INS Policy on Arrested Illegal Aliens Is Clarified

Moving to clear up widespread confusion, the U.S. Immigration and Naturalization Service said Thursday that illegal aliens arrested by U.S. authorities in border areas will receive the same treatment as those apprehended in interior areas, and will be questioned to determine their potential eligibility for legal status under the new immigration law.

The only exceptions, INS officials in Washington said, are illegal aliens who are arrested after they have been observed physically crossing the border into the United States and are therefore unlikely to meet the residency requirements needed to qualify for legalization under the new law’s so-called “amnesty” provisions. But INS officials pointed out that even those recent entrants have the longstanding right to request hearings before immigration judges before being expelled from the United States.

“Everyone will have the chance to make their case,” said Duke Austin, a spokesman for the INS in Washington.

Earlier this week, INS officials, responding to inquiries about new INS guidelines issued to implement the law, said it would be “business as usual” in border areas and that there were no plans to question illegal aliens apprehended about their possible chances for amnesty. The INS defines the border region for enforcement purposes as territory within 25 miles of the boundary, an area that would include most of metropolitan San Diego. The statements resulted in considerable confusion among illegal aliens from California to Texas.

On Thursday, INS officials said that aliens along the border would be questioned, and that if their answers reveal that they may qualify for amnesty, INS officers will issue temporary permits allowing them to remain in the United States until they can formally apply for amnesty next year. The formal application process is expected to begin in May.

Immigrants rights groups challenging the INS’s implementation of the new law have charged that the agency is enforcing a “double standard” in the U.S.-Mexico border region. The groups assert that illegal aliens--particularly in border areas--are being expelled without being questioned about whether they may qualify for amnesty, a policy that allegedly prevents some deserving immigrants from pursuing amnesty status.

“They (INS officials) are taking a very narrow view,” said Stephen Rosenbaum, an attorney with California Rural Legal Assistance Inc., which is representing plaintiffs in a lawsuit pending in U.S. District Court in Sacramento.

The new immigration law specifically bars the expulsion of illegal aliens who can demonstrate a “non-frivolous” or “prima facie” case for amnesty.

Immediately at issue along the border are new guidelines that went into effect one week ago in response to the new law, which President Reagan signed into law on Nov. 6. The guidelines outlined a checklist of questions that INS officers must ask apprehended aliens to determine if the aliens are eligible for amnesty.

Considerable confusion resulted when the guidelines stated that “it will be business as usual” for border operations--a statement that appeared to exempt immigration agents along the 1,900-mile U.S.-Mexico border from questioning aliens on their eligibility for amnesty. Along the border, enforcement by the U.S. Border Patrol extends at least 25 miles and often farther beyond the boundary, encompassing entire communities such as San Diego, El Paso and Laredo, Tex., all of which have large Latino populations.

However, INS officials said Thursday that the “business as usual” section of the new guidelines only refers to aliens actually observed crossing the border illegally. Those viewed crossing the border, therefore, are the only apprehended aliens who will be processed without being questioned specifically about their prospects for amnesty, Austin said. All other illegal aliens apprehended in San Diego County and elsewhere in the vicinity of the border will be questioned to determine their eligibility for amnesty, he said.

Austin said the INS had received numerous requests for clarification of the issue after earlier comments indicated that aliens apprehended within the 25-mile zone would not be questioned about their prospects for amnesty.

Rosenbaum, the attorney representing the groups challenging the INS position, said the agency’s clarification does not fully satisfy concerns about a double standard being used. He noted, for instance, that many illegal aliens arrested after they have been observed physically crossing the border into the United States may have only returned to Mexico for “brief” or “casual” periods. The new immigration law specifically states that such “innocent” absences may not necessarily interrupt “continuous” residence requirements outlined under the new law’s amnesty provisions.

“We want as few people to fall through the cracks and miss out on amnesty as possible,” Rosenbaum said.

The new immigration law provides prospective amnesty for two broad groups of illegal aliens: those who have resided continuously in the United States since Jan. 1, 1982, and farm laborers who worked in U.S. agriculture for at least 90 days during the 12-month period that ended on May 1, 1986.

The new INS guidelines require agents to question apprehended illegal aliens--except those seen crossing the border illegally--to determine their potential eligibility for amnesty under either section of the law, officials said.

A hearing on the lawsuit challenging the government’s implementation of the amnesty provisions is scheduled for Monday in U.S. District Court in Sacramento.