Court Stays Order Blocking INS Deporting of Re-Entering Aliens

The U.S. Immigration and Naturalization Service may continue to deport illegal aliens caught re-entering the United States after visits abroad even if they would have qualified for the new amnesty program had they not left the country, a federal appeals court ruled Wednesday.

The action by a three-judge panel of the U.S. 9th Circuit Court of Appeals came in granting the INS a minimum five-week stay of a temporary restraining order that barred deportations of illegal aliens who otherwise qualify for amnesty simply because they left and illegally re-entered the country after the law’s enactment.

Attorneys representing the INS argued that the restraining order, issued Nov. 24 by a federal judge in Sacramento, “strikes at the heart of the government’s ability to control immigration at the Mexican border.”

Thousands of Aliens

Agency officials told the court that if the temporary restraining order was implemented, “large numbers of the over 4,000 illegal aliens now apprehended daily at the Mexican border will gain entry into the United States each day.”

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 requires, and INS has spelled out in its preliminary regulations, that illegal aliens who appear to qualify for amnesty should not be deported, pending the opportunity to apply for legalization.

‘Physical Presence’

The law also 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.”

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

The coalition of immigrants’ rights advocates that won the original temporary restraining order argued that the definition of such allowable absences should include people who make brief trips to Mexico and then illegally re-enter this country.

Trips With Permission

But the position taken by the INS--which remains its official policy as a result of Wednesday’s ruling--is that the only absences after the Nov. 6 enactment of the law that can be considered “innocent” are trips abroad taken with written permission.

“The INS has . . . determined that unless an illegal alien obtains authorization from the INS prior to leaving the country, his departure will not constitute a ‘brief, casual and innocent absence’ from the United States, and he will not be granted re-entry in order to establish legalization,” attorneys representing the INS argued in documents presented to the court.

The panel, consisting of Judges Anthony Kennedy, Joseph Sneed and John T. Noonan, gave attorneys for the two sides five weeks to prepare additional arguments, and ruled that an appeal would then be heard at the earliest possible time.