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February 26, 1996

XAVIER FERNANDES, Petitioner, against EDWARD McELROY, Acting District Director, Immigration and Naturalization Service, New York Office, and IMMIGRATION AND NATURALIZATION SERVICE, et al., Respondents.

The opinion of the court was delivered by: PRESKA

 LORETTA A. PRESKA, United States District Judge:

 Petitioner Xavier Fernandes ("Fernandes") brings this action by way of a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging a determination by the Board of Immigration Appeals ("BIA") ordering him deported from the United States. Immediately at stake in this action is Fernandes's application to become a legal resident of the United States, weighed against the pending deportation order from the Immigration and Naturalization Services ("INS"). Of no small importance to Fernandes, this petition also raises questions of broader significance, potentially affecting numerous, similarly situated persons.

 For the reasons set forth below, the petition is granted. *fn1"


 A proper review of this petition can only be made in the complicated context of two related federal actions, each of which successfully challenged INS enforcement of a program created by Congress to legalize qualified illegal aliens. Although complicated, the facts and context of this case are not a source of contention. It is in how to apply the law to the novel circumstances that the parties disagree.

 I. IRCA and the California Cases

 A. The Immigration Reform and Control Act

 On November 6, 1986, as an amendment to the Immigration and Nationality Act of 1952 and in response to the mounting social, legal, and economic pressures cased by the huge influx of immigrants illegally residing and working in the United States, the Immigration Reform and Control Act of 1986, Pub. L. 99-603, 100 Stat. 3359 et seq., ("IRCA"), was signed into law. IRCA primarily addressed this problem along two fronts: (1) reducing the incentive for illegal immigration by penalizing employers who hired undocumented aliens, and (2) offering amnesty to long-term illegal aliens who demonstrate a capacity to be productive members of society. *fn2" See H.R. Rep. No. 682(I), 99th Cong., 2d Sess. 52, reprinted in 1986 U.S. Code Cong. & Admin. News, 5649, 5656.

 The only aspect of IRCA at issue here is a provision in Title II which creates a one-time alien legalization program. 8 U.S.C. § 1255a. *fn3" In the first stage of this amnesty program, eligible aliens had one year to apply for status as temporary legal residents. 8 U.S.C. § 1255a(a)(1) (1988). In the second stage, to commence 19 months after receipt of temporary status, aliens have two years in which to apply for permanent resident status. 8 U.S.C. § 1255a(b)(1)(A) & 2(C) (1988 and 1995 Annual Pocket Part).

 To be eligible, an applicant had to show both: (1) "that he had resided continuously in the United States in an unlawful status" since January 1, 1982 (the "continuous unlawful residence" requirement), 8 U.S.C. § 1255a(a)(2)(A); and (2) "that [he] has been continually physically present in the United States" since November 6, 1986 (the "continuous physical presence" requirement). 8 U.S.C. 1255a(a)(3)(A). Under the latter provision, an applicant who left the United States at any time after IRCA was enacted would be ineligible for amnesty. To "mitigate this requirement," Reno v. Catholic Social Services, 125 L. Ed. 2d 38, 113 S. Ct. 2485, 2490 (1993), IRCA created a safe harbor for "brief, casual, and innocent absences from the United States." 8 U.S.C. § 1255a(a)(3)(B). Section 1255a(a)(3)(B) provides that an alien who has made a "brief, casual, and innocent" absence from the United States "shall not be considered to have failed to maintain continuous physical presence."

 A second pair of prerequisites required the applicant to be otherwise admissible as an immigrant, 8 U.S.C. § 1255a(a)(4), and to have applied within the 12-month period Congress allotted to the program, the dates for which were to be set by the Attorney General. 8 U.S.C. § 1255a(a)(1)(A). The Attorney General began the program on May 5, 1987, which fixed the closing date on May 4, 1988. See 8 C.F.R. 245a.2(a)(1) (1992).

 As the administrative agency entrusted with enforcing IRCA, see 8 U.S.C. § 1255a(g)(1)(B), the INS responded to its enactment by promulgating certain interpretive and enforcement regulations. Two of these regulations were challenged in separate California class actions, giving rise to the litigation which provides much of the context for the present petition.

