Cite as "AILA InfoNet Doc. No. 99102158 (posted Oct. 21, 1999)"
Testimony of Jeanne A. Butterfield on How to Fix the Late Amnesty Problem
The House Judiciary Subcommittee on Immigration & Claims
Ranking Members and Minority Members
Thursday, October 21, 1999
Ms. Jackson-Lee and distinguished Members of the Subcommittee, I am honored
to be here today representing the American Immigration Lawyers Association (AILA).
AILA strongly supports H.R.2125, introduced by Representative Jackson-Lee. H.R.
2125 represents an important start at resolving the status of more than 350,000
long-term immigrant residents who have been in legal limbo for nearly 18 years
as the result of agency missteps, subsequent litigation, and the 1996 intervention
of Congress which unwisely, in our opinion, stripped the courts of jurisdiction
to finally settle this long-standing injustice.
By way of introduction, AILA is the national
voluntary bar association of immigration attorneys in the United States, with
over 6,000 attorney members. AILA is an affiliated organization of the American
Bar Association. AILA takes a comprehensive view of immigration law and policy.
AILA members provide representation in virtually all types of immigration cases:
individuals and families who have applicated for permanent resident status;
thousands of U.S. businesses that sponsor both temporary and permanent workers;
and foreign students, entertainers, athletes and asylum seekers, often on a
pro bono basis. AILA appreciates this opportunity to express its views on the
issue of so-called “late amnesty” seekers and Section 377 of the 1996 Illegal
Immigration Reform and Immigration Responsibility Act.
History of the Late Amnesty Cases
Congress in 1986 enacted a law that was intended to legalize the status of
some 3 million long-term resident immigrants who were living in the United States
in undocumented status. The Immigration Reform and Control Act of 1986, IRCA,
was based on sound policy decisions that recognized that it was not in the national
interest to maintain in undocumented status a class of workers who had established
long-standing ties and roots in the U.S. Such persons, due to their lack of
status, were easily exploited by unscrupulous employers, and vulnerable to crime,
and health and education problems due to fears of coming forward and exposing
their undocumented status. A generous amnesty, coupled with new employer sanctions,
was believed to be necessary to level the playing field, prevent exploitation,
and bring a community out from underground shadows into the light of labor law
protections and immigration enforcement.
As service providers, community activists,
and lawyers well know, the implementation of such an amnesty law is challenging. Intended to benefit communities who by nature are fearful of government
authorities and who have spent their lives avoiding contact with government
agencies, the law must somehow reach out to these communities. Government agencies and service providers much provide accurate information
and encourage people to come forward on the promise of a benefit that is newly
available. The window of opportunity
is finite, and the need for confidence-building measures and encouragement is
It is clear, looking backwards, that the INS failed to meet the challenge in
significant ways. While many people did benefit from the 1986 amnesty, others
were the victim not of their own fears, but of mistaken and misleading information
released by the INS itself that discouraged and prevented legitimate applicants
from benefiting from the new law.
During the 12-month application period
(May 1987-May 1988), the INS adopted regulations which were flatly wrong. These regulations, later withdrawn, ruled that people who had briefly
traveled abroad between 1982 and 1988, or whose U.S. citizen children had lawfully
received public assistance, were “ineligible to apply for legalization”. Such people were not only discouraged from coming forward upon hearing
about the regulations, but those who tried to apply were physically turned away
at INS offices around the country.
Applicants Turn to Courts for Relief
As is often the case when a federal government agency errs, people turn to
the courts for justice. In this instance, service providers, community members
and lawyers worked together to ask the courts to order the INS to reverse its
unlawful regulations and to allow those who would have qualified for amnesty
to seek relief. The so-called “late amnesty” class numbered nearly 350,000—people
who filed applications after the formal application period ended in May 1988,
under protection of a court order.
The courts made no determination about which applications were worthy and which
were not. The courts merely ordered the INS to accept and evaluation the applications
on the merits. If there was fraud, as some allege, the INS would be fully equipped
and authorized to deny the application for amnesty or legalization. If the
applicant proved eligibility, they would finally be granted the legal status
they were entitled to under the 1986 law. They could come out from under the
shadow of illegality and be fully participating members of civil society.
