Because she "had already had assistance" — she had received
Medicaid and WIC benefits in connection with her pregnancy —
she did not apply for amnesty. Tr. 445. She based her decision
on a program she heard on Channel 41 "before people applied . . .
before they started the applications." Tr. 445. The program
included, among others, representatives of the "Department of
Immigration". Tr. 446. According to Sonia R., a caller stated
he or she was receiving assistance and "the person" on the
program said that such persons could not apply. Tr. 447. She
stated that the only affirmative step she took to pursue her
interest in the amnesty program was to go to a law school in
Brooklyn, but the record is unclear as to what transpired as a
result of this visit. Tr. 447-48. On cross-examination, the
witness conceded that she never sought clarification on the
issue of receiving public assistance from any government
official. Tr. 455.
Rosa C. testified that she was born in Santo Domingo, came into
the United States illegally at San Diego, has lived here since
1981, and is the parent of two New York born children. Tr. 457.
She has been largely self-supporting, and, although she knew of
the amnesty program, she did not apply "because people were
saying that people who were receiving assistance for their
children could not apply." Tr.459-60. She heard this on Channel
47 or 41, on which a person from the Immigration Service
appeared. "Someone called in and asked whether persons whose
children were receiving public assistance would qualify and he
[the representative from the Immigration Service] answered no."
Tr. 461. No further explanation was given on this topic. Tr.
462. She also heard advice to the same effect on an unspecified
radio program. Tr. 462-63. On cross-examination, Ms. C.
conceded that she had not spoken to anybody about her amnesty
program, even though she knew that various community
organizations existed to help people file applications for
amnesty. Tr. 466. Nor did she ever contact the INS. Tr. 470.
Miriam B. was born in Trinidad, entered the United States
legally on a visa but remained beyond her authorized stay, and
is the parent of two children born here. She has been in large
measure self-supporting since her arrival in the country. She
testified that she did not apply for amnesty because she had
seen a television program on Channel 7 on which there were,
among others, "people from the Immigration Department. . . .
The program was a panel discussion and they said that persons
who received welfare for their children were not eligible. . . .
Everybody [on the program] agreed that that was the case."
Tr. 477. Ms. B. later went to a Catholic organization in
Englewood, New Jersey and spoke to a nun there. "I asked her if
my son received welfare, if I was eligible for the amnesty
program, and she told me no." Miriam B. then went to a private
lawyer, who told her she could not qualify for amnesty because
"her son was on welfare." Tr. 478-82. Finally, Miriam B. spoke
to a priest at a Catholic organization in a church in Harlem,
and he told her she was ineligible "because my son received
welfare." She was also told that "my chances of getting
[amnesty] with the waiver was like the same thing, next to
nothing." Tr. 483.
B. INS Witnesses
Terrance O'Reilly testified that, at the time of the amnesty
program, he was Deputy Assistant Commissioner for Legalization
under IRCA. To advise the public through the radio, television
and print media about the standards and benefits of IRCA, INS
paid $10.6 million to public relations firms. Tr. 765. It
enlisted the support of the American Immigration Lawyers
Association, the American Bar Association, a National
Coordinating Agency for voluntary groups across the country,
and the National QDEs. Press conferences and seminars were
routinely held and organized. Tr. 766. Flyers, fact sheets,
posters, bill inserts, transit ads, balloons, buttons and radio
tapes were produced and distributed on a multi-lingual basis
during the amnesty period. Gov.Ex.L. A national toll-free
hotline was set up to disseminate application information. Tr.
The QDEs, numbering approximately 1200 nationwide, were created
under the statute to act as a buffer between the INS and the
alien population, but in fact 75% of all applicants during the
amnesty period applied directly to INS rather than through the
QDEs or private attorneys. Tr. 767-68. When asked to explain
this, Mr. O'Reilly testified:
It is our belief at central office that we tried to have a very
fair, very open program. And we felt that if we could get the
people to trust us at INS, that we weren't running a big sting
operation, that they would come directly to us. Once we started
working the people through the process and once people started
getting out on the street with the temporary residence cards
and went out and showed their buddies that hey, look what I got
from INS, it seemed to work real well. People believed us. They
believed their friends. So the population started coming
directly to us.
Tr. 768. INS opened 107 legalization offices nationwide, and
four regional processing centers. Tr. 768-69.
Commissioner O'Reilly testified that it was never INS's policy
to consider receipt of public cash assistance by an applicant's
immediate family members, citizen family members, as rendering
the applicant automatically ineligible for legalization. Tr.
773. He went on to explain that "if there was receipt of any
sort of assistance by the citizen child, we viewed that at
central office as a tool that should be used to maybe look
further at whether or not this alien may be likely to become a
public charge [in the future]. More as an indicator that there
may be some questions about this person's financial
responsibility." Tr. 774. This policy was disseminated by the
Service throughout the nation. Id.
