On August 26, 1998, the U.S. Ninth Circuit Court of Appeals suspended the preliminary injunction in CSS 2. This means that effective immediately the INS is under no obligation to issue work permits to, or defer the deportation of, CSS 2 class members.
In all likelihood, the INS will resume confiscating the work permits of CSS 2 class members who are encountered during the regular course of INS operations. Until further notice, we do not recommend that CSS 2 class members attempt to have their work permits renewed.
We are not yet sure of the long term impact of the Ninth Circuit’s order because the court did not explain its reasons for suspending the CSS 2 injunction. During Wednesday’s oral argument, the court expressed concern that Group 1 class members (those who attempted to file a complete application and fee with the INS during the one year legalization application period, May 1987 to May 1988) could be deported were the injunction suspended, and in response the INS repeated the agency’s pledge to process the legalization applications of Group 1 CSS class members and assured the court that Group 1 members would not be deported. The court’s other major concern centered around whether the case should proceed as a class action. Based on these indicators, the following scenarios are possible:
- The INS could make good on its promise to adjudicate the applications of Group 1 class members without further order of the court. Group 1 class members who request the INS to adjudicate their legalization applications are encouraged to report the results of those efforts, good or bad, to the Center.
- The court of appeals could decide that a class action is not appropriate, in which case each Group 1 class member would have approximately 5 years to file an individual case in federal court, or intervene in–that is, join as a named plaintiff–the CSS 2 lawsuit.
- The court of appeals could explain that the CSS 2 injunction was overbroad in that it required the INS to give work permits to and defer the deportation of Group 2 and 3 class members. In this event, the district court could reissue a preliminary injunction covering a narrower group of class members. This would not be much different from what would have happened within a few weeks anyway, since the district court included Group 2 and 3 class members in the injunction only until a plan could be devised for separating out Group 1 class members.
- The court of appeals could decide that the CSS 2 injunction was overbroad in that it required the INS to give work permits to and defer the deportation of class members who had been front-desked by QDEs. In this event, the district court could reissue a preliminary injunction much like the one the court of appeals suspended, covering persons front-desked by INS, but not by QDEs.
Although it is very difficult so say which of these scenarios will come to pass, number 3 above seems the most probable. We will update this page to give CSS 2 class members a better idea of what to expect in the future as soon as we can ascertain the reasons for the Ninth Circuit’s action.
In the interim, it is important to remember the following:
- All CSS class members–Groups 1, 2 and 3–have the right to a hearing before they can be deported or removed from the United States. By definition, all such persons have lived in the United States for at least 16 years. They may therefore raise a defense to removal, called cancellation of removal, during their hearings. Although it is difficult to win a cancellation of removal, having the defense ensures that CSS class members will not be deported suddenly or unexpectedly.
- Group 1 class members continue to have a very good chance of winning lawful residence through the courts, whether through the CSS 2 class action, by intervening in CSS 2 as a named plaintiff, or by filing a separate individual lawsuit.
- LULAC class members continue to be protected by the injunction in that case. For the time being, LULAC class members in all groups are protected from deportation and are entitled to have their work permits renewed.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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