Court Blocks INS Rule on Re-Entry by Aliens

A federal judge in Sacramento on Monday barred the U.S. Immigration and Naturalization Service from deporting undocumented aliens who otherwise qualify for amnesty simply because they left and illegally re-entered the United States after the law’s enactment.

Immigrants’ rights advocates hailed the temporary restraining order, issued by U.S. District Judge Lawrence K. Karlton, as an important step in defining a key phrase in the new immigration law signed by President Reagan on Nov. 6.

The bill requires that illegal aliens applying for amnesty maintain “continuous physical presence” in this country after enactment of the law, with the exception of “brief, casual and innocent absences from the United States.”

The law, however, does not define the meaning of “brief, casual and innocent absences.”

In instructions issued by the INS to its offices nationwide earlier this month, the agency took the position that anyone who leaves and re-enters the United States illegally after Nov. 6 will be considered “to have broken his period of continuous physical presence and thus will be ineligible for legalization.”

Karlton restrained the INS from using “the basis of a brief, innocent and casual unauthorized departure from the country and subsequent re-entry without inspection on or after the date of the enactment” as grounds for deporting any illegal alien who appears to qualify for amnesty.

Karlton gave the INS five days to prepare implementation of this order before it takes effect.

To qualify for amnesty, illegal aliens must be able to show that they have lived in the United States since before Jan. 1, 1982, or have spent at least 90 days doing agricultural work in this country in the 12-month period that ended May 1.

The law states that those who appear to qualify for amnesty “may not be deported,” pending the opportunity to apply for legalization. That section of the law is in effect, although amnesty applications will not be accepted until May, 1987.

Illegal aliens who are ineligible for legalization remain subject to deportation.

Karlton also required the INS either to stop accepting departure forms from aliens who are eligible for legalization, or else post signs in English and Spanish at exit points to Mexico advising illegal aliens of their possible rights to amnesty. Such signs must specifically inform people who are leaving the country under INS orders that if they qualify for amnesty they may not have to depart the United States.

The INS was given 10 days to implement this order.

In what attorneys understood to be a reference to the INS instructions issued earlier this month, Karlton further required the agency to publish, within 10 days, rules of procedure adopted under the new law.

Peter Schey, executive director of the National Center for Immigrants’ Rights Inc., one of the groups that filed the case, said the plaintiffs “are very pleased with the order.”

Schey described the posting of signs at the Mexican border as being “like a safety net.”

“It is meant to stop inadvertent departures that (would) take place because INS has failed to notify people with outstanding deportation orders that it’s a new ball game,” Schey said.

Karlton set Dec. 18 for a hearing to determine whether the temporary restraining order should be extended as a permanent injunction.