Update on Late Amnesty Cases

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: cholguin@sprynet.com; pschey@earthlink.net

¡Un daño contra uno, es un daño contra todos!

Update October 5, 1998

There is very little new regarding the late amnesty litigation. However, a substantial grass roots movement is now pressing the Clinton Administration toward a solution to the late amnesty cases. A draft proposal for the resolution of the late amnesty cases is currently under discussion. The proposal also provides a comprehensive, if somewhat technical, overview of the background to the late amnesty cases.

Persons and organizations wishing to endorse this solution are encouraged to communicate their support for this solution to the Center via fax or e-mail: cholguin@sprynet.com; pschey@earthlink.net

Update August 29, 1998

On August 26, 1998, the U.S. Ninth Circuit Court of Appeals suspended the preliminary injunction in CSS 2. This means that effective immediately the INS is under no obligation to issue work permits to, or defer the deportation of, CSS 2 class members.

In all likelihood, the INS will resume confiscating the work permits of CSS 2 class members who are encountered during the regular course of INS operations. Until further notice, we do not recommend that CSS 2 class members attempt to have their work permits renewed.

We are not yet sure of the long term impact of the Ninth Circuit's order because the court did not explain its reasons for suspending the CSS 2 injunction. During Wednesday's oral argument, the court expressed concern that Group 1 class members (those who attempted to file a complete application and fee with the INS during the one year legalization application period, May 1987 to May 1988) could be deported were the injunction suspended, and in response the INS repeated the agency's pledge to process the legalization applications of Group 1 CSS class members and assured the court that Group 1 members would not be deported. The court's other major concern centered around whether the case should proceed as a class action. Based on these indicators, the following scenarios are possible:

1) The INS could make good on its promise to adjudicate the applications of Group 1 class members without further order of the court. Group 1 class members who request the INS to adjudicate their legalization applications are encouraged to report the results of those efforts, good or bad, to the Center.

2) The court of appeals could decide that a class action is not appropriate, in which case each Group 1 class member would have approximately 5 years to file an individual case in federal court, or intervene in--that is, join as a named plaintiff--the CSS 2 lawsuit.

3) The court of appeals could explain that the CSS 2 injunction was overbroad in that it required the INS to give work permits to and defer the deportation of Group 2 and 3 class members. In this event, the district court could reissue a preliminary injunction covering a narrower group of class members. This would not be much different from what would have happened within a few weeks anyway, since the district court included Group 2 and 3 class members in the injunction only until a plan could be devised for separating out Group 1 class members.

4) The court of appeals could decide that the CSS 2 injunction was overbroad in that it required the INS to give work permits to and defer the deportation of class members who had been front-desked by QDEs. In this event, the district court could reissue a preliminary injunction much like the one the court of appeals suspended, covering persons front-desked by INS, but not by QDEs.

Although it is very difficult so say which of these scenarios will come to pass, number 3 above seems the most probable. We will update this page to give CSS 2 class members a better idea of what to expect in the future as soon as we can ascertain the reasons for the Ninth Circuit's action.

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 the CSS 2 class action, by intervening in CSS 2 as a named plaintiff, or by filing a separate individual lawsuit.

3) LULAC class members continue to be protected by the injunction in that case. For the time being, LULAC class members in all groups are protected from deportation and are entitled to have their work permits renewed.

Update July 19, 1998

On July 10, 1998, the INS appealed the preliminary injunction issued in CSS 2 to the Ninth Circuit Court of Appeals. The INS sought an emergency stay of the preliminary injunction in conjunction with this appeal. The stay motion remains pending.

In its moving papers, the INS attached instructions it purports to have sent the all field officers directing them to provide a form to persons who allege that they tendered a complete application and fee to an INS officer during the one-year legalization application period. The form asks for detailed information about the individual's efforts to file timely and contains instructions representing that the agency will evaluate the information provided on the form and make a determination as to whether to process the individual's legalization application. In other words, according to the INS, it will now process the legalization applications of persons who were front-desked by INS agents (but not QDEs).

Unfortunately, the INS memo does not instruct field officers to do anything other than provide the form to persons alleging they were front-desked. The memo says nothing about staying the deportation/removal of or providing temporary work authorization to persons who complete the form.

We therefore advise persons seeking to avail themselves of the INS's offer to exercise caution. CHRCL recommends that any class member wishing to complete the form do so only in consultation with an experienced immigration attorney. Attorneys representing such individuals are advised to contact CHRCL for further information.

