Job Ban During Deportation Appeals Upheld

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Tens of thousands of suspected illegal immigrants who are picked up by federal immigration agents each year may be barred from working while they contest their deportations, the Supreme Court ruled Monday.

Ending an eight-year legal battle, the high court ruled unanimously that the immigration laws were intended to preserve jobs for U.S. citizens. Moreover, the U.S. attorney general has broad authority to set rules governing deportable people, the justices said.

The 9-0 ruling reverses a series of decisions by federal judges in California that have blocked the no-work rule from going into effect since 1983.


“We have often recognized that a primary purpose in restricting immigration is to preserve jobs for American workers,” said Justice John Paul Stevens, speaking for the court. The no-work rule for deportable immigrants is “squarely within the scope of the attorney general’s statutory authority,” he said.

The vast majority of suspected illegal immigrants who are arrested for deportation leave the country without a legal fight. However, the Immigration and Naturalization Service handled 118,906 deportation cases in 1989 in which suspected illegal immigrants disputed the basis for their deportation. In more than 20,000 of these cases, the suspected illegal immigrants sought political asylum in the United States.

Under the rule upheld Monday, the INS may require as a condition for bond that an arrested suspected illegal immigrant not take a job while he fights deportation.

This rule “will have a devastating impact on tens of thousands of these people,” said Peter A. Schey, an attorney for the National Center for Immigrants’ Rights. “It means they would have to go cold, hungry and homeless to stay here for their (deportation) proceeding.”

Most, he said, would simply choose to leave voluntarily rather than fight deportation under those conditions.

But Schey said that the high court ruling had a “positive element” because it narrowed the reach of the INS rule. Throughout his opinion, Justice Stevens said the rule may be applied only to “aliens who may not lawfully accept employment in this country.” Those who have “green cards” permitting them to work in the United States or some other evidence of their legal status may not be barred from working while they fight deportation, the court said.


Furthermore, each suspected illegal immigrant subject to deportation deserves an “individualized determination” from an immigration judge on whether he or she can work while the case proceeds, Stevens said.

The long legal battle at times seemed to pit federal judges in California against the U.S. Justice Department under Presidents Ronald Reagan and Bush. The INS is a division of the Department of Justice.

In 1983, the INS first decreed that deportable suspected illegal immigrants who want to contest deportation must be barred from “unauthorized employment” during the proceedings. INS officials said this rule was needed to make sure that suspected illegal immigrants who are here illegally do not continue to hold American jobs. Moreover, federal law gives the attorney general clear authority to set such rules, they said.

But immigration lawyers called the rule “a Catch-22.” Deportation proceedings often take several months and can last for several years. How could a suspected illegal immigrant fight his deportation, they asked, if he is barred from working all that time? Acting on an appeal from a dozen suspected illegal immigrants, U.S. District Judge David V. Kenyon in Los Angeles blocked the rule from taking effect in 1983. On three occasions, the U.S. 9th Circuit Court of Appeals upheld Kenyon’s order, despite appeals by the INS.

But the Supreme Court wasted little time in overturning the appellate rulings. Just one month after hearing arguments in the case, (INS vs. National Center for Immigrants’ Rights, 90-1090), the high court issued a 13-page opinion reinstating the INS rule.

In other actions Monday, the court:

--Agreed to rule by spring whether Congress used the wrong mathematical formula in allotting the states seats in the House of Representatives. Since 1941, Congress has used the same formula, but in October two Montana-based federal judges said that this approach was unfair and unconstitutional. Because Montana lost population, it was also set to lose one of its two House seats. But the two judges proposed a formula that would take a seat from Washington state and preserve two for Montana.


If the high court reverses the decision--as expected--the legal dispute will have no effect on state redistricting, which has proceeded under the formula set by Congress. If the court were to agree that the current formula is unconstitutional, it could throw a wrench into the November, 1992, congressional elections. Arguments in the case, (U.S. Department of Commerce vs. Montana, 91-860), will be heard Feb. 24.

--Ruled that military reservists who take a leave for military training are entitled to get their jobs back, no matter how long they are gone. The 8-0 ruling in King vs. St. Vincent’s Hospital said that federal law guarantees reservists the right to their old jobs.