 B. The CSS Class

 The first challenge was made against the INS's interpretation and administration of IRCA's "continuous physical presence" requirement and the "brief, casual, and innocent" exception. In a nationwide telex sent to its regional offices on November 14, 1986, less than a week after IRCA became effective, the INS narrowly interpreted the "brief, casual, and innocent" exception. According to this interpretation, a trip outside the United States would be considered "brief, casual, and innocent" only if the INS had previously approved the trip. *fn4" Aliens who did not receive "advance parole" would be ineligible for legalization -- and detained at the border and subject to deportation proceedings when they attempted to reenter the United States. See 8 C.F.R. § 245a.1(g).

 In an action commenced in the Eastern District of California on November 24, 1986, the INS's interpretation and enforcement of 8 U.S.C. § 1255a(a)(3)(B) was challenged. See Catholic Social Services, Inc. v. Meese, 685 F. Supp. 1149 (E.D. Cal. 1988). In a May of 1988, the district court issued two orders. One order certified the plaintiffs as a class (the "CSS class"), comprised of:

persons prima facie eligible for legalization under INA § 245A [ 8 U.S.C. § 1255a] who departed and reentered the United States without INS authorization (i.e., "advance parole") after the enactment of IRCA following what they assert to have been a brief, casual and innocent absence from the United States.

 See Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914, 917 (9th Cir. 1992) (quoting the district court's May 3, 1988 order). The second order invalidated the INS's interpretation of the "brief, casual, and innocent" exception and enjoined its enforcement. See CSS v. Meese, 685 F. Supp. at 1159-60.

 The district court found that the INS's advance parole restriction created an obstacle that Congress did not intend and was therefore inconsistent with the "brief, casual and innocent" exception of 8 U.S.C. § 1255a(a)(3)(B) and contrary to the purpose of IRCA. Id. at 1152. After weighing the plain meaning of "brief, casual, and innocent" and the legislative history of IRCA against the challenged rule, the court held that an otherwise permissible absence would not render an alien ineligible for legalization simply because the absence was not pre-approved by the INS. Id. at 1159. As discussed further below, the court found support for its conclusion in the express intent of Congress that IRCA's amnesty program was to be liberally construed.

The Committee intends that the legalization program should be implemented in a liberal and generous fashion, as has been the historical pattern with other forms of administrative relief granted by Congress. Such implementation is necessary to insure the true resolution of the problem and to insure that the program will be a one-time-only program.

 H.R. Rep. No. 682(I) at 72, 1986 U.S. Code Cong. & Admin. News at 5676, quoted in CSS v. Meese, 685 F. Supp. at 1155.

 C. The LULAC Class

 The second challenge was brought against the INS's interpretation of 8 U.S.C. § 1255a(a)(2)(A), IRCA's continuous unlawful residence requirement. In August of 1987, the INS issued a regulation declaring ineligible for legalization any alien who had left the United States and attempted to reenter using documentation that was "facially valid" but actually fraudulent. *fn5" See 8 C.F.R. § 245a.2(b)(8) (1992). In October, before any court action had been taken, the INS retreated from its original interpretation, recognizing the eligibility of aliens returning as "nonimmigrants" to an "unrelinquished unlawful residence," and allowing that reentry with documentation that was valid only on its face would not result in ineligibility, provided the alien applied for a waiver excusing the fraud. See 8 C.F.R. §§ 245a.2(b)(9) & (10). Nevertheless, after a suit was filed in July of 1987 in the Central District of California, plaintiff amended its complaint and sought a declaratory judgement that the original reentry requirement was inconsistent with IRCA and in violation of the Equal Protection Clause. See League of United Latin American Citizens v. INS, 1988 U.S. Dist. LEXIS 12599, No. 87-4757-WDK (JRX) (C.D. Cal. July 15, 1988). A class (the "LULAC class") was again certified, consisting of:

all persons who qualify for legalization but who were deemed ineligible for legalization under the original policy, who learned of their ineligibility following promulgation of the policy and who, relying upon information that they were ineligible, did not apply for legalization before the May 4, 1988 deadline.