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July 6, 1998 Urgent Update

To: CSS and LULAC Plaintiffs, Class Members, Attorneys and Advocates

Fm: Peter Schey; Carlos Holguin

Re: July 2, 1998 Preliminary Injunction in CSS v. Reno

These cases impact on about 400,000 immigrants who are long-term residents of the United States. Please review this memorandum and contact us if you have any questions. We generally do not respond to questions unless we are sent and have reviewed an applicant's CSS or LULAC application.

All CSS and LULAC applicants and their attorneys who have not already done so should contact Juan Jose at (213) 388-8693 ext. 102 to obtain our questionnaire form which all CSS and LULAC applicants should complete and return to us along with a complete copy of their CSS or LULAC applications. They will then be added to our mailing list and we may advise them on their eligibility for relief under CSS or LULAC. You may also telephone our office (213) 388-8693 and listen to our recorded updates on the CSS and LULAC cases. Spanish-speakers should press 1 as soon as you connect to the office, then follow the instructions given over the phone. English speakers should press 2, then press 3 for information on CSS, or 4 for information on LULAC.

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.

Employment authorization:

The preliminary injunction issued in CSS II on July 2, 1998 states, in part, that pending further order of the Court, the INS "shall not (a) execute final orders of removal, or (b) revoke or deny renewal of work authorization with respect to any individual granted class membership in Catholic Social Services v. Reno, Cv. S-86-1343 LLK ..." Order at pages 46-47. Therefore, any person who had employment authorization under CSS I is now entitled to go to an INS office to have their employment authorization reissued (if previously revoked), or extended (if not previously revoked).

Please note that under the preliminary injunction, the parties and the court over the next few months will develop standards (which the court will eventually approve) on how to identify Group 1 applicants. Once this process starts, only Group 1 applicants will be processed for legalization and applicants who fall into Groups 2 and 3 will probably have their employment authorization revoked.

However, we are appealing the judge's Order to the extent that it does not include Group 2 after a process for identifying applicants in Group 1 is developed. This appeal will probably take about 6-8 months to decide. If we win that appeal, Group 2 may be granted further temporary protection until the federal courts finally decide our constitutional claim that section 377 violates equal protection to the extent that it excludes court jurisdiction over Group 2. Of course, Group 2 may also be saved either through our appeal of the dismissal of CSS I to the Supreme Court, or through a political resolution reached with the Clinton Administration.

Removal of class members:

The July 2, 1998, preliminary injunction blocks the INS from removing from the United States any class members who were previously granted employment authorization under CSS I. The Order states that the INS "shall not (a) execute final orders of removal ..." Order at pp. 46-47. The temporary restraining orders we previously obtained also blocked the removal of class members.

Therefore, no applicants who were class members in CSS I and had employment authorization under CSS I should be removed from the United States by the INS. If you are aware of any cases in which such applicants have been removed from the United States, please immediately contact Peter or Carlos at the phone numbers listed above. In order to help such people return to the United States, we will need to obtain (1) a copy of their CSS applications (if the applicant does not have a copy, one should be obtained immediately from the INS through the FOIA), and (2) a description of when the applicant was detained and removed from the United States. We also need to be able to communicate with the removed class member directly or through relatives or friends in the United States.

Travel by CSS or LULAC class members:

The preliminary injunction in CSS makes clear that it does not require the INS to "admit" any class member into the country. Class members should therefore not travel unless and until (1) they seek and obtain advance parole from the INS, or (2) we obtain a further order from the court allowing them to travel without advance parole.

Class members currenty detained:

Lawyers of applicants detained by the INS, and detained applicants who fall within Groups 1 or 2 (explained below), should immediately (1) advise the INS, if possible in a letter to the District Director and/or the Officer in Charge of the detention facility, that they do fall within Group 1 or 2, and (2) contact Peter Schey at (213) 388-8693, ext. 104, or Carlos Holguin at ext. 109 (the CSS/LULAC lawyers). We will petition the Court for detained class members' release. But, to do so, we need three things: (1) a copy of the class members' CSS application (which should be immediately obtained through the FOIA if the applicant does not have a copy), (2) a copy of the detainees prior employment authorization (if available), and (3) a declaration from either the detainee or his/her lawyer containing information usually considered in bond redetermination hearings (addresses for past five years, employment for past five years, relatives in the U.S., organizational or religious memberships, past criminal record, past record of appearing for INS interviews/hearings, etc.). We have prepared a draft detainee declaration which can be obtained by contacting Peter at the number above, Carlos at the number above or Juan Jose at ext. 102. The draft declaration we prepared can easily be modified for use by an attorney. While the preliminary injunction we obtained on July 2, 1998 prevents the INS from detaining CSS class members on or after July 2, 1998, it does not require the release of class members detained prior to July 2, 1998. We intend to immediately request that the preliminary injunction be modified to include the class members who were detained prior to July 2, 1998. However, we will probably only seek release for class members regarding whom we have the information described above.

