Update to CSS and LULAC Class Members, Attorneys, and Advocates

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

UPDATE TO CSS AND LULAC CLASS MEMBERS, ATTORNEYS, AND ADVOCATES
by Peter Schey,* Center for Human Rights and Constitutional Law
Immigrants' Rights Update, Vol. 15, No. 8, Dec. 20, 2001

On Dec. 10, 2001, the federal district court in Sacramento held a hearing in the Catholic Social Services (CSS) case to deal with the plaintiffs' motion to amend the complaint to obtain a remedy for class members who never applied for work authorization. The court recently reinstated the CSS 1 case, which was dismissed in 1999 after enactment of section 377 of the Immigration and Nationality Act.

We at the Center for Human Rights and Constitutional Law (CHRCL) recently have had several discussions with the government about the future of CSS, as well as about the LULAC/Newman case and the LIFE Act. During these discussions, we have been told that the Immigration and Naturalization Service is considering issuing final regulations implementing the LIFE Act in the next few months and extending for another year the period during which persons who registered as class members in CSS or LULAC may apply for adjustment under the LIFE Act. Also, we believe that the final regulations will resolve several problems class members have faced under the interim regulations that are now in effect. We believe applications filed after the final regulations are issued may be treated more favorably than applications being filed now under the interim regulations.

We plan, in the near future, to file a motion for final relief in the CSS case. We will ask the court to issue a final order, much like the final order it issued in the summer of 1988, requiring the following: (1) that the INS publicize the availability of final relief; (2) that the INS accept and adjudicate applications under the Immigration Reform and Control Act of 1986, using IRCA standards that appear to be more favorable than those provided for under the LIFE Act (at least as interpreted by the INS); and (3) that a mechanism be provided so that the INS's compliance can be monitored by the court (to avoid arbitrary denials of legalization, a feature not available in the LIFE Act).

The LULAC/Newman case is still pending before the Ninth Circuit Court of Appeals. However, we intend to file a motion soon with the court of appeals asking that the case be returned to the federal district court, where we will apply for a remedy for Group 2 class members (those who visited an INS or "Qualified Designated Entity" office during the 1987-88 application period without a complete application in hand and who were turned away).

Given these developments, here is what we recommend for class members and their advocates:

1. If a class member has work authorization and has not yet filed under the LIFE Act, it might be beneficial to wait to file until the INS issues the final LIFE Act regulations. We believe the INS will extend work authorization already issued under CSS or LULAC/Newman. We believe the final regulations will be more generous than the interim regulations in several respects (e.g., the interim LIFE Act regulations permit only "brief, casual and innocent" absences from the U.S. for 30 days or less, but there is no such limit under IRCA legalization and the CSS district court's April 1988 summary judgment order). Class members may also want to see what kind of final relief order the district court is willing to issue in the CSS case, something we may know in the next couple of months.

2. Class members who have already applied under the LIFE Act should have an attorney review their applications (if they can afford an attorney or if they have access to a local free legal services program) to make sure that the application is as strong as possible, especially proving residence in the United States between Jan. 1, 1982, and May 4, 1988. This is particularly true if (1) the applicant does not have hard evidence of residence for 1982 (we consider hard evidence to be documents such as school records, a visa, checking account, medical records, driver's license, etc.), or (2) the class member had absences between 1982 and May 1988 of more than 30 days (without INS advance parole). Applications without such hard evidence of residence during 1982 and the early years (1982-85) must be supported by detailed affidavits from family members and friends showing that the applicant resided in the U.S. from January 1982 to May 1988. We are recommending that applicants try to submit about ten such affidavits. We can provide applicants with a sample affidavit. This can be obtained by contacting Silvia at CHRCL (213-388-8693, ext. 107) or via e-mail by contacting me at pschey@centerforhumanrights.org

3. Class members who used to have work authorization but were unable to obtain an extension of it in 2001 should contact me by e-mail or send a letter and a copy of their file to me at the Center for Human Rights, 256 S. Occidental Blvd., Los Angeles, CA 90057. We can try to help such class members reobtain work authorization. If the work authorization cannot be obtained and is needed, the class member should probably then apply under the LIFE Act before the final regulations are issued or a global settlement reached.

4. Class members who have never obtained work authorization and who need it should probably prepare and file their LIFE Act applications now. However, if possible, such class members should have a lawyer help them prepare their applications.

5. Class members who have applied under the LIFE Act and received denials or a Notice of Intent to Deny should e-mail me at pschey@centerforhumanrights.org. They should also make a complete copy of their file, including (1) their original application for work authorization, (2) copies of their work authorization (if they were granted work authorization) and interview notices, and (3) their LIFE Act application, and mail these documents to me at the Center for Human Rights (address above). They can also call me at 213-388-8693, ext. 104, and if I am not available leave a message (clearly spell your name and slowly state your telephone number, and explain that you have received a denial or a Notice of Intent to Deny).

6. Class members who filed Legalization Questionnaire forms and have not yet received a decision should expect decisions in the next few months. The Vermont processing center has processed about 7,000 cases and is working on about 6,500 remaining cases. The approval rate is now about 30 percent.

7. Class members whose Legalization Questionnaire forms were approved and who filed legalization applications with the INS processing center in Texas should be patient (the INS says it has to work out problems with its computers before these cases can be processed).

In summary, if we are successful in winning a final relief order in CSS, class members may be able to file applications for legalization under CSS, under the LIFE Act, or both.

If we are successful in getting a final relief order for Group 2 in the LULAC/Newman case (in which Group 1 front-desked class members already had the opportunity to apply for legalization), then Group 2 class members may be able to file applications for legalization under LULAC/Newman, under the LIFE Act, or both.

People who have access to the internet can also check the CHRCL's web page at www.centerforhumanrights.org for further updates.

*(Peter Schey is Director of the Center for Human Rights and Constitutional Law and counsel for the plaintiffs in the CSS and Newman cases.)