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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Maria Ramos and Nicolas Olivares

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on behalf of themselves and others similarly)

situated,

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Plaintiffs, )

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v.

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Thomas Ridge, et al.,

)

)

Defendants. )

No. 02 C 8266

PARTIES' AGREED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT

The parties, through their respective attorneys, respectfully request this Court to preliminarily approve their Settlement Agreement, Exhibit 1, and to set a date for a fairness hearing whereby members of both PlaintifTClasses represented in this lawsuit will have the opportunity to raise any objections to the parties' Agreement. In support thereof: the parties submit the following:

I. Summary of the Litigation

The Ramos and Olivares Plaintiffs filed the instant class action on November 14,2002, after their original action had been dismissed on February 2002, and amended this complaint on February 14,2003, and January 26,2004. On March 3, 2004, the case was reassigned by executive committee to the Honorable Judge Mark Filip.

Plaintiffs challenge the manner in which the Chicago District Office of the Immigration and Nationality Service (hereinafler "Chicago District Office") handled thousands of applications for adjustment of status for a four year period stretching from 1997 to 2001. Plaintiffs have alleged throughout this litigation that the Chicago District Of11cc violated the Immigration and Nationality Act ("INA"), the applicable regulations, national policy, and the Constitution by proecssing applications that should have been rejected and returned, by granting work authorization documents that should not have been granted, by keeping fees that should have been refunded, and by starting investigations of a ~ilt lfu1l1ber.ofthe applicants,

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many of whom were victims of notary fraud, which eventually led to placing those applicants in deportation proceedings.
Defendants have maintained they did not violate the TN A, the implementing regulations, national policy, or the Constitutions through their actions, and dcny they have any obligation to Ramos, Olivares, or any of the Class Members they represent. During the pendency oflhis suit, Defendants have filed at least two motions to dismiss the present action. They filed their first Motion to Dismiss for lack ofjurisdiction and for failure to state a claim on January 24, 2003. On January 28, 2003, the Honorable David I-I. Coar ordered the parties to brief only the issues regarding the jurisdiction of the Court over the case. On September 29, 2003 Judge Coar denied Defendants' motion. Defendants then filed their motion to dismiss for failure 10 stale a claim on November 19, 2003. Judge Coar issued an order on January 15,2004 granting Defendants' motion with respect to Plaintiffs' Procedural and Substantive Due Process and Equal Protection claims, and denying the motion with respect to Plaintiffs' Administrativc Procedures Act claim.
II. Terms of the Settlement Agreement
From May 11, 2004 through the present, the parties have engaged in intensive negotiations supervised by this Court. The process has included formal and informal communications between Plaintiffs' and Defendants' counsel, and the exchange of numerous drafts of the settlement agreement, and culminated in the proposed Settlement Agreement that is the subject of this motion.
The Ramos and Olivares Plaintiffs seek to enter into the instant Settlement Agreement with Defendants Thomas Ridge, Secretary of Department of Homeland Security, the U.S. Department of Homcland Security, the U.S. Citizenship and Immigration Services, the U.S. Immigration and Customs Enforcement, Eduardo Aguirre, Jr., Director of the U.S. Citizenship and Immigration and Customs Enforcement; Donald Monica, Dircctor of the Chicago District Offiec of the U.S. Citizenship and Immigration Services; Michael Garcia, Assistant Secretary for U.S. Immigration and Customs Enforcement, and Deborah Achim, Acting Director of the Chicago Field Office, U.S. Immigration and Customs Enforcement. The basic terms oflhis Settlement Agreements are as follows:
1. The Plaintiffs, on behalf of themselves and the classes they represent, must dismiss their class action without prejudice. Plaintiffs also agree that Defendants will exercise prosecutorial discretion in the processes they will implement to review Plaintiffs' individual cases, and that any decisions madc pursuant to those processes will be tlnal and nonreviewable actions, and may not be raised in separate legal proceedings;
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2. The parties stipulate to certification of the Ramos and Olivares Classes;
3. CIS will review the files of all Class members who have not received any notification of a dcportation hearing against them (i.e. they have not received a Notice to Appear letter). This case review will be conducted using standards set forth in a memorandum by Doris Meissner, (~)rmcr Commissioner of the INS;
4. Iftbe CIS decides to begin deportation proceedings against any ofthe Class members in the category described above, the CIS will notify those Class members of this decision and will give them thirty days to request CIS to reconsider their decision to begin deportation proceedings and to submit information and documentation in support of their request;
5. DHS agrees to conduct a review of their files using the same Meissner memorandum mentioned above for all Class members currently going through deportation hearings before the Immigration Courts or the Board of Immigration Appeals (BIA). However, any individual ordered removed before June 1, 2004 by the Immigration Judge or the Board of Immigration Appeals is not eligible to apply for this benefit. In order for Class members in this category to take advantage of this process, they must (a) notify the Chicago Chief Counsel for the U. S. Immigration and Customs Enforcement (ICE) that they are members of any ofthe two classes in this suit within six months from the date the Settlement is approved, and (b) rcquest to have their case reviewed;
6. All Class members who have been deported from the United States and are eligible for a waiver of inadmissibility may also ask that the government consider their membership in this class when applying for that waiver;
7. All Class members, whether they arc still in the United States or not, shall receive a credit for the fees they paid to the Chicago District Office for the filing of their application for permanent residency if they apply for a credit within one year from the date the Settlement is approvcd with the Chicago District Office of the U. S. Citizenship and Immigration Services (CIS). The credit should equal the amount paid at the time to file the application for permanent residenee (Form 1-485), and, if applicable, the amount paid as a penalty fee under section 24S(i)(I) of the lmmigration and Nationality Act ($1000 in most cases). The credit can be used only once and CIS will retain any remaining balance when the credit is used by the class member. If the amount offees is owed by the class member is greater than the amount of the credit, the class member is responsible for the ditlcrence. The credit is non-transferable, is valid for ten years after being issued, and can be applied by the Class members to any application or petition fees charged by the CIS;
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8.

