Cite as: 509 U. S. 43 (1993)
Opinion of the Court
Act's 12-month application period, the INS modified its re-entry policy by issuing two new regulations.9 The first, codified at 8 CFR § 245a.2(b)(9) (1992), specifically acknowledged the eligibility of an alien who "reentered the United States as a nonimmigrant . . . in order to return to an unrelinquished unlawful residence," so long as he "would be otherwise eligible for legalization and . . . was present in the United States in an unlawful status prior to January 1, 1982." 52 Fed. Reg. 43845 (1987). The second, codified at 8 CFR § 245a.2(b)(10) (1992), qualified this expansion of eligibility by obliging such an alien to obtain a waiver of a statutory provision requiring exclusion of aliens who enter the United States by fraud. Ibid.
Although the LULAC plaintiffs then amended their complaint, they pressed their claim that 8 CFR § 245a.2(b)(8) (1992), the reentry regulation originally challenged, had been invalid prior to its modification. As to that claim, the District Court certified the case as a class action, with a class including
"all persons who qualify for legalization but who were deemed ineligible for legalization under the original [reentry] policy, who learned of their ineligibility following promulgation of the policy and who, relying upon information that they were ineligible, did not apply for legalization before the May 4, 1988 deadline." 10 No. 87-
4757-WDK (JRx) (CD Cal., July 15, 1988) (App. 216).
9 The INS first announced its intention to modify its policy in a statement issued by then-INS Commissioner Alan Nelson on October 8, 1987, see Record, Addendum to Doc. No. 8; however, it did not issue the new regulations until November 17 following.
10 The LULAC plaintiffs also challenged the modified policy, claiming that aliens should not have to comply with the requirement of 8 CFR § 245a.2(b)(10) (1992) to obtain a waiver of excludability for having fraudulently procured entry into the United States. With respect to this challenge, the District Court certified a second class comprising persons adversely affected by the modified policy. See No. 87-4757-WDK (JRx) (CD Cal., July 15, 1988) (App. 216). However, the District Court ultimately
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