01-23497. Aliens Seeking Relief Pursuant to Settlement Agreement in Walters

AGENCY:

Immigration and Naturalization Service, Justice.

ACTION:

Notice.

SUMMARY:

On February 22, 2001, the district court approved a class action settlement agreement in the case of Walters v. Reno, which had challenged the Immigration and Naturalization Service's (Service) implementation of the civil document fraud provisions of section 274C of the Immigration and Nationality Act (Act). This notice details the procedures for requesting joint motions to re-calendar, reopen or remand removal proceedings pursuant to the settlement agreement and for requesting refunds for section 274C civil money penalties previously paid to the Service. This notice informs class members of their rights for administrative and judicial review of determinations made pursuant to the settlement agreement. Class members have until August 21, 2003, to file requests for motions to re-calendar, reopen or remand deportation proceedings and for refunds.

DATES:

This notice is effective September 20, 2001.

FOR FURTHER INFORMATION CONTACT:

Warren McBroom, Immigration and Naturalization Service, 425 I Street, NW, Suite 6100, Washington, DC 20536, telephone [phone].

SUPPLEMENTARY INFORMATION:

Background

On February 22, 2001, the district court approved a class action settlement agreement in the case of Walters v. Reno, Civ. No. 94-1204C (W.D. WA). The lawsuit challenged the Service's implementation of the civil document fraud provisions of section 274C of the Act. Specifically, certain aliens claimed that the Service's procedures and forms inadequately informed them of their rights to dispute or contest charges that they committed document fraud in violation of section 274C of the Act.

Pursuant to the agreement, on August 21, 2001, the Service completed vacating all section 274C final orders issued against class members. The Service is not permitted to recharge such class members under section 274C of the Act for the same conduct charged in the original Notice of Intent to Fine (NIF). Further, the Service is not permitted to charge class members as being deportable under section 237(a)(3)(C) of the Act or inadmissible under section 212(a)(6)(F) of the Act based on the same conduct charged in the original NIF.

The settlement agreement requires the Service, in certain instances, to join in a motion to re-calendar, reopen or remand deportation proceedings. The settlement agreement also provides class members with avenues for administrative and judicial review of any determinations made pursuant to the settlement agreement. Finally, the settlement agreement permits class members who previously paid section 274C civil money penalties to the Service to seek refunds for such payments.

Who is Considered a Class Member Under the Walters v. Reno Settlement Agreement?

All non-citizens who waived or failed to request a hearing under Section 274C of the Immigration and Nationality Act (“INA”) after being served, prior to October 1996, with the charging forms and a notice of intent to fine challenged in Walters v. Reno.

The settlement agreement in Walters v. Reno, however, does not include any alien who was the subject of a notice of intent to fine if the alien did request a hearing under section 274C before an administrative law judge in the Office of the Chief Administrative Hearing Officer, as provided in 28 CFR part 68. Thus, an alien who is subject to a section 274C final order is not a class member if he or she had requested a hearing with respect to that order, and, accordingly, the provisions of the settlement agreement and this Notice do not apply in that situation.

The settlement agreement also does not include any alien who is served with a revised section 274C notice of intent to fine form created pursuant to the agreement.

In Which Cases Will the Service Join in a Motion To Re-Calendar a Deportation Proceeding That Was Administratively Closed?

The Service will join a class member whose section 274C order was vacated pursuant to the settlement agreement in a motion to re-calendar deportation proceedings that were administratively closed by either an immigration judge or the Board of Immigration Appeals (Board) pending final resolution of the issues involved in Walters v. Reno.

In Which Cases Will the Service Join in a Motion To Reopen or Remand Deportation Proceedings?

The Service is required to join a class member in a motion to reopen or remand deportation proceedings, but only if all of the following conditions apply:

(1) The original proceedings were based, in whole or part, on a section 274C final order vacated pursuant to the settlement agreement; and

(2) The Service receives a written request from the class member by August 21, 2003; and

(3) The class member either:

(i) Is no longer deportable as a result of the section 274C final order being vacated; or

(ii) Is seeking to apply for relief from deportation or removal for which he or she is prima facie eligible, as a result of the section 274C final order being vacated, under the law in effect when his or her written request is received by the Service.

How Does a Class Member Submit a Request for a Motion To Reopen or Remand Deportation Proceedings?

Class members seeking a motion to reopen or remand deportation/removal proceedings pursuant to the settlement agreement must file a request, in writing, with the Service. The written request must be submitted to the Service Office of the District Counsel where the deportation/removal proceedings were completed before the immigration judge. Class members may obtain the address for the local district counsel by contacting the National Customer Service Number at 1-800-375-5283 or accessing the Service internet web site at http://www.ins.usdoj.gov.

What is the Deadline for Submitting a Request for Reopening or Remand of Deportation Proceedings?

The written request must be physically received by the Service no later than August 21, 2003. A written request received by the Service after that date is not timely regardless of when it was mailed.

Will the Service Deport or Remove a Class Member While His or Her Motion To Reopen or Remand Proceedings Is Pending?

No. If the Service agrees to join in a motion to reopen or remand, the Service will refrain from action to deport or remove the alien while the motion is pending before the immigration judge or the Board.