If Class members re-me their applications for pennanent residency under

Section 245(i) once their visa number becomes available, Defendants will not

deny the application for the reason that the Class members had HIed the same

application before during the period between January 29, 1997 through April

30,2001;

9. Class members who have been convicted of an aggravated felony, who are subject to administratively final orders of removal or deportation, or who are subject to the reinstatement of removal orders, are not eligible for relief pursuant to this Agreement;
10. Payment of $90,000 in fees and cost to the attorneys for the Plaintiffs; and

II. lbe Court will retain jurisdiction over this lawsuit for the purpose of enforcing compliance with the settlement agreement.
The terms of the parties' Agreement are fair, reasonable and adequate, especially when they are balanced against the strength of Plaintiffs' and Defendants' cases, and the complexity, length and expense of further litigation.

WHEREFORE, Parties pray for entry of an Ordcr containing the following terms:

1. Finding that this action may be maintained as a class action, and eertitying the Ramos and Olivares Classes for purposes or settlement;

2. Preliminary finding that this Agreement is fair, reasonable, and adequate to both Classes;

3. Schedule a fairness hearing;

4. Direct parties to issue a notice to class members through press release twenty-one (21) days after the entry ofthis Order;

5. Determination that notice given pursuant to the terms of the Agreement is the "best notice practicable under the circumstances" and that it satisfies the requirements of Fedentl Rule of Civil Procedure 23(e)(1)(B) and due process;

6. Determination that any class members who fail to object to the terms of this Agreement in the manner pres("Tibed under its terms, shaH be deemed to have waived their right to raise any objections to the Agreement and shall be forever foreclosed from raising their objections.

