In late March, the United States Court of Appeals for the Ninth Circuit issued its long awaited decision in the amnesty suit Newman v. INS. Under the 1986 Amnesty program, certain aliens unlawfully present in the US could apply for status as temporary residents and then seek permission to reside permanently in the US. Applicants had to prove continuous physical presence in the US for a specific time period. Several class action lawsuits, including the Newman case, were filed by persons who were unable to file applications for amnesty.

Last month we reported on the sister suit to this litigation, CSS v. Reno in which the appeals court order the District Court to dismiss the lawsuit for lack of jurisdiction as a result of changes in the 1996 Immigration Act.

The 1996 Act limits jurisdiction in the amnesty suits. The statute's language reads as follows:

Section 377 of IIRAIRA sets limits on judicial review of legalization claims. Section 377 states the following:

"(a) LIMITATION ON COURT JURISDICTION. Section 245A(f)(4) is amended by adding at the end the following new subparagraph:

'(C) JURISDICTION OF THE COURTS

Notwithstanding any other provision of law, no court shall have jurisdiction of any cause of action or claim by or on behalf of any person asserting an interest under this section unless such person in fact filed an application under this section within the period specified by subsection (a)(1) of this section, or attempted to file a complete application and application fee with an authorized legalization officer of the Service but had the application and fee refused by that Officer."

The court in Newman, unlike CSS, did not choose to throw the case out based on the 1996 Act language. Instead, it has sent the case back to the District Court to determine if any of the plaintiffs have alleged facts sufficient to establish that the have standing to challenge the INS' "front-desking" policy where applicants were improperly turned away at INS offices and not permitted to file cases at all. Those found to have been "front-desked" will be allowed to continue in the litigation.