier was a "money finder," a person
who  receives income by locating the owners of unclaimed deposits  at
failed banks. Lepelletier filed suit against the FDIC, the  receiver
of three failed banks, after the agency denied his  Freedom of
Information Act requests for the names of the  owners of the unclaimed
deposits. See id. at 40-41. The  complaint alleged that "under the due
process clause of the  Fifth Amendment, the FDIC was required to
publish the  names of all parties with unclaimed deposits before
forfeiting  the funds...." Id. at 41. Because the unidentified deposi-
tors' property interest gave rise to the due process claim, 
Lepelletier had to overcome third party standing doctrine.  See id. at


The Lepelletier court invoked, without discussion, the  three-part test
for third party standing the Supreme Court 




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n 11 Judge Buckley joined this portion of Judge Bork's opinion, see 
809 F.2d at 796 n.1, and it therefore represented the law of the 
circuit.


12 At oral argument, plaintiffs cited National Cottonseed Products 
Ass'n v. Brock, 825 F.2d 482 (D.C. Cir. 1987), the one opinion of this
 circuit to question Haitian Refugee. But the doubt expressed there 
has no bearing on this case. It dealt with the portion of Judge 
Bork's Haitian Refugee opinion dealing with whether third party 
standing automatically attached to a vendor-vendee relationship.


announced in Powers v. Ohio, 499 U.S. 400 (1991). See 164  F.3d at 43.
Powers allowed a criminal defendant to assert a  claim of racial
discrimination in jury selection because: 1) the  defendant suffered
an injury in fact;13 2) he had a close  relationship to the excluded
jurors; and 3) there was some  hindrance to the excluded jurors
asserting their own rights.  499 U.S. at 411; see also Campbell v.
Louisiana, 523 U.S. 392  (1998) (applying Powers in the grand jury


Did Powers supersede the Haitian Refugee rule? The  defendant in Powers
certainly faced a legal penalty (imprison- ment), but it is not clear
that a juror's equal protection rights  "protect that party's
relationship with the litigant." Haitian  Refugee, 809 F.2d at 809.
The Powers Court referred to "the  relation between petitioner and
excluded jurors," Powers, 499  U.S. at 413, but the jurors' equal
protection rights were  treated principally as a protection of the
integrity of the  judicial system, see id. at 412, 414. It could be
that Haitian  Refugee and Powers now coexist and a party can establish
 third party standing by meeting either standard. A post- Powers
decision of this court appears to take this approach.  Fair Employment
Council continued to apply the Haitian  Refugee "relationship"
standard, see Fair Employment Coun- cil, 28 F.3d at 1280 (quoting
Haitian Refugee, 809 F.2d at  809)), but applied that standard only
after deciding that  plaintiffs could not meet the Powers "obstacle"


The effect of subsequent case law on the Haitian Refugee  rule is not
entirely clear. Nor is the general state of third  party standing law.
See Miller v. Albright, 523 U.S. 420, 454  n.1 (1998) (Scalia, J.,
concurring) ("Our law on [third-party  standing] is in need of what
may charitably be called clarifica- tion.").14 Although we are unsure
how to reconcile Haitian 




__________

n 13 We cannot see what this factor adds. Prudential standing  aside,
if the litigant has not suffered injury there is no constitutional 
standing. See Valley Forge Christian College v. Americans United  For
Separation of Church & State, Inc., 454 U.S. 464, 472 (1982).


14 A third party standing decision of the Supreme Court after  Haitian
Refugee allowed an attorney to assert the due process 


Refugee with Powers and Lepelletier, we can decide this  appeal without
making the attempt. Even under the Powers  formulation, the
organizational plaintiffs cannot prevail. To  establish third party
standing "there must exist some hin- drance to the third party's
ability to protect his or her own  interests."15 Powers, 499 U.S. at
411. Singleton v. Wulff,  428 U.S. at 116, sounded a similar note: "If
there is some  genuine obstacle ... the third party's absence from
court  loses its tendency to suggest that his right is not truly at 
stake, or truly important to him, and the party who is in court 
becomes by default the right's best available proponent." We  do not
believe excluded aliens suffered from the type of  impediment, the
"hindrance" or "obstacle," the Court had in  mind.


