Groups Sue INS on 2 Amnesty Issues

A coalition of civil rights and immigrant activist organizations filed suit Wednesday against the Immigration and Naturalization Service, charging that the INS is unfairly disqualifying tens of thousands of illegal aliens from the amnesty program because they left the country for brief periods and returned using legal visas.

In a companion lawsuit, farm workers demanded that the INS stop forcing alien workers in the United States to provide documentation of their employment history to obtain temporary work credentials--a requirement that has been eased at border crossings for aliens returning from Mexico to work on U.S. farms.

Peter A. Schey, the lawyer who filed both class-action lawsuits in federal court, said they challenge “the restrictive, capricious and arbitrary manner in which the INS is implementing the new amnesty programs, resulting in the unlawful deportations of amnesty-eligible aliens and the denials of employment authorizations to amnesty-eligible aliens.”

Schey, an attorney with the National Center for Immigrant Rights Inc., said that the legal visa issue has become one of the most “significant problems” arising from the INS management of the amnesty law and could eventually affect as many as 250,000 immigrant families.

That figure, Schey said, was derived from a nationwide canvass of more than 100 legalization processing agencies indicating that between 15% and 20% of their applications may be rejected because of the use of legal visas.

INS officials labeled the first lawsuit “premature,” saying a decision is forthcoming on the legal visa issue. Responding to the second lawsuit, agency spokesmen denied that illegal immigrants were having difficulty getting documentation and complained that the lawsuit thrust the INS into the long-simmering war of nerves between agricultural growers and the United Farmworkers Union.

Ironically, illegal aliens who were caught in the past with expired visas were often sent back to their homeland. But because the new amnesty law is aimed at illegal immigration, the INS has interpreted aliens’ re-entry into the United States with legal visas as a break in their illegal residence, disqualifying them from amnesty.

Top immigration agency officials in Washington are reportedly mulling over the legal visa question, and a number of high-ranking agency officials, such as Los Angeles INS District Director Ernest Gustafson, have come out publicly for a more lenient interpretation of the issue.

Some INS districts, including Los Angeles, are placing such cases on hold until a decision on the legal visa question is made by the agency.

According to immigration lawyer Warren Leiden, some legalization offices have even told amnesty applicants that despite the national INS policy cracking down on those who use legal visas, they will be allowed “at least one free entry on a legal visa.”

Despite the growing pressure within and outside the agency for a change in direction on the cases of immigrants who use visas, INS spokesman Duke Austin said there is still no date for a decision from INS Commissioner Alan Nelson.

Austin and other INS officials said they know of no cases thus far where aliens have been denied an amnesty application because they used a legal visa. Gustafson dismissed the lawsuit as an attempt to “jump on the bandwagon long after the band has left town.”

But Schey, noting that some aliens have already received recommended denials from some legalization offices because of their use of visitors’ visas, responded that the agency has had more than enough time to reconsider its interpretation. Schey said the INS’ “foot-dragging” is forcing many immigrants to hold off their applications until they are certain that their use of legal visas will not disqualify them from amnesty.

Graciela Padilla, one of a dozen plaintiffs in the legal visa lawsuit, has been ready for months to apply for amnesty, but she worries that her occasional use of legal visas to return from family visits to her hometown in the state of Durango, Mexico, will force her to leave the United States.

Keeping Family Together

“I am afraid that I would be sent back and my children would be left here without me,” said Padilla, 27, a nursing assistant who lives with her husband and four children in Los Angeles.

While the use of legal visas by Mexican immigrants is apparently widespread as an alternative to making dangerous border crossings, the greatest use is by European, African, Caribbean and Asian illegal aliens who must return from visits through U.S. ports of entry at airports.

In the second lawsuit, a group of farm workers has charged the INS with making it difficult for illegal aliens who work on American farms to apply for amnesty. Under the special agricultural amnesty that started in June, farm workers who present “non-frivolous” applications are supposed to immediately receive work authorizations to allow them to continue toiling on U.S. farms.

Documentation Needed

But INS officials have continually insisted that these workers provide documentation of their employment history to get their work cards. Schey and United Farmworkers Vice President Delores Huerta complained that many fruit and vegetable growers have thrown a snag into the program by either withholding documentation or demanding large payments for employment histories.

The situation was further aggravated in recent weeks by the INS decision to allow farm workers who had returned temporarily to Mexico to apply for amnesty at border legalization offices without having to produce any documentation--a move spurred by complaints by American growers that severe worker shortages have been caused by the amnesty.

As a result, Schey contends, thousands of illegal alien workers may lose out on their amnesty here while others coming across the border get immediate work authorizations. “The obvious result is that the growers will be able to replace unionized workers with non-union workers desperate for jobs,” Schey said.

Austin denied any complicity with growers and said the agency was being placed in the middle of the war between growers and farm workers. Gustafson added that he saw no evidence that growers were depriving many farm workers of documentation.

Times staff writer Marita Hernandez contributed to this story.