Center
for Human Rights and Constitutional Law
Late Amnesty Cases
Status as of December 30, 2000
November 21, 2000: the Ninth Circuit Court of Appeals ruled that the CSS case must stay in court and that the INS was properly ordered to issue work permits and stays of deportation to Group 1 and 2 class members.
December 13, 2000: INS files motion with Ninth Circuit Court of Appeals asking that it delay the agency's obligation to return CSS class members' work permits and stays of deportation/removal.
December 15, 2000: Congress passes Legal Immigration Family Equity Act (LIFE), allowing persons who applied for work permits under CSS II and LULAC/Newman another year to apply for legalization under the 1986 amnesty law.
December 15, 2000: CHRCL urges immediate return of CSS work permits and stays of deportation in light of en banc court decision and enactment of LIFE bill.
December 21, 2000: President Clinton signs LIFE bill into law.
1) Ninth Circuit rules en banc in favor of late amnesty class members.
On November 21, 2000, an en banc panel of the Ninth Circuit Court of Appeals issued an opinion in Catholic Social Services v. Reno (CSS). The full text of the court's opinion is available on the Center's web site, http://www.centerforhumanrights.org/CSSenban.pdf. The Ninth Circuit's en banc opinion reverses the June 30 panel opinion directing that CSS be dismissed.
The court of appeals held-
- that the CSS case may go forward as a class action; and
- that certain CSS class members who do not meet the jurisdictional requirements of § 377 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (that is, class members who visited an INS or QDE to apply for amnesty between May 1987 and May 1988, but did not have a complete application and fee when they did so) may challenge that statute as denying them equal protection of the laws.
Essentially, this second point means that even Group 2 CSS class members now have a chance of winning relief in the federal courts.
2) Legal Immigration Family Equity Act, Pub.L. 106-553 ("LIFE").
In addition to the Ninth Circuit victory, late amnesty class members are now the beneficiaries of legislation that allows persons who applied for work permits under CSS and LULAC/Newman and Zambrano v. INS another year to apply for legalization under the 1986 amnesty law despite the lapse, long ago, of the original one-year application period. The LIFE bill does not require that the individual class member have actually been granted a work permit, but it does require that he or she at least applied for a CSS, LULAC/Newman or Zambrano work permit. The LIFE bill allows all late amnesty class members-groups 1, 2 and 3-to apply for amnesty without regard to whether they were front-desked. On December 21, 2000, President Clinton signed the LIFE Act and amendments into law.
In brief, the requirements to file an amnesty application under the LIFE Act are the following:
- You are eligible for legalization: i.e., you lived in the U.S. since before January 1, 1982 and until May 4, 1988;
- You have no serious criminal record, etc.
- You filed papers with the INS asking for a work permit and stay of deportation under CSS, LULAC/Newman, or Zambrano. Again, it does not matter that the INS rejected your application or denied you a work permit, but you must have at least filed papers requesting benefits under one of the three cases.
The LIFE Act also allows the spouses and unmarried minor children (if those family members don't themselves qualify for amnesty) of LIFE amnesty recipients to remain in the United States under the "family unity" program. Persons with family unity status may not be deported and are given indefinite employment authorization. In order to qualify for LIFE Act family unity status, the spouse or minor child had to be present and reside in the United States as of December 1, 1988, but they need not be present in the United States now.
The INS has until April 20, 2001, to issue regulations to implement the new amnesty application period. It will not be possible to apply for legalization under the new law until the INS issues implementing regulations.
It has come to our attention that some notary publics and attorneys are encouraging late amnesty class members to sign contracts requiring they pay up to $2,500 for assistance in preparing and filing applications under the new law. We encourage late amnesty class members to exercise care and prudence before entering into such contracts. Remember that no applications can be filed before April 20, 2001. Nor is it possible to know exactly how much work will be required to prepare a LIFE amnesty application until the implementing regulations come out. Therefore, you may end up obligating yourself to pay substantially more than is reasonable for the work involved by agreeing to a set fee before the regulations are published.
