Judge Rebuffs INS on Policy in Amnesty Case

A federal judge on Monday partially opened the door to legal residency for 50,000 to 100,000 aliens who have been declared ineligible for amnesty because they left the United States briefly and returned with non-immigrant visas.

U.S. District Judge William D. Keller called the government’s reasoning in withholding amnesty for those immigrants “frankly tortured,” and ruled that a former Immigration and Naturalization Service policy that made them automatically ineligible for amnesty was illegal. But the judge stopped short of immediately extending the amnesty period for the aliens.

The former policy, revised by the INS in mid-November, held that aliens who left the United States for brief periods and used a non-immigrant visa to return were ineligible for amnesty because they could not show a period of continuous illegal residence as required under the amnesty law.

The policy did not apply to people who left the country but sneaked back across the border illegally, and as such applied primarily to immigrants from regions other than Mexico or Central America.

Uninterrupted Residency

Government lawyers argued that people who had returned without visas did not interrupt their continuous illegal residency, but Keller soundly rejected that argument.

“Basically what I’m saying is it is abundantly clear to this court that your interpretation of the law is frighteningly deficient. . . . I think it was frankly tortured,” Keller told Assistant U.S. Atty. George Wu.

The League of United Latin American Citizens filed a class-action lawsuit challenging the policy. But before the case could go to trial, the INS amended the policy to allow aliens to apply for amnesty if they obtained a waiver excusing them for having improperly entered the United States with a non-immigrant visa.

LULAC also challenged the amended policy, arguing that while 97% of all such waiver requests are granted, applicants should not have to pay the $35 waiver fee.

Waiver Fee OKd

But Keller rejected that argument on Monday, holding that it is “abundantly clear there is a rational basis” for the waiver requirement.

Still at issue is how to handle what Peter Schey, attorney for the plaintiffs, said is an estimated 50,000 to 100,000 immigrants who did not apply for amnesty because they believed that they were ineligible under the old policy and never heard of the revised policy.