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

[Federal Register: March 20, 2003 (Volume 68, Number 54)]
[Notices]               
[Page 13727-13729]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20mr03-86]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

[EOIR No. 135]

 
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 (703) 
305-0470.
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

[[Page 13728]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  309(c)(5), whether or not the decision 
of the BIA denying suspension solely on the basis of IIRIRA Sec.  
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 Sec.  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 Sec.  309(c)(5) or IIRIRA Sec.  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 Sec.  
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

[[Page 13729]]

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.


[FR Doc. 03-6691 Filed 3-19-03; 8:45 am]
BILLING CODE 4410-30-M




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