INS Implements Judgment in Proyecto San Pablo, Allowing New Legalization Adjudications for Class Members

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

INS IMPLEMENTS JUDGMENT IN PROYECTO SAN PABLO, ALLOWING NEW LEGALIZATION ADJUDICATIONS FOR CLASS MEMBERS
Immigrants' Rights Update, Vol. 17, No. 1, February 21, 2003

The Immigration and Naturalization Service has published a notice in the Federal Register to inform class members in Proyecto San Pablo v. INS, No. Civ 89-456-TUC-WDB (D.Ariz.), of the terms of the final court order in the case. That litigation challenged the INS's implementation of the amnesty provisions of the Immigration Reform and Control Act of 1986, specifically the agency's refusal to consider applications from individuals who had been deported. The notice explains the process by which class members may obtain information about their files, file motions to reopen their legalization cases, and obtain work authorization.

The notice defines class members as certain individuals who filed legalization applications under section 245A of the Immigration and Nationality Act between May 5, 1987, and May 4, 1988. The application must have been filed with a legalization office in the former Northern or Western regions of the INS (that is, in Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, or Wyoming). And the application must have been denied or the applicant's temporary residence terminated because at some time during the period beginning before Jan. 1, 1982, and ending on the date of filing the legalization application he or she departed the United States under an order of deportation.

The notice explains that class members may obtain copies of their INS files by filing a Freedom of Information Act (FOIA) request (either Form G-639 or a letter, a sample of which is included as an attachment to the Federal Register notice) with the Nebraska Service Center of the INS. For immigration court records, a FOIA request must be filed with the Executive Office for Immigration Review at the following address: Office of the General Counsel, Executive Office for Immigration Review, FOIA/PA Requests, 5107 Leesburg Pike, Suite 2400, Falls Church, VA 22041. Information from these files is likely to be critical in renewing a legalization application, particularly in showing the bases for the legalization denial and the prior deportation.

A class member may obtain a new legalization adjudication by filing a motion to reopen with the INS. The motion to reopen must be filed within one year of the date on which the class member is personally served with the Federal Register notice. The INS will send the notice by certified mail, return receipt requested, to the last known address of those individuals whom the INS has identified as class members. In addition, when a class member applies for employment authorization, the INS will check the individual's file to see if it contains written confirmation of the class member's receipt of the notice. If it does not, the agency will send the notice by certified mail to the address listed on the Form I-765 employment authorization application form. In addition, the INS may personally deliver a copy of the notice to class members when they come into contact with the agency. The one-year period in which motions to reopen must be filed begins only when the notice has been personally served by one of the above-described methods.

The notice explains that class members should include copies of any documents that they received from the INS and EOIR in response to FOIA requests with their motions to reopen. They also can apply for a waiver (by using Form I-690 and paying the fee, currently $35) of most grounds of inadmissibility, which is available to legalization applicants, and they can apply for any other waiver that they want to have adjudicated. They can also submit a brief and any other evidence in support of their applications, as well as a statement, either that they are ready to have a new decision entered in the legalization case or that they are still awaiting the results of a FOIA request. The notice explains that a motion to reopen must be submitted within the one-year deadline even if the class member has not yet received a response to a FOIA request; in such cases, the class member should include with the motion a statement that he or she is still awaiting this response. Then the INS will not rule on the motion to reopen until the class member has had an opportunity to obtain and review FOIA documents. Such class members must submit a brief and any documents they want considered within six months of receiving responses to both FOIA requests (to the INS and the EOIR).

The notice explains that class members may apply for employment authorization by submitting Form I-765 (Application for Employment Authorization) without a fee. They should write the word "Proyecto" in box 16 of the application form. The form should be mailed to the Nebraska Service Center, Attn: Proyecto Unit, P.O. Box 87687, Lincoln, NE 68501-7687.

The notice also explains that under the court order class members are entitled to a stay of deportation and to release from custody without bond for as long as they remain class members. Filing either a motion to reopen or an application for employment authorization will serve to notify the INS that an individual is entitled to these benefits, until such time as the INS makes a final decision in the case.

68 Fed. Reg. 4,518-22 (Jan. 29, 2003).