Judge Voids INS Rule on Amnesty Ineligibility

In a decision that raised the possibility of a court-enforced extension of legalization for as many as 75,000 immigrants, a federal judge Monday declared invalid an Immigration and Naturalization Service rule that left illegal aliens ineligible for amnesty if they briefly left the United States without permission in the last year.

The ruling, issued in Sacramento by Lawrence K. Karlton, chief judge for California’s Eastern District, ordered the INS to refrain from requiring illegal aliens applying for amnesty to first obtain official permission before they leave the country for “brief, casual and innocent” departures.

In his two-page order in a class-action lawsuit, Karlton left open the possibility of further action on how to resolve the cases of illegal aliens who had been declared ineligible for leaving the country without permission, or who had been discouraged from applying for amnesty.

“In general, it is this court’s view that the statute requires a case-by-case determination of whether an absence is ‘brief, casual and innocent,’ ” Karlton wrote.

Faced with a May 4 deadline on the national amnesty program, an attorney for immigrant rights groups that filed the lawsuit said he would press for an extension of the application period for those who had been discouraged from applying for amnesty.

Case-by-Case Review

“There would be no way to have a case-by-case review unless there is an extension (for those affected by the ruling),” said Peter Schey, who heads the National Center for Immigrants Rights Inc. He estimated that at least 75,000 illegal aliens have been discouraged from applying for amnesty because they had left the country without INS permission at some point over the last year.

“Many were told by immigration officials or by groups helping them prepare their application forms that because they left without permission they were ineligible,” Schey said.

Schey filed the lawsuit on behalf of the Catholic Social Services organization and other public interest groups in November, 1986, challenging an INS rule that declared aliens ineligible for amnesty if they left the country for brief departures without permission.

The suit contended that the national immigration law passed by Congress that month did not require INS permission for such brief departures from the country.

Immigrant rights groups have been lobbying for an extension of the entire amnesty program. Last Thursday, the House of Representatives narrowly approved an extension, but the effort, opposed by the INS, faces a tougher road in the Senate and a possible veto by President Reagan.

Although federal immigration officials declined to comment on the judge’s ruling, INS District Director Ernest Gustafson in Los Angeles said he expected the agency to oppose any extension efforts.

“I don’t see how you could justify an extension,” he said, referring to those who had not applied for amnesty after they were told that their brief departures had disqualified them for legalization.

Gustafson urged any illegal aliens who believe they may be covered by the case to apply before May 4. He said that legalization offices in Los Angeles are now getting 5,000 applications a day--up 40% from a month ago--and predicted 700,000 amnesty applications in Los Angeles by the end of the program.

He said that INS legalization offices in the Los Angeles area will be opened for the next week--including Saturday and Sunday--until 7 p.m. and until midnight on May 4.