OVERVIEW OF THE LEGALIZATION

LITIGATION CASES

(CATHOLIC SOCIAL SERVICES v. ASHCROFT AND NEWMAN/LULAC v. INS)

AND

ADJUSTMENT PROVISIONS OF THE LIFE ACT 

(March 12, 2002)

_________________________ 

by Peter A. Schey, Esq. 

Center for Human Rights and Constitutional Law
256 S. Occidental Blvd.
Los Angeles, Ca. 90057
Telephone 213/388-8693 ext 104, Facsimile 213/386-9484
email: pschey@centerforhumanrights.org
www.centerforhumanrights.org 

_________________________

Table of Contents

I.  CATHOLIC SOCIAL SERVICES V. ASHCROFT:

1. Right to brief, innocent and casual absences

2. District court's summary judgment in favor of plaintiffs

3. Supreme Court review in Reno v. CSS

4. Back on remand, class includes "front-desked" applicants and "substantial cause" applicants

5. Congress enacts § 377 to limit standing to 'front-desked" applicants, CSS 1 is dismissed

6. Plaintiffs obtain new injunction and challenge § 377 in CSS 2

7. Congress enacts the LIFE Act and repeals § 377

8. The district court reinstates CSS 1 and current status of litigation

9. The relief plaintiffs are seeking in CSS

a. Notice to the class

b. A final remedy should permit class members 18 months to file their class membership and legalization applications

c. Class members should be permitted to file applications whether they currently reside in the United States or abroad

d. INS determinations whether applicants have standing and judicial review of INS determinations that individual class members’ claims are not ripe

e. Defendants should be required to adjudicate class members' applications within a reasonable time

f. Renewal of work permits

II.  NEWMAN (LULAC) v. INS

1. The illegal "facially valid" visa reentry rule

2. District court issues summary judgment and remedial Order, INS appeals

3. Back on remand, class includes "front-desked" applicants and "substantial cause" applicants

4. Newman remanded to add "front-desked" plaintiffs and allow challenge to § 377

5. Newman final injunction for front-deskers

6. Relief we are seeking from the Court of Appeals

7. Temporary employment authorization

III. CLASS MEMBERS WITH REJECTED LEGALIZATION QUESTIONNAIRE CLAIMS

IV.  LIFE ACT REQUIREMENTS, DIFFERENCES WITH THE IRCA, UNLAWFUL IMPLEMENTATION

1. Who are "eligible aliens"?.

2. Proof of residence from January 1982 to May 1988

3. Differences between the LIFE Act and IRCA

a. Continuous unlawful residence

b. Continuous physical presence

c. Absences interruptive of continuous physical presence

d. Likelihood to become a public charge

e. Family unity benefits

f. Class members ineligible to apply for adjustment under the LIFE Act

/ / /

I.            CATHOLIC SOCIAL SERVICES V. ASHCROFT:

1.         Right to brief, innocent and casual absences

On November 6, 1986, President Reagan signed into law the Immigration Reform and Control Act of 1986 (IRCA) which comprehensively amended the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101, et seq.  The IRCA provided, inter alia, for a mechanism by which certain deportable aliens could legalize their status in the United States: that is, adjust their status to that of a permanent resident.  Congress directed the Immigration and Naturalization Service (INS) to accept legalization applications for a one-year period, which commenced on May 5, 1987, and ended May 4, 1988. 8 C.F.R. 245a.2(a) .

In order to legalize his or her status through the IRCA legalization program, a deportable alien must have (1) entered the U.S. before January 1, 1982; (2) resided continuously in the United States in an unlawful status since such date, INA § 245A(a)(2)(A) ; and (3) maintained “continuous physical presence” in the United States except for “brief, casual and innocent absences,” between the date of enactment, November 6, 1986, and the date on which temporary residence status is granted (“advance parole rule" or "travel rule”). INA § 245A(a)(3)(A) and (B) .

CSS involves class-wide claims brought on behalf of persons whom the Immigration and Naturalization Service (INS) blocked from applying for legalization under the Immigration and Reform and Control Act of 1986, 8 U.S.C. § 1255a , because the agency unlawfully deemed them both ineligible for legalization and ineligible to apply for legalization after they briefly traveled abroad  after the enactment of IRCA without advance parole.

2.         District court's summary judgment in favor of plaintiffs

The district court entered judgment striking down the INS' improper advance parole rule. Catholic Soc. Servs. v. Meese, 685 F. Supp. 1149 (E.D. Cal. 1988) , affirmed, Catholic Soc. Servs. v. Thornburgh, 956 F.2d 914 (9th Cir. 1992) , vacated and remanded on other grounds, Reno v. Catholic Social Services, 509 U.S. 43, 113 S.Ct. 2485 (1993)  (Reno). On June 10, 1988, the district issued a final relief order which, inter alia, required defendants to accept legalization applications from class members for 180 days and to adjudicate those applications applying proper legalization eligibility rules. CR 168, Order, June 10, 1988, at 4-7 (emphasis added).[1]

On September 20, 1988, the Ninth Circuit granted in part and denied in part defendants’ stay motion. The appellate court ordered the INS to release detained class members and to grant all class members prima facie eligible for legalization temporary stays of deportation and employment authorization. About 200,000 applicants applied for interim relief over the next several years.

On February 13, 1992, the Ninth Circuit affirmed the order granting final relief on the merits. Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (9th Cir. 1992) . The INS still refused to implement this Court's final relief orders and successfully petitioned the U.S. Supreme Court for certiorari.

