03-6691. Notice of Class Action Judgment in Barahona-Gomez v. Ashcroft

AGENCY:

Executive Office for Immigration Review (“EOIR”), Justice.

ACTION:

Notice.

SUMMARY:

This notice presents the Advisory Statement of the class action settlement in Barahona-Gomez v. Ashcroft, No. Civ 97-0895 CW (ND.Cal.). The Advisory Statement sets forth the rights of class members who had applied for suspension of deportation under section 244 of the Immigration and Nationality Act, 8 U.S.C. 1254. This notice is published because while the Executive Office for Immigration Review has the names and addresses of class members and counsels of record for the class member aliens, all parties recognize that some class members have failed to inform EOIR of address changes and the notice is necessary to inform those persons.

DATES:

This notice is effective March 20, 2003.

FOR FURTHER INFORMATION CONTACT:

Chuck Adkins-Blanch, General Counsel, Office of the General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone [phone].

SUMMARY:

1. Why is EOIR publishing this notice?

EOIR is publishing this notice to comply with the settlement order entered on December 18, 2002, in the class action entitled Barahone-Gomez v. Ashcroft, No. Civ 97-0895CW (ND.Cal).

2. Who should read the Advisory Statement?

The Advisory Statement specifies which individuals who meet all of the following threshold requirements are given relief pursuant to the settlement. Persons are advised to read the Advisory Statement to determine whether they are entitled to relief under the settlement. The requirements are:

(a) The alien applied for suspension of deportation;

(b) The case hearing took place within the jurisdiction of the United States Court of Appeals for the Ninth Circuit;

(c) The case was scheduled for an individual hearing on the merits before an Immigration Judge (Judge) between February 13, 1997 and April 1, 1997, or was pending at the Board of Immigration Appeals (“Board”) between February 13, 1997 and April 1, 1997, and the Notice of Appeal had been filed with the Board on or before October 1, 1996;

(d) The basis for the Judge or the Board denying or not adjudicating the application for suspension of deportation was section 309(c)(5) of the illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. 104-208, 110 Stat. 3546 (Sept. 30, 1996), amended Pub. L. 104-302, 110 stat. 3656 (Oct. 11, 1996) (“IIRIRA”) also known as the “stop-time rule;”

(e) For cases before an Immigration Judge, the Judge reserved a decision or continued the hearing until after April 1, 1997, the Judge issued a decision denying or not adjudicating the application for suspension of deportation, no decision has yet been issued, or the Judge granted suspension of deportation and the Immigration and Naturalization Service (INS) appealed the decision based upon IIRIRA section 309(c)(5).

3. Does an alien have to take any action under the settlement?

EOIR will reopen the cases of aliens who qualify for relief under the terms of this settlement. A class member who meets the threshold requirements to qualify for relief under the settlement and whose case was not reopened by EOIR, may file a motion to reopen their case to apply for renewed suspension of deportation. This motion to reopen is not subject to the normal time and number limitations on motions to reopen, and this motion does not require a filing fee.

4. Does the motion to reopen have to be filed by a deadline date?

Yes. The motion to reopen must be filed within 18 months of the date that this Advisory Statement is published in the Federal Register.

5. Does an alien definitely receive the benefits of the settlement if all of the threshold requirements are met?

No. Not all individuals who meet the threshold requirements listed above will qualify for relief under the settlement. The Advisory Statement explains the factual situations which determine if an individual will qualify for relief under the settlement. The full settlement agreement and Advisory Statement is reproduced at the EOIR Web site, at www.usdoj.gov/​eoir.

Dated: March 13, 2003.

Kevin D. Rooney,

Director, Executive Office for Immigration Review.

Note:

The appendix to this notice contains the Advisory Statement, Exhibit 1 in the settlement agreement.

Appendix

The following is the advisory statement in the Barahona-Gomez v. Ashcroft settlement agreement. This advisory statement is referenced as Exhibit 1 in the settlement agreement.

Advisory Statement

Class Action Settlement to Benefit Certain Persons Who Applied For Suspension of Deportation Before April 1, 1997

The Executive Office for Immigration Review (EOIR)—the federal agency that includes the Immigration Courts and the Board of Immigration Appeals—is issuing this Advisory Statement to inform the public about the settlement agreement in the Barahona-Gomez V. Ashcroft class action litigation.

This class action lawsuit challenged EOIR directives which prohibited immigration judges and the Board of Immigration Appeals from granting suspension of deportation during the period between February 13 and April 1, 1997. On April 1, 1997, a new law (Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) section 309(c)(5)) took effect that made people ineligible for suspension if they had not been continuously physically present in the United States for a period of seven years at the time that they were served with an Order to Show Cause (the document that begins deportation proceedings). Under the settlement, eligible class members who could have been granted suspension during the period between February 13 and April 1, 1997, before this new restriction took effect, will be given the opportunity to apply for suspension under the standards that existed prior to April 1, 1997.

