After 10 years in court, the United States Court of Appeals for the Ninth Circuit has dismissed the case of CSS v. Reno. The class action suit challenged the lawfulness of an INS policy adopted in 1986 relating to the legalization program created by the Immigration Reform and Control Act of 1986. The legalization program allowed certain aliens unlawfully present in th US to apply for status as temporary residents, and seek permission to reside permanently in the US. To be eligible to apply, applicants had to prove they had resided continuously in the US since November 6, 1986. The policy the plaintiffs sought to challenge was an INS directive interpreting the continuous physical presence requirement to mean that aliens must have obtained INS approval before leaving the United States for even the briefest of absences. The plaintiffs argued that an alien would not fail to maintain a continuous physical presence by virtue of brief, casual and innocent absences form the US.

While this case has been in appeals, Congress passed the new immigration law. Section 377 of the new law sets limits on judicial review of legalization claims. Following Congress' directive, the court has dismissed the entire case. The plaintiffs argued that the new law does not apply to this case since the plaintiffs were not appealing a denial of a legalization claim, but, rather, were never permitted to apply. The court rejected this argument stating that the statute contains an express congressional directive that review should be limited to the claims of those persons who have actually tendered or attempted to tender an application and fee.

The plaintiffs also argued that Congress violated the separation of powers by attempting to dictate a court's decision in a pending case. The court rejected this on the grounds that Congress was actually changing the law applicable to this case rather than impermissibly interfering with the judicial process.

The court ordered the case remanded to the district court with instructions to dismiss for lack of jurisdiction.