Legalization Forever, for the Judges Make It Long*

By David North on January 26, 2010

* With apologies to the late Ralph Chaplin, the I.W.W. organizer who wrote the words to "Solidarity Forever"

Here's a thought: Maybe before we consider another amnesty for illegal aliens, we should complete the last amnesty – the one voted by the Congress a generation ago, the Immigration Reform and Control Act of 1986.

Late last year some immigration lawyers and the U.S. Citizenship & Immigration Services settled a long-lived IRCA legalization dispute in favor of a small population of illegal aliens, who now have until January 31 of this year to file their individual claims.

The people involved, now a bit longer in tooth than when they first filed, have an interesting claim to illegal status, and thus eligibility for legalization under IRCA. Back in the late 1980s they had said that as of 1982, while they appeared to be in legal status (and thus ineligible for amnesty), they really were in illegal status, and that the government should have noticed. Most of the members of this class, for it was a class action suit, were foreign students but some had diplomatic passports.

There are hundreds, maybe thousands, in this category.

Members of the class said that while they still had an apparently valid nonimmigrant visa at the time, that they had actually fallen into illegal status by dropping out of school or by failing to file a change-of-address card with INS. At the time INS refused to accept this argument, as did the first couple of judges to rule on the case. In 2002 the Ninth Circuit sent the dispute back to a district court for further proceedings, which led to the settlement. (Interpreter Releases, the immigration bar's scholarly trade paper, has an article on the subject in its December 14, 2009 issue.)

The traditional court dispute has the government saying "you are guilty," say, of bank robbery, while the defense attorneys say that their client is innocent. Here we have the government saying "you did not commit the bank robbery" while the defense attorneys argue that their clients had, in effect, robbed the bank.

The applicants are now free go to USCIS for further adjudication. Interpreter Releases, saying that the government had not publicized the settlement thoroughly enough, suggested that the deadline might be extended.

It may be well into 2011 before the last IRCA case is decided.