112 S. Ct. 1081, 117 L. Ed. 2d 291 (1992). In Madigan, however, the Court made it clear that Congress had "not meaningfully addressed the appropriateness of requiring exhaustion" in the context administrative procedure involved in that case -- the internal grievance procedure of the Federal Bureau of Prisons. Here, Congress has specifically limited the review of orders of exclusion and deportation.
Plaintiffs have also failed to explain why the BIA would not be able to reexamine its holding in Chang. In Matter of G--, the BIA considered, and rejected, a challenge to Chang based on Executive Order 12,771 and the January 1990 Interim Rule. Int. Dec. (BIA 1993) 3215, 1993 BIA LEXIS 14, 1993 WL 522159 (B.I.A.). Similarly, in his appeal to the BIA, Liu argued that Chang should not be followed because it was in violation of the APA. Furthermore, these claims, when raised before the BIA, can be argued in the district court upon review. A ruling contrary to plaintiffs' position does not, by itself, support the assertion that the BIA lacks the competence to consider the claim.
Plaintiffs also contend that they need not exhaust their administrative remedies because their claims may be brought under the APA as an attack on the procedure used by the BIA rather than an individual determination. Under 5 U.S.C. § 702, "Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof." The APA creates a right to judicial review of final agency action where there is no adequate or reasonable remedy available in a court. See Rusk v. Cort, 369 U.S. 367, 375, 7 L. Ed. 2d 809, 82 S. Ct. 787 (1962). A plaintiff need not exhaust permissive remedies before seeking relief under the APA. Id. Here, however, the plaintiffs have a route to review through the filing of habeas relief. Whitney National Bank v. Bank of New Orleans and Trust Co., 379 U.S. 411, 420, 13 L. Ed. 2d 386, 85 S. Ct. 551 (1965); Yi, 1994 U.S. App. LEXIS 9745, 1994 WL at *7 Congress clearly intended that the judicial review procedure for BIA determinations be narrow and limited. Garcia-Mir v. Smith, 766 F.2d 1478, 1489 (11th Cir. 1985).
Furthermore, as the Supreme Court has said, "injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy 'ripe' for judicial resolution." Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). The effects of the administrative action must "have been 'felt in a concrete way by the challenging parties.'" Reno v. Catholic Social Services, 125 L. Ed. 2d 38, 113 S. Ct. 2485, 2495 (1993) (quoting Abbott Laboratories, 387 U.S. at 148-149). Here, as in Catholic Social Services, the rule in Chang does not impose a penalty on plaintiffs, but merely limits access to a benefit which is not automatically available. Catholic Social Services, 113 S. Ct. at 2496. It is not enough, as plaintiffs contend, that they have begun the process of seeking asylum. Many plaintiffs have not yet had a hearing before an immigration judge. Even under the current standard, some of the plaintiffs, like Lin, may yet be granted asylum.
Thus, the statutory provisions of the INA preclude the consideration of any claims by plaintiffs who have not received a final order of exclusion. Similarly, the Court is precluded from certifying a class containing such individuals. See Yi at *3; Califano v. Yamasaki, 442 U.S. 682, 701, 61 L. Ed. 2d 176, 99 S. Ct. 2545 (1979) (limiting class certification to cases where the court has jurisdiction over the claims of each individual member of the class). Accordingly, claims by plaintiffs who have not received a final order of exclusion must be dismissed, and class certification of any group containing such an individual must be denied.
That still leaves unresolved the status of plaintiffs and those seeking to be added as plaintiffs who have received final orders of exclusion. Relying on United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974), cert. denied, 421 U.S. 921, 43 L. Ed. 2d 789, 95 S. Ct. 1587 (1975), plaintiffs argue that, even if an action by plaintiffs who have not yet received final orders of exclusion may not go forward, the Court should certify a habeas sub-class for all those plaintiffs who have received final orders of exclusion. Plaintiffs argue that certifying a habeas sub-class would promote judicial economy by resolving a recurrent issue -- the applicable legal standard for PRC asylum cases -- at one time.
Habeas class actions are an appropriate procedural vehicle in certain limited situations. Although habeas actions are not strictly governed by the Federal Rules of Civil Procedure and therefore the class action provisions of the rules do not automatically apply to habeas actions, a court retains the power "to fashion for habeas actions 'appropriate means of procedure, by analogy to existing rules or otherwise in conformity with judicial usage." Sero v. Preiser, 506 F.2d at 1125 (quoting Harris v. Nelson, 394 U.S. 286, 299, 22 L. Ed. 2d 281, 89 S. Ct. 1082 (1969)); see generally Bertrand v. Sava, 684 F.2d 204 (2d Cir. 1982); Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1203 (9th Cir. 1975) (class certification appropriate in "unique" circumstances); Williams v. Richardson, 481 F.2d 358 (8th Cir. 1973); United States ex rel. Walker v. Mancusi, 338 F. Supp. 311, 315-16 (W.D.N.Y. 1971), aff'd, 467 F.2d 51 (2d Cir. 1972) (habeas corpus class certification for 38 prison inmates); Martin v. Strasburg, 689 F.2d 365, 374 (2d Cir. 1982). Such a remedy is not, however, appropriate here.
First, to the extent that plaintiffs are seeking more than declaratory, the habeas relief sought must be considered on an individual basis. Thus in Bertrand v. Sava, a case relied upon by plaintiffs, the Court of Appeals specifically noted that the claims of the petitioners added as class members were, according to the district court, "indistinguishable from the original" petitioners. 684 F.2d 204, 219 (1982). While the legal challenge to the standard used to review asylum claims may be identical, plaintiffs' individual claims for asylum must necessarily rely on their unique circumstances. See, e.g., Di, 842 F. Supp. at 873-874 (after rejecting Chang standard, court examined whether habeas petitioner had sufficiently opposed family planning policy to warrant asylum claim). Since a rejection of the BIA's standard would ultimately require individual consideration, judicial efficiency would not be increased by class certification.
Second, certification of a habeas sub-class addressed solely to the question of the legal standard to be used in evaluating asylum claims is barred because the Court lacks jurisdiction over petitioners located outside New York State. Section 2241(a) directs that writs of habeas corpus may be granted by the . . . district courts . . . within their respective jurisdictions. Since the result of an issuance of the writ is a direction to the respondent to "free the body" of the petitioner from unlawful detention, the court issuing the writ must have jurisdiction over the person holding the petitioner in order to grant habeas relief. The controlling question is the location of the custodian, not the prisoner, because "the 'writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody.'" McCoy v. U.S. Board of Parole, 537 F.2d 962 (8th Cir. 1976) (quoting from Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-495, 35 L. Ed. 2d 443, 93 S. Ct. 1123 (1973)).
In Braden, the petitioner was imprisoned in Alabama but was eventually to be tried under an indictment handed down in Kentucky. Petitioner applied to the District Court for the Western District of Kentucky to compel the Commonwealth of Kentucky to grant him a speedy trial. The Court held that the jurisdiction of the district court in considering a habeas petition requires only that the court issuing the writ have jurisdiction over the custodian of the prisoner. The Court proceeded by way of forum analysis, determining that the Western District of Kentucky was the most desirable forum for adjudication of the claim. The Court held that
read literally, the language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a 'within its jurisdiction' requiring that the prisoner be brought before the court for a hearing on his claim . . . even if the prisoner himself is confined outside the court's territorial jurisdiction.