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Barahona-Gomez v. Ashcroft: Settlement preliminarily approved

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Barahona-Gomez v. Ashcroft: Settlement preliminarily approved in class action for suspension applicants
Immigrants' Rights Update, Vol. 16, No. 6, October 21, 2002

The U.S. District Court for the Northern District of California has preliminarily approved a settlement agreement in Barahona-Gomez v. Ashcroft, a class action lawsuit challenging the actions of Executive Office for Immigration Review officials purporting to implement the 4,000-person cap on suspension/adjustment grants imposed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Under the settlement, class members in the Ninth Circuit who were denied suspension under the "stop-time rule," but who could have been granted suspension had their cases been resolved prior to the rule's Apr. 1, 1997, effective date, will be able to have their cases decided without regard to the stop-time rule.

This litigation challenged directives that were issued by then-Chairman Paul W. Schmidt of the Board of Immigration Appeals and Chief Immigration Judge Michael J. Creppy on Feb. 13, 1997. These directives instructed the BIA and the immigration courts not to grant further suspension applications pending additional guidance. These officials issued the directives because of their concern that, under their interpretation of IIRIRA section 309(c)(7) (which established the aforementioned yearly cap of 4,000 on the number of persons who can adjust to lawful permanent residence by means of suspension of deportation), the EOIR had nearly reached the cap for the fiscal year that began on Oct. 1, 1997. The directives had the most severe impact on applicants served with an Order to Show Cause (OSC) before accumulating seven years' continuous physical presence in the United States, which is a requirement for suspension applications. For these individuals, the directives imposed more than a mere delay in the resolution of their cases. They faced the loss of their eligibility for suspension, since under the BIA's interpretation of IIRIRA section 309(c)(5) they would no longer be eligible once the stop-time rule took effect on Apr. 1, 1997.

Soon after, the plaintiffs in Barahona filed suit in federal district court, seeking injunctive relief against the postponement of their cases. On Mar. 28, 1997, the district court issued a preliminary injunction and provisional class certification for individuals who may have been ordered deported after being denied suspension based on IIRIRA section 309(c)(5). Six months later, the court modified the injunction to require the government to notify class members when their suspension applications are denied based on the new rule for calculating accumulated continuous physical presence. The government appealed both rulings, and the Ninth Circuit ultimately upheld the injunction (see "9th Circuit Affirms Preliminary Injunction in Class Action Case for Suspension Applicants," Immigrants' Rights Update, Feb. 28, 2001, p. 10). The parties then began settlement discussions, resulting in the proposed settlement.

Under the settlement, eligible class members who could have been granted suspension during the period between Feb. 13 and Apr. 1, 1997, before this new restriction took effect, will be given the opportunity to apply for "renewed suspension" under the standards that existed prior to Apr. 1, 1997. The agreement specifically sets forth the criteria that individuals must meet in order to qualify for relief and the procedures for obtaining it. These are summarized in the notice to the class approved by the court and presented in full in the settlement agreement itself. Both the notice to the class and the full settlement agreement may be downloaded from the NILC Web site at www.nilc.org. The following is only a summary of these provisions.

Class Members Eligible for Relief. The class in this case is limited to individuals who applied for suspension of deportation and whose hearings took place within the geographical jurisdiction of the U.S. Court of Appeals for the Ninth Circuit. Even if otherwise qualified, class members are not eligible for benefits under the settlement if they have already become lawful permanent residents, or if they already have had or will have their cases reopened for adjudication or re-adjudication of suspension applications without regard to the stop-time rule by order of the Ninth Circuit, the BIA, or an immigration judge. The following five categories of class members are eligible for relief.

1. Individuals whose cases were reserved for decision or scheduled for a merits hearing on a suspension application by an IJ between Feb. 13, 1997, and Apr. 1, 1997, where the hearing was continued until after Apr. 1, 1997 (except, as described below, in certain cases where the individual requested the continuance), and for which either

(a) no IJ decision has been issued;

(b) an IJ decision was issued denying or pretermitting suspension based on the stop-time rule, and either (i) no appeal was filed; (ii) an appeal was filed, and the case is pending with the BIA; or (iii) an appeal was filed, and the BIA denied the appeal based on the stop-time rule; or

(c) the IJ granted suspension after Apr. 1, 1997, and the Immigration and Naturalization Service filed a notice of appeal, motion to reconsider, or motion to reopen challenging the individual's eligibility for suspension based on the stop-time rule.

Individuals in the categories listed above do not qualify for relief under the settlement if: (1) the hearing was continued at the request of the individual; (2) the individual was represented by an attorney; and (3) the transcript of the hearing was prepared following an appeal and makes clear that the continuance was requested by the respondent. In any case where the EOIR determines that an individual is not eligible for relief under the settlement because of this restriction, the agency will send written notice of this determination to the individual and counsel. The class member will then have 30 days to file a claim disputing this determination. The settlement provides for a dispute resolution mechanism which must be used before the federal court can hear the issue. A stay of deportation will be in place if the dispute resolution mechanism is timely invoked.