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Respectfully submitted,
c/~~;2~
One of the Attorneys for Plaintiffs

Alonzo Rivas MALDEF 188 West Randolph St., Suite 1405 Chicago, IL 60601 (312) 782-1422
Mary M. McCarthy Charles Roth Midwest Immigrant & Human Rights Center, Heartland Ailiancc 208 S. LaSalle Street, Ste. 1818 Chicago, IL 60604 (312) 660-1351

Steven Saltzman J22 S. Michigan, Ste. 1850 Chicago, I11inois 60603 (312) 427-4500

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SETTLEMENT AGREEMENT RESOLVING MATTERS BETWEEN PLAINTIFFS AND
DEFENDANTS IN RAMOS, et al. V. MICHAEL CHERTOFF, et aI.,
CASE NO. 02 C 8266 March 25, 2005

Plaintiffs, MARIA ROSA RAMOS, APOLINAR OCHOA, FERMIN GUTIERREZ, FERNANDO CARRANZA, GABRIEL TORRES, HECTOR DIAZ, JUAN RODRIGUEZ, NICOLAS OLNARES and EFREN DE LA TORRE, (hereinafter the ''Names Plaintiffs"), by their attorneys the Midwest Immigrant & Human Rights Center (MIHRC), the Mexican American Legal Defense and Educational Fund (MALDEF), and Steven Salt~.man, and Defendants MICHAEL CHERTOFF, Secretary of Department of Homeland Security; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; EDUARDO AGUIRRE, JR., Director, U. S. Citizenship and Immigration and Customs Enforcement; MICHAEL COMFORT, Director ofthe Chicago District Office of the U. S. Citizenship and Immigration Services; MICHAEL GARCiA, Assistant Secretary for U. S. Immigration and Customs Enforcement; DEBORAH ACHIM, Acting Director, Chicago Field Office, U. S. Immigration and Customs Enforcement, for their Settlement Agrcement and Release (hereinafter the "Agreement''), state:

I.

GENERAL TERMS

A. This Agreement, in its final fonn, shall be presented to the Honorable Mark Filip, and entered into the record in this case, Ramos v. Chertoff, et al., Case No. 02 C 8266. Upon approval of the terms of this Agreement by Judge Filip after a fairness hearing, any and all claims against the Defendants shaH be dismissed with prejudice.

B. The Classes covered by the Agreement are the following:

I. All persons who sought the benefits of 8 U.S.C. § 1255(i) and had Fonn I· 485, Application to Register Pennanent Residence or to Adjust Status, accepted for filing by the Chicago District Office ofthe INS between January 29, 1997, through April 30, 2001, where a colorable Fonn 1·130, Petition for Alien Relative was also filed but a visa was not inunediately available (hereinafter "the Ramos class").

2. All persons who sought the benefits of8 U.S.C. § 1255(i) and had Fonn J485, Application to Register Permancnt Residence or to Adjust Status, accepted for filing by the Chicago District Office ofthe INS between January 29,1997, through April 30, 2001, where no colorable Fonn 1-130, Petition for Alien Relative was also filed (hereinafter "the Olivares Class'').

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3. For paragraph I(B)(J) above, a colorableFonn 1-130 means a visa petition that was approvable when filed. For paragraph I(B)(2) above, a noncolorable Fonn 1- 130 means a visa petition that was not approvable when filed.
C. The parties agree that this Agreement does not constitute and shall not bc construed as an admission ofthe truth of any allegation contained in Plaintiffs' cause of action, or as an admission of Defendants' liability with respect to the claims made in the underlying lawsuit. Nothing in this Agreement is intended to impinge on the prosecutorial discretion of the defendants in making decisions on the initiation and continuation ofremoval proceedings against individuals who are unlawfully present in the United States. Nothing in this Agreement is intended as a concession on behalf of the United States that any of the plaintiffs were improperly placed into removal proceedings.
D. The parties enter into this Agreement for the sale putposc of compromising, settling and tenninating all pending litigation among them. The parties further acknowledge that settlement of this lawsuit is made to avoid the uncertainty of the outcome of litigation, the expense in time and money of further litigation, and for the putpose of judicial economy. The parties shall not usc this Agreement as notice or evidence of misconduct on the part of any party to this litigation Of for any other putpose in any other litigation, and agree that any such use violates both the express tenns and intent of this Agreement.
E. The tenns of this Agreement shall be limited to only the members of both classes mentioned above who filed for adjustment of status in the Chicago District Office and nowhere else in the country.
n. APPROVAL AND CLASS NOTICE
A. The Parties agree to petition the Court for an order ("Preliminary Approval Order") containing the following tonns:
1. Dctennining that this action may, for the putposes of settlement, be maintained as a class action, and certifying both the Ramos and Olivares classes;
2. Finding that the named plaintiffs, as class representatives, fairly and adequately represent the interest of the two classes in this action;
3. Finding, preliminarily, that this Agreement is fair, reasonable, and adequate to the Class;
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4. Scheduling a hearing (the "Fairness Hearing") to:

