INS No-Work Rule Struck Down Again

SAN FRANCISCO —  A federal appeals court on Friday ruled that the Immigration and Naturalization Service cannot prohibit suspected illegal immigrants from working while they await deportation hearings.

By a 2-1 vote, the U.S. 9th Circuit Court of Appeals affirmed a lower court ruling that struck down the 1983 regulation. This marks the third time the court has ruled against the INS effort to impose the “no-work” regulation.

Seeking to preserve jobs for U.S. workers, the INS in 1983 began requiring that aliens who were arrested on immigration violations and who wanted to fight deportation in hearings promise not to work as a condition of their release from jail.

Writing for the court, Judge Warren Ferguson called the regulation “harsh and inhumane,” and said it forced immigrants to “choose between starving on the streets and remaining in detention.”

“Surely Congress could not have intended to reduce these claimants--some legitimate and likely to become future citizens--to such choices in order to survive,” Ferguson wrote in an opinion joined by Judge Stephen Reinhardt.

The policy had been in effect for only a few days when U.S. District Judge David Kenyon, responding to a suit brought by civil rights groups, issued an injunction prohibiting the INS from imposing the regulation.

The 9th Circuit affirmed that decision before the U.S. Supreme Court returned the case to the lower courts to determine whether the 1986 Immigration Reform and Control Act empowered the INS to impose such a regulation. Friday’s ruling answered that question.

Appellate Judge Stephen Trott dissented Friday, noting that the main objective of the 1986 law was “to stop illegal aliens from working, period.” Trott did acknowledge that the regulation was ambiguous. INS officials declined to comment on the decision.

Los Angeles attorney Peter A. Schey, who brought the suit on behalf of several organizations, called the regulation “the most Draconian policy the INS has ever issued.”

In any given year, roughly 1 million people voluntarily give up their rights to deportation hearings and leave the country, said Schey, executive director of the Center for Human Rights and Constitutional Law in Los Angeles. But Schey also estimated that another 400,000 people are awaiting deportation hearings.