The following INS memorandum (2-6-98) is the agency's response to the decision of the Court of Appeals for the Ninth Circuit in CSS v. Reno. (1-16-98) The Court remanded the matter to the District Court with instruction to dismiss the case. Effective 2/6/98, CSS class members are no longer entitled to Employment Authorization Documents (EADs) or stays of removal, and may be placed in expedited removal. The memorandum notes that some of these individuals may be eligible for other benefits, such as NACARA class membership. Newman and Zambrano class members are not impacted by this directive.
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Subject: CSS, Newman (LULAC), and Zambrano legalization litigation cases
Date: February 6, 1998 To: Regional Directors District Directors Service Center Directors Officer-in-Charge Regional Counsels District Counsels From: Office of Programs The following instructions describe the Service's obligations under interim relief orders in the legalization litigation cases CSS v. Reno, Newman (formerly LULAC) v. INS, and Zambrano v. INS:
1. CSS v. RENO
On January 16, 1998, the Ninth Circuit Court of Appeals issued an amended opinion in CSS v. Reno, one of several longstanding class action lawsuits challenging the Service's implementation of the legalization program. The Ninth Circuit's decision vacated all orders and remanded the case to the District Court with instruction to dismiss.
EFFECTIVE IMMEDIATELY, CSS CLASS MEMBERS ARE NO LONGER ENTITLED TO EMPLOYMENT AUTHORIZATION,STAYS OF REMOVAL, OR ANY OTHER IMMIGRATION BENEFITBASED ON THEIR CLAIMED CSS CLASS MEMBERSHIP.
Upon determining that an individual is a CSS class member or class member applicant (class of admission [COA] = CS1, CS2, CS3, or CSS), Service officers are instructed as follows: A. Application for Admission: CSS class members should be processed as any other applicant for admission and, if appropriate, shall be placed in expedited removal proceedings. B. Employment Authorization: Aliens are no longer entitled to work authorization solely by virtue of their CSS class membership. Thus, when CSS class member comes before the Service, his or her employment authorization should not be renewed. The EAD card that is based solely on CSS class membership should be confiscated immediately (regardless of its expiration date) and the file should be appropriately noted. C. Removal: CSS class members are no longer entitled to stays of removal solely by virtue of their claimed class membership. The Service may proceed with the executive of any outstanding final order of removal, deportation, or exclusion. Service officers should note that these aliens may be eligible for stays or removal based upon grounds other than their claimed CSS class membership (See, e.g., wires re: NACARA, Haitian DED).
2. NEWMAN (formerly LULAC) v. INS and ZAMBRANO v. INS
The Court's order in CSS DOES NOT AFFECT THE OUTSTANDING ORDERS in LULAC and Zambrano. Until further notice, the Service must continue to renew or extend employment authorization, in one-year increments, and stay the removal of class members in LULAC and Zambrano. LULAC and Zambrano class members do not pay fees for extensions of employment authorization. LULAC and Zambrano class members must obtain advance parole prior to departing the United States and can be properly placed in removal proceedings, including expedited removal, if they attempt to re-enter without having obtained advance parole. Please direct any questions regarding this wire to HQ-AND, Attn. Suzy Nguyen at 202-514-5014. Paul W. Virtue Acting Executive Associate Commissioner for Programs
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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.