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With the citizenship of possibly a quarter of a million people hanging in the balance, the 9th U.S. Circuit Court of Appeals gave a class of immigrants the go-ahead to sue the Immigration and Naturalization Service. In doing so, the divided en banc panel threw open the courthouse door by placing statutes of limitation for subsequent classes on ice as long as the original complaint remains intact. In Catholic Social Services v. Reno, 00 C.D.O.S. 9301, the majority said a second class of illegal aliens could challenge an INS ruling that it was ineligible for a 1986 amnesty program, even though it filed suit long after the six-year statute of limitations had run. Plaintiffs’ lawyers argued that the first suit tolled the statute of limitations, while government attorneys argued that it was a new class with new claims for which time had run out. But Judge William Fletcher, writing for the 7-4 majority, said that since the first class action is still viable, a second class did not mean lawyers were taking a second swing at a flawed case, and therefore could continue. “Plaintiffs in this case are thus in a fundamentally different posture from plaintiffs in which subsequent class actions were not allowed,” Fletcher wrote. “Plaintiffs in this case are not attempting to relitigate an earlier denial of class certification, or to correct a procedural deficiency in an earlier would-be class.” Judge Alex Kozinski wrote one of the dissents. “I disagree with that characterization of this case,” he wrote. “In my view, plaintiffs are seeking to relitigate the propriety of their proposed class. That is, even if the majority’s distinction were theoretically valid, it has no application here.” In 1986, Congress created an amnesty program to grant citizenship to illegal aliens living continually in the United States since 1982. The program would be unveiled the next year and last for 12 months. Congress wanted interpretation of the program to be “generous” and wrote a provision into the law clearly stating that brief absences from the country would not bar citizenship. But Immigration and Naturalization Service officials turned away applicants who had left the country, however briefly, after passage of the law but before the program began — unless they had obtained permission to leave, or “advance parole,” from the INS. As many as 250,000 immigrants were denied residency, according to plaintiffs lawyers, and thus began what the 9th Circuit on Tuesday called a case with a “long and unhappy history.” Seven amended complaints were filed before Eastern District Senior Judge Lawrence Karlton. The case has even been to the U.S. Supreme Court, which, in part, is where the trouble began. The cases now are referred to as CSS I through CSS VI, with an earlier 9th Circuit panel decision in CSS VI overturned with Tuesday’s opinion. Thousands of applicants were turned away by clerks at the INS before being allowed to file an application. The Supreme Court said members of this group, so-called “constructive front-deskers,” would be able to show their case was ripe only after further development of the record. In 1996, the seventh amended complaint included claims by plaintiffs who said they were “front-desked” without ever being allowed to fill out an application. About the same time, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, which contained a provision attempting to decide the ripeness issue for the courts. Specifically, the statute said that no court shall have jurisdiction over claims of citizenship under the 1986 amnesty law unless the immigrant actually filed, or attempted to file, a completed application. That created a second class action, which challenged the constitutionality of the IIRIRA provision. Several law professors later joined in that challenge, filing an amicus curiae brief after the 9th Circuit’s three-judge panel appeared to rule that it had no jurisdiction to decide whether the provision was constitutional. Judge Fletcher pointed out that members of the second class clearly had their individual claims preserved while the first suit was fought at virtually every whistle-stop in the federal judiciary. “The only question in this case is whether those same plaintiffs should be permitted to aggregate their individual actions into a class action,” Fletcher wrote. “Strictly speaking, this is not a statute of limitations question at all.” But Kozinski, in a dissent joined by Stephen Trott, Thomas Nelson and Ferdinand Fernandez, accused the majority of digging a bottomless well from which class action lawyers can draw cases, trying them over and over, no matter what the statute of limitations says. “The majority raises a conflict with the law of every circuit that has decided a question of national significance,” Kozinski wrote, adding that the decision undermines the principles of class litigation. “Instead of performing the normal en banc function of clarifying the law, the majority leaves it in total disarray,” Kozinski later added. Judge Susan Graber, writing separately, agreed with the majority that “constructive front-deskers” could form a separate class, since their claims, she reasoned, arose from the 1996 law that denied them standing. But she would deny the claims of litigants whose new claims did not arise from IIRIRA.

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