When asked to review Pl.Ex. 9, the Norton memorandum of
September 23, 1987, see supra at 1042, Commissioner O'Reilly
testified that it did not in any way represent a change in the
regulations, but was merely a clarification containing more
specific guidance for INS's regional offices. Tr. 774-75. He
further indicated that Pl.Ex. 14, the Norton memorandum of
November 23, 1987, see supra at 1042, also did not alter, but
merely clarified, the regulations. Tr. 776. He testified to the
same effect with respect to Pl.Ex. 25, the Norton memorandum of
April 21, 1988, see supra at 1043-44. Tr. 776. He also
asserted that Pl.Ex. 18, the Slattery letter of February 12,
1988 to John M. Payne, see supra at 1042-43, reflected no
deviation from or modification of the Service's policy
regarding the effect of receipt of AFDC funds on legalization.
The legalization program received approximately 1.76 million
applications during the one-year entitlement period. The
planning assumptions and expectations of INS prior to the
opening of the amnesty period was for 2 million applications.
Thus, this represented an 88% response rate. In March 1988, the
Service announced that, as of April 4, 1988, it would accept
skeletal applications without documentation and issue
immediate work authorizations, to afford all possible
applicants an opportunity to meet the May 4 deadline, with an
additional 60 days post-deadline to assemble and complete the
application. Gov. Ex. O. This announcement received broad
national media attention and resulted in the filing of 170,000
applications during the last three days of the program. Tr.
786. On crossexamination, Commissioner O'Reilly admitted that
Pl.Ex. 18, the Slattery letter, could be interpreted as a
change in policy Nevertheless, the Commissioner maintained
that, throughout the amnesty period, the public charge
determination was based on the totality of the circumstances
Mr. O'Reilly's superior, William Slattery, the Assistant
Commissioner for Legalization during the relevant period, had a
major administrative role in organizing the Service's national
effort to disseminate information and stimulate large numbers
of applications. Tr. 820, 822-824. He took sixty-three trips
during the one-year application period, including one to the
Dominican Republic, during which he did seventeen television
shows. He rode an elephant in the Washington, D.C. St.
Patrick's Day Parade, and marched in Brooklyn's West Indian
Day Parade. In New York, he did "a lot of Irish radio,
[interviews with] ethnic newspapers [and three appearances] on
Asian T.V. in New York". Tr. 825.
Commissioner Slattery's testimony on the QDEs' role in actually
persuading aliens to come forward and file applications is
sufficiently instructive to warrant quotation at length:
Q. And could you explain a little bit what your involvement
with the QDEs and NCAs was?
A. The QDEs is an abbreviation for Qualified Designated
Entities. And this is nomenclature which didn't exist or at
least not to my knowledge before the passage of IRCA. It was
created in the Immigration Reform and Control Act. Most of the
individuals that became known as QDEs were previously either
NCAs or volunteer agencies. And they came into existence, my
understanding is, based upon representations that they had made
that the aliens would not deal directly with the government,
that there needed to be an intermediary, a buffer. As a result,
they were provided for in the statute.
There was a role provided for them in the statute whereby
they would perform that function. They would be an
intermediary between the alien population and the INS. So as
a result, I had to meet with them because they were going to
perform a role whereby they could receive applications from
the aliens and then deliver the applications to the INS.
Indeed, at the beginning of the program, they had represented
to the INS — I don't know what they represented to the
Congress — they certainly represented to the INS that they
had millions of aliens already pre-registered for the
benefit. So they had already had contact with them. They had
already established a way of communicating with them and that
they were prepared to bring these people in to INS for the
It was in my best interest to meet with them since they had
the pool of beneficiaries.
Q. Was that representation with respect to millions of
applicants ever made directly to you?
A. Yes, yes, absolutely. When I would meet with them initially,
I started meeting every week and then later on it was every two
weeks, and eventually I think once a month. But the
representations of the numbers were made two fold: One, when
they met with me, they would talk about the numbers of people
they had and two, many of them put a request in for advanced
funding. Just as I had to borrow $125 million from the
appropriated funds of the Immigration Service to start and to
get up to where I could do business, they came to the
Immigration Service and they asked for advanced funding.
I don't remember how much money each one asked for, but the
largest one was U.S. Catholic Conference. They asked for 1.2
million based upon a dollar per head for everybody they
already had registered. So they put a written request in and
told us they had 1.2 million people lined up and they wanted
that advance. They were to pay it back off when they
submitted an application. The QDEs were going to generate
about $15 or $16 per application. We were going to deduct one
dollar for every application we paid them for until we got
the $1.2 million back. That application went to Mr. Duarte.
After a good deal of discussion, they granted Catholic
Conference $800,000. They said, "We are not quite sure you
have got 1.2 million. Based upon what you are giving us, we
will give you $800,000."
Q. Was that Mr. Duarte when you say "they granted"?
A. Yes, and I believe he worked with Mr. Norton on it. I wasn't
involved in that grant. $800,000 did go out as start up to
THE COURT: How many ultimately did the U.S. Catholic Conference
process for the INS?
THE WITNESS: They failed miserably, but I think it was less
THE COURT: What kind of representations were made when the
Catholic Conference said it had 1.2 million? What documentation
was submitted to support that?
THE WITNESS: I don't know the quality of the documentation or
the degree of the documentation, but they represented these
individuals were all pre-registered with the Catholic
THE COURT: A pre-register implies a record of some kind?