McNary: When Immigrants Can Sue Over How the Agency Runs a Program

If immigration officials are handling a whole category of applications unfairly, you may wonder whether you must wait for your own denial, and perhaps for a deportation order, before any court can hear you. Sometimes you do not. A statute barring review of an individual decision does not automatically bar a federal lawsuit challenging the agency’s practices. But Congress has written stronger review limits since, and whether a suit is allowed now depends heavily on the statute and on whether the claim arises from removal proceedings.

The key case is McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), No. 89-1332, decided February 20, 1991. The government asked the Supreme Court to hold that a federal district court had no power to hear a class action over how immigration officials ran a farmworker amnesty program. The Court disagreed in an opinion by Justice Stevens and affirmed the Eleventh Circuit. Six Justices joined the full opinion, Justice White joined Parts I through IV, and Chief Justice Rehnquist, joined by Justice Scalia, dissented.

Farmworkers, an amnesty and interviews without a record

The Immigration Reform and Control Act of 1986 created a special amnesty for farmworkers who could show at least 90 days of qualifying work in the year before May 1, 1986. Those who qualified became temporary residents and could later become permanent residents. Applicants had an interview at a legalization office and had to back up their claims with evidence beyond their own word.

The statute limited review. There would be no judicial review of “a determination respecting an application” except in the judicial review of an order of exclusion or deportation, and the courts of appeals were the only forum for reviewing deportation orders. Someone denied amnesty and not in deportation proceedings could not get judicial review of an individual denial at all.

The Haitian Refugee Center, a Catholic diocese’s refugee services office and 17 denied applicants brought a class action in federal court in Florida. They alleged that the interviews were conducted in an arbitrary way, that applicants could not see or respond to adverse evidence or present witnesses, that no verbatim recording of the interview was made, and that non-English-speaking Haitian applicants could not communicate effectively because competent interpreters were not provided. After a hearing, the district court found that a number of the agency’s practices violated the statute and the Constitution. Among other things, it found a secret list of employers whose affidavits were routinely discredited, without any chance for applicants to corroborate them. It entered a preliminary injunction ordering large categories of denials vacated and requiring changes, and the Eleventh Circuit affirmed. Only jurisdiction reached the Supreme Court, so the Court took those violations as undisputed at that stage.

“A determination” is one decision

The government’s argument rested on the statute’s words. The Court read those words closely and came out the other way. The phrase “a determination” “describes a single act rather than a group of decisions or a practice or procedure employed in making decisions.” The review provision covered “direct review of individual denials of SAW status,” not general challenges to the agency’s practices.

Other parts of the statute pointed the same way. Review had to be based on the administrative record, and that record held only one person’s file. The abuse-of-discretion standard fits a review of an individual’s facts, not a constitutional claim. Congress also could have used broader words. It could have reached “all causes . . . arising under any of the provisions” of the program or “on all questions of law and fact.” It did not.

The nature of the relief mattered too. The plaintiffs did not ask the court to declare them entitled to amnesty. If they won, they would only be entitled to have their files reopened and their applications reconsidered under fair procedures.

Why the usual route was no route

The Court added a practical reason, leaning on the presumption that Congress intends some judicial review of agency action. Limiting these claims to the statutory route would have foreclosed “meaningful judicial review” in three ways.

The record problem came first. With no recordings or transcripts of the interviews, a reviewing court had nothing meaningful to review. Second, most denied applicants could be sure of reaching a court of appeals only if they surrendered for deportation, and the Court said that price was “tantamount to a complete denial of judicial review for most undocumented aliens.” Third, even in a deportation case, a court of appeals could not build a record about a pattern of unconstitutional practices. It “would lack the factfinding and record-developing capabilities of a federal district court.”

The dissent

Chief Justice Rehnquist said Congress had written the limit in language “he who runs may read.” Attacks on the process used to reach a decision, in his view, were still attacks on a determination respecting an application, and he read the Court’s approach as letting people get around the limit by recasting a claim as a challenge to procedures.

How Congress and the courts have responded

McNary remains the starting point, but the ground around it has shifted.

The Court extended the reasoning in Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993), to the general legalization program. But it also held that adopting the regulations did not by itself give class members a ripe claim. A claim would ripen only once a person took the steps available and the agency blocked the path by applying the regulation, and an applicant relying on a formal denial was still limited to the statute’s review route. On that record, only class members, if any, who had been turned away when they tried to file had ripe claims for the district courts to hear, and the Court vacated and remanded. A person therefore cannot assume that a policy claim is ready to file just because the policy exists.

Congress has also rewritten the review statute. 8 U.S.C. § 1252(b)(9) sends “all questions of law and fact” arising from any action taken to remove a person to the court of appeals, in language close to what the Court said Congress could have used. In J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016), decided before the two Supreme Court decisions discussed below, the Ninth Circuit noted that McNary had offered a blueprint and held that sections 1252(a)(5) and (b)(9) channel even policy-and-practice claims through the petition for review when they arise from removal proceedings. Children who wanted appointed counsel could not bring their claim in district court.

That channel has limits. In Department of Homeland Security v. Regents of the University of California, 591 U.S. 1 (2020), the Court said section 1252(b)(9) does not bar suits by people not asking for review of a removal order, the decision to seek removal, or the process by which removability will be determined. That language came from Part II of Justice Alito’s opinion in Jennings v. Rodriguez, 583 U.S. 281 (2018), where three Justices found no section 1252(b)(9) bar to claims of prolonged detention without bond hearings by people who were not challenging the decision to detain them in the first place. Three dissenting Justices also found no bar, for a different reason, and two Justices would have found one. A federal district court in Los Angeles, in Vasquez Perdomo v. Noem, 821 F. Supp. 3d 1154 (C.D. Cal. 2026), relied on those decisions to allow claims by plaintiffs challenging interference with legal services for detainees, noting that the Supreme Court had clarified “arising from” since J.E.F.M. Claims outside the removal process, such as challenges to how benefits applications are handled, may fit McNary better.

The remedy has narrowed as well. In Garland v. Aleman Gonzalez, 596 U.S. 543 (2022), the Court read 8 U.S.C. § 1252(f)(1) to bar lower courts from entering classwide injunctions against the operation of certain immigration statutes. The limit reaches only orders restraining the operation of sections 1221 through 1232, and the farmworker provision at issue in McNary, section 1160, is outside that range. An order like the one in McNary directed at a program governed by those sections would face the bar.

What this means if a policy is affecting your case

These steps are our practical advice, based on these decisions and the current statute.

• Decide what you are really challenging. A challenge to your own denial and a challenge to how the agency runs a program go down different roads.
• Ask whether your claim arises from removal proceedings. If the claim arises from them, expect the courts of appeals to be the forum. If it does not, a district court may be available.
• Read the specific review statute. McNary turned largely on the words of one provision. Many programs have their own.
• Make a record of the practice. Collect notices, declarations and examples from other applicants. Pattern evidence was central in McNary.
• Protect your own case at the same time. Do not skip your own deadlines or appeals while a broader case is pending.
• Ask for relief a court can give. Think about reopening, reconsideration and individual relief, and check whether classwide relief is barred.