Speech #980214100

Mr. Chairman. this is a perfecting amendment to correct an inequity in the bill pertaining to the right of refugees and aliens to bring class action suits for review of orders of deportation. exclusion and asylum. Existing law provides for class action jurisdiction where "a pattern or practice of violations of the Constitution or laws of the United States is alleged." H.R. 1510. as adopted by the Judiciary Committee. dropped the words "or laws." although it is unclear from the committees report why that important phrase was dropped. After reporting the bill. the committees intent of preserving asylumseekers access to the courts was inadvertently stymied by a decision in the 11th circuit court regarding the rights of aliens. The 11th circuits decision in Jean against Nelson. stated that excludable aliens "have no constitutional rights with respect to their applications for admission. asylum. or parole." Furthermore. the court disavowed "any language used by (previous) courts that might be read to suggest that excludable aliens have constitutional rights under the fifth amendment with regard to such applications." This decision makes it virtually impossible to bring any class action suits on behalf of asylum seekers under the bill: The bill would allow class actions only in the case of constitutional violations which the courts have determined no longer apply to aliens. a nowin situation. This inequity is easily remedied by restoring the original language which permits class actions for violations of U.S. laws or treaties as well as the Constitution. While class action cases have been relatively few. they have provided relief to thousands of asylum seekers. most recently Salvadorans and Haitians. For instance. a recent class action suit on behalf of Salvadorans successfully challenged INS border patrol practices of "physicial and psychological coercion" designed to force Salvadorans to give up their asylum claims and "voluntarily" return to El Salvador. It is crucial that this role of the Federal courts in assuring fair consideration for asylum seekers be maintained. Significantly. the 11th circuit division. while denying constitutional recourse to asylumseekers. recognized that courts have "the authority to review the decisions of executive officials in the immigration area to ensure that they have exercised their discretion in accordance with the applicable statutes. regulations and the announced policies of their agencies." They emphasized that. in the context of class actions under present law. the "courts are not powerless to act when government officials have either failed to exercise their discretion or abused it by acting outside the scope of their disputed authority." Thus. the court ruled that the source of an aliens claim to fair consideration is not constitutional. but statutory. Given the importance of protecting the rights of those seeking legitimate refuge in the United States. it is crucial to provide for class action jurisdiction expressly for violations of law in view of the abovecited decision. If aliens are to receive fair consideration under our immigration laws. it is essential to maintain effective access to a Federal forum to vindicate injustices. My amendment would preserve the available of class action jurisdiction to prevent the misapplication or abuse of our immigration laws. and I urge its adoption. I would like to point out that class actions save the civil rights organizations that bring these actions vast amounts of money and save the Government vast amounts of money because if these cases have to be brought individually for the thousands of people who may be affected in a particular class. it will really be an undue burden on the court and undue expense to the judicial system.