COURT DISMISSES AMNESTY LAWSUIT

The Ninth Circuit Court of Appeals has dismissed an appeal of a major amnesty lawsuit that could mean deportation for thousands of illegal immigrants.

The case, Catholic Social Services v. Reno, is the latest, and perhaps last, in a series of decisions regarding one aspect of the regulations passed by the INS to enforce the Immigration Reform and Control Act of 1986 (IRCA). The Ninth Circuit found that section 377 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) stripped the federal courts of jurisdiction over some of the plaintiffs’ claims, and found the others, even if within federal court jurisdiction, barred by the statute of limitations.

In 1986, IRCA made certain immigrants who were illegally in the US eligible for temporary residence and them legal permanent residence, if they met certain requirements. One of these was that the applicant prove continuous physical presence in the US since November 6, 1986. The INS enforced this rule by denying adjustment of status to those who had failed to obtain advance parole from the INS before leaving the US, no matter how brief the absence. Catholic Social Services (CSS), along with many other parties, brought a class action lawsuit asserting the INS advance parole policy violated the IRCA provision that "brief, casual, and innocent" absences did not disqualify one from establishing continuous physical presence. The District Court certified the class and declared the advance parole policy unenforceable because it was contrary to the intent of the statute. The Ninth Circuit affirmed, but the Supreme Court, in 1993, vacated the decision, holding that the district court had certified too broad a class, improperly including people whose claims were not yet ripe for review. Under the Supreme Court decision, to be properly within the class, a person must have had their application for adjustment denied by the INS because of failure to comply with the advance parole policy.

The district court certified a narrower class, and affirmed its ruling that the advance parole policy was unenforceable. After the government appealed, but before the Ninth Circuit ruled, Congress passed IIRIRA, section 337 of which removes federal court jurisdiction over claims for IRCA relief unless the plaintiff had in fact filed an application under IRCA, or had an application rejected. Relying on this statute, the Ninth Circuit ordered the case dismissed for lack of jurisdiction. Because of this, CSS was not able to amend its current case, but had to refile the case.

CSS did file another class action, challenging the advance parole policy and the constitutionality of IIRIRA section 377. The district court ruled that it lacked jurisdiction over plaintiffs who had failed to submit an application under IRCA, but issued an injunction against deportation and withdrawal of employment authorization while it was determined which members of the former class had complied with section 377.

The current opinion is the appeal from this decision. The Ninth Circuit affirmed its previous decision that section 377 removed federal court jurisdiction over claims of those who had failed to submit an IRCA application, and thus could not hear a challenge to the constitutionality of the section. The Ninth Circuit then held that the claims of the plaintiff’s who had complied with the filing requirements of section 377 were barred by the six-year statute of limitations, finding that the filing of the original class action in 1986 did not prevent the statute from running for this current lawsuit.

The court found that to allow tolling of the statute of limitations would be contrary to the purpose of class actions – promoting efficiency of litigation – by allowing subsequent class actions years after the disputed events occurred. Furthermore, there was no need for a class action because these claims could be raised in deportation proceedings, and the court found a clear congressional preference for resolution of such claims in deportation proceedings. Thus, thirteen years of litigation ended, in large part because CSS was forced to file a second suit by the Ninth Circuit dismissed the original suit rather than remand to allow the district court to do what it did when the second suit was filed, namely, determine who was properly within the redefined class.

Peter Schey, a lawyer for the class believes as many as 200,000 people will be affected, though the court only believes 45,000 people are at risk. According to Schey, the court’s decision will force many long time residents of the US to "work illegally in underground jobs in order to support their families."

The decision can be found on the Internet at http:/www.vcilp.org/Fed-Ct/Circuit/9th/opinions/9816269.htm.

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