Panel Upholds Deadline for Amnesty Seekers

A federal appeals panel in San Francisco on Wednesday upheld a hotly contested tenet of last year’s new immigration law in a decision that dashed the hopes of many illegal immigrants who say they were wrongly excluded from the 1980s amnesty program.

The three-judge panel ruled that Congress acted legally last year in restricting court review for most of the nation’s estimated 400,000 late amnesty applicants, many of whom are in Southern California. The judges upheld a section of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 that bars court relief for amnesty-seekers who filed after the 1988 deadline.

In broad legal terms, the decision was an important first test of whether the controversial statute--one of the most restrictive pieces of immigration law in decades--can withstand constitutional challenges.

Civil libertarians immediately deplored the court decision as an attack on the constitutional principle of separation of powers and as a potential green light to unfair deportations and other wrongdoing by the Immigration and Naturalization Service. “When you have an agency with unbridled discretion, there is no way to prevent abuse,” said Jeanne Butterfield, executive director of the American Immigration Lawyers Assn. in Washington. “It’s making the toll-taker on the freeway both the judge and jury.”

But activists who favor closing “loopholes” in immigration law called the ruling a sensible response to tactics that seek to extend illicit residence in the United States.

“There has been too much legislating from the judicial bench in which advocates for immigrants go around shopping for a judge and finding some pretext to overturn the will of Congress,” said Ira Mehlman, West Coast representative of the Federation for American Immigration Reform, which favors heavy reductions in immigration levels.

The ruling appeared to be the first appeals court finding on whether the immigration law violated the separation of powers doctrine, which creates essential “checks and balances” among the executive, judicial and legislative branches of government. The justices cited Congress’ “sweeping power over immigration policy,” as well as its ability to limit court oversight.

“Congress’ authority to define federal court jurisdiction is well-recognized,” Judge Mary M. Schroeder wrote on behalf of the three-judge panel of the 9th Circuit Court of Appeals.

However, the issue before the court in this case was a relatively narrow one, focusing on the fate of illegal immigrants who charge that the INS wrongly kept them out of the amnesty program.

Dozens of separate legal challenges are pending against other “court-stripping” provisions enacted by Congress last year, said Lucas Guttentag, who heads the immigrants’ rights project of the American Civil Liberties Union and is coordinating lawsuits on the topic nationwide.

Among other provisions, last year’s immigration act also restricted many deportees’ access to court appeals, while largely barring suits by people placed into new “expedited removal” proceedings at airports and borders. In addition, the law generally prohibited broad class-action complaints against INS policies.

In Wednesday’s ruling, the appeals panel instructed lower courts to dismiss the class-action complaint by longtime illegal immigrants who contend that they were improperly discouraged from filing for amnesty because of brief absences from the United States during 1987 and 1988. In that period, about 3 million formerly illegal immigrants received legal residence.

The plaintiffs have been living here since at least 1982; many have children who are U.S. citizens. Thousands now face likely cancellation of temporary work permits issued pursuant to their appeals.

“This is irrational and inhumane,” said Anil Urmil, a 33-year-old film editor originally from India who is among those who will now revert to illegal status.

Peter Schey, an attorney for Urmil and others, said the case would be appealed to the full federal Court of Appeals and, if necessary, to the Supreme Court. Removing court protection, Schey argued, would only serve to drive this relatively stable population underground. The INS has said it has no intention of launching mass deportations.

“This decision is completely irrational in the sense that it contributes more undocumented people to the streets of the United States in one day than all the alien smugglers in the world have brought in during the last two years,” said Schey, the executive director of the Los Angeles-based Center for Human Rights and Constitutional Law.