2. Individuals whose cases were pending at the BIA (either on direct appeal from the IJ decision, or on a motion to reopen) between Feb. 13, 1997, and Apr. 1, 1997, where the notice of appeal (or the motion to reopen) was filed on or before Oct. 1, 1996, and which were, or would be (but for the settlement agreement), denied on the basis of the stop-time rule, whether or not the decision of the BIA denying suspension solely on the basis of the stop-time rule has already been issued. (Note that individuals who are otherwise class members because their case was pending at the BIA between Feb. 13, 1997, and Apr. 1, 1997, but whose notice of appeal to the BIA was filed after Oct. 1, 1996, will not be eligible for relief, unless they fall under another category of those eligible.)

3. Individuals whose cases were taken under submission by an IJ following a merits hearing before Feb. 13, 1997, where no decision issued until after Apr. 1, 1997.

4. Individuals for whom an IJ denied or pretermitted suspension between Oct. 1, 1996, and Mar. 31, 1997, on the basis of the stop-time rule, and the individual filed a notice of appeal with the BIA.

5. Individuals for whom an IJ granted suspension of deportation before Apr. 1, 1997, and the INS appealed based only on the stop-time rule or IIRIRA section 309(c)(7) (the 4,000 cap).

Procedures for Obtaining Relief under the Settlement. Under the settlement, eligible class members can apply for and be granted "renewed suspension," which means the relief of suspension of deportation as it existed on Sept. 29, 1996, before amendment by the IIRIRA or any subsequent statute. As part of the process of applying for renewed suspension, class members will have the opportunity to present new evidence of the hardship they would face were they to be deported.

The procedures by which such eligible class members may apply for and be granted relief depend upon the status of the case. In cases currently pending before an IJ, the EOIR will send written notice to eligible class members of the opportunity to apply for relief under the settlement. In cases of eligible class members that are currently pending before the BIA, the BIA will remand the case to the IJ to schedule a hearing for renewed suspension. In those cases where an IJ previously granted suspension to a class member and the INS appealed based only on the stop-time rule or the 4,000 cap, the BIA will dismiss the appeal and thereby reinstate the IJ's decision granting suspension.

In cases of eligible class members where the BIA or an IJ denied suspension and no appeal was filed, the EOIR will on its own motion reopen the case to allow the class member to apply for suspension. In such cases the EOIR will send written notice to the class member's last known address. If the class member subsequently fails to appear for a noticed hearing, the case will be administratively closed for a period of time after which the case could be reopened and an appropriate order issued, including an in absentia order of deportation. This order could, in turn, be subject to reopening for lack of notice.

Class members who are subject to final deportation orders but are eligible to apply for renewed suspension under the settlement may file a motion to reopen their case to apply for renewed suspension. This will be necessary in cases where the BIA or the IJ will not, on their own, be reopening the case. Principally, this will be an issue in cases where a motion to reopen has already been denied. This motion is not subject to the normal time and number limitations on motions to reopen, nor does it require a filing fee. However, the motion to reopen must be filed within 18 months of the date that an advisory statement announcing and describing the settlement is published in the Federal Register (this period will be extended for 6 months if at least one class member files such a motion within the last 6 months of the 18-month period).

Stay of Deportation. A stay of deportation will be in effect for class members eligible for relief under the settlement and who are subject to final orders of deportation. The stay will expire upon the reopening of a class member's case under the terms of the settlement agreement. The stay is also dissolved 30 days after any individual receives written notice that the EOIR has determined that he or she is not eligible for relief under the settlement, due to the presence of three factors: (1) the hearing was continued at the request of the individual; (2) the individual was represented by an attorney; and (3) the transcript of the hearing was prepared following an appeal and makes clear that the continuance was granted at the request of the respondent. The stay is not dissolved after 30 days only if the individual notifies the EOIR within the 30-day period that he or she is invoking the settlement's dispute resolution procedure. The stay will also be dissolved for any other individuals who are not eligible class members but who currently benefit from the stay of deportation in place due to the pending litigation.

An eligible class member who files a motion to reopen under the settlement may also request a stay of deportation from the EOIR, and this filing will cause him or her to be presumed to be an eligible class member for purposes of the stay of deportation. However the presumption and stay can be dissolved by order of the EOIR in not less than seven days if the individual has not filed prima facie evidence of eligibility for relief under the settlement by that time.

The court has scheduled a fairness hearing on Dec. 6, 2002, in Oakland, Calif., in order to determine whether to give final approval to the settlement. Any class member who wishes to object to the settlement must do so no later than Nov. 15, 2002. The notice to the class explains the procedures for objecting.

Barahona-Gomez v. Ashcroft, No. C97-0895 CW (N.D.Cal.).