New Law Could End Immigrants’ Amnesty Hopes

Federal authorities, acting on controversial new congressional restrictions on judicial review, have moved to dismiss lawsuits by hundreds of thousands of illegal immigrants who say they were wrongly disqualified from the government’s 1980s amnesty program.

Atty. Gen. Janet Reno, citing wording in the new immigration law passed by Congress last week, filed motions to dismiss the class-action suits in California and Washington state. If judges side with the government, it will mean that most of the estimated 400,000 people covered by the class-action suits will have little hope of attaining legal status.

“The bottom line is that they have managed to stay here based on legal action, without having been granted any kind of permanent legal residency,” noted Carole Florman, a Justice Department spokeswoman.

The attorney general acted under authority included among the broad new congressional restrictions on judicial review of immigration cases. Proponents say the changes were needed to curb frivolous litigation, but critics called the revisions an unconstitutional infringement on the courts.

Public discussion of the new constraints on judicial power has been somewhat muted, as debate has focused on provisions such as the law’s doubling of U.S. Border Patrol forces and a proposal, which was withdrawn under threat of a White House veto, to allow states to deny public education to illegal immigrant youngsters.

One of the major results of the new law, experts say, is to effectively eliminate broad class actions in immigration cases.

By enacting the new provisions, the Republican-controlled Congress narrowed the historic role of the federal courts in reviewing decisions on deportation, political asylum and other matters. Sponsors cited frustrations with litigation that has allowed many illegal immigrants, including convicted criminals, to prolong their stays for years and even gain legal resident status.

“We’re tired of these suits every time you don’t give out benefits to as many people as some lawyers think you should,” said Dick Day, chief counsel to the Senate’s immigration subcommittee, headed by retiring Sen. Alan K. Simpson (R-Wyoming), an architect of the restrictions.

Rep. Lamar Smith (R-Texas), who heads the House subcommittee on immigration, has said the revisions are necessary to close “loopholes” exploited by attorneys representing illegal immigrants.

But critics point to a history of abuses by the U.S. Immigration and Naturalization Service--abuses they say have been directed not only at illegal immigrants but also at legal immigrants and even U.S. citizens, some of whom have been wrongly detained and even expelled because of their appearance or accents.

“These proposals grant agency authority to take constitutionally questionable action and raise issues of constitutional dimensions wholly apart from the immigration context and the rights of immigrants,” wrote 90 law professors who urged House-Senate conferees to reject the new limits. “The most basic safeguards of due process are threatened.”

Major support for the revisions comes from the Federation for American Immigration Reform, which has long advocated speedy deportation of illegal immigrants and major reductions in levels of legal immigration.

“Immigration lawyers want illegal aliens to have the protections of an O.J. in every asylum and deportation case,” complained Dan Stein, the federation’s executive director.

Civil libertarians, however, denounce the congressional action as “court-stripping” and vow to challenge the new provisions under various constitutional principles, including the doctrine of separation of powers, equal protection guarantees and habeas corpus safeguards against unlawful detention.

“This is a radical attack on the courts and the constitution,” said Lucas Guttentag, who heads the national immigrant rights project of the American Civil Liberties Union.

The ACLU is already in federal courts from New York to California challenging related court-restricting provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996, signed into law last spring.

Both the terrorism statute and the new immigration law also contain “summary exclusion” authority, limiting federal court review in cases of suspected illegal immigrants apprehended at borders, airports or other ports of entry, among other places.

In a case with ramifications for a far larger population, the law appears to dash the hopes of hundreds of thousands of long-term resident illegal immigrants who contend that they were wrongly denied lawful status during the federal government’s long-expired amnesty program.

The relevant section strips the courts of jurisdiction in five federal class-action suits filed by people who contend that INS guidelines illegally excluded them from the amnesty or “legalization” program of 1987-88, which resulted in legal status for more than 3 million people, half of them in California. Those are the suits that Atty. Gen. Reno moved to dismiss on Friday.

As the acrimonious court battles raged up to the Supreme Court and back, the so-called “late amnesty” pool of hopeful applicants swelled to 400,000 people, attorneys say. All must have resided in the United States since at least 1982; many have children who are U.S. citizens. “Late amnesty” support groups have sprung up in Los Angeles and the issue has generated intense interest in the ethnic press.

“With this new law, I feel fearful and I want to cry,” said a disconsolate Jorge Proano, 48, an Ecuadorean immigrant and father of four who lives in Northridge and has pinned his family’s hopes on winning a late amnesty slot. “It’s impossible for me to think about going back to live in my country after making my life here.”

Various constitutional experts contacted agreed that the new limitations could raise questions about the separation of powers and other constitutional principles.

The broad new constraints on judcial review of immigration matters raise “very grave constitutional questions,” said Laurence Tribe, a Harvard law professor and constitutional expert.

There are few examples of successful legislation limiting federal court review in this manner, scholars say, despite periodic congressional attempts in arenas such as desegregation, school prayer, abortion rights and national security.

But Martin Redish, a professor at Northwestern University School of Law in Chicago, argued that Congress has “broad powers” to control the jurisdiction of federal courts, though some limits exist.

President Clinton signed the changes into law last week as part of the congressional budget package after the Republican leadership agreed to delete various hotly disputed portions. But the limits on judicial review, which drew little public attention, remained largely intact.

The most far-reaching new limitation may be a section that effectively bars courts below the U.S. Supreme Court from issuing broad injunctions against the INS. Most individual immigrants who claim abuse may still sue the INS and seek specific relief. But immigrant advocates say the threat of federal court injunctions arising from broad class-action suits is a crucial check on INS abuse.

In recent years, class-action lawsuits have resulted in fundamental changes in INS practice. Successful challenges have focused on a constellation of alleged INS misdeeds, from discrimination against Haitian, Salvadoran and Guatemalan asylum-seeekers to warrantless searches of farm workers’ homes to improper interrogations of people based solely on ethnic appearance.

INS officials maintain that their agency has become much more professional and is less in need of judicial oversight.

“We’ve made a lot of progress, and we don’t always have to have the threat of federal court injunctions and class-action suits,” said David Martin, the agency’s chief counsel.

Others reject that argument.

“It’s ludicrous to believe that the INS can, or will, or has any interest in policing itself,” said Peter Schey, executive director of the Center for Human Rights & Constitutional Law, which has sued the agency repeatedly.

The new law also contains specific provisions undercutting lawsuits in several pending, highly contested cases.

In one instance, the law appears to void a challenge, now before the Supreme Court, by several dozen Vietnamese refugees in Hong Kong who are seeking to resettle in the United States. The Vietnamese have waged a successful appeals battle in Washington, challenging a State Department policy forcing them to return to Vietnam before obtaining U.S. visas.

In another case, a new limit on federal court review of claims arising from deportation proceedings could affect the celebrated 10-year-old deportation battle of the “L.A. 8,” seven Palestinians and a Kenyan who contend that they were targeted by the INS for political reasons. The eight are pursuing claims of selective prosecution.

The new law, said David Cole, a law professor at Georgetown University who represents the eight, “is a remarkable act of chutzpah on behalf of an agency, the INS, that has probably been found by the courts to have violated the law more than any other federal agency.”