3.         Supreme Court review in Reno v. CSS

The Supreme Court held that the district courts did possess jurisdiction over the claims, but vacated on the grounds that the claims of some class members may not have been ripe. Reno v. Catholic Social Services, supra, 113 S.Ct. 2485 . The Court noted that a controversy is not ripe unless “the effects of the administrative action challenged have been ‘felt in a concrete way by the ...  parties.’” 113 S.Ct. at 2495.  The Court, however, acknowledged that during the legalization application period the INS had instructed its officers to reject applications offered by persons the agency erroneously considered ineligible for legalization, a process known as “front-desking.”  Id. at 2497-98.  Individuals who were thus blocked from filing an application, the Court held, clearly had ripe claims.  Id. at 2498.

The Court also ruled that:

The record reveals relatively little about the application of the front-desking policy ... [W]e cannot rule out the possibility that further facts would allow class members who were not front-desked to demonstrate that the front-desking policy was nevertheless a substantial cause of their failure to apply, so that they can be said to have had the “advanced parole” or “facially valid document” regulation applied to them in a sufficiently concrete manner to satisfy ripeness concerns.

509 U.S. at 66 n.28 (emphasis added).

The Court remanded with instructions that the district court determine which class members were front-desked or were otherwise sufficiently impacted by the challenged travel regulation so as to have ripe claims.

4.         Back on remand, class includes "front-desked" applicants and "substantial cause" applicants

On remand from the Supreme Court, the Court modified the certified class definition, inter alia, to “satisfy the concerns expressed by the Supreme Court in Reno ...” Order (November 3, 1995), at 7. The certified class definition was as follows:

All persons, otherwise eligible for legalization under IRCA, who, after November 6, 1986, depart or departed the United States for brief, innocent and casual absences without advance parole, and who (i) are therefore deemed ineligible for legalization, or (ii) were informed that they were ineligible to apply for legalization, or were refused by the INS or its QDEs legalization forms and for whom such information, or inability to obtain the required application forms, was a substantial cause of their failure to timely file or complete a written application.

The INS appealed.

5.         Congress enacts § 377 to limit standing to 'front-desked" applicants, CSS 1 is dismissed

While the INS’s appeal was pending, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996)  (“IIRAIRA”). Section 377 of the IIR&IRA provides as follows:

[N]o court shall have jurisdiction of any cause of action or claim by or on behalf of any person asserting an interest under this section unless such person in fact filed an application under this section within the period specified by subsection (a)(1), or attempted to file a complete application and application fee with an authorized legalization officer of the Service but had the application and fee refused by that officer.”

The INS argued that the new law had stripped the federal courts of jurisdiction over claims raised by plaintiff class members who did not physically tender a complete legalization application and fee during the  legalization application period (i.e. were "front-desked"). Since none of the former named plaintiffs alleged that they had physically tendered a complete application during the application period and had it rejected, defendants argued, this matter should be dismissed in its entirety. 

On January 16, 1998, a divided panel of the Ninth Circuit held that § 1255a(f)(4) deprived the courts of jurisdiction over the claims of the named plaintiffs because none of them alleged they had been “front-desked.” Catholic Social Services v. Reno, 134 F.3d 921 (9th Cir. 1998) . The majority declined to remand so that the case could continue on behalf of class members who had been front-desked, erroneously stating that “none of the class members or named plaintiffs ... alleged that they actually tendered an application and fee or attempted to do so but were rebuffed by a legalization assistant...” Id. at 927.

6.         Plaintiffs obtain new injunction and challenge § 377 in CSS 2

Plaintiffs thereupon filed a new suit, CSS 2, including "front-desked" plaintiffs who sought a remedy and non-front-desked applicants who sought to challenge § 377 on equal protection grounds. On July 2, 1998, the Court issued an order in CSS 2 preliminary enjoining the INS from deporting or denying employment authorization to certain CSS 1 class members. Defendants again appealed. The same divided panel which had ordered dismissal of CSS 1 took INS' appeal in CSS 2, stayed the preliminary injunction and eventually ruled that CSS 2 had to be dismissed because the statute of limitations had expired.

However, on November 21, 2000, the Ninth Circuit, sitting en banc, vacate the divided panel's decision and rejected the defendants’ appeal. It held (i) that the statute of limitations had been tolled on the claims raised in CSS 2 during the pendency of this case; (ii) that CSS 2 could proceed as a class action; and (iii) that plaintiffs in CSS 2 who were not front-desked but for whom the front-desking policy was a substantial cause of their failure to file timely applications may challenge the constitutionality of § 377 as denying them access to the courts in violation of the equal protection clause. Catholic Social Services v. Immigration and Naturalization Service, 232 F.3d 1139 (9th Cir. 2000) .

7.         Congress enacts the LIFE Act and repeals § 377

On December 27, 2000, the LIFE Act was signed into law. Among other things, the LIFE Act repealed § 377’s limitation on subject matter jurisdiction nunc pro tunc specifically with respect to plaintiffs in the CSS, Newman/LULAC and Zambrano cases.

However, LIFE Act eligibility and the repeal of § 377 only apply to “[e]ligible alien[s]," described in subsection (b) as those persons who “before October 1, 2000, ... filed with the Attorney General a written claim for class membership, with or without a filing fee, pursuant to a court order issued in the case[] of (1) Catholic Social Services, Inc. v. Meese, vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993).” LIFE Act § 1104(b) .

A "written claim for class membership" means an application was made for employment authorization in CSS, Newman/LULAC or Zambrano.

8.         The district court reinstates CSS 1 and current status of litigation

Based on the repeal of § 377, on August 27, 2001, the district court reinstated CSS 1 and consolidated it with CSS 2. The district court rejected initial arguments made by defendants to the effect that the LIFE Act moots plaintiffs' and class members' claims under the IRCA.

