U.S. Court Voids INS Rule Curbing Alien Work

A federal judge has struck down a controversial Immigration and Naturalization Service regulation that prohibited aliens from taking jobs in the United States while their legal status was being decided in deportation hearings.

The regulation, which has been criticized by immigrants’ rights groups as an inhumane attempt to force aliens to abandon their legal appeals, was struck down by U.S. District Court Judge David V. Kenyon Jr. in a summary judgment signed in Los Angeles on Tuesday.

Immigrants’ rights groups estimated that the ruling would affect about 80,000 aliens a year throughout the United States, ranging from Salvadorans seeking political asylum to Mexicans attempting to establish their right to what is termed “derivative citizenship” through a U.S. citizen parent. Such hearings often take a year or more to complete.

The ruling does not mean that aliens involved in deportation proceedings will be granted work permits, only that they will not be jailed without bond if they are caught working without legal permits, according to attorneys who brought the case.

From a practical standpoint, those permits are exceedingly difficult to obtain.

William Odencrantz, regional counsel for the INS, said that his office disagrees with Kenyon’s ruling.

“Basically, it strikes down a significant control mechanism designed to discourage illegal aliens from gaining the benefits of their illegal acts while they remain in the United States, even though they’ve never made any claim of being here legitimately,” Odencrantz said.

Peter Schey of the National Center for Immigrants Rights, one of four attorney groups which had sought to quash the regulation through a class-action suit, said the significance of the ruling “is enormous. . . .

“This regulation would have significantly discouraged immigrants and refugees from pursuing their legal rights because they would have been unable to afford legal counsel, housing, food, medical attention and other necessities of life while deportation proceedings were carried out,” Schey said.

Intent of Regulation

The regulation went into effect Dec. 7 1983, after months of public hearings in which INS officials described it as an attempt to stop suspected illegal aliens from displacing American workers. Under the regulation, any alien released from custody on bond pending a deportation hearing could be jailed without the possibility of being freed on bond anew if he were caught working.

The legality of the “no-work rider,” as the controversial regulation came to be known, was immediately challenged by a dozen immigrants’ rights groups, which successfully sought a preliminary injunction from Kenyon, halting enforcement of the regulation on Dec. 16, 1983.

Evidence submitted by the attorneys in the class-action suit included affidavits from bail bondsmen, who said they would not lend bond money to aliens because the regulation made them high-risk clients in jeopardy of being thrown in jail at any time.

The attorneys also argued that many of the aliens contesting deportation had U.S.-born children--citizens who would suffer if their parents were unable to work.

In issuing his 15-page opinion, Kenyon said he is striking down the regulation because the INS had gone “beyond (its) statutory authority” in imposing such a restriction as a condition of bond. The INS had authority to place only those conditions on bond as are “related to obtaining an alien’s appearance” at future hearings, the judge wrote.

Basis of Argument

Attorneys for the INS had argued that such regulations are well within the agency’s discretionary powers.

But Odencrantz said he is, in a sense, pleased by Kenyon’s decision because “we’ve finally got a ruling that takes us into a place where we can appeal.”

The lawsuit was filed on behalf of 16 aliens and the American Friends Service Committee; El Rescate refugee service center; United Automobile Aerospace and Agricultural Workers of America Local 645; La Hermandad Nacional Mexicana; the Coalition for Visas and Rights for the Undocumented, (all in Los Angeles); El Concilio Manzo and the Tucson Ecumenical Council (both in Tucson); the Willamette Valley Immigration Project (Oregon); the Center for Immigrants (Houston); the International Institute (Boston); the Center for Immigrants Rights (New York), and the Imperial Valley Immigration Project (El Centro).

Other attorneys representing the groups included the National Lawyers Guild, the Central American Refugee Center in Washington and the Center for Law and Justice in Los Angeles.