AILA Testimony on How to Fix the Late Amnesty Problem

Testimony of Jeanne A. Butterfield on How to Fix the Late Amnesty Problem

Before
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 great.

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?

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 date.

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.

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Late Amnesty Testimony