On February 15, 2002, the district court granted plaintiffs' motion to amend the complaint, permitting the filing of our Eighth Amended Complaint. This complaint includes plaintiffs who never sought employment authorization under the interim relief Orders. The court appears to be willing to permit such plaintiffs and class members to participate in any final relief Order granted by the court.

On March 4, 2002, plaintiffs filed a 114-page motion for summary judgment and final relief. The Government filed a motion asking the Court to dismiss the case on the ground it is moot in light of the enactment of the LIFE Act, which grant plaintiffs a similar remedy to the IRCA.

A hearing is scheduled before United States District Judge Lawrence Karlton on April 1, 2002.

9.            The relief plaintiffs are seeking in CSS

a.             Notice to the class

The INS has the ability to notify many class members—those who sought interim relief—of the relief available to them under a final order by mail. We have therefore asked the court to order the INS to provide notice to all applicants for interim relief by mail. This Court should order the agency to do so.

We have also proposed that defendants be required to place notices in major newspapers regarding the availability of final relief. Such notices should be placed in English, Spanish, and Asian-language newspapers in the geographic areas where the majority of putative class members reside, something easily determinable from INS' databases.

Finally, notice may be disseminated through a notice on INS' web page, and posters and written notices distributed at local INS offices.

b.            A final remedy should permit class members 18 months to file their class membership and legalization applications

When addressing a final injunction for front-desked class members in the Newman case, the district court permitted an application period of 18 months. We believe that in light of (1) the large number of potential class members in this case (at least twice the size of the potential class in the Newman case), (2) the difficulty involved in disseminating notice to them, and (3) the lack of available resources to assist them, a similar 18-24 month period should be afforded the class members in the CSS case.

c.            Class members should be permitted to file applications whether they currently reside in the United States or abroad

There is no reason why eligible class members who now live abroad because the INS blocked their ability to legalize their status some fourteen years ago, should not now be entitled to file their legalization applications without having to first somehow illegally return to the United States. Such applications could be filed with INS officers stationed at United States Consular Offices, and processed and adjudicated in the same manner as applications filed within the United States. Plaintiffs do not seek an Order permitting such class members to enter the United States unless and until the INS approves their applications.

d.            INS determinations whether applicants have standing and judicial review of INS determinations that individual class members’ claims are not ripe.

Prior to adjudicating an applicant's application for legalization, it would be appropriate for the INS, in the first instance, to determine whether the applicant has standing to have an application accepted and adjudicated. We have proposed that standing may be established by the applicant's declaration. The declaration should establish by a preponderance of the evidence that (1) the applicant tendered a complete application and fee during the application period which were rejected because the applicant had briefly traveled abroad, or (2) the applicant [or an applicant's representative] visited an INS or QDE office during the application without an application in hand, was questioned, and was then turned away because they had briefly traveled abroad.

We have also proposed that denials must be individualized and copies sent to class counsel. And that denials may be reviewed in the district court or by a special master appointed by the district court.

e.             Defendants should be required to adjudicate class members' applications within a reasonable time

We have suggested that INS be ordered to adjudicate applicants' standing and legalization applications within a period of six (6) months following submission of a complete application and filing fee, excluding administrative appeals.

f.            Renewal of work permits

If people previously had work permits under CSS they have the option to renew these work permits.  If they have problems renewing their work permits, they should contact me by email (pschey@centerforhumanrights.org) or telephone (213) 388-8693 ext. 104, or fax (213) 386-9484. As discussed below, once class members file for benefits under the LIFE Act, they are entitled to employment authorization if they show they are "eligible aliens" discussed below), and that they are prima facie eligibility for legalization. 

___________________________ 

II.          NEWMAN (LULAC) v.. INS

This case is now pending in the Ninth Circuit Court of Appeals in cross-appeals Nos 99-56544 and 99-56950.

1.         The illegal "facially valid" visa reentry rule

Under the IRCA, aliens who had resided in the U.S. continuously in unlawful status since January 1, 1982, could apply for legalization. There was a one-year application period. 8 C.F.R. 245a.2(a) .

Congress provided that “brief” absences from the U.S. would not “break a period of continuous residence ...” 8 U.S.C. 1255a(g)(2)(A) . 

The INS, however, ignored this allowance. On May 1, 1987 the agency issued a “facially valid visa” rule, referred to herein as the "travel rule." Persons who briefly departed and returned to unlawful residences in the U.S. illegally presenting “facially valid” entry documents, were declared to have somehow entered lawfully, breaking their required "unlawful" residence, thus rendering them ineligible "to apply" for legalization. Reno, 509 U.S. at 49-50 , citing 8 C.F.R. § 245a.2(b)(8) (1987) .

2.         District court issues summary judgment and remedial Order, INS appeals

The district court entered summary judgment striking down this travel rule. (July 1988 Order). The INS did not appeal this judgment. It did appeal the separate remedial order, which granted individuals who had been discouraged from filing by the travel rule until November 30, 1988 to file. CR 70, Order (August 12, 1988).

The Ninth Circuit consolidated INS' appeal with its appeal in CSS, and affirmed. Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (1992) . The INS successfully petitioned for certiorari.

In Reno, the Court addressed CSS and LULAC in a consolidated decision discussed above in the section on the CSS case.

