On October 19, 1990, a three judge panel of the Ninth Circuit, consisting of Chief Judge Goodwin and Circuit Judges Sneed and Hug, entered the following per curium order in Catholic Social Services, Inc. (CSS) v, Thom burgh, Nos. 8815046, $815127, 8815128, and League of United Latin American Citizens (LULAQ) v. INS, No. 886447:

The separate motions of the United States Attorney General and the Immigration and Naturalization Service and of the Plaintiffs Appellees/Cross Appellants to modify the stay orders entered in these consolidated appeals are both Denied

The net effect of the order is to permit the continued late filling of legalization applications by class members of these two cases, as well as related applications for work authorization and slays of deportation.

The two class actions have had a long and complicated development. Dissatisfied with various INS legalization regulations, plaintiff’s sought declaratory and injunctive relief, In both cases, the district court overruled the government’s jurisdictional ‘objections and ultimately issued orders invalidating the challenged regulations. The government appealed both decisions to the Ninth Circuit, which consolidated them for argument. To obtain a stay pending appeal, the government agreed to accept late legalization applications from class members. These, in turn, involve applications for employment authorization and stay of deportation.

On August 2, 1990, the INS filed a motion with the Court of Appeals asking the court to modify the existing stays by placing a 90day limit on the time within which the remaining applications must be presented. The INS complained that it was being overwhelmed by the number of applications still coming in from aliens claiming to be eligible for amnesty. To make matters worse, noted the INS, on June 28,1990, the Ninth Circuit issued an order deferring decision in these cases until the Supreme Court issues its decision on the underlying jurisdictional issue on McNary v. Haitian Refugee Center, Inc., No.89-1332,

In its argument in support of its motion, the government pointed to the burdens to which it was subjected by the present stays pending appeal. For one thing, these stays are open ended, and there is no time limit within which aliens who claim to be class members must apply. An unanticipated large number (over 74,000) had already applied, almost 4,000 new applications came in every week, and the number appeared to be escalating. Since the jurisdictional issue must await the Supreme Court’s ruling in McNary, which will not ‘come down before the beginning of 1991 at the earliest, the present opened stays will result in many more new fillings. To make matters worse, the CSS stay does not permit the INS to collect application fees from late filers. This has cost the INS $7 million in fees, which might have gone far to provide resources needed to handle the applications. Finally, the INS claimed increasing evidence of fraudulent applications, which placed additional burdens on the Service. All of these factors, argued the government, established a pressing need to modify the pending stays to provide a 90day cutoff date for further applications.

On August 20, the appellees filed a response opposing the government’s motion, asking the court to modify the stay but for a different reason from the government’s. The response cited numerous instances where the INS had obstructed legalization applicants by, for example, requiring greater documentation than necessary and imposing long waiting periods. The response asked the court to order the Service to streamline the process.

The court’s order of October 19 leaves the appeals in the status quo, awaiting Supreme Court decision on the jurisdictional issue in McNary. As we pointed out in the previous article, that case was scheduled for oral argument before the Supreme Court on October 29,1990. It is unlikely that the Court will announce its decision before early next year. In the interim, late filings of legalization applications by Class members can continue:

Article extracted from this publication >> November 30, 1990