a. make a final determination as to the reasonableness, adequacy and fairness ofthe Agreement and whether it should be finally approved by the Court; and

b. approve all agreed prospective relief, including an award of attorneys fees under the Equal Access to Justice Act ("EAJA");

5. Directing that within twenty-one (21) days of the entry of the Preliminary Approval Order, the Parties shall issue notice, see Notice attachments, to all class members of the provisions of this Agreement through a press release issued by the Chicago District Office ofU. S. Citizenship and Immigration Services ("CIS") and U. S. Irrunigration and Customs Enforcement ("ICE") that will be posted on the internet sites maintained by the respective agencies. The press release will also be transmitted to:

a. Community-based organizations;

b. The Chicago Chapter of the American hnmigration Lawyers Association (AIlA);

c. The Legal Assistance Foundation of Chicago (LAFC);

d. posted at the Chicago Offices of CIS, ICE, EOIR and

e. and at selected detention centers used by the ICE Chicago district office;

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The notice provided for in paragraph II(A)(5) will be maintained on

the internet site and posted at CIS and ICE facilities for six months

after the date that this Agreement is approved and entered by the

Court.

6. Finding that notice given pursuant to the provisions of paragraph 2li(A)(5) hereof is "thc best notice practicable under the circumstances" and that the notice satisfies the requirements of Federal Rule of Civil Procedure 23(e)(I)(B) and due process;

7. Providing that no person shall be entitled in any way to contest the approval of the terms and conditions ofthe Agreement or the judgment to be entered thereon except by filing written objections in accordance with the provisions of paragraphs il(B) and li(C) herein, and that any members of the Classes

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who fail to object in the manner prescribed in paragraphs lI(B) and II(C) herein, shall be dcemed to have waived their right to raise any objections to the Agreement and shall be forever foreclosed from raising objections to the Agreement.
B. Any class member who wishes to object to the fairness, reasonableness or adequacy of this Agreement must file with the Court and serve all counsel of record any objections they may have in writing, at least fourteen (14) days before the Fairness Hearing. Any written objection must specifically identify the factual and legal basis ofthe class member's objection, as well as the class member's address and telephone number. A class member who submits a written objection may not raise at the Fairness Hearing any legal or factual arguments not raised in his written objection.
C. Any class member who files and serves a written objection, as described herein, may appear at the Fairness hearing for the entry of the Final Approval and Dismissal Order and object to the fairness, reasonableness, or adequacy of this Agreement or the Settlement. Subject to the Court's discretion, any class member who fails to comply with the provisions ofparagraphs II(B) and lI(C) shall waive and forfeit any and all rights the class member may have to appear separately andlor to object, and shall be bound by all the terms of the Agreement and by all proceedings, orders and judgment in the Litigation.
D. On the date set by the Court for the Fairness Hearing, the Parties shaIljointly request the Court to
I. review and consider any objections that have been timely and properly filed; and
2. enter a final judgment (the "Final Approval and Dismissal Order");
a. approving, without material alterations, the Agreement;
b. finding that the terms of the Agreement are fair, reasonable and adequate to the Classes;
c. finding that the publication of the notice that shall have taken place pursuant to the provisions of paragraph IE hereto of this Agreement is the only notice required and satisfies the requirements ofthe federal Code of Civil Procedure and the requirements fo due process;
d. fixing the amount to be paid to Plaintiffs' attorneys in attorney's fees and expenses under EAJA;

