INS Exempts Aliens Caught Near Border From Rights Policy

The U.S. Immigration and Naturalization Service has exempted aliens detained in most of metropolitan San Diego from new guidelines aimed at advising illegal immigrants of their possible right to amnesty under the new immigration reform law.

Under the guidelines, adopted Friday, agents in most parts of the United States cannot expel illegal aliens who are arrested if questioning reveals that the aliens may be entitled to stay in the United States under the so-called “amnesty” or legalization provisions of the new law. Among those potentially eligible for amnesty are illegal aliens who have lived continuously in the United States since Jan. 1, 1982, or laborers who have spent at least 90 days doing farm work during the 12-month period that ended last May 1.

However, the new guidelines issued Friday specifically exempt border operations, where, the new rules state “it will be business as usual.” The INS defines the border region as the territory within 25 miles of the actual boundary, said Duane Austin, a spokesman for the INS in Washington. That definition includes most of San Diego, California’s second-most populous city.

The guidelines are being challenged by immigrants’ rights lawyers.

Ralph Santiago Abascal, a lawyer with the California Rural Legal Assistance in San Francisco, said the new rules would turn the border into a “delegalization zone,” where few people would qualify for legal residence.

“For them (INS officials) to write off the border area for application of amnesty is incredible,” Abascal said Monday. “It’s not only a double standard, it’s a flat, gross violation of the law.”

Abascal represents plaintiffs who have filed suits in U.S. District Court in Sacramento seeking to block the INS from expelling aliens who appear to qualify for amnesty. A conference on the matter is scheduled for Wednesday before U.S. District Judge Lawrence K. Karlton. The lawsuit is the first of many legal actions expected to be filed against various aspects of the landmark law--the most comprehensive reform of U.S. immigration laws since 1952--that President Reagan signed into law on Nov. 6.

Immediately at issue along the border are the new INS guidelines issued Friday.

“For reasons unknown to us, the INS has seen fit to act as if the word of Congress did not apply in border areas,” asserted Peter A. Schey, an attorney with the National Center for Immigrants Rights in Los Angeles.

INS officials contend that the guidelines merely recognize the reality that most aliens apprehended in border areas are recent entrants who are probably ineligible for amnesty. Border residents who do qualify for amnesty will not be excluded from gaining legal residence, INS officials say.

If illegal aliens arrested in the border area assert that they may be eligible for amnesty, Border Patrol officials say they will question them to determine if their claim has any legitimacy.

“This law didn’t pass anything that gave the United States open borders,” said Austin, the INS spokesman in Washington.

However, those opposed to the INS guidelines say that Congress never meant to exempt border areas from the amnesty provisions.

“My position is that a person caught coming across the border might just as well qualify for amnesty as someone caught in downtown Los Angeles,” said Schey of the National Center for Immigrants Rights.

Attorneys said that thousands of illegal aliens are believed to be long-term residents of border communities such as San Diego, Calexico, El Paso, Tex., and Laredo, Tex. In addition, they said, illegal aliens apprehended in border areas may have only left the United States for “brief” or “casual” periods and may still qualify for amnesty.

Groups File Suits

The lawsuit filed by the immigrants’ groups seeks to ensure that the INS informs all arrested illegal aliens of any rights they may have under the new law. The new law bars the expulsion of illegal aliens who can demonstrate a “prima facie” case that they may qualify for amnesty.

Since the new law went into effect, however, it appears that very few aliens apprehended along the U.S.-Mexico border have been able to avoid expulsion through demonstrating a strong case for amnesty. U.S. Border Patrol officials in San Diego and El Paso, the two busiest crossings for illegal aliens, acknowledged that they generally didn’t inform illegal aliens of amnesty possibilities unless the aliens themselves assert that they qualify.

The U.S.-Mexico border region accounted for some 90% of the record 1.8 million apprehensions of illegal aliens by the INS in fiscal 1986. The great majority of those arrested are Mexican citizens.