Ruling Revives Amnesty Program


A federal judge has breathed new life into one of the nation’s longest-running lawsuits, increasing the likelihood that thousands of undocumented immigrants around the country will be able to become lawful U.S. residents.

The ruling by U.S. District Judge Lawrence K. Karlton in Sacramento could end 16 years of legal limbo for the immigrants, many of whom were rejected for residency under the 1986 federal amnesty program because they had temporarily left the United States in previous years.

“It’s a fantastic decision,” said the plaintiffs’ lead lawyer, Peter A. Schey of the Los Angeles-based Center for Human Rights and Constitutional Law. “It will open the door to tens of thousands” of long-term undocumented immigrants to become legal residents.

Schey said he would file a motion by March 4 seeking to permanently bar the Immigration and Naturalization Service from attempting to prevent thousands of immigrants covered by the legal decision from applying for lawful permanent residency.


An INS spokesman said the agency would have no comment until its attorneys had thoroughly reviewed the ruling, which Karlton filed without fanfare Feb. 15.

The lawsuit stemmed from the INS’ response to the 1986 Immigration Reform and Control Act, which was designed to allow more than 3 million formerly illegal immigrants--including 1.6 million California residents--to emerge from the shadow world of the undocumented.

The suit, originally filed that year, alleged that up to 350,000 immigrants were illegally disqualified by the INS from applying for the amnesty program offered in the reform law. Individuals who were granted amnesty gained legal entitlement to work permits and became eligible for lawful residency--and eventual citizenship.

Since 1986, the case has bounced back and forth among Karlton’s court, the U.S. 9th Circuit Court of Appeals in San Francisco and the U.S. Supreme Court.


In a November 2000 ruling, 9th Circuit Judge William A. Fletcher likened the protracted litigation to a Russian novel, saying it had “a long and unhappy history.”

But Schey said he thinks the immigrants may now be on the verge of overcoming “a war of attrition” waged against them by the INS.

“This is not a case in which we are trying to legalize a large population of immigrants based on far-out legal theories. This is a case in which we have fought to enforce the law as written by Congress, and the INS has engaged in vexatious litigation to avoid its obligations under federal law,” Schey said.

In order to qualify for amnesty under the 1986 law, the immigrants were required to show that they had maintained continuous U.S. residence from 1982 to May 4, 1988, when the application period closed, but brief absences were permitted.

Congress said it wanted any interpretation of the program to be “generous.”

Specifically, the law said that the immigrants could have had “brief, casual and innocent” absences abroad and still be eligible for the program.

When the INS issued its regulations to implement the law, however, the agency disqualified any illegal immigrant who had left the country without INS permission--about 250,000 people--during the relevant period.

Many of those were people who had left the U.S. to visit relatives in Mexico or Central America and then returned.


As soon as the regulations were published, the nationwide-class action suit was filed in Sacramento challenging the INS rules.

Thousands of applicants for amnesty were rejected by the INS after filing formal applications because of their temporary absences. In addition, thousands of other applicants who had left the U.S. temporarily were rejected by INS clerks without even being permitted to file an application. And thousands of other immigrants never even applied after they heard the INS was denying amnesty to anyone who had left the country temporarily, Schey said.

In June 1988, Karlton issued his first major ruling in the case. He said the INS regulations were inconsistent with the plain language of the 1986 law. He issued an order extending the period immigrants could apply for amnesty until November 30, 1988.

About 20,000 to 30,000 immigrants who had already submitted complete paperwork were then accepted by the INS, according to attorney Carlos Holguin, Schey’s co-counsel.

However, the INS appealed, and the extended application period never went into effect for the other plaintiffs.

The immigrants won a number of court battles in the case over the next eight years, and thousands garnered temporary work permits. But the INS continued to appeal, and the ultimate outcome remained in doubt.

While an INS appeal of a 9th Circuit ruling was pending, Congress passed the tough Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Among other things, the act said federal courts no longer had jurisdiction over issues involved in this case and two related lawsuits.

Schey then filed a new-class action suit and Karlton once again issued an injunction against the INS and granted temporary work permits and temporary protection from deportation for about 50,000 immigrants.


A three-judge panel of 9th Circuit judges, however, ruled 2-1 in 1998 that Karlton no longer had jurisdiction over the suit. He reluctantly dismissed it, and thousands of immigrants lost their temporary work permits.

In November 2000, a larger panel of 9th Circuit judges, led by Fletcher, reversed the decision of the three-judge panel.

The court majority said that a large group of immigrants could continue to challenge an INS ruling that they were ineligible for the 1986 amnesty program and that another group of immigrants--including thousands of children--could challenge the agency’s actions, even though they filed suit long after the six-year statute of limitations had run out.

Just a month later, Congress enacted the Legal Immigration and Family Equity Act Amendments of 2000, known as the LIFE Act. Among the benefits the law conferred was temporary restoration of the long-expired 1986 law permitting certain illegal immigrants to become lawful permanent residents of the U.S. It also voided the court-stripping provisions of the 1996 law. Schey then amended the lawsuit for the eighth time, leading to this month’s ruling.

The ruling by Karlton means that people who were rebuffed by clerks at INS, or who can show that INS actions were a substantial cause of their failing to apply for amnesty, are eligible to apply for residency under the 1986 law or the 2000 LIFE Act.

It is easier to qualify under the 1986 law, but people who are accepted under the 2000 law can become permanent residents more rapidly.

Karlton’s ruling also allows thousands of other individuals who never applied for a work permit to go to trial to contend that they have been denied equal protection of the law under the 14th Amendment to the Constitution. Those individuals are not eligible to apply for permanent residency under the LIFE Act because they never applied for a work permit--something many of them had no reason to do because they were children.

“It makes no sense to penalize kids who had no control over this,” Holguin said.