Court Rules Amnesty Is Open to Suits

The Supreme Court ruled Wednesday that aliens have a legal right to mount broad court challenges to how the government has implemented the massive amnesty program begun in 1986.

The 7-2 ruling was a major procedural victory for as many as 250,000 aliens who could be affected by pending class-action lawsuits against the Immigration and Naturalization Service.

The ruling will allow legal aid attorneys to contest policies under which thousands of aliens were rejected for amnesty, including an INS decree barring amnesty for those who left the country for a brief period between 1982 and 1986.

“This is an extremely important step toward bringing the amnesty program toward an honorable end,” said Peter A. Schey, an immigrant-rights attorney in Los Angeles.

Under the Immigration Reform and Control Act of 1986, Congress granted amnesty to aliens who had lived illegally in the United States since 1982. In addition, agricultural workers who labored at least 90 days a year were entitled to legal status, even if they moved to the country after 1982.

Although more than 2.5 million aliens eventually received amnesty under the program, immigration attorneys have criticized the INS for policies and procedures that they characterized as unduly rigid or even unconstitutional. For example, Haitian agricultural workers in Florida were interviewed by INS workers who did not understand Spanish or Haitian Creole.

The Bush Administration, however, maintained that, even if these policies and procedures were unfair or unconstitutional, the 1986 law stated that they were not subject to judicial review.

The Supreme Court decisively rejected that view in Wednesday’s ruling.

There is not “any dispute that the INS routinely and persistently violated the Constitution and statutes in processing (amnesty) applications,” Justice John Paul Stevens wrote.

Although Stevens said Congress did not want federal judges deciding thousands of individual amnesty claims, “it seems plain to us” that Congress did not intend “a total denial of judicial review of generic constitutional and statutory claims.”

Chief Justice William H. Rehnquist, joined by Justice Antonin Scalia, dissented, saying the law intended to keep out of the courts “an avalanche of claims from non-citizens.”

The high court ruling keeps alive a half-dozen class-action challenges to INS amnesty policies, including two that have been pending before the U.S. 9th Circuit Court of Appeals in California.

In the two California cases, immigration attorneys are contesting the INS rule that denies amnesty to aliens who left the country for a brief period. They also contend that aliens who did not seek amnesty because of an earlier, even more rigid version of this rule should now have a second chance to apply.

“This rule wiped out most of the Asians and Europeans (seeking amnesty),” said Schey, executive director of the Center for Human Rights and Constitutional Law. “If they left the country and then came back on a student visa or a tourist visa, they were out.”

Schey estimated that the pending class-action suits would affect about 250,000 aliens.

Until Wednesday, attorneys for the government had maintained that lawsuits challenging the travel policy should be dismissed, arguing that federal judges had no authority under the 1986 law to rule on such issues.

“If we had lost this case, it would have permitted lawless activity by the INS to go unchallenged,” said Richard Larson, legal director of the Mexican American Legal Defense and Educational Fund in Los Angeles. “Hundreds of thousands of people would have simply lost their right to amnesty.”

INS spokesman Duke Austin stressed that the ruling does not necessarily mean that the policies being challenged will be struck down, only that the lawsuits can proceed.

On several occasions, however, government attorneys have appealed judges’ rulings even when they have agreed that the policies in question should be changed.

In 1988, the Haitian Refugee Center and a Catholic relief agency in Palm Beach, Fla., filed suit on behalf of 17 aliens challenging the way the INS handled amnesty applications from farm workers. Among other things, the suits said the INS did not have Spanish-speaking interpreters and did not allow farm workers to present witnesses who could testify that they had worked for 90 days.

In response, U.S. District Judge C. Clyde Atkins ordered the INS to change its procedures, and the agency agreed to do so. Nonetheless, the Justice Department appealed the issue, first to the federal appeals court in Atlanta and then to the Supreme Court.

The lower court rulings “sanctioned the improper intervention of federal district courts into the day-to-day business of administering the immigration laws,” the government said.

The 1986 law said there “shall be no administrative or judicial review of a determination respecting an application,” which precludes judges from getting involved, the U.S. attorneys argued.

But in Wednesday’s ruling (McNary vs. Haitian Refugee Center, 89-1332) the high court said the law bars judges from deciding individual claims but not from hearing class-action suits broadly challenging INS policies and procedures.

Since the general legal amnesty program began, 1.8 million aliens have applied and 1.6 million have been approved. About 46,000 applications are pending, the INS said.

Under the special agricultural worker program, nearly 1.3 million people applied and 892,000 applications were approved. About 325,000 cases remain open, the INS said.

California is home to about 700,000 of the 1.3 million agricultural workers who sought amnesty.