Rather than implement the court orders, the INS appealed each remedy. While
the appeals were pending, some late applications were accepted by the INS and
work authorization was granted to about 100,000 class members. People subject
to the lawsuit were allowed to remain in the U.S. and work legally, pending
the final outcome of the litigation.
Court-Stripping by Congress
In 1996, Congress intervened in the long-standing “late amnesty” cases. By
stroke of the pen, in a short cryptic sentence labeled “Section 377” of IRAIRA,
Congress swept the rug out from under hundreds of thousands of potentially deserving
applicants who had been denied justice for a decade: Amending Section 245a
of the 1986 law itself, Congress provided that “Notwithstanding any other provision
of law, no court shall have jurisdiction of any cause of action or claim by
or on behalf of any person asserting an interest under this section unless such
person in fact filed an application under this section within the period specified
by subsection (a)(1), or attempted to file a complete application and application
fee with an authorized legalization officer of the Service but had the application
and fee refused by that officer.”
While innocuous on its face, this
provision swept away years of court orders and remedies that the INS had been
partially implementing and partially challenging.<
Why did Congress intervene in a court-ordered process that had been pending
for years? Why did Congress attempt to undermine a remedy that the courts believed
was just? Why did Congress apparently believe that it knew better than the courts
what to do to correct an injustice that was full of complexities and nuances?
How did Congress think that classes of applicants could prove that they actually
attempted to file an application but were turned away, when in fact INS kept
no records of such attempts and applicants were often discouraged by radio announcements,
community agencies that had been misinformed, and lawyers themselves that they
had no basis for applying for amnesty because they had been out of the country
briefly or had obtained food stamps for their U.S. citizen children?
Remedies and Recommendations
AILA attorneys were some of those in 1987 and 1988 who obtained the faulty
INS regulations and provided faulty guidance to deserving applicants. AILA attorneys
were also some of those who challenged the faulty INS regulations and who subsequently
assisted class members in seeking relief through the courts. AILA attorneys
are those who had to convey the very bad news to thousands of deserving applicants
that Congress had swept away the court orders protecting them and that they
would lose their work authorization after the 1996 law went into effect.
We are advocates who staunchly believe that a cornerstone of the U.S. system
of government is the system of checks and balances enshrined in our constitution.<
Where a federal government agency errs, an adjudicatory body can and must step
in to provide justice. This is what happened in the late amnesty cases. We
believe that the courts will eventually prevail and that justice long denied
will ultimately be delivered.
We also believe, however, that Congress
should step up to the plate and correct the injustice it committed in 1996 thru
its enacting Section 377 of IRAIRA. Rep.
Jackson-Lee’s bill would do just that—it would repeal Section 377, and restore
the courts’ jurisdiction over this complicated matter.
Congress and the Administration could
go further, however. We believe that
many worthy proposals about remedies and relief have been put on the table and
have been further elaborated in testimony here today.
Among those, we would highlight for
support those that offer a way out of further interminable court proceedings
and that provide a basis for full and fair adjudication of applications that
should have been accepted and adjudicated more than a decade ago.
There is no reason to argue further
about which applicant made it to the front door of the INS building, which made
it to the front desk, and which went away discouraged after waiting a day in
an INS waiting room.. Any person who
but for the wrong information put out to the public by the INS would have been
able to file a prima facie application for amnesty should be encouraged and
assisted to come forward and do so, even, and especially, at this very late
Congress could certainly take further decisive action. It could update the
long-standing statute of limitations contained in our immigration law for decades.
It could declare relief for the entire named classes of plaintiffs included
in several of the late amnesty court cases. Our colleagues here today will argue
for some if not all of these remedies. Any are worthy of your support.
AILA strongly urges Congress to undo
the wrong it did in 1996, and to consider with the affected class such remedies
as may be proposed that will bring a just result to people for whom justice
has been denied for far too long.
Late Amnesty Testimony