In summary, the Court remanded after finding that individuals who presented complete applications which were rejected ("front-desked" applicants) had ripe claims. But also holding "we cannot rule out the possibility that ... class members who were not front-desked [may] demonstrate that the front-desking policy was nevertheless a substantial cause of their failure to apply, so that they can be said to have had the ... “facially valid document” regulation applied to them in a sufficiently concrete manner to satisfy ripeness concerns." 509 U.S. at 66 n.28 (emph. added)

3.         Back on remand, class includes "front-desked" applicants and "substantial cause" applicants

As happened in the CSS on remand, in the Newman/LULAC case the district court held several plaintiffs had claims meeting Reno’s ripeness standard because they timely visited INS or Qualified Designated Entity (QDE) offices, were interviewed, and were told they were ineligible to apply. (April 1996 Order). INS again appealed.

While the INS’s appeal was pending, Congress enacted the IIR&IRA. Section 377, discussed above in the section on the CSS case. As earlier noted, § 377 sought to limit jurisdiction to those plaintiffs and class members who "filed an application ... and [a] fee ... but had the application and fee refused ...” Id. It sought to exclude the plaintiffs and class members described in Reno's footnote 28, the "substantial cause" group (people turned away but without complete applications in hand).

INS asked the Ninth Circuit to order dismissal because at the time none of the plaintiffs alleged facts meeting § 377. Despite the divided CSS panel which ordered dismissal of that case, in the Newman case the panel refused to order dismissal. Instead the Newman panel ordered as follows:

In the wake of CSS, class members advised the panel in this case that they met § 377's standing requirement. This panel responded as follows:

We remand the case so that the district court may consider whether some of the Plaintiffs have alleged facts sufficient to establish that they have standing to challenge the INS’s front-desking procedure. Reno v. Catholic Soc. Servs., 509 U.S. 43, 65-67. We decline to instruct the district court to dismiss the action ... Because some of the class members allege that they were rebuffed when they tendered a completed application and fee to authorized legalization officers, such an order would leave these aliens vulnerable to deportation before a new suit could be filed, even though they meet the standing requirements of § 377 ...

Newman v. INS, 1998 U.S. App. LEXIS 6011, 4-5 (9th Cir. 1998).[2]

4.         Newman remanded to add "front-desked" plaintiffs and allow challenge to § 377

On remand, several plaintiffs who had been front-desked joined this action. CR 205 ¶¶ 23-27. Other plaintiffs who timely visited an INS office to apply but without completed applications in hand--who the district court held in 1996 had standing under Reno--challenged § 377 on equal protection grounds. Id. ¶¶ 15-22.

On July 18, 1999, the district court granted summary judgment in favor of plaintiffs' Second Claim for Relief challenging the front-desking policy.

5.         Newman final injunction for front-deskers

The district court permanently enjoined defendants as follows:

Defendants shall accept and adjudicate applications for legalization under 8 U.S.C. § 1255a of plaintiff class members who attempted to file a completed application and application fee with a representative of the [INS], including a Qualified Designated Entity [QDE], during the [application] period ... but had the application and fee refused by that representative ... Plaintiff class members must present their claims to the INS within eighteen (18) months from the date of this Order.

Id. at 1. INS appealed this Order. That appeal remains pending with argument scheduled for April 3, 2002. However, INS implemented the injunction and front-desked Newman plaintiffs and class members were permitted to file front-desking claims (through INS' Legalization Questionnaire program), and legalization applications, until February 2001.

On June 22, 1999, the district court dismissed the claims of the substantial cause plaintiffs based on § 377. CR 254, Reporter's Transcript of Proceedings, Tuesday, June 22, 1999, pp. 17, 37. The Court held these plaintiffs (who visited INS or QDE offices without complete applications in hand) could not challenge § 377 because that section blocked their standing. Plaintiffs cross-appealed. The cross-appeal will be argued on April 3, 2002, along with INS' appeal mentioned above.

6.         Relief we are seeking from the Court of Appeals

INS is arguing that the case should be dismissed because the claims are moot since plaintiffs and class members now have a similar remedy available under the LIFE Act.

Plaintiffs argue that the case is not moot because aliens may pursue separate available remedies, and because Congress made clear when it enacted the LIFE Act that it was not in any way repealing the IRCA (or rights thereunder).

We argue that front-desked plaintiffs clearly have standing under Reno. And, as the district court concluded, plaintiffs who timely visited INS or QDE offices without complete applications in hand, were interviewed and then told they were ineligible to apply, took reasonable "affirmative steps" to apply before being "blocked" by the INS and therefore also have standing under Reno .[3]

Defendants' appeal the district court's finding that plaintiffs turned away by QDEs had standing. We argue that legally, QDEs were statutorily authorized to accept legalization applications, and persons wanting to apply for legalization who were blocked by QDEs have standing just as those blocked by the INS.

Accordingly, we ask that the Court of Appeals --

(1) find that the front-desked and "substantial cause" plaintiffs and class members have standing under Reno and are entitled to final relief, affirm the district court's summary judgment on plaintiffs' Second Claim for Relief (illegality of the front-desking policy and practice), hold that this case is not moot, and

(2) remand with instructions that the district court (1) modify the final injunction to include "substantial cause" plaintiff and class members, and (2) permit an amendment of the complaint to allow a challenge to § 377 and its limited repeal by the small sub-class of "substantial cause" class members who never applied for interim relief in this case and are therefore not benefited by the limited repeal of § 377.

7.         Temporary employment authorization

Front-desked class members who filed Legalization Questionnaire forms pursuant to the district court's final injunction are entitled to employment authorization if they are prima facie eligible for legalization. If they previously had employment authorization, it should be renewed by the Service. If they did not previously have employment authorization, they are entitled to receive it if their applications show they were front-desked and they are prima facie eligible for legalization. If class members have filed Legalization Questionnaire forms that INS has not yet adjudicated, and need employment authorization, applications should be sent (without fee) to the Vermont Service Center and to the district office where the class member resides. If no positive response is received, advocates or class members may contact me.

