Center for Human Rights and Constitutional Law
Foundation
256 S. Occidental Blvd.
Los Angeles, California 90057
213/388-8693; fax: 213/-386-9484
e-mail: mail@centerforhumanrights.org
¡Un daño contra uno, es un daño contra todos!
Late Amnesty Cases - Background
December 30, 2000
Note: This document gives background information and history to the late amnesty cases only. For current case status information, see the Late Amnesty Update.
On August 26, 1998, the U.S. Ninth Circuit Court of Appeals suspended the preliminary injunction in CSS. This means that the INS will not issue work permits to, or defer the deportation of, CSS class members.
The INS will confiscate the work permits of CSS class members who are encountered during the regular course of INS operations. We do not recommend that CSS class members attempt to have their work permits renewed.
In the interim, it is important to remember the following:
1) All CSS class members--Groups 1, 2 and 3--have the right to a hearing before they can be deported or removed from the United States. By definition, all such persons have lived in the United States for at least 16 years. They may therefore raise a defense to removal, called cancellation of removal, during their hearings. Although it is difficult to win a cancellation of removal, having the defense ensures that CSS class members will not be deported suddenly or unexpectedly.
2) Group 1 class members continue to have a very good chance of winning lawful residence through the courts, whether through another class action, by intervening in CSS as a named plaintiff, or by filing a separate individual lawsuit.
3) LULAC/Newman class members continue to be protected by the interim orders and permanent injunction in that case. LULAC/Newman class members in all groups are protected from deportation and are entitled to have their work permits renewed. See the LULAC/Newman update for complete information on this case.
* * * * *
These cases impact on about 400,000 immigrants who are long-term residents of the United States.
On June 5, 1998, and again on June 19, 1998, Chief Judge Emeritus Lawrence K. Karlton, in the federal district court in Sacramento, California, issued temporary restraining orders barring the INS from revoking employment authorization previously granted to class members in Catholic Social Services v. Reno, Cv. S-86-1343 LLK (CSS I). Judge Karlton also enjoined INS from detaining any further CSS I class members, and blocked INS from removing from the United States any former CSS I class members. Each of these orders was issued in a new case we filed this year, Catholic Social Services v. Reno, Cv. No. S-98-629-LLK (CSS II). (For a discussion of the LULAC case, please see the end of this memorandum).
CSS II was filed after the CSS I case was dismissed on March 10, 1998, as a result of the decision of the Ninth Circuit Court of Appeals in Catholic Social Services v. Reno, 134 F.3d 921 (9th Cir. 1997) (as amended Jan. 16, 1998). The Ninth Circuit decided that CSS I had to be dismissed because in 1996 Congress enacted section 377 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). That section states that the federal courts shall not have jurisdiction (the authority) to provide a address the claims of CSS class members unless the applicant "attempted to file a complete application and application fee [of $185]" with a legalization officer and the application and fee were "refused" for filing.
CSS II is brought for two groups of CSS applicants: (1) Group 1: applicant who attempted to file a completed application and fee during the 1987-88 application period with the INS or a QDE (community groups that accepted applications on behalf of the INS) and the application was rejected (not accepted for filing), and (2) Group 2, people who visited an INS or QDE office during the application period but without a completed application in hand, and who were told that they were not eligible to apply and were not given blank application forms because they had briefly traveled outside of the United States without advance parole. We include Group 2 in the CSS II case because they are challenging the constitutionality of section 377 on equal protection grounds ( namely, that it is irrational to allow applicants who went to an INS or QDE office with a completed application to qualify, while denying a remedy to persons who visited INS or QDE offices without completed applications in hand; both groups were equally turned away by the INS).
Group 3 includes people who never visited an INS or QDE office (they failed to apply because they heard through a lawyer, notary or the media that they were ineligible because they had traveled). Please note that while Group 3 applicants will get temporary employment authorization under CSS II, they will not get legalized through the CSS II case. Their only hope is either that the Supreme Court overturns the Ninth Circuit's order to dismiss CSS I, or that the U.S. Administration (the White House and Department of Justice) decide to give them a remedy aside from the CSS cases.
In both the CSS and the LULAC v. INS (also known as Newman v. INS) cases, we believe that Group 1 has a high chance of success, Group 2 has a moderate chance of success, and Group 3 has a small chance of success. We describe these groups below so that applicants and advocates may have a better understanding of the rights of class members.
Detailed Description of the CSS and LULAC Groups:
Group 1:
Under section 377 of the 1996 amendments to the Immigration and Nationality Act (IIRAIRA), the INS argues that only those applicants who attempted to file completed applications and fees (cashiers check or money order for $185) during the formal application period (May 5, 1987 to May 4, 1988), and had their applications and fees rejected for filing, have standing (Group 1).
Note that the applications CSS class members have filed do not disclose whether they fall within Group 1 (i.e. whether or not they attempted to file a completed application and fee which were rejected). The CSS applications do show whether the applicant went to an INS or QDE office during the application period (see questions 10 and 11 on the Form for Determination of Class Membership, which ask from whom the applicant learned that he/she was ineligible to apply for legalization).
The INS kept no records of who it turned away, whether or not they had a completed application and fee in hand. INS has not asked applicants during CSS interviews whether, when they went to the INS during the 1987-88 application period, they had a completed application and fee with them which were rejected. We intend to argue that in order to fall within Group 1, the applicant will only have to provide a sworn declaration that during the 1987-88 application period, s/he went to an INS or QDE office and had a completed application and fee in hand which the INS or QDE refused to accept.
Group 2:
In the CSS II complaint we claim that applicants who went to the INS, a QDE or a lawyer during the 1987-88 application period but without completed applications and fees in hand also have standing (Group 2). We argue that Group 2 applicants have standing to challenge Section 377 on constitutional (equal protection) grounds because it is irrational to distinguish between applicants who went to the INS or a QDE with or without completed applications and fees in hand. Either way, they were turned away by the INS because they had briefly traveled abroad without "advance parole" during the 12-month application period. Neither group has better evidence today that they visited an INS or QDE office in 1987-88. Both groups wanted equally to apply.
As discussed above, people in Group 2 were temporarily protected under the July 2, 1998 preliminary injunction, but even under Judge Karlton's order, would eventually have had their employment authorizations revoked (when the process starts of identifying people in Group 1 unless (1) our appeal to the Ninth Circuit on their behalf is successful, (2) a political solution is worked out for Group 2 through discussions with the Clinton Administration.
Group 3
We treat applicants who never visited an INS or QDE office during the 1987-88 application period to apply because they heard through the media, relatives, friends or notary publics that they were ineligible to apply, as Group 3. Again, whether an applicant is in Group 1, 2 or 3, depends on what efforts were made to submit an application during the one-year application period. If you did not personally appear at an INS or QDE office to apply for legalization during the one-year application period, you fall within Group 3.
Group 3 class members should expect no remedy from the courts. Group 3 will need a political solution in the end. The Administration has the authority to place them in deferred enforced departure (DED) status and to grant them work permits until a final remedy is achieved for this group.
LULAC case:
LULAC class members should not be arrested, detained, deported or denied extension of their work permits. Unlike the CSS case, the Ninth Circuit Court of Appeals did not require the dismissal of the LULAC case. Instead, it allowed the plaintiffs to amend the complaint in the LULAC case to include some Group 1 class members, which has now been done.