INS has already agreed that it will process CSS applicants who fall within Group 1. Note that neither the Immigration Judges nor the Board of Immigration Appeals have any jurisdiction over CSS (or any other legalization) issues. On the other hand, a full record should be made in removal proceedings regarding the applicant's status under CSS (a full copy of the applicants' CSS application should be submitted or offered as an exhibit, along with the applicant's declaration that s/he falls within Group 1 or 2, any declaration that may be obtained from a third party that the applicant falls within Group 1 or 2 (e.g. a person who accompanied the applicant when s/he tried to file a completed application and fee during the 1987-88 application period which were rejected by the INS), and all available evidence that the applicant has been residing in the U.S. since before 1982. While neither the Immigration Judge nor the BIA will consider these materials, they are essential because judicial review is available from a negative decision by the BIA in the Court of Appeals, and the Court of Appeals does have jurisdiction to review the applicant's claim to legalization eligibility.

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). If the applicant stated on the CSS or LULAC Form for Determination of Class Membership that he/she went to an INS or QDE office during the application period, only the applicant knows whether or not at the time he/she had a completed application and fee which were rejected for filing.

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.

We intend to file a motion with the Court for final relief for Group 1 applicants within the next few weeks. The major issue to be addressed is what type of proof an applicant must have to show that during the 1987-88 application period they attempted to file a complete application and fee which were rejected. It is our position that the applicant's declaration should be sufficient.

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 are temporarily protected under the July 2, 1998 preliminary injunction, but will later have 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) the Supreme Court overturns the Ninth Circuit's order requiring the dismissal of CSS I, or (3) 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, probably depends on what he/she said in the CSS or LULAC Form for Determination of Class Membership. If they stated on that form that they learned during the 1987-88 application period that they were ineligible to apply through the media, a relative, a friend, a notary public, or some similar source, they probably fall within Group 3. As discussed above, people in Group 2 are temporarily protected under the July 2, 1998 preliminary injunction, but will later have their employment authorizations revoked when the process starts of identifying people in Group 1 unless (1) the Supreme Court overturns the Ninth Circuit's order requiring the dismissal of CSS I, or (3) a political solution is worked out for Group 3 through discussions with the Clinton Administration.

Group 3 may, in the end, get no remedy from the courts (unless section 377 is amended by Congress, something we have little hope will happen). Group 3 will probably need a political solution in the end. The Administration has the authority to legalize their status, or 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:

The LULAC v. INS case (also known as Newman v. INS), remains pending at this time in the federal court in Los Angeles. The case not been dismissed. 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.

LAWYERS, APPLICANTS, APPLICANTS' FAMILIES: Voice Your Concern For A Solution For Unlawfully Turned Away Amnesty Applicants.

Please immediately write letters asking the Clinton Administration to

(1) Agree to maintain the status quo on the amnesty cases; stop detaining, excluding, deporting and denying work permits to class members; and

(2) To process the long-pending applications of plaintiffs and class members in the amnesty litigation cases, and grant legalization to those who qualify under the amnesty law from which they were unlawfully excluded during the application period in 1987-88 because they briefly traveled abroad (as INS later admitted was allowable under the law)

Address Your Letters To:

President Bill Clinton
The White House
1600 Pennsylvania Ave.
Washington, DC 20500

Send Copies To:

Maria Echaveste
Deputy Chief Of Staff
The White House, Room 4400
Washington, DC 20500

Janet Reno
Attorney General
U.S. Dept. Of Justice
950 Penn. Ave. NW
Washington, DC 20530-0001

CSS/LULAC APPLICANTS: JOIN ARCA

The Association for Residency and Citizenship of America (ARCA) is a grass-roots national association of immigrants seeking legalization under the 1986 Immigration Reform and Control Act (IRCA), section 245A, who the INS admits were unlawfully turned away from applying during the 12-month application period (May 5, 1987 to May 4, 1988) because they had briefly traveled abroad between 1982 and 1988. INS belatedly agreed that its "no travel" rule violated the law in which Congress had specifically authorized brief travel (i.e. such travel did not make applicants ineligible for legalization). INS also unlawfully refused to allow these applicants to apply, instructing them that they were ineligible to apply, and denying them the forms needed to apply.

For further information please contact:

Association for Residency & Citizenship of America

256 S. Occidental Blvd.
Los Angeles, CA 90057
213/388-8693 ext.102
Facsimile: 213/386-9484

6926 Navigation, Houston, TX 77011
Telephone (713) 926-2799
Facsimile (713) 926-2877

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