Catholic Social Services, Inc. v. Reno

PER CURIAM Opinion; Dissent by Judge SCHROEDER.

This class action litigation challenges the lawfulness of an Immigration and Naturalization Sendee (“INS”) policy adopted in 1986 and revised in 1987 as part of the INS’s administration of the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1255a (“IRCA”). That statute established a legalization program under which certain aliens unlawfully present in the United States could apply for status as temporary residents, and then seek permission to reside permanently in the United States. See 8 U.S.C. §§ 1255a(a), (b). Among other requirements, IRCA provided that to be eligible, applicants had to prove continuous physical presence in the United States since November 6, 1986. 8 U.S.C. § 1255a(a)(3)(A). The policy plaintiffs seek to challenge in this case is an INS directive interpreting the continuous physical presence requirement of § 1255a(a)(3)(A) to mean that in order to qualify for adjustment of status, aliens must have obtained INS approval before leaving the United States for even the briefest of absences (the “advance parole policy”).

Plaintiffs include a number of concerned organizations and individuals (collectively…

dissenting in part:

I concur in the majority’s holdings with one qualification and one exception.

First, the qualification. It is my view that under § 377, all those who actually tendered a completed form and fee, and those who went to the INS office to do so and were told it would be futile under the INS policy, have standing to have their claims adjudicated. That interpretation is consistent with the statute as read in light of the Supreme Court’s decision that forms its backdrop, and which essentially held that all applicants who were blocked at the INS office by the “advance parole” policy had ripe claims. See Reno v. Catholic Social Services, Inc., 509 U.S. 43, 61-65 , 113 S.Ct. 2485, 2498-99 , 125 L.Ed.2d 38 (1993). It is also consistent with equal protection. To the extent the majority opinion can be read to suggest a narrower interpretation might be appropriate, I would disagree.

Second, after reviewing the plaintiffs’ petition for rehearing, I must disagree with the bottom line of the opinion which instructs the district court to dismiss the action, in favor of permitting a new complaint to be filed. We should instead remand for the district court to determine whether…