We do encourage late amnesty class members to begin immediately gathering proof of having lived in the United States since before January 1, 1982, until May 4, 1988. Proof may take the form of documents (pay stubs, utility bills, post-marked letters, etc.) placing you in the U.S. during the required period. The INS may have some such proof in its files because late amnesty class members were required to submit some such evidence in order to qualify for a CSS or LULAC/Newman work permit. You can request a copy of your INS file by filing a request under the Freedom of Information Act (FOIA). A FOIA request is a one-page form that is relatively simple to fill out. If you pay someone to prepare a FOIA request for you, pay no more than $100 or so.
If you have no or very few documents proving you lived in the U.S. between January 1, 1982, and May 4, 1998, you may contact persons who knew your whereabouts during that period to request that they sign affidavits or declarations attesting to your residence in the U.S.
The INS has published a fact sheet on the new law, as well as a more recent advisory.
3) Status of work permits and stays of deportation.
An important matter left unclear in the en banc court's opinion and the LIFE Act is the status of CSS class members' work permits pending implementation of the new application period. The court's opinion clearly upholds the district court's injunction, but does not specifically order the INS to return class members' work permits.
The INS has until February 19, 2001, to petition the United States Supreme Court to hear the case. The appellate court's "mandate"-the legal order giving final effect to the en banc decision-will not issue until that date at the earliest. If the INS asks the Supreme Court to hear the case, then the mandate will not issue until after the Supreme Court decides the case or declines to take it. Once the court's mandate issues, the INS will clearly be in contempt of court if it does not renew CSS class members work permits.
The Center contends that no further action on the part of the courts is necessary to reinstate the preliminary injunction, and we have filed a motion asking the court of appeals to make clear that the INS is even now under an obligation to return CSS class members' work permits. Nevertheless, the INS has yet to resume issuing work permits and stays of removal to CSS class members. Therefore, there is presently no point in CSS class members going to the INS to request their work permits back. We will advise class members when and if the INS resumes issuing CSS work permits.
Once the injunction goes back into effect, all CSS class members-groups 1, 2, and 3-will be entitled to have their work permits renewed, but only until the district court decides upon a procedure to identify members of group 1 and group 2. Group 3 class members will lose their work permits once they are identified as belonging to group 3 through the court-approved procedure.
Under the current injunction, group 2 class members are also supposed to lose their work permits once they are identified as belonging to group 2, but the court of appeals told the district court that it could require the INS to renew group 2 class members' work permits until it finally resolves the case. The district court earlier stated that it wanted to keep protections in place for group 2 class members all the way until final judgment, but felt it did not have the authority to do so. We are cautiously optimistic that the district court will now include group 2 class members together with group 1 class members in the long-term injunction and not just until they can be identified.
Although the INS is arguably not yet legally obliged to renew CSS class members' work permits because the court of appeals' mandate has not yet issued, there is nothing stopping the INS from accepting the en banc decision and immediately resuming the CSS work permit program. We recommend that concerned persons to write President-elect George W. Bush urging that the INS immediately (1) begin issuing work permits to CSS class members; and (2) take no further appeals in the late amnesty cases and instead work with the plaintiffs to reach a negotiated settlement of the litigation once and for all. A model letter making these points is available on the Center's web site.
Regardless of further developments in the courts, LIFE Act beneficiaries who appear eligible for legalization will be entitled to work permits and stays of deportation once the INS begins to accept applications. LIFE Act beneficiaries whom the INS "apprehends" before April 20, 2001, may not be deported and must be given work permits even prior to the start of the LIFE Act application period.
The passage of the LIFE Act makes the INS's ongoing efforts to fight late amnesty class members in the courts all the more indefensible. The Center has called upon the Administration to end the INS's adversarial stance toward late amnesty class members, immediately cease arresting and deporting CSS and Zambrano class members, and immediately return CSS and Zambrano class members' work authorization documents. See CHRCL letter dated December 15, 2000. We are urging all late amnesty class members and persons of good conscience to support immediate justice for CSS and Zambrano class members.
4) LULAC/Newman class members and interruption in employment authorization.
LULAC/Newman class members have until February 2, 2001,
within which to submit legalization questionnaires demonstrating that they were
"front-desked": that is, that they attempted to file a complete
application and fee during the 1987-88 application year, but were turned away.
