Ruling Allows Deportation of Some Aliens

In a decision denounced by immigration rights advocates, a divided three-judge panel of the U.S. 9th Circuit Court of Appeals has ruled that U.S. immigration officials can deport illegal aliens who briefly left the country without permission since enactment of an amnesty program last November.

Attorneys representing immigration rights groups vowed Saturday to seek the immediate reversal of the federal court decision, claiming that it will permit the government to deport “thousands” of illegal aliens otherwise eligible for permanent residency under the new law.

“The impact of this is that it allows the Immigration and Naturalization Service to continue deporting thousands of aliens who would otherwise appear to qualify for amnesty,” said Peter Schey, director of the National Center for Immigrants’ Rights in Los Angeles, part of the coalition that challenged the immigration policy in court.

“We’re talking about people who may have gone back to their native country over Christmas or to visit sick relatives since Nov. 6,” Schey added. “Under the 9th Circuit’s ruling, if they are caught re-entering the United States or admit it at some future point, they can lose their rights to amnesty.”

The 9th Circuit opinion, issued in San Francisco on Friday, overturned a temporary restraining order issued last November by U.S. District Judge Lawrence Karlton of Sacramento. Karlton’s order had already been stayed pending the 9th Circuit review.

Neither the original restraining order nor the 9th Circuit decision affected the key provision of the amnesty program, which grants residency to aliens who have lived in the country “continuously” since before Jan. 1, 1982. Proposed INS rules would allow these people single absences of up to 45 days and total absences of 180 days during those five years.

INS officials opposed Karlton’s restraining order relating to temporary travel restrictions on grounds that it would create “chaos” at the Mexican border, the entry point for most illegal aliens. Government lawyers claimed that aliens seeking entry to the United States would routinely claim that they were simply returning from brief trips abroad.

Conservative Dissented

Agreeing with the INS arguments were Circuit Judges J. Blaine Anderson of Boise and Arthur Alarcon of Los Angeles, two conservative members of the 28-judge 9th Circuit Court. Dissenting from their ruling, however, was another leading conservative, Judge Cynthia Holcomb Hall of Pasadena.

While Anderson, who wrote the majority opinion, found it proper for the INS to insist that any aliens eligible for amnesty must have advance approval to leave the country for “brief, innocent and casual” departures, Hall objected to the ruling on grounds that it was premature and failed to consider the hardships to aliens as well as to the INS.

The purpose of the new law is “to control our borders and enable the INS to target its enforcement efforts,” Anderson wrote. “To do this, the INS is attempting to concentrate on stemming new flows of undocumented aliens.”

Noting the division among conservative judges of the 9th Circuit, Schey predicted Saturday that the defeat in the first major federal court test of how the new amnesty program will be administered was only a “temporary setback” for immigration groups.

‘Reason for Optimism’

“By early next week we will petition for an en banc rehearing by the entire 9th Circuit,” Schey said. “The fact that a conservative panel was split on this is reason for optimism that broader spectrum of judges on the 9th Circuit will take another view.”

Joining Schey in criticizing the decision was attorney Lee O’Connor, another member of the National Center for Immigrants’ Rights, who said the ruling affects thousands of people who “were not even aware that the INS had any rules about advance travel notification.”

Schey said the 9th Circuit acted without hearing new evidence obtained by a coalition of immigrant rights groups in recent weeks that challenged INS claims that the requirement for advance travel permission was widely publicized to immigrant groups.

“The fact is that almost nobody ever heard of this rule,” Schey said. “About 300 people in the entire country applied for travel outside the country, and the only ones approved by the INS were when a family member had died or someone was ‘gravely’ ill. They turned down people whose mothers were considered ‘seriously ill,’ but not in critical condition.”

Importance of Challenge

Schey said the importance of a strong challenge to the 9th Circuit ruling is that the case is the “first interpretation of the new amnesty law” and will encourage INS officials to take a strict approach to the rules being established for eligibility for amnesty.

INS officials could not be reached for immediate comment on the decision, but expressed confidence after Karlton’s original order that the judge would be reversed at the appellate level in the interests of maintaining “efficient law enforcement efforts” along the Mexican border.