We accept plaintiffs' statement that "aliens removed direct- ly from
secondary inspection are detained and prohibited  from communicating
with anyone throughout their stay in the 




__________

n claims of his client. See United States Dep't of Labor v. Triplett, 
494 U.S. 715 (1990). The law being challenged regulated the fees  an
attorney could receive in black lung disease cases. Triplett thus  is
another example of the well-established exception that a litigant  can
assert third party claims when the challenged law imposes a  penalty
on the litigant.


Miller v. Albright, 523 U.S. 420 (1998), also involved a legal 
disability imposed on the litigant. The plaintiff had been denied 
citizenship on the basis of a proof-of-paternity requirement for 
illegitimate, foreign-born offspring of American fathers. The Court 
allowed the plaintiff to raise her father's equal protection claim (a 
test was not required for the illegitimate, foreign-born offspring of 
American mothers). See id. at 424-27.


15 This language demonstrates that when the "Powers test" is  applied,
all three requirements must be met. See also Powers, 499  U.S. at 411
("We have recognized the right of litigants to bring  actions on
behalf of third parties, provided three important criteria  are
satisfied...."). Caplin & Drysdale, Chartered v. United  States, 491
U.S. 617, 623 n.3 (1988), which upheld third party  standing even
though the hindrance requirement "counsel[ed]  against review,"
appears inconsistent with the Court's current  approach.


country." Opening Brief for Plaintiffs-Appellants at 46. But  the
period of detention typically was quite short; that is the  point of
summary removal. When an alien returned to his  native country,
nothing prevented him from bringing suit  here. To this the
organizational plaintiffs reply that "under  the construction of the
60-day limit adopted by the district  court, for those aliens arriving
after June 1, 1997, there is no  possibility of bringing a challenge
at all." Id. at 47. True  enough. But this is precisely what Congress


None of the Supreme Court's decisions invoking the Pow- ers formulation
even comes close to suggesting what plaintiffs  propose. In Powers
itself, the third party juror "possess[ed]  little incentive" to bring
suit because "of the small financial  stake involved and the economic
burdens of litigation." 499  U.S. at 415. It also would have been
difficult for the excluded  juror to recognize, and later prove, that
his exclusion was the  result of systemic discrimination. See id. at
414-15; see also  Barrows v. Jackson, 346 U.S. 249, 254, 257 (1953)
(allowing  third party standing to vindicate the rights of
"unidentified"  victims of racially restrictive covenant). This latter
consider- ation--unawareness of the injury--is the type of obstacle 
Lepelletier thought adequate to meet the Powers standard.  The third
parties in Lepelletier were unidentified depositors  who did not know
they were being deprived of property.  Excluded aliens faced no
comparable impediment to suit.  They were quite aware of their summary
removal. And they  had a strong incentive to challenge the exclusion


Justice O'Connor, joined by Justice Kennedy, has said that  when a
"hindrance signals that the rightholder did not simply  decline to
bring the claim on his own behalf, but could not in  fact do so,"
third party standing may be permitted. Miller v.  Albright, 523 U.S.
at 450 (O'Connor, J., concurring). Hodel v.  Irving, 481 U.S. 704,
711-12 (1987), involves the most obvious  application of this
principle: the rightholders, the litigants'  parents, were deceased.
Another case, Singleton, 428 U.S. at  117, held that the "imminent
mootness" of any woman's  claimed right to an abortion posed an


tion of the right. And the Court permitted third party  standing when
assertion of the right would essentially defeat  it. See NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449,  459 (1958) (recognizing that
if the organization were required  to assert its own privacy
interests, the privacy it sought to  protect would be undermined).


