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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: September 20, 2001 (Volume 66, Number 183)]
[Notices]               
[Page 48480-48482]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20se01-125]                         
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

[INS No. 2169-01]
 
Aliens Seeking Relief Pursuant to Settlement Agreement in Walters 
v. Reno 

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 (202) 514-2895.

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

[[Page 48481]]

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.

[[Page 48482]]

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.
[FR Doc. 01-23497 Filed 9-17-01; 3:53pm]
BILLING CODE 4410-10-P


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