When Will the Service Decline To Join in a Class Member's Motion To Reopen or Remand Deportation or Removal Proceedings?

The Service will decline to join in a motion to reopen or remand deportation proceedings as provided in this Notice in any of the following instances:

(1) If a class member is not prima facie eligible to apply for relief from deportation or removal, as a result of the section 274C final order being vacated, under the law in effect when his or her written request is received by the Service;

(2) If the class member fails to make a written request to the Service (or the Service fails to receive such a request) by August 21, 2003; or

(3) If the prior deportation or removal order was not based, in whole or part, on section 274C of the Act.

What Rights Do Class Members Have if the Service Does Not Agree To Join in a Motion To Reopen or Remand Deportation or Removal Proceedings?

If the Service declines to join in a motion to reopen or remand deportation or removal proceedings as provided in this Notice, the Service will send a written decision to the alien's last known address. The alien will then have 60 days from the date of this written decision to file a motion with the United States District Court for the Western District of Washington. The district court's decision shall be limited to a determination as to whether the class member has established by clear and convincing evidence that he or she met the requirements for the joint motion.

Will the Service Deport or Remove a Class Member While He or She Is Waiting for the District Court To Review a Decision by the Service To Not Join the Motion To Reopen or Remand Deportation Proceedings as Provided in the Settlement Agreement?

No, the Service will refrain from taking enforcement action while a class member's motion for review as provided in the settlement agreement is pending with the district court. However, if the class member fails to file a motion for review with the district court within 60 days of the date of the Service's written decision, the Service may proceed with deportation or removal. Also, if the district court denies a class member's motion for review and the court decision becomes final after all appellate rights have been exhausted, the Service may proceed with deportation or removal.

The Service, however, may only remove a class member if there is at least one other ground of deportability or inadmissibility that is unrelated to the class member's vacated section 274C final order.

Will the Service Inform a Class Member of His or Her Rights and Responsibilities Under the Settlement Agreement if It Seeks To Take Enforcement Action on a Class Member's Deportation or Removal Order?

Yes. Until August 21, 2003, if the Service seeks to take enforcement action to deport or remove a class member based in part on a section 274C order, the Service will provide written notice to the class member of his or her rights. The Service will also advise the class member of his or her right to counsel at his or her own expense, and will provide the name, address, and telephone number of plaintiffs' counsel. The Service will refrain from taking enforcement action on a class member's deportation or removal order for 30 days from the date of the written notice, providing the class member with time to submit a written request to the Service to recalendar, reopen or remand the deportation or removal proceedings pursuant to the settlement agreement.

If the Service does not receive a class member's request by the end of the 30-day period, the Service may proceed with enforcement action on the deportation or removal order, but only if the deportation or removal order is based on at least one ground of deportability or inadmissibility unrelated to the class member's vacated section 274C final order.

Can a Class Member Still Pursue a Motion To Reopen or Remand Deportation Proceedings if He or She Is Outside the United States?

Yes. If a class member who is currently outside the United States files a written motion to reopen or remand deportation proceedings, and the Service agrees to join in the motion, the Service will arrange to either parole the alien into the United States or offer some alternative method for the alien to enter to pursue his or her claim.

If the Service declines to join in such a motion filed by a class member who is currently outside the United States, and the alien seeks judicial review as provided by the settlement agreement, the Service will arrange to either parole the class member into the United States or offer some alternative method for the alien to enter at the appropriate time for the limited purpose of attending any evidentiary hearing related to proceedings before the district court.

Will the Service Pay for a Class Member's Travel Expenses and Accommodations While in the United States?

The Service will not pay expenses for class members. All class members are responsible for their own travel arrangements, accommodations, and expenses during the pendency of deportation proceedings (or district court proceedings).

Class members also must provide proof to the Service and the Department of State consular officer that they have sufficient documentation and resources to depart the United States at the conclusion of a deportation or removal hearing. Evidence can include a roundtrip ticket and unexpired passport or other documents to permit lawful return to the country of departure. The Service retains the right to inspect and challenge authenticity of this documentation before a class member is paroled or permitted entry into the United States. The Service also retains full authority under the Act to detain any class member who returns to the United States during this period of time.

Are Class Members Entitled to a Refund if They Previously Paid a Civil Money Penalty for a Section 274C Violation?

Yes, class members who previously paid a section 274C civil money penalty are eligible to receive a refund. Refunds will only be for the amount charged on the original NIF and will not include interest.

To request a refund, class members must submit a request, in writing, along with supporting documentation (which can include the original NIF and a copy of the check or money order indicating that the Service processed the payment) that clearly establishes that the section 274C civil money penalty amount charged on the NIF was previously paid to the Service.

The written request must be mailed to the Service's Debt Management Center at the following address: U.S. Immigration and Naturalization Service, Eastern Regional Office 1888 Harvest Lane, Williston, VT 05495-7554.

The written request must be physically received by this Service office by August 21, 2003.

Class members whose requests are approved should receive refunds within 90 days of the date the Service receives the refund request.

Dated: September 17, 2001.

James W. Ziglar,

Commissioner, Immigration and Naturalization Service.