CSS v. INS: Ninth Circuit Issues New Opinion in Amnesty Case, Allowing Thousands to Proceed with Claims

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

CSS V. INS: NINTH CIRCUIT ISSUES NEW OPINION IN AMNESTY CASE, ALLOWING THOUSANDS TO PROCEED WITH CLAIMS
Immigrants' Rights Update, Vol. 14, No. 8, Dec. 27, 2000

In a 6-4 decision, after a rehearing en banc, the Ninth Circuit Court of Appeals issued a new opinion in Catholic Social Services (CSS) v. INS, allowing thousands of amnesty applicants to proceed with their claims. An earlier panel had dismissed the case as time-barred.

Originally filed in 1986 after the passage of the Immigration Reform and Control Act (IRCA), the case involves the Immigration and Naturalization Service's statutory interpretation of "continuous physical presence in the U.S." except for "brief, casual and innocent absences." Under its reading, the INS deemed ineligible for legalization all persons who left the U.S. without permission after Nov. 6, 1986. Immigrant plaintiffs filed a class action lawsuit challenging the INS's interpretation and a federal district court enjoined the agency's policy. The Ninth Circuit upheld the district court but the U.S. Supreme Court reversed and remanded it, holding that relief could be granted only to individuals who actually completed legalization applications or were deterred from doing so because the INS refused to accept their applications.

The plaintiffs amended their complaint and the district court both certified a class and issued an injunction continuing its prior remedial orders. A government appeal followed. While the case was on appeal, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Section 377 of the IIRIRA amended the Immigration and Nationality Act to remove district court jurisdiction over legalization challenges brought by individuals unless they filed or attempted to file completed applications within the legalization deadline. A Ninth Circuit panel, holding that the district court had no jurisdiction over the legalization claims, reversed the lower court and ordered the case dismissed.

Immigrant plaintiffs subsequently filed a new class action suit, naming two prospective classes of plaintiffs. The first class alleged that they satisfied the requirements of section 377 because they completed applications and were turned away. The class included another group of plaintiffs who did not satisfy section 377 but alleged that they had been turned away at the front desk without having been given applications; among these plaintiffs was a group alleging that they had been discouraged from coming to the INS offices by reports of others having been turned away. The second plaintiff class challenged section 377 of IIRIRA as inconsistent with the equal protection component of the Fifth Amendment's Due Process Clause. The district court certified the first group of plaintiffs as a class but refused to certify the second. It also issued an injunction against the deportation of members of the former group or revocation of their work authorization until it could be determined which individuals had been "front-desked" and therefore still eligible for relief. The government appealed.

On appeal, the same Ninth Circuit panel that had previously dismissed the case held that because the six-year statute of limitations had expired, the suit was time-barred. The panel dismissed the action.

Upon rehearing, over the dissent of four judges, an en banc panel of the Ninth Circuit breathed new life into the case. Relying on U.S. Supreme Court cases in which class suits have tolled the statute of limitations for all purported members of the class, the Ninth Circuit held that the statute of limitations did not bar the new action. The court also distinguished cases in which litigants attempted to revive previously dismissed class cases by filing subsequent suits. The court thus held that the statute of limitations was tolled for class members while the initial class action was pending and for would-be class members in the current action. The court also found the government's jurisdictional limitations inapplicable to the current action.

With respect to the injunctive relief, the Ninth Circuit held that the district court acted within its discretion in issuing an order protecting the entire class. However, it disagreed with the district court for declining to grant preliminary injunctive relief to the would-be class of plaintiffs who challenged section 377 on equal protection grounds. The district court had not addressed the equal protection issue because it considered such an examination constrained by the earlier panel's decision. In reviewing the previous panel's decision, the Ninth Circuit determined that the equal protection claim asserted by the second group of class members had not been clearly decided. In doing so, the court cited issue preclusion cases holding that relitigation of an issue is not precluded where it is uncertain whether an issue was actually and necessarily decided. It therefore remanded the issue back to the district court.

CSS v. INS, __ F.3d. __, No. 98-16269 (9th Cir. Nov. 21, 2000).