December 5, 1997

Notice to attorneys representing late amnesty applicants

Dear Counselor:

The following information pertains to applicants for late amnesty under one of three federal class action cases, Catholic Social Services v. Reno; Newman (LULAC) v. Reno; or Immigrant Assistance Project v. INS.

In September of 1996, Congress passed Section 377 of the Illegal Immigration Reform and Immigrant Responsibility Act. Section 377 purports to strip the federal courts of jurisdiction to entertain claims relating to legalization under Section 245a of the INA unless the litigant attempted to present a "complete" legalization application and fee to an INS representative during the 1-year legalization application period (May 1987-May 1988). This section of the new law will probably require the INS to give lawful status to certain CSS, Newman and IAP class members (those who tried to file applications with the INS during the 1987-88 application period, but the INS refused to accept the applications), but seriously compromises the likelihood that other class members will receive legalization as a result of one of the late amnesty cases.

On April 30, 1997, in the Catholic Social Services case, the United States Court of Appeal for the Ninth Circuit issued a decision concluding that the entire CSS case should be dismissed. The Ninth Circuit withdrew that decision, however, in response to plaintiffs' petition for rehearing and suggestion for rehearing en banc. We are awaiting a

For now, it appears that unless Congress repeals Section 377, many late legalization applicants will not get permanent residence through the late amnesty cases. Applicants who presently have a good chance of legalizing their status through the late amnesty cases are those who -

actually completed an amnesty application during the regular amnesty application period (May 5, 1987 to May 5, 1988); and

went to an INS office or a Qualified Designated Entity (QDE) with a complete application and fee during the regular amnesty application period and tried to file it; and

had their applications turned away: that is, the INS or QDE official refused to accept the application for filing.

Persons who meet these three requirements still have a very good chance of winning permanent resident status through the late amnesty court cases.

If your client did not take a complete application and fee to the INS or a QDE during the regular application period (between May 5, 1987 and May 5, 1988):

Your client has a much slimmer chance of legalizing through the late amnesty cases. We will have a better assessment of such persons' status once the court of appeals issues a new decision in CSS. Nevertheless, we intend to keep litigating the late amnesty cases on behalf of people who went to the INS or a QDE during the 1987-88 application period, but were told they were not eligible to apply.

We do not know how long it will be before the new decision is issued, but we estimate it will be somewhere between one and four months.

How will your client prove that he or she took a complete application in to the INS or QDE during the 1987-88 application period?

The courts have not decided the burden of proof that an individual will have to carry to show that he or she went to the INS or a QDE with a complete application during the regular application period, but it is unlikely they would require clients to produce the actual complete application. No one could reasonably be expected to still have their application some eight or nine years after the INS or QDE refused to accept it.

Our assumption is that the courts will require a declaration from the client describing his or her efforts to file a complete application. If someone accompanied the client during his or her unsuccessful attempt to file it, this person's declaration would also help prove the attempt to file timely.

Interim relief orders (work permits and stays of deportation)

In the wake of Section 377, the INS has repeatedly asked the federal courts to lift the interim relief orders that have allowed CSS and Newman class members to obtain temporary work permits. So far, the courts have turned back the INS's requests. Therefore, all interim relief orders regarding work permits and stays of deportation remain in effect. The INS should renew a work permit issued to your client under the late amnesty program when it expires. We will advise you if and when this situation changes.

Impact of Section 212(a)(9)'s 3-year bar on admissibility upon CSS and Newman class members:

The INS has preliminarily said that "aliens in federal court litigation" are unlawfully present for purposes of Section 212(a)(9). This being said, there are several reasons not to take the INS's interpretation at face value.

First, class members who obtain legalization under the late amnesty cases will in all likelihood adjust their status without ever having to leave the country, in which case Section 212(a)(9) would not apply.

Second, the INS has said that persons who file applications to adjust their status are lawfully present. Most CSS and LULAC class members have filed late applications to adjust their status, and their presence here should be deemed lawful even if they are also involved in federal court litigation.

Third, CSS and LULAC class members have been granted work permits and stays of deportation by the federal courts. Their presence here has been authorized by court order and, accordingly, has been lawful. If the INS insists that aliens in federal court litigation are unlawfully present, we will ask the federal courts to rule otherwise.

Action you should take now to protect your client's rights:

If you have clients who actually attempted to file a completed amnesty application with the INS between May 5, 1987, and May 5, 1988, contact our office immediately to speak with one the attorneys on these cases, Peter Schey or Carlos Holguin.

Please (sic)

If you have clients who made a diligent effort to file during the regular application period, but were denied application forms, told they were ineligible to apply, or told to leave the legalization office, contact our office immediately to speak with (sic)

If you believe your client may have a way to legalize apart from the late amnesty cases, begin pursuing that option now.

Peter A. Schey
Executive Director

Carlos Holguin
General Counsel

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