We do not believe aliens excluded in the Spring of 1997,  when the
statute was first implemented, were in a position  comparable to the
missing individuals in the cases we have  just summarized. Congress
passed IIRIRA in September  1996. The organizations appearing before
us, whose purpose  it is to assist aliens arriving on our shores, thus
knew well  ahead of time what was coming. On March 27, 1997, five 
days before the implementing regulations went into effect,  the
American Immigration Lawyers Association and three  other
organizations filed suit. They eventually added, within  60 days of
April 1, the two excluded aliens whose claims the  district court
adjudicated on the merits. The organizations  do not allege that,
despite their best efforts, they were unable  to identify and provide
legal assistance to any other potential  plaintiffs--that is, aliens
facing removal during the relevant  time frame. How large was the
pool? The government  informed us after argument that in the 60 days
beginning  April 1, 1997, immigration officials processed
approximately  10,200 expedited removal cases at the country's 25


To the extent there were obstacles or hindrances to any of  these
individuals joining in the cases, they are either imposed  by Congress
or result from the normal burdens of litigation.  Those who are not
financially well off face obvious obstacles  when they seek to bring a
lawsuit. Some excluded aliens, but  hardly all,16 doubtless fell into
that category. Those who are 




__________

n 16 For instance, the excluded aliens added in the amended Wood 
complaint included two British citizens who supplied items to U.S. 
Air Force squadrons in England; a citizen of the Peoples Republic  of
China who is the president of a real estate development company;  a
businesswoman from Canada; and another Canadian citizen who 


uninformed about the workings of the courts, or of their legal  rights,
or of the availability of counsel, also face obstacles.  Individuals
who do not speak English or who reside far from  the courthouse are
hindered when it comes to taking legal  action. Congress knew all this
as well as we do, and as well  as the organizational plaintiffs do.
Yet rather than alleviating  these burdens Congress placed strict
limits on the time for  filing challenges to the summary removal
system, and it  barred class actions. To allow third party standing in
the  face of those provisions (which are not challenged) and the 
jurisdictional provision mentioned earlier (p. 12, supra) would  be to
contradict the principles on which the standing doctrine 
rests--namely, "the proper--and properly limited--role of  the courts
in a democratic society." Warth v. Seldin, 422  U.S. at 498; Allen v.
Wright, 468 U.S. at 750-52. Congress  imposed the 60-day limit on
actions in order to cabin judicial  review and to have the validity of
the new law decided  promptly. It would be inconsistent with the
"properly limited  role of the courts" for us to use this provision as
the basis for  expanding jurisdiction through the back door of third
party  standing. And in the face of a statute barring even class 
actions that comply with the rules of procedure, it would be 
inconsistent, indeed almost contradictory, if the device of  third
party representation could be used to prosecute what  are essentially


We mentioned earlier that Congress may relax the pruden- tial standing
rules the judiciary has created. See Warth v.  Seldin, 422 U.S. at
501; Havens Realty Corp. v. Coleman,  455 U.S. at 372; Fair Employment
Council, 28 F.3d at 1278.  Congress may do so--and has sometimes done
so--in the  exercise of its Article I power, so long as it keeps
within the  limits of Article III of the Constitution. See Henry P. 
Monaghan, Third Party Standing, 84 Colum. L. Rev. 277, 313  & n.195
(1984). If Congress can thus expand federal jurisdic- tion, Congress
also has the power to contract federal jurisdic- tion. There is no
reason why, for instance, a statute could 




__________

n held a degree in hotel/restaurant management from an American 
university.


not expressly state that, without exception, each party to a  lawsuit
must raise only their rights and not the rights of  others. That would
constitute a legislative direction to the  courts that the third party
standing doctrine, in its strictest  form, must be applied. Congress
may not have gone so far in  IIRIRA. But our analysis of the statute,
and particularly the  bar on class actions, strengthens the judicial
presumption  against suits seeking relief for a large and diffuse
group of  individuals, none of whom are parties to the lawsuit--suits,
 that is, such as the ones before us. For all of these reasons,  we
hold that the plaintiff organizations do not have standing  to raise
claims, whether statutory or constitutional, on behalf  of aliens
subjected to IIRIRA's expedited removal system.


Affirmed.