I. 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 jurisdiction of the U.S., Court of Appeals for the Ninth Circuit, encompassing the states of Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon, and Washington. The following categories of persons are eligible for relief under the settlement:

(1) individuals for whom an Immigration Judge (IJ) either reserved a decision, or scheduled a merits hearing on an application for suspension of deportation between February 13, 1997 and April 1, 1997, and the hearing was continued until April 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; or

(b) an IJ decision was issued denying or pretermitting suspension based on IIRIRA § 309(c)(5), 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 IIRIRA § 309(c)(5); or

(c) the Immigration Judge granted suspension after April 1, 1997, and the INS filed a notice of appeal, motion to reconsider, or motion to reopen challenging the individual's eligibility for suspension based on IIRIRA § 309(c)(5).

Individuals in the categories listed above do not qualify for relief under the settlement if: (1) the continuance of the hearing was 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 at the request of the respondent. In any case where EOIR determines that an individual is not eligible for relief under the settlement because of this restriction, EOIR 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 a place if the dispute resolution mechanism is timely invoked.

(2) individuals whose cases were pending at the Board of Immigration Appeals (“BIA”) (either on direct appeal from the Immigration Judge decision, or on a motion to reopen) between February 13, 1997 and April 1, 1997, where the notice of appeal (or the motion to reopen) was filed on or before October 1, 1995, and which were, or would be (but for the settlement agreement), denied on the basis of IIRIRA § 309(c)(5), whether or not the decision of the BIA denying suspension solely on the basis of IIRIRA § 309(c)(5) has already been issued or not;

(3) individuals whose cases were taken under submission by an Immigration Judge following a merits hearing before February 13, 1997, where no decision issued until after April 1, 1997;

(4) individuals for whom the Immigration Judge denied or pretermitted suspension between October 1, 1996 and March 31, 1997, on the basis of IIRIRA § 309(c)(5), and the individual filed a notice of appeal with the BIA; and

(5) individuals for whom the Immigration Judge granted suspension of deportation before April 1, 1997 and the INS appealed based only on IIRIRA § 309(c)(5) or IIRIRA § 309(c)(7).

Even if they otherwise qualify under one of the above categories, class members are not eligible for benefits under the Settlement if they have already become lawful permanent residents (LPRs), or if they already have had or will have their cases reopened for adjudication or re-adjudication of their claims for suspension of deportation without regard to Section 309(c)(5) of IIRIRA, following a remand from the United States Court of Appeals for the Ninth Circuit or the BIA or following an order by the BIA or an immigration judge reopening their cases.

II. Procedures for Obtaining Relief Under the Settlement

Under the settlement, eligible class members (as defined above) will be eligible to apply for and be granted renewed suspension'' which means the relief of suspension of deportation, as it existed on September 29, 1996, before amendment by 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 such relief depend upon the status of the case. In cases currently pending before an Immigration Judge, 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 currently pending before the Board of Immigration Appeals, the Board will remand the case of the Immigration Judge to schedule a hearing for renewed suspension. In those cases where an Immigration Judge previously granted suspension to a class member, and the INS appealed based only on IIRIRA § 309(c)(5) or (c)(7), the Board will dismiss the appeal and thereby reinstate the Immigration Judge's decision granting suspension.

In cases of eligible class members where the Board or an Immigration Judge denied suspension and no appeal was filed, EOIR will on its own motion reopen the case to allow the class member to apply for suspension. In such cases EOIR will send written notice to the class member's last known address. If the class member subsequently fails to appear for a notice hearing, the case will be administratively closed for a period of time after which the case could be recalendared and an appropriate order issued, including in absentia order of deportation which 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 Board or Immigration Judge will not, on their own, be reopening the case.

A stay of deportation will be in effect for class members who are eligible for relief under the settlement 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 EOIR has determined that he or she is not eligible for relief under the settlement, unless the individual notifies EOIR within the 30-day period that he/she is invoking the settlement's dispute resolution procedure.

An eligible class member who files a motion to reopen under the settlement may also request a stay of deportation from EOIR, and the filing of such a stay request will cause such individual to be presumed to be an eligible class member for purposes of the stay of deportation; however such presumption and stay can be dissolved by order of the EOIR is not less than seven (7) days if the individual has not filed prima facie evidence of eligibility for relief under the settlement by that time.

This notice is only a summary of the provisions of the settlement agreement. The full agreement can be found at _ F.Supp.2d _, and is also reproduced on the EOIR Web site, at www.usdoj.gov/​eoir.