In approximately 1995, a legal alien brought suit under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. in the United States District Court for the Eastern District of Texas, challenging certain Immigration and Naturalization Service (INS) regulations implementing the Family Unity ...
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In approximately 1995, a legal alien brought suit under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. in the United States District Court for the Eastern District of Texas, challenging certain Immigration and Naturalization Service (INS) regulations implementing the Family Unity Provision of the Immigration Act of 1990.
Plaintiff had initially entered the U.S. illegally but later was granted legal permanent residency under the Family Unity Provision, as the unmarried child of his father, a legalized alien. Plaintiff made the necessary application and paid the $75.00 filing fee, but was later required to file a separate Form I-765 application and a $60.00 filing fee so that he could be issued an employment authorization document. Plaintiff claimed that the INS acted illegally when it required him to file a separate application, with an additional filing fee, to obtain authorization for employment.
Plaintiff also challenged the INS interpretation of the statute which required an alien seeking Family Unity status as the spouse or unmarried child of a legalized alien, to be such not only on May 5, 1988, but continuously thereafter until permanent residency was granted. Plaintiff sought to marry another legal alien with whom he lived (their American born child lived with them). Plaintiff, however, did not get married for fear that doing so would jeopardize his Family Unity status.
Plaintiff sought declaratory and injunctive relief. The parties filed cross-motions for summary judgment. The District Court (Judge John H. Hannah, Jr.) granted partial summary judgment for the plaintiff and partial summary judgment for the government. The Court denied plaintiff's request for class certification but entered a permanent injunction permanently, enjoining the government "from promulgating or enforcing any regulations or procedures that would require an alien with Family Unity status to apply separately for a work permit." Both parties appealed.
The Fifth Circuit Court of Appeals (Chief Judge Politz) affirmed as modified in part, reversed in part, and remanded with directions. The Fifth Circuit held that: (1) the plaintiff who qualified under Family Unity Provision did not have to file separate application and additional filing fee to obtain employment authorization; (2) the case would be remanded for a determination whether the total fee assessed to plaintiff by the INS were reasonable under Family Unity Provision; (3) whether plaintiff married after May 5, 1988 was irrelevant to the inquiry under Family Unity Provision, so long as he remained unmarried child of legalized alien on that date; and (4) the District Court's injunction was overbroad and needed to be narrowed to apply only to the plaintiff. Hernandez v. Reno , 91 F.3d 776 (5th 1996).
We have no further information on the case.Dan Dalton - 11/12/2007