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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

From
the Center for Human Rights and Constitutional Law
256 S. Occidental Blvd, Los Angeles, CA 90057
Telephone: (213) 388-8693 Facsimile: (213) 386-9484

APPEALS COURT RULING EXTENDS AMNESTY TO TENS OF THOUSANDS OF LONG-TERM RESIDENT IMMIGRANT FAMILIES

Calling the INS's arguments "insubstantial," a 3-judge panel of the federal Court of Appeals in San Francisco, on April 15, 2002, issued a ruling which, according to lawyers in the class action case, will allow over 50,000 undocumented families to legalize their status under the "amnesty" program enacted by Congress in 1986 and implemented by the INS during a one-year application period in 1987-88.

One of the longest pending cases against the INS, the class action lawsuit, Newman v. INS (9th Cir. Nos 99-56544 and 99-56950), was filed in 1987 in federal court in Los Angeles challenging a policy under which the INS turned away thousands of amnesty applicants who had briefly traveled abroad during the 1982-87 required period of residence and returned using non-immigrant visas. Widely known as the "LULAC case" in the immigrant community because it was initially filed by the League of United Latin American Citizens, the case resulted in a decision by Los Angeles federal judge William Keller in July 1988 that INS' travel rule was illegal because Congress had authorized aliens to travel during the required period of residence. INS did not appeal that ruling and agreed its travel rule was void.

However, when Judge Keller issued a further decision in August 1988 extending the application period for applicants the INS had turned away for three additional months until November 1988, the INS refused to implement the decision and appealed the extension order. In 1992 the Court of Appeals in San Francisco rejected the INS' appeal. The agency next appealed to the U.S. Supreme Court.

The Supreme Court joined the appeal with a related amnesty class action case, Reno v. Catholic Social Services, and in 1993 issued a decision in both cases stating that the federal courts had the authority to grant a remedy to applicants the INS had turned away during the application period, but not to applicants who took no steps to apply during the application period. The cases were returned to the lower courts to determine which class members had been wrongfully turned away during the application period.

In April 1996 Judge Keller issued a new decision stating that two groups of applicants were eligible to file late amnesty applications. The first group included "front-desked" applicants: Those who had presented complete applications during the application period which were rejected by the INS. The second group included aliens who had visited the INS but without complete applications in hand, and were turned away (the court called this group "constructively front-desked" applicants). INS appealed to the federal Court of Appeals, again delaying a remedy for the class members.

While INS' appeal was pending, in 1996 Congress passed a law stripping the federal courts of their authority to grant a remedy to the "constructively front-desked" group, which according to lawyers for the plaintiffs, includes well over 50,000 class members. In light of the new law, in 1998 the Court of Appeals returned the case to Judge Keller.

In July 1999, Judge Keller affirmed his decision for "front-desked" aliens, but dismissed the claims of the "constructively front-desked" applicants. He ordered the INS to accept and process the amnesty applications of the front-desked group during an 18-month period.

During the hearings held on the case in 1999, Judge Keller expressed his frustration with INS' refusal to go along with a remedy for the class members, saying the INS continuing to litigate the case had become "mindless." CR 253, Reporter's Transcript (RT) (June 21, 1999) at 3:23-24. The travel rule which INS relied upon to block aliens from filing amnesty applications "is the most ridiculous policy I've ever seen ... This problem ... [was] caused by the INS and the INS now [is] just as mulish as it can be in going about the implementation of [relief] so that we yo-yo back and forth to the appellate courts with dismaying constancy." CR 257, RT (July 1, 1999) 4:6-14.

The INS nevertheless again appealed to the Court of Appeals, challenging Judge Keller's order in favor of "front-desked" applicants. The plaintiffs appealed Judge Keller's decision to dismiss the claims of applicants who timely visited INS offices during the 1986-87 application period without complete applications in hand (the "constructively front-desked" group). While these appeals were pending, in December 2000 Congress enacted the LIFE Act, which, among other things, repealed its 1996 law which had limited the authority of the courts to extend a remedy to applicants who had visited INS offices during the 1986-87 application period but without complete applications in hand.

In 2001, based upon the new law, the plaintiffs urged the Court of Appeals to uphold Judge Keller's decision to allow the "front-desked" class members to file late amnesty applications, and to return the case to Judge Keller to expand the final injunction they won in 1999 to include the second group of applicants who timely visited INS offices during the 1986-87 application period but without complete applications in hand and were turned away based on INS' travel rule. The INS asked the Court of Appeals to overturn Judge Keller's decision for "front-desked" applicants and to order the entire case dismissed.

In a decision issued on April 15, the Court of Appeals stated that

"the questions raised by the government's appeal are so insubstantial as to not require further argument. Accordingly, we ... summarily affirm the portion of the district court's judgment [on behalf of front-desked class members], such that all actually front-desked class members are entitled to have adjudicated by the Immigration and Naturalization Service their applications for relief under the Immigration Reform and Control Act of 1986. Plaintiffs motion to remand ... is granted, and the portion of the [Judge Keller's] judgment dismissing claims of constructively front-desked aliens is vacated. The remand is without limitation with respect to adjudicating the claims of these plaintiffs ... in light of the [LIFE Act's December 2000] repeal of section 377 [the 1996 law which stripped the authority of the Courts to extend a remedy to constructively front-desked class members]."

The Court of Appeals also ordered Judge Keller to consider a constitutional challenge to the LIFE Act because it only benefits class members who applied for temporary work permits under the Catholic Social Services and Newman cases.

Peter Schey, Executive Director of the Los Angeles-based Center for Human Rights and Constitutional Law and lead counsel for the plaintiffs since the case was filed in 1987, said: "We are very happy with the decision which we hope will benefit tens of thousands of immigrants who the INS has unlawfully blocked from obtaining amnesty for over ten years. We think it is unlikely the Supreme Court will agree to review this case a second time, so the INS has finally reached the end of the road in its unsuccessful effort to block a remedy for these families. About 100,000 immigrant class members would be U.S. citizens by now if the INS had simply followed the amnesty law as written by Congress. Instead, as it often does, the INS spent over a decade and millions of dollars flaunting the will of Congress and orders of the federal courts. This decision ends INS' vexatious litigation over a policy the INS admitted long ago was illegal, and hopefully will bring the nightmare of thousands of immigrant families to an end as they are finally granted the amnesty Congress intended they receive long ago."

This is the second time in as many months that the INS has been rebuffed by the courts in a major class action case dealing with the 1986 amnesty law. On February 15, 2002, the federal district court in Sacramento, California, in the Catholic Social Services case, rejected an effort by the INS to dismiss the case as moot because of the LIFE Act remedy available to some class members, and allowed the plaintiffs to amend their claims and move the case forward to a final decision. In that case, which involves about 200,000 amnesty applicants turned away by the INS because they briefly traveled aboard during the 1987-88 application period, the plaintiffs are also represented by the Center for Human Rights and Constitutional Law. Given the federal court's recent decisions in that case, lead counsel Peter Schey states he expects a positive final decision for those class members within the next two months.

For further information contact Peter Schey (323) 251-3223 or Carlos Holguin (213) 388-8693 ext. 109


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