Criminal Defense of Immigrants
§ 24.9 VI. Legalization
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The Immigration Reform and Control Act of 1986 (IRCA) created two programs under which noncitizens could adjust to lawful permanent resident status: (1) the general legalization program, or 1/1/82 legalization program, was open to persons who continuously resided in the United States in illegal status since January 1, 1982, see § 24.10, infra, and (2) the Special Agricultural Worker (SAW) program was open to persons who performed agricultural labor for at least 90 days from May 1, 1985 to May 1, 1986. See § 24.11, infra. SAW applicants who demonstrated that they worked 90 days each year from May 1, 1983 to May 1, 1986 could become permanent residents under the program more quickly.
There are two categories of immigrants whose legalization cases are still active. First, many naturalization applicants received their permanent resident status from a legalization program. Some are being charged at their naturalization interview with having obtained that status wrongfully. Such charges should be opposed. Second, a few hundred thousand people in the U.S. may benefit from “late amnesty” litigation that will let them apply now because they were wrongly turned away when they attempted to apply for legalization in the late 1980’s. Certain undocumented noncitizens may also be able to apply under the provisions of the LIFE Act. At least one circuit has held that noncitizens who would have been subject to grounds of deportability prior to IIRAIRA, but are now subject to grounds of inadmissibility, retain the right of judicial review of legalization claims.
 INA § 245A, 8 U.S.C. § 1255a (legalization); INA § 210, 8 U.S.C. § 1160 (SAW).
 Confidentiality provisions regarding amnesty applications may provide protection against this use of the information contained therein. The government is not permitted to use any information from the amnesty application or file except to accomplish the following: bring a prosecution for fraud, or deny the amnesty application itself. For example, the BIA held that the government could not use information from a SAW file to rescind permanent resident status based on SAW fraud. Matter of Masri, 22 I. & N. Dec. 1145 (BIA 1999). Any use of information from the amnesty file to challenge permanent residence and deny naturalization is improper.
 See Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (9th Cir. 1992); 80 Interpreter Releases 1635, 1666-67 (Dec. 8, 2003); 81 Interpreter Releases 275-277 (Mar. 1, 2004).
 Legal Immigration Family Equity (LIFE) Act, Pub. L. 106-553, 114 Stat. 2762, Title XI of H.R. 5548 (Dec. 21, 2000); 8 C.F.R. § § 245a.10-245a.37.
 Guzman-Andrade v. Gonzales, 407 F.3d 1073 (9th Cir. May 19, 2005).
RELIEF " LEGALIZATION " RETROACTIVITY
Siddiqui v. Holder, ___ F.3d ___ (7th Cir. Jan. 12, 2012) (reversing AAOs decision denying legalization because it erred in applying IIRIRAs 1996 definition of conviction, INA 101(a)((48)(A), 8 U.S.C. 1101(a)(48)(A), to Siddiquis 1992 offense because Congress did not clearly express its intent to apply the definition retroactively to individuals such as Siddiqui, whose legalization applications would have been adjudicated prior to the enactment of IIRIRA if the government had not unlawfully refused in late 1980s to accept applications from applicants who had briefly left the country).
RELIEF - WAIVERS - 212(H) - LEGALIZATION
Pedroza-Padilla v. Gonzales, 486 F.3d 1362 (9th cir. May 15, 2007) (IRCA waiver of inadmissibility does not also waive the legalization requirement that an alien have resided continuously in the United States since January 1, 1982).