Walters v. Reno: Settlement Reached in Civil Document Fraud Litigation

IMMIGRANTS & EMPLOYMENT

INS Workplace Enforcement

WALTERS V. RENO: SETTLEMENT REACHED IN CIVIL DOCUMENT FRAUD LITIGATION
Immigrants' Rights Update, Vol. 14, No. 8, Dec. 27, 2000

[MORE INFORMATION: http://www.nilc.org/immlawpolicy/index.htm#litigation]

A proposed settlement has been reached in Walters v. Reno, a class action lawsuit that challenged the forms and procedures used by the Immigration and Naturalization Service to implement the civil document fraud provisions of section 274C of the Immigration and Nationality Act. In 1996 the federal district court in Seattle found that the forms and procedures used by the INS violate due process and issued a nationwide permanent injunction that was subsequently upheld by the Ninth Circuit (see "Ninth Circuit Upholds Nationwide Injunction of INS Civil Document Fraud Notice Forms and Procedures," Immigrants' Rights Update, June 17, 1998, p. 9). The proposed settlement now would require the INS to vacate all document fraud orders that were issued without a hearing as a result of the deficient forms. It also provides a procedure whereby class members may reopen their deportation cases. In addition, the settlement establishes new forms and procedures that the INS can use to implement section 274C. The district court has preliminarily approved the settlement and scheduled a fairness hearing for Feb. 22, 2001, to consider any objections from class members and to decide whether to give its final approval to the settlement.

On Mar. 13, 1996, the district court issued a decision granting summary judgment to plaintiffs and certifying a nationwide class. Judge John C. Coughenour found that the forms and procedures used by the INS to initiate 274C proceedings violate due process. Among the factors that led the court to find that the notice forms and procedures were not reasonably calculated to inform respondents of the nature and consequences of 274C charges were the following: (1) the complicated, overly-technical, and legalistic language used on the forms; (2) the forms' failure to explain the drastic immigration consequences of 274C charges; and (3) the use of English-only notice forms, where the vast majority of respondents are native Spanish-speakers, and where the INS routinely served the 274C notice forms along with Spanish-language forms explaining rights and procedures in deportation cases. The court found that in this context serving English 274C forms with Spanish-language advisories about deportation rights was affirmatively misleading, creating the false impression that a request for a deportation hearing would adequately defend against the document fraud charges.

The court subsequently issued a permanent injunction prohibiting the INS from using the challenged notice forms to initiate 274C cases. The injunction also prohibited the INS from using any future 274C notice forms that are not written in both English and Spanish or that do not simply and plainly communicate the nature and consequences of the 274C charges and the procedures for contesting them. The INS was enjoined from taking any action to enforce 274C final orders until class members were given the opportunity to move to reopen their cases under the injunction and have their reopened proceedings adjudicated. The injunction also required the INS to take a number of affirmative measures to afford relief to individuals who received final 274C orders without a hearing because of the challenged notice forms. But these portions of the injunction were stayed pending appeal.

On appeal, the U.S. Court of Appeals for the Ninth Circuit agreed with the district court that the 274C notice forms and procedures violate due process. The opinion upheld the district court's injunction in all aspects but one: rather than requiring the INS to develop new forms in English and Spanish, the court left it to the agency's discretion in the first instance to fashion an appropriate notice. Walters v. Reno, 145 F.3d 1032 (9th Cir . 1998), cert. denied, 119 S.Ct. 1140 (Mar. 8, 1999). After the U.S. Supreme Court denied the government's petition for certiorari to review the Ninth Circuit decision, the parties pursued settlement discussions and ultimately reached an agreement, subject to the approval of the district court. As discussed below, the settlement addresses both the forms and procedures to be used by the INS in charging document fraud cases in the future and the remedies available for class members who received final document fraud orders without a hearing under the old procedures.

Under the settlement agreement, the INS will use a new, revised form to give notice to individuals who are charged with civil document fraud. The new form contains strong warnings to individuals of the immigration consequences of having a 274C final order entered against them. Individuals may request a hearing by checking a box on the form. The INS will not accept on-the-spot waivers of the right to a civil document fraud hearing. Individuals who do not request a hearing at the time they are served with the notice form may subsequently request a hearing, as long as they make a written request for it within 60 days of the date they are served.

The INS did not agree to provide written notice forms to individuals served with 274C charges in languages other than English. However, the warnings on the notice form must be read aloud to the individual being charged, in a language that he or she understands, at the time the notice is served on the individual.

The settlement agreement contains a number of provisions designed to benefit class members. The class is defined as all noncitizens who waived or failed to request a 274C hearing after being served with the charging and notice forms that were challenged in this litigation.

Under the agreement, the INS will vacate all 274C final orders that were issued against class members. The final orders must be vacated within 180 days of the final approval of the settlement. The INS will not recharge these individuals for the same conduct that was originally charged.

The agreement also requires that the INS join in motions to reopen deportation proceedings (for class members with final orders) and motions to remand (for class members with cases at the Board of Immigration Appeals) in cases where the deportation order was based, in whole or part, on a vacated 274C final order. This includes cases where relief was denied as a matter of discretion because of the document fraud order. In order to have the INS join in a motion to reopen, the class member must submit a written request to the INS office of district counsel for the district where the deportation case was completed. In addition, the class member must either be seeking to apply for relief for which he or she is now eligible, or be seeking to contest deportation because the final 274C order has been vacated. The request for reopening must be received by the INS within two years of the date that the INS notifies plaintiffs' counsel that it has completed vacating 274C final orders.

If the INS determines that a class member does not meet the above-described requirements to have the INS join in a motion to reopen or remand, the agency must give written notice of this decision to the class member. The class member then will have 60 days to seek review of that decision in the federal district court in Seattle.

In the event, and at the time, the INS seeks to take enforcement action on a class member's deportation order that is based in part on a section 274C final order vacated pursuant to the terms of the agreement, the INS will provide written notice to the class member of his or her rights and responsibilities. After providing such written notice, the INS will refrain from taking enforcement action on a class member's deportation order for 30 days from the date on the written notice. This will provide the class member time to submit a written request to the INS asking the agency to join in a jointly filed motion to reopen deportation proceedings. If the INS does not receive a class member's written request by the end of the 30-day period, the INS may proceed to take enforcement action on the deportation order. However, the agency may do so only if the deportation order contains at least one ground of deportability that is unrelated to the class member's vacated section 274C final order.

Copies of the complete proposed settlement may be obtained from NILC and are also available at NILC's website (www.nilc.org). A copy of the Notice to Class Members, which explains the procedures that class members may use should they object to the settlement, is being mailed with this edition of the newsletter and is also available on the NILC website. Any objections must be postmarked by Jan. 22, 2001.

Walters v. Reno, No. C94-1204C (W.D. Wash.).