However, "substantial cause" class members who the district court dismissed and whose claims are now pending appeal in the Ninth Circuit currently;y may not renew their work permits. We will try to get a court order allowing these class members to renew their work permits in the next few weeks/months. 

_____________________________ 

III.             CLASS MEMBERS WITH REJECTED LEGALIZATION
QUESTIONNAIRE CLAIMS

During 1999-2000 INS allowed "front-desked" class members (those who allege they presented completed applications and fees during the 1987-88 application period but were rejected because they had traveled abroad) to submit to the agency what were called "Legalization Questionnaire" forms. If these forms were approved, class members were instructed to file legalization applications with the INS Service Center in Texas.

While the district court in Newman/LULAC ordered the INS to provide such a procedure, the Service made the program available to all alleged "front-desked" applicants, whether in the CSS case, the Zambrano case, the Newman/LULAC case, or no case at all.

The Legalization Questionnaire forms were first sent to INS Headquarters, and later to the Vermont Service Center.

Most class members never heard about the Legalization Questionnaire program. In addition, discovery has shown the program operated with few definable standards, inexperienced adjudicators, etc. Many Legalization Questionnaires were rejected for arbitrary reasons. Thousands have never been adjudicated.

Newman/LULAC class members whose Legalization Questionnaire forms were rejected should contact me for assistance. It would be helpful to have a copy of the application and attachments, and the INS denial letter, sent to me for review.

CSS class members who sent Legalization Questionnaires to the Service which were rejected will probably be permitted to file new applications if the district court grants a new final Order, which we are hopeful will soon happen.

As far as all non-Newman/LULAC Legalization Questionnaire applicants are concerned, the program was a unilateral one set up by the INS and is likely not binding even if claims were rejected.

While Legalization Questionnaire applicants who were issued denials are not informed of this by the INS, they may submit additional evidence (e.g. a third party declaration) in support of their front-desking claim, and the Service states it will reconsider the previously issued denial.

Generally, applicants establish their front-desking claim in the Legalization Questionnaire by submitting their own detailed declaration about how, hen and where they were front-desked, and if available the declarations of 1-3 third parties stating facts such as (1) observed the applicant complete an application which s/he tried to file, (2) accompanied the applicant when s/he was front-desked, and/or (3) the applicant subsequently told me about his/her front-desking experience.

Once a Legalization Questionnaire is approved, the applicant is instructed to file a legalization application (I-687) and filing fee and proof of residence from 1982 to 1988 with the Texas Service Center, which is supposed to adjudicate these applications. However, we are informed that to date the Texas Service Center has yet to adjudicate any legalization applications because of a computer problem they claim to have. We hope these applications will be adjudicated shortly.

Again the fact that (1) a CSS class member ("front-desked" or "substantial cause"), or (2) a Newman/LULAC "substantial cause" class member has not filed a Legalization Questionnaire or a legalization application is irrelevant. These class members will hopefully be the recipients of new court orders in the near future allowing them to apply for class membership and final relief.

_______________________________

IV.       LIFE ACT REQUIREMENTS, DIFFERENCES WITH THE
IRCA, UNLAWFUL IMPLEMENTATION

On December 27, 2000, the LIFE Act was signed into law. the LIFE Act allows "eligible aliens" to apply for adjustment of status.

1.         Who are "eligible aliens"?

“Eligible alien[s] described in subsection (b)” are those persons who “before October 1, 2000, ... filed with the Attorney General a written claim for class membership, with or without a filing fee, pursuant to a court order issued in the cases of [Catholic Social Services, Inc. , Newman/LULAC and Zambrano].” LIFE Act § 1104(b) .

Note that it makes no difference whether the class member was granted employment authorization. The only requirement is that they applied for the temporary benefit.

The only way in which class members could apply for "class membership" in CSS, Newman and Zambrano before October 1, 2000, was to apply for interim relief (i.e. release from custody, or temporary employment authorization). Therefore, "eligible aliens" are those who timely applied for interim relief in CSS, Newman or Zambrano. Class members in CSS were permitted to file for interim relief until December 1995. Class members in Newman/LULAC were permitted to file for interim relief until May 29, 1996.

LIFE Act applicants must submit proof that they are "eligible aliens." The way to do this is simply to send the INS copies of the class members' I-687 (the document used to apply for interim relief), and/or documents showing the INS scheduled an interview, and/or copies of employment authorization or denials of interim relief.

Advocates or class members sent Notices of Intent to Deny their LIFE Act applications because they did not submit sufficient evidence that they are "eligible aliens" (i.e. applied for interim relief) should contact me at the Center for Human Rights and Constitutional Law 213/388-8693 ext. 104, facsimile 323/386-9484, or email pschey@centerforhumanrights.org.

2.         Proof of residence from January 1982 to May 1988

LIFE Act applicants must establish continuous unlawful residence from January 1, 1982 to May 4, 1988. Absences from the United States after May 1988, including living abroad, are irrelevant.

Given the long passage of time, the issue of availability of evidence of continuous residence comes up in CSS, Newman/LULAC and LIFE Act cases.

The following discussion applies equally whether an applicant is applying under the LIFE Act, and/or will apply under final orders in CSS or Newman/LULAC. As discussed below, it is our position that class members may apply under either IRCA (pursuant to a final court order) and/or under the LIFE Act.

Class members should start organizing (or reorganizing) proof of 1982-88 residence now. If class members have already sent in their LIFE Act applications (or legalization applications to the Texas Service Center), without this proof, they should gather this proof and send it to INS with a cover letter saying they are supplementing their application. Without it, the INS may deny their applications.

