Job Ban Is Upheld During Deportation Case Appeals


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 held.

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 ruling could adversely affect hundreds, even thousands of immigrants and their families who may qualify to be in the country legally but would be afraid to contest deportation, fearing economic calamity, according to Nativo Lopez, director of Hermandad Mexicana Nacional, a Santa Ana-based immigrant-rights organization.

“I think an immigrant who is picked up by the INS would probably seek deportation and not contest it by asking for a hearing,” Lopez 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 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 Justice Department.

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? “What if those who seek a deportation hearing prove they are here legally?” said Lopez of the Santa Ana group. “By not working, (the immigrant) can’t sustain his family, and that’s a deportable offense.”

The ruling also threatens an immigrant’s equities such as a car or home, which he or she may have acquired while being here illegally, Lopez said.


“It’s more in the interest of government to have that individual stay here and provide for his own family, than to have him deported and have them go on the welfare rolls,” Lopez added.

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.

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.

--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.