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e. dismissing all claims by the two classes against Defendants with prejudice, and entering final judgment thereon; and
E. Any order herein shall be deemed final:
I. thirty (30) days after entry of the order, if no appeal is taken during such thirty-day period; or
2. if, during the aforementioned thirty-day period, an appeal is taken from such judgment or order, the date upon which such appeal has been finally decided, or the date ofthe expiration of the time to initiate a further appeal.
1Il. DUTIES AND OBLIGATIONS
A. In consideration of the execution of this Agreement and the provisions set forth herein and upon advice of counsel, the Named Plaintiffs, on behalf of themselves, their assigns, heirs and representatives, hereby release and discharge the Defendants and their future current, or former trustees, officers, employees or agents, representatives or employees, of any and all claims, causes of action and demands that were raised in the underlying lawsuit.
B. In exchange for the releases and promises made, the Parties agree in good faith to the following with respect to the Ramos and Olivares Classes:
1. Stipulate to certification for both classes;
2. Tn order to ensure the consistent exercise ofproseeutorial discretion pursuant to the tcrms ofthis Agreement, the Parties agree that CIS and ICE will follow the standards for prosecutorial discretions set forth in the November 17, 2000 memorandum written by Doris Meissner, former commissioner of the Immigration and Naturalization Service, see Exhibit A, pp. 7-8. In applying these standards, CIS and ICE will consider INS headquarters memoranda dated October 6, 1997, and January 26, 1998;
3. For all individuals whose Section 245(i) applications for adjustment of status, filed during the period of January 29, 1997 to April 30,200 I, were accepted for processing, but have not resulted in the issuance of a Notice to Appear ("NTA''), the Parties agree to have CIS conduct a review ofthese individuals' files and use the standards for prosecutorial discretion set forth by Doris Meissner's memorandum, see Exhibit A, pp. 7-8, to determine whether to favorably exercise prosccutorial discretion in declining to initiate removal proceedings against any of these individuals.
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a. If CIS declines to favorably exercise its prosecutorial discretion and decides to issue a NTA to a class member covered by this paragraph, the NTA will be accompanied by a notice informing them of the decision and giving the class member 30 days to request reconsideration ofthe prosecutorial decision to issue an NTA and to submit additional infom1ation in-support of the request to reconsider the issuance of the NTA; and
b. The procedure provided for in paragraph ill(B)(3)(a) shall not apply to individuals who are removable on criminal or national security grounds or subject to the reinstatement of removal orders.
4. For those indjviduals currently in removal proceedings before the Immigration Court or the Board of Immigration Appeals (BIA), Defendants agree to:
a. Have the U. S. Immigration and Customs Enforcement (ICE) conduct a review of the case of any individual in this subgroup who gives notice (to Chicago ICE Chief Counsel) within six (6) months from the date of the entry of the Final Approval and Dismissal Order that helshe is a member of any of the two classes in this suit and requests to have his/her case reviewed, in accordance with the standards for prosecutorial discretion set forth by Doris Meissner's memorandum, see Exhibit A, pp. 7-8. In applying these standards, CIS and ICE will consider INS headquarters memoranda dated October 6, 1997, and January 26, 1998. In giving notice, individuals in this subgroup must include all relevant documents and make legal and factual arguments that could support the agency's favorable exercise of prosecutorial discretion.
b. If ICE chooses to favorably exercise its discretion pursuant to the procedure set forth in paragraph ill(B)(4)(a), ICE will move to dismiss proceedings pursuant t08 C.F.R. § 239.2(c).
5. Aliens convicted of an aggravated felony, individuals who are subject to administratively final orders ofremoval or deportation, or individuals subject to the reinstatement of removal orders, are not eligible for review pursuant to this Agreement. This bar shall not apply to cases that became administratively final as the result ofBIA decisions issued between June I, 2004, and three months following the date of the final approval of this agreement by the court.
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6. Those class members who have been removed or deported from the United States and require a waiver of the bar imposed by § 212(a)(9)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.c. § 1182(a)(9)(B)(i), once a visa becomes immediately available to them, may raise their class membership as a factor in support of their waiver application. Plaintiffs acknowledge that this one factor docs not automatically justