Catholic Social Services, Inc. v. Immigration & Naturalization Service

Opinion by Judge O’SCANNLAIN; Dissent by Judge SCHROEDER.

We must deal, once again, with the status of claims brought by some 45,000 illegal aliens, seeking legalization under 1986 immigration legislation, who failed to tender timely complete applications and fees.

I

The tortured history of this litigation has been recounted in detail in this court’s prior opinions, see Catholic Social Services, Inc. v. Reno, 134 F.3d 921, 922-24 (9th Cir.1998); Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914, 916-18 (9th Cir.1992), and in the Supreme Court’s opinion in Reno v. Catholic Social Services, Inc., 509 U.S. 43, 46-53 , 113 S.Ct. 2485 , 125 L.Ed.2d 38 (1993). Suffice it to say that the Immigration and Naturalization Service (“INS”) adopted a policy in 1986, revised in 1987, as part of its administration of the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1255a (“IRCA”), which is at the root of this dispute. IRCA 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…

dissenting:

The majority holds that the plaintiffs’ class action is barred by the six-year statute of limitations because the plaintiffs failed to file a class action on behalf of this class within six years of the adoption of the challenged regulations. Yet plaintiffs were members of the class that did file a timely action in 1986 to challenge the policies. The present action seeks to present a claim within the standing limitations of a statute that was not enacted until 1996. Thus the majority holds that the plaintiffs, before 1993, should have responded to a statute that was not passed until 1996.

Having already filed a complaint in 1986, plaintiffs should have been able to proceed by amending their original complaint to respond to the new statute. They had to file this second class action only because, in an earlier appeal, the majority ordered the first action dismissed without an opportunity to amend, thus creating the very statute of limitations issue that confronts us today. See Catholic Social Servs. v. Reno, 134 F.3d 921 (9th Cir.1998) (“CSS V”). As I wrote in my partial dissent then, the majority should have followed the lead of the Supreme Court in its 1993 opinion…