The Ninth Circuit Court of Appeals has issued an amended opinion in CSS v. Reno, one of several longstanding class action lawsuits challenging the INS' implementation of the Immigration Reform and Control Act of 1986 Amnesty Program. The Court vacated all orders and remanded the case to the District Court with instructions to dismiss.

Under the 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.

Plaintiffs in the CSS suit filed their claim in 1986 challenging an INS directive interpreting the continuous physical presence requirement to mean that in order to qualify for adjustment of status, aliens must have obtained INS approval before leaving even for the briefest of absences. The plaintiffs argued that they should have remained eligible for amnesty since their absences from the US were "brief, casual and innocent." The District Court in the case provided interim relief for members of the class including allowing class members to receive employment authorization documents until the case is resolved.

The case was appealed up to the US Supreme Court which held that only those persons who had taken affirmative steps toward legalization and had their path blocked by INS representatives on account of this policy had a claim that could be litigated. The case was sent back to the District Court which instructed CSS to narrow the class to those covered by the Supreme Court order.

After three, years while CSS was trying to gather information to amend its pleadings, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. 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."

After passage of IIRAIRA, the INS moved the court to dismiss the case arguing that there has been no showing that any of the class members or named plaintiffs meet the requirements of Section 377 such as by having actually filed an application or by having attempted to submit an application and fee but having them refused by a legalization assistant within the application period. The Circuit Court bought this argument and rejected CSS' claims that Section 377 is unconstitutional for violating principals of separation of powers and due process.

The Court went on to hold that since none of the class members or named plaintiffs have alleged that they actually tendered an application and fee or attempted to do so but were rebuffed by a legalization assistant, they do not have standing under Section 377 of IIRAIRA.

Accordingly, the Circuit Court has vacated the district court's orders and remanded back to that court with the instructions to dismiss for lack of jurisdiction. The decision, however, specifically states that it still may be possible to file a new complaint in the district court on behalf of persons who allege that they physically tendered a complete application and fee or attempted to do so.

Following the publication of this opinion, the INS issued a memorandum addressing the implications of the decision. The memorandum states that effective immediately, CSS class members are no longer entitled to employment authorization, stays of removal, or any other immigration benefit based on their claimed CSS class membership. If persons go the INS seeking an extension of their employment authorization documents, they will be denied, their employment card will be confiscated, and the INS can proceed with expedited removal proceedings against class members. Not surprisingly, many immigration lawyers are advising their CSS clients NOT to attempt to renew their employment authorization documents.

The memorandum does note that aliens may continue to be eligible for stays of deportation based on grounds other than their claimed CSS class membership (such as the new Central American amnesty law).

It is important to note that the CSS case does not affect the LULAC and Zambrano legalization class actions. Those plaintiffs can continue renewing their work authorization documents and are not covered by the CSS court order.