Enforcement Standard Called Too Rigid : Suit Challenges INS on Visa Violations

A group of aliens and immigration lawyers filed suit against the Justice Department on Monday, contending that its interpretation of the 1986 Immigration Reform Act may deprive as many as 50,000 aliens of a chance to become legal citizens.

The class-action suit focuses on students, tourists and others who entered the United States legally before 1982 but violated the terms of their visas, perhaps by taking jobs.

If the violation was “known to the government” at the time, the 1986 law declared, the aliens can now apply for legal citizenship.

Stubs Called Enough

The immigration lawyers say that pay stubs showing income or Social Security taxes withheld should be enough to show that the government knew the aliens were working here. But the INS says the aliens must have informed the INS of their visa violation.

“That’s a ludicrous interpretation,” said Eleanor Pelta, an attorney who worked on the suit for the Washington Lawyers’ Committee for Civil Rights Under Law. “No one would come into an INS office and wave a flag that says, ‘I’m illegal.’ ”

The suit asks Judge Stanley Sporkin either to enjoin the INS from using its rigid standard for enforcing the law or to extend the May 4 national deadline for applying for citizenship so that these aliens can have their problems worked out.

INS spokesman Verne Jervis said the agency would not comment on the suit. However, in earlier statements on the issue, the INS said that it “would make enforcement difficult, if not impossible,” if aliens could cite any document from a federal, state or local agency to back their claim that they were “known to the government.”

The suit also illustrates an irony of the 1986 immigration act. Aliens who have been here legally since before Jan. 1, 1982, and complied with the terms of their visas have no grounds for seeking legal citizenship now. However, if they clearly violated their visas and stayed here since, they are entitled to apply for citizenship now.

Although the largest number of persons affected by the 1986 law are aliens who entered the United States without visas before Jan. 1, 1982, immigration lawyers said at a press conference Monday that studies have estimated that between 30,000 and 50,000 persons may have entered legally before 1982 and remained but violated their visas.

Antonio Hernandez, president of the Mexican American Legal Defense and Educational Fund, said Congress intended the Justice Department and the INS to adopt a liberal approach in implementing the immigration reform law.

“This regulation is clearly inconsistent with” the 1986 law, Hernandez said. “ ‘Known to the government’ means exactly what it says: that some department or agency of the federal government had information, before Jan. 1, 1982, which indicates the alien’s unlawful status.”

Attorneys said the key phrase was added to the law to prevent aliens from making clearly fraudulent claims that said they were in the United States before 1982 and therefore were eligible for citizenship now.

In January, in a similar suit, a federal judge in Texas ruled against the INS and said the law’s reference to “the government” should also “include the Internal Revenue Service and the Social Security Administration.” Despite that, the INS has refused to alter its regulation.