 The district court, by order dated July 15th, invalidated the original unlawful reentry restriction.

 D. CSS and LULAC on Appeal

 In neither CSS nor LULAC did the government appeal the certification of the class or, more importantly, the invalidation of the challenged rules. See CSS v. Thornburgh, 956 F.2d at 917. The government did appeal both the jurisdiction of the courts and their subsequent remedial orders, particularly the extension of the amnesty program deadline from May 4, 1988 to November 30, 1988. See CSS v. INS, No. S-86-1343 LKK (E.D. Cal. June 10, 1988); LULAC v. INS, No. 87-4757 WDK (JRX) (C.D. Cal. Aug. 12, 1989), 1989 WL 252578 (C.D. Cal. 1989).

 In CSS v. Thornburgh, supra, the Ninth Circuit consolidated the appeals. After waiting for the Supreme Court's decision in McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496, 112 L. Ed. 2d 1005, 111 S. Ct. 888 (1991) (restating "the well-settled presumption favoring interpretations of statutes that allow review of administrative action"), the appeals court rendered its decision in February of 1992, affirming both the subject matter jurisdiction of the district courts and their extension of legalization program deadline. As to jurisdiction, the judicial review provision of Title II of IRCA was found not to preclude the trial courts' action. See CSS v. Thornburgh, 956 F.2d at 919-921 (discussing judicial review under IRCA, 8 U.S.C. § 1255a(f)). As to the extensions, the court held that the INS's invalidated regulations had the effect, contrary to the intent of Congress, of truncating the program's one-year lifetime and undermining its goals, and that it was not beyond the district courts' equitable powers to extend its deadline. See id. at 922 (extending the deadline for those denied the full twelve-month period "effectuates, rather than frustrates, the public policy established by Congress").

 The Supreme Court granted certiorari on two questions: (1) whether the district courts had jurisdiction, and (2) whether they properly extended the amnesty application deadline. See Barr v. Catholic Social Services, Inc., 505 U.S. 1203, 112 S. Ct. 2990, 120 L. Ed. 2d 867 (1992). Relying on McNary, the Court held that the preclusion of district court review provided for in IRCA "'applies only to review of denials of individual. . . applications.'" Reno v. Catholic Social Services, Inc., 125 L. Ed. 2d 38, 113 S. Ct. 2485, 2495 (1993) (quoting McNary, 498 U.S. at 494) (emphasis added). Section 1255a(f) does not preclude review when, as with the CSS and LULAC classes, "an action challeng[es] the legality of a regulation without referring to or relying on the denial of any individual application." 113 S. Ct. at 2495.

 Rather than reaching the second question, however, the Court vacated and remanded on ripeness grounds, finding that the matter was non-justiciable in the absence of a showing of "concrete injury." See id. (discussing Abbott Laboratories v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967)). INS promulgation of the invalidated regulations did not itself satisfy the concrete injury requirement, because the regulations

impose no penalties for violating any newly imposed restriction, but limit access to a benefit created by [IRCA] but not automatically bestowed on eligible aliens. Rather, [IRCA] requires each alien desiring the benefit to take further affirmative steps, and to satisfy criteria beyond those addressed by the disputed regulations.

 See 113 S. Ct. at 2496 (footnote omitted). Because CSS and LULAC challenged the INS interpretation of only two of the several statutory prerequisites for amnesty, a class member's claim "would ripen only once he took the affirmative steps that he could take before the INS blocked his path by applying the [challenged] regulation to him." Id. None of the class members had offered evidence to show that enforcement of the challenged regulations, as opposed to some other statutory requirement, had caused that alien to be declared ineligible. Id. at 2498-99. The Supreme Court therefore remanded for further findings of fact on that issue.

 II. Petitioner Fernandes's Administrative Proceedings

 Petitioner Fernandes is a 44-year-old citizen of India residing in the United States. (Petition for Writ of Habeas Corpus ("Petition"), P 1). He is a candidate for legalization under IRCA's amnesty program, having applied for lawful temporary resident status in Atlanta on December 21, 1989. See September 27, 1993 Order of the Immigration ...

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