As the current LULAC/Newman injunction now stands, any class member who fails to
submit a legalization questionnaire by February 2, 2001, or whose questionnaire
the INS rejects, will lose his or her employment authorization and stay of
deportation/removal even though implementation of the LIFE Act is only a short
time away.
Once the LIFE Act does take effect, class members who appear eligible for
legalization will again be entitled to employment authorization and stays of
deportation/removal pending the adjudication of their applications regardless of
whether they were front-desked. As a practical matter, this should include all
Newman and CSS class members who were previously issued employment authorization
and stays of deportation since the INS issued such permits only to persons who
demonstrated probable eligibility for legalization.
In contrast to the LIFE Act, however, under the CSS and LULAC/Newman court
orders all class members are entitled to work permits until the INS makes a
negative determination: i.e., that a given class members was not front-desked.
Under the LIFE Act, class members will probably be required to file new
legalization applications and prove probable eligibility for legalization before
they would qualify for employment authorization.
Because of the uncertainty class members may face in obtaining interim work
permits and stays of deportation under the LIFE Act, LULAC/Newman class members
whose work permits are set to expire before say, August 2001, should consider
filing a legalization questionnaire prior to February 2, 2001, deadline. Filing
a questionnaire cannot hurt, and should there be delays in obtaining a LIFE Act
work permit, having a pending questionnaire might avoid interruptions in class
members' work authorization.
5) The Center's policy regarding assistance to individual class members.
The Center represents approximately 400,000 late amnesty class members through the CSS and LULAC/Newman cases. We are a small office and can assist only a small number of these class members individually. The individual cases we do handle are predominantly those of ARCA leaders who have volunteered substantial time over the years to assist the Center with its work on behalf of the late amnesty classes.
The Center attempts to provide assistance to individual class members primarily by disseminating informational bulletins such as this one. We also attempt to answer specific questions from class members as time and resources permit. Our policy is not to respond to vague questions or to questions that are answered in our informational bulletins. These bulletins are available on our web site and also as recorded messages on the Center's automated phone system.
If your question is not answered in this way, you may write or e-mail the Center for additional assistance. If you do request individual assistance, we encourage you to make a donation to the Center. The Center has worked tirelessly on your behalf for over 12 years now, and for many of those years you have likely had a work permit and stay of deportation only because of the Center's efforts. You donation should reflect the importance those benefits have had for you over these many years.
LULAC/Newman. On July 2, 1999, the court issued a permanent injunction in Newman/LULAC v. INS requiring the INS to accept and process legalization applications from Group 1 class members. If you are a LULAC/Newman class member, please refer to the LULAC update. (For a full description of who falls within Groups 1, 2 and 3, click here.)
Meanwhile, we intend to keep monitoring the INS's implementation of the legalization questionnaire program to ensure that class members are treated fairly in establishing that they are Group 1/front-desked class members.
Based upon complaints we have received, we believe the following complaints may be presented to the federal courts:
- That the INS unreasonably delays adjudicating legalization questionnaires.
- That the INS arbitrarily denies legalization questionnaires.
- That the INS unreasonably delays issuing work permits to persons whose legalization questionnaires have been approved.
- That the INS unreasonably delays granting temporary residence to persons whose legalization questionnaires have been approved and who have filed legalization applications pursuant to the INS's instructions.
The Center is currently looking for class members who have experienced any of the above-described treatment. Therefore, if you are --
- a CSS or LULAC/Newman class member; and
- have received a letter from
the INS approving your legalization questionnaire; and
have filed a Form I-687 legalization application with the INS as per the instructions in the letter approving your legalization questionnaire; and - have submitted a written request to the INS for a temporary work permit, but have not yet been issued a work permit, or have not been granted temporary residence,
then we request that you contact the Center as soon as possible via e-mail to: amnestycoordinator@centerforhumanrights.org, by fax to 213/386-9484, or by mail to Center for Human Rights and Constitutional Law, 256 S. Occidental Blvd., Los Angeles, CA 90057 Attn: C. Song.
In addition, please be sure to register with the Center as a class member.
