The Ninth Circuit Court of Appeals has issued a decision upholding a nationwide permanent injunction of the procedures used by the Immigration and Naturalization Service to institute civil document fraud charges under Immigration and Nationality Act section 274C.  The decision came in a class action lawsuit, Walters v. Reno, that was filed in Seattle, Washington, in 1994.

INA section 274C, enacted in 1990, makes it unlawful to knowingly engage in certain types of immigration-related document fraud.  Under the statute, the attorney general must furnish an individual charged with civil document fraud with notice and the opportunity to request a hearing on the charges.  If the individual requests a hearing within 60 days of the date the notice is served and the INS then files a formal complaint, the hearing is held before an administrative law judge.  If an individual fails to request a hearing, a section 274C final order automatically issues.

An individual against whom a 274C final order is issued is subject to a monetary fine and a cease-and-desist order.  For respondents who are not U.S. citizens, it also carries immigration consequences that far outweigh the possible fines.  Noncitizens with 274C final orders are automatically deportable, and they are ineligible for most forms of relief from deportation.  Being the subject of a 274C final order is also a permanent ground of inadmissibility, forever barring the person from returning to the United States except in extremely limited situations where a waiver of the bar may be available.

When the INS developed notice forms to implement section 274C, the agency decided not to make any mention of the immigration consequences of a 274C final order on the principal form, the Notice of Intent to Fine (NIF).  The INS reasoned that U.S. citizens as well as noncitizens could be fined under the statute, and that citizens might be confused by such a warning.  However, in practice less than two percent of respondents charged with violating section 274C are U.S. citizens.  Nearly all 274C cases begin when an INS special agent or Border Patrol agent is processing an individual either for a deportation hearing or for voluntary departure in lieu of deportation.

Individuals who are processed for both deportation and 274C proceedings receive at least 14 pages of notice forms.  The deportation-related forms are all either in both English and Spanish (i.e., sections in English are immediately followed by their Spanish translation) or one side of a page is in English, the other in Spanish; however, the forms that relate to section 274C are only in English, except in those INS districts that on their own initiative have made Spanish translations.  The deportation-related forms contain a line where the respondent can sign to "request a hearing before an immigration judge to determine whether or not I may remain in the United States."   None of the forms indicate that in order to protect their right to seek relief from deportation respondents must make two separate requests for hearings.  Under these procedures, many individuals failed to request 274C hearings and learned only at their deportation hearing that they were no longer eligible to apply for relief.

The plaintiffs—individuals who were issued final 274C orders without a hearing—filed suit in Seattle in August 1994.  In March 1996, the district court issued a decision granting summary judgment to plaintiffs and certifying a nationwide class.  Citing the balancing test set forth by the Supreme Court in Matthews v. Eldridge, 424 U.S. 319 (1976), Judge Coughenour found that the forms and procedures used by the INS to initiate 274C proceedings violate due process.

In October 1996, the district court enjoined the INS from using the defective forms and required the agency to develop new forms in English and Spanish that plainly communicate the nature of the charges and what is at stake.  The court also required the INS to develop a procedure to allow class members with final 274C orders to move to reopen their 274C cases and any resulting deportation cases, enjoined the INS from deporting class members pending such proceedings, and required INS to mail notice of the remedy to class members and to publicize it by distributing a press release in the U.S. and throughout Latin America.

On appeal, the Ninth Circuit agreed with the district court that the 274C notice forms and procedures violate due process.  The opinion upholds the district court’s injunction in all aspects but one: rather than requiring the INS to develop new forms in English and Spanish, the opinion leaves it to the agency’s discretion in the first instance to fashion an appropriate notice.

It is not yet known whether the INS will seek to appeal the case to the Supreme Court.   In addition to NILC, the plaintiffs were represented by the ACLU Immigrants’ Rights Project, the Northwest Immigrants’ Rights Project, the American Immigration Law Foundation, the Catholic Legal Immigration Network, and private attorneys Robert Gibbs, Robert Pauw, Daniel Levy, and Mary Steele.

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