NCLR Talking Points on Delayed Amnesty Cases

NCLR TALING POINTS

Justice Denied in Legalization Litigation

Section 377 of the Immigration Act of 1996 (IIRIRA)

By Joel Najar, National Council of La Raza

· During the Reagan Administration, Congress enacted the legalization program as part of the Immigration Reform and Control Act of 1986 to allow all undocumented persons who could prove that they had been residing in the United States since January 1, 1982 to adjust their status to that of lawful permanent resident. The 12-month application period began on May 5, 1987.

· Just days before the application period began, the Immigration and Naturalization Service (INS) issued regulations which failed to follow the law as enacted by Congress. Under the INS' regulations which were remarkably well-publicized by the INS as many as 350,000 applicants were wrongfully denied the ability to apply.

· Through various class action suits, the federal courts found that the INS' regulations were contrary to the legalization statute and the intent of Congress. The INS admitted its wrongdoing in each of the class action lawsuits brought against it; but the admission came too late to allow the class members time to apply.

· The INS never took steps to publicize its "mistake" to eligible applicants who had been discouraged from applying for legalization. The court sought to extend the deadline by six months for plaintiffs of the various class actions lawsuits.

· Despite its admission of wrongdoing, attorneys for the INS challenged the court's jurisdiction to hear the cases, and whether the court had the power to extend the application period. This appeal went all the way to the Supreme Court, which flatly rejected the INS' position that the lower courts did not have jurisdiction over the case. The Supreme Court left it up to the lower courts to determine which of the would-be legalization applicants had "ripe" claims. The lower court's subsequent decision against the INS was again appealed by the INS attorneys in 1996.

· At the same time, a little-noticed provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Section 377) gave the INS' litigation team what it had been seeking it stripped the courts of jurisdiction to hear the claims of all but a minority of the class members. Senator Alan Simpson, (R-WY), who sponsored the provision, said that the idea for the provision had "come over the transom" unofficially from INS' lawyers.

· Section 377 amounts to nothing more than an unfair and unjust "end-run" around the federal courts which had continuously rejected the arguments and appeals of the INS in favor of the class members.

· The largest of the class action lawsuits, Catholic Social Services v. Reno, has been dismissed because of Section 377, and the plaintiffs have reverted to undocumented status overnight. All of the plaintiffs can prove that they have lived in the United States since 1982; all have deep roots in this nation and many have already had their lives devastated already.

· Lawyers for the INS claim that Section 377 is the final word in the legalization litigation and that INS is no longer responsible for the results of the INS' initial failure to comply with the intent of Congress.

· The INS has taken no steps to process the applications of even those applicants who were held harmless by Section 377. Instead, the INS has issued notice that CSS class members can now be put into expedited removal proceedings making them ineligible for some forms of relief from deportation.

· Before she was appointed as Commissioner of the INS, Doris Meissner herself noted in several articles that the INS legalized as many as 1 million fewer immigrants than anticipated, in part because of the INS policies that were inconsistent with the law as enacted by Congress and signed by President Reagan.

· In the interest of justice and due process which is held dear by all Americans, especially immigrants who are Americans by choice the INS and the Clinton Administration must seek to correct this injustice by whatever means it has at its disposal.

· It is simply unbelievable that it was the intent of Congress to ruin the lives of so many hard-working immigrants who would never have had to turn to the courts had the INS abided by Congressional intent in the first place. It would be a travesty if we allow this injustice to continue.