Proof of continuous residence from 1982 to 1988 may include any of the following items:

Receipts, bus tickets, dental records, medical records, educational records, drivers license, letters addressed to the class members, stamped envelopes addressed to the class member, school records, telephone bills, rent receipts, leases, or any other piece of paper which has a date between January 1982 and May 1988 that was obtained by the class member. The document does not have to have the class member's name on it to be helpful to their application.

Every class member should get declarations from people in the United States and in the applicant's home country affirming that the applicant was living in the United States from before January 1982 until at least May 1988. This is particularly important for class members who no longer possess hard evidence of their residence from 1982 to 1988. These declarations do not have to be notarized, but it may help a little to have them notarized.

The person filing out the declaration should provide the kind of information on the sample declaration below or attached. Do not just copy this declaration and have people fill in the blanks. It would be far better to rewrite the declaration using the sample below as a model.

Declarations should give as much detail as possible. For example, if a person is saying they have known the class member since 1984, explain how they first met the class member in 1984, where did they first meet the class member, etc. Also, provide as much detail as possible about how the person signing the declaration knows that the class member was present in the United States during certain years between 1982 and 1988.

The word "you" in the sample declaration refers to the person filing out the declaration. The word "applicant" refers to the class member seeking to legalize his or her status.

3.         Differences between the LIFE Act and IRCA; ways in which INS' LIFE Act implementation may be illegal

a.            Continuous unlawful residence.

To legalize under the IRCA, class members must establish that they resided continuously in the United States in an unlawful status from before January 1, 1982, to the date they applied for legalization. 8 U.S.C. § 1255a(a)(2)(A) . Under the LIFE Act, in contrast, individuals must establish that they resided continuously in the United States in an unlawful status from before January 1, 1982, to May 4, 1988. LIFE Act § 1104(c)(2)(B) .

The Supreme Court ruled in CSS/Newman that class members “applied” for legalization at the time they attempted to apply during the 1987-88 application year, but were turned away. Reno, 509 U.S. at 67 n.29  ("[B]y definition, each ... class member who was front-desked ... “applied” for an adjustment of status within the 12-month period under § 1255a(a)(1)(A) ... "). Plaintiffs’ obligation to establish continuous unlawful residence accordingly ended at the time they attempted to apply for legalization— as early as May 1987.

To adjust status under the LIFE Act, in contrast, such class members are required to establish up to an additional year of continuous unlawful residence (until May 1988).

For class members who broke their continuous unlawful residence after attempting to apply but before May 1988, the difference between IRCA and the LIFE Act is obvious. Even for those class members who did not break their continuous residence after attempting to apply, adding up to 17 percent to the period of residence they must prove up today is a substantial increase over what they have to prove under the IRCA.

b.            Continuous physical presence.

The IRCA requires continuous physical presence since November 6, 1986. 8 U.S.C. § 1255a(a)(3)(A) . The applicant’s obligation to prove continuous physical presence ran from November 6, 1986, to the date of application. 8 C.F.R. § 245a(f) .[4] The LIFE Act, in contrast, requires all applicants, regardless of when they attempted to apply for legalization, to prove continuous physical presence to May 4, 1988. LIFE Act § 1104(c)(2)(C) . Class members who interrupted their continuous physical presence after attempting to apply for legalization are not aided by the LIFE Act’s legalization provisions. 

c.            Absences interruptive of continuous physical presence.

As a result of the summary judgment in Catholic Social Services, Inc. v. Meese, 685 F. Supp. 1149, 1159-60 (E.D. Cal. 1988) , for purposes of the IRCA’s continuous physical presence requirement, whether an allowable absence was "brief, causal and innocent" is determined in accordance with the historical interpretation that phrase had been given in immigration law:

[T]he question of whether an absence was brief, casual and innocent was one of fact to be resolved in a hearing, on a case-by-case basis, and thus was not subject to categorical definition by regulation.

Id. at 1159 (emphasis supplied).

Regulations implementing the LIFE Act legalization provisions diverge from the IRCA eligibility standards as interpreted in the unappealed CSS judgment. New 8 C.F.R. § 245a.16(b) sets out a “categorical definition by regulation” of continuous physical presence that uniquely applies to the LIFE Act legalization provisions:

Brief, casual, and innocent absence(s) ... means temporary, occasional trips abroad as long as the purpose of the absence from the United States was consistent with the policies reflected in the immigration laws of the United States. A single absence from the United States of more than thirty (30) days or an aggregate of all absences exceeding ninety (90) days shall not be deemed to be a brief, casual, and innocent absence unless the alien had advance parole or the alien can establish that due to emergent reasons, his or her return to the United States could not be accomplished within the time period(s) allowed.

66 Fed.Reg. 29661, 29677 (June 1, 2001) .

Thus, in the place of the case-by-case approach required under the IRCA, the INS now declares that absences in excess of 30 days render a class member ineligible for LIFE Act legalization unless the applicant can prove that an emergency prevented his or her returning within the 30-day period. 

d.            Likelihood to become a public charge.

Both the LIFE Act and the IRCA require that an individual demonstrate that he or she is not likely to become a “public charge.” 8 U.S.C. § 1255a(d)(2)(B)(3) ; LIFE Act § 1104(c)(2)(D) .

The LIFE Acts regulations provide that in order to establish admissibility an applicant must prove “financial responsibility.” 66 Fed.Reg. 29661, 29678 (June 1, 2001) , to be codified at 8 C.F.. § 248a.18(d) . “[F]inancial responsibility of the alien is to be established by examining the totality of the alien’s circumstances at the time of his or her application for adjustment.” Id. (emphasis added).[5] A similar provision regulates the public charge determination under IRCA. See 8 C.F.R. § 245a.2(k)(4) .

However, at the time of IRCA's implementation there was no legal bar to class members’ working in the United States. See 8 U.S.C. § 1324a . Whether or not class members are likely to become a public charge may be evaluated as of 1987-88 under IRCA, while it will be evaluated as of the present under the LIFE Act. The tens of thousands of class members denied interim relief and laboring under the post-IRCA prohibition on alien employment will find it far more difficult to obtain adjustment under the LIFE Act than under the IRCA.

e.            Family unity benefits.

The spouses and unmarried children of class members who (i) are granted IRCA legalization, or (ii) LIFE Act adjustment, are entitled to remain lawfully in the United States in “family unity” status. Immigration Act of 1990, Pub.L. 101-649, 104 Stat. 4978, § 301  (IMMACT 90); LIFE Act Amendments, § 1504 . Again, however, the ability of class members to keep their spouses and children with them varies depending on whether they qualify for IRCA or LIFE Act adjustment.

Under IMMACT 90, the spouses and children of individuals legalized under IRCA are entitled to permanent family unity status, provided they (i) entered the United States prior to May 5, 1988, and (ii) had one of the specified family relationships with the legalized alien as of that date. See 8 U.S.C. § 1255a note . Once accorded family unity status, children do not lose their family unity status when they marry or attain 21 years of age; spouses do not lose family unity status upon divorce or dissolution. See 66 Fed.Reg. at 29668 .

In contrast, INS regulations provide that LIFE Act family unity status terminates whenever the beneficiary is no longer the unmarried child or spouse of an individual eligible to adjust his or her status under the LIFE Act. 66 Fed.Reg. 29681 , to be codified at 8 C.F.R. § 245a.37. Thus, children of LIFE Act beneficiaries “age-out” of family unity status upon attaining the age of 21 or if they marry; spouses are stripped of LIFE Act family unity status upon divorce or dissolution.

Again, plaintiffs and class members may opt to legalize under the IRCA because of the greater family unity benefits it affords over the LIFE Act.

f.            Class members ineligible to apply for adjustment under the LIFE Act.

The LIFE Act regulations require an applicant to submit documentary proof that he or she applied for class membership under one of the three specified class actions. 66 Fed.Reg. at 29676 , to be codified at 8 C.F.R. § 245a.14.[6] Under INS' interim regulations, the Service will refuse to adjudicate an adjustment application under the LIFE Act if its records do not confirm that the applicant sought class membership. Affording class members a judicial remedy under CSS and Newman/LULAC will permit those whose LIFE Act applications the INS erroneously refuses to accept an opportunity to apply for legalization under the IRCA.[7]

The LIFE Act provides benefits only for class members who applied for temporary relief (employment authorization) under the interim relief orders issued in CSS, Newman/LULAC and Zambrano. As discussed above, not all class members applied for temporary relief under those interim orders because not all class members needed temporary employment authorization. Although temporary employment authorization was a critically important benefit for most class members, many others were in circumstances where, at least in the short-term, such authorization was not needed.

Class members who were children during the first few years of the interim relief program had no reason to apply for work authorization. Although a minor’s parent may have attempted to file a legalization application for a dependent minor during the 1987-88 application year, the parent would have had no reason to seek a work permit for the child under the interim relief order.

Other class members were “grandfathered” employees: that is, employed in permanent positions prior to the enactment of the IRCA and were accordingly not required to prove authorization to be employed. Still other class members were elderly, infirm, home-makers, or otherwise not in need of employment authorization. None of these class members could have anticipated that Congress, more than a decade later, would condition their eligibility to apply for LIFE Act adjustment on their having sought a work permit they did not need.

It is our view that class members have the right to apply under the LIFE Act (if they previously applied for interim relief in one of the three class action cases), and also have the right to continue pursuing their remedies under IRCA through the CSS and Newman/LULAC cases. If a final order in CSS requires wide notice and publicity, far more class members may benefit than if the case is dismissed and the LIFE Act remains as class members' sole remedy.

Clearly, no person who appears to be a CSS or Newman/LULAC class member prima facie eligible for legalization, or one who is prima eligible for adjustment under the LIFE Act, should be detained or removed from the United States. While removal proceedings may be commenced, removal orders may not be executed. Immigration Judges should be urged, in such cases, to administratively close or otherwise postpone merits hearings until the respondent's rights under CSS, Newman/LULAC and/or the LIFE Act have been determined.

_______________________________ 

(SAMPLE) 

DECLARATION OF ______________

 

            I, _____________, depose and say:

            1. I am a lawful permanent resident of the United States [or: I am a citizen of the United States, or if living outside the US state: I am a citizen and national of ____________].

            2. I reside at ________________ (address).

            3. I am employed by _______________ (name of employer), located at ______________ (address of employer).

            4. I have known _________________ (full name of applicant) since approximately 19__. We first met in ________________ (name of place where you first met). We met through _______________ (explain who you met through). We met _____________ (explain circumstances how you met)

            5. If the person signing the declaration knew the applicant when the applicant first came to the U.S., explain details: In __________, 19 __ (date when applicant first came to the United States) I was residing at _______________. At that time I was employed by ____________, located at/in ________________. I am aware that in ___________, 19 __, _____________ (name of applicant) came to the United States and began living here because _____________________________________________________________ (explain in detail how you know that the applicant came to the United States and started living here). I believe ______________ (name of applicant) came to the U.S. with (name any people the applicant came to the U.S. with). I believe the applicant left __________ and traveled to __________. From there, ____________ (name of applicant) has informed me that he (or she) entered the United States _________________ (explain how the applicant entered the U.S. if you know. For example, Mrs. Jones has informed me that she first flew by air from Singapore to Toronto, and then was driven by a friend from Toronto to New York city where she started living).

            6. (If you know this:) When _____________ (name of applicant) first came to the United States s/he resided on _______________ (name of street), in the City of ______________, _____________ (name of state). I know that ______________ (name of applicant) lived at that address from about _____________ to approximately _________, 19__, because ______________________________________________________

______________________________________________________

(explain in detail how you know applicant lived at that address; explain whether you visited together, if who, when and where, and how often, explain whether you talked to the applicant on the phone, and if so about how often. If you were living abroad at the time, explain whether you and the applicant sent each other letters ands/or spoke by telephone, and about how often). During this time I believe ______________ (name of applicant) worked as a ______________ (describe type of work) for __________ (name of employer, if known). (Explain how you know the applicant worked here -- did you work with the applicant, if so what years did you work there, in what position, etc. If not, did the applicant tell you he or she worked there? If so,    explain you know this from information provided to you by the applicant (for example: During this time Mrs. Jones informed me that she was working as a housekeeper for the Hilton Hotel).

            7. In about _________, 19__, ____________ (name of applicant) moved to __________________. I believe he (or she)  lived there from about ___________(provide month and year), until approximately ____________ (provide month and year). During this time I know that ____________ (applicant) was living at this address because _________________ (explain in detail how you know applicant lived at that address; explain whether you visited together, if who when and where and how often, explain whether you talked to the applicant on the phone, and if so about how often. If you were living abroad at the time, explain whether you and the applicant sent each other letters ands/or spoke by telephone, and about how often).  During this time I believe ______________ (name of applicant) worked as a ______________ (describe type of work) for __________ (name of employer, if known). (Explain how you know the applicant worked here -- did you work with the applicant, if so what years did you work there, in what position, etc. If not, did the applicant tell you he or she worked there? If so, explain you know this from information provided to you by the applicant (for example: During this time Mrs. Jones informed me that she was working as a housekeeper for the Hilton Hotel).

            8. In about _________, 19__, ____________ (name of applicant) moved to __________________. I believe he lived there for about ___________, until approximately ____________ (date). During this time I know that ____________ (applicant) was living at this address because _________________ (explain if you visited or spoke with the applicant by phone, or corresponded by mail, etc.). During this time I believe ______________ (name of applicant) worked as a ______________ (describe type of work) for __________ (name of employer, if known). (Explain how you know the applicant worked here -- did you work with the applicant, if so what years did you work there, in what position, etc. If not, did the applicant tell you he or she worked there? If so,    explain you know this from information provided to you by the applicant (for example: During this time Mrs. Jones informed me that she was working as a housekeeper for the Hilton Hotel).

            9. Describe other addresses where you know the applicant lived from 1982 to May 1988 -- you don't have to describe every address where the applicant lived -- you should describe every address that you know about in separate paragraphs.

            10. Desiree any other important events that show the applicant lived in the U.S.. between 1982 and May 1988. Here are some examples. Only provide information you know about. In about May 1984 _________ (the applicant) was married to _________ in San Jose, California. From about ________ (month and year) to about _____ (month and year), _________ (name of applicant) was enrolled in __________ (name of school) taking classes in ___________ (type of classes).  In about __________ (month and year, ___________ (name of applicant) gave birth to a baby boy (or girl) named ____________ in the City of ____________.  In __________ (month and year) ________________ (name of applicant) took a vacation with me and __________ (name other people) in ___________ (name of place). Describe any other special events you were part of or that the applicant told you about involving the applicant between January 1982 and May 1988.

            11. If you are aware of this either from some first hand knowledge or because the applicant told you about it, describe the following.

            For Newman/LULAC applicants: ___________ (name of applicant) briefly departed the United States in about _________ (month/year) in order to visit _____________ in _____________ (name of country).  Or describe the purpose of the visit. __________ (name of applicant) returned in about _______ (month and year). I know about this departure because ______________(describe how you know about this absence from the United States. For example, maybe applicant visited you in their home country, maybe you drove the applicant to an airport or bus station, maybe the applicant told you about the absence, maybe the applicant telephoned you while away).

            For CSS applicants: ___________ (name of applicant) briefly departed the United States in about _________ (month/year) in order to visit _____________ in _____________ (name of country).  (Or describe the purpose of the visit). __________ (name of applicant) returned in about _______ (month and year). I know about this departure because ______________ (describe how you know about this absence from the United States.) (for example, maybe applicant visited you in their home country, maybe you drove the applicant to an airport or bus station, maybe the applicant told you about the absence, maybe the applicant telephoned you while away).

            12. If you know anything about how the applicant was turned away when they tried to file for amnesty during the application period from May 1987 to May 1988 describe what you know. You may know information because then applicant told you about it, they may have shown you the application they tried to file, you may have helped them file out an application, etc.  Most applicants have already explained to the INS how they were turned away when they tried to apply for amnesty during the 1987-88 application period. 

            13. I know that ___________ (applicant) is a person of good moral. I believe she (or he) will be an asset to the community and to the United States. State following only if true: To the best of my knowledge ___________ (name of applicant)  has been convicted of any crimes in the United States or anywhere else..

            10. Please do not hesitate to contact me if additional information is needed.

            I declare under penalty of perjury that the foregoing facts are true and correct. Executed this ___ day of ______, 19__, in the City of _____, State of __________. 

                                                                        sign_______________________

                                                                        Type name 

notarize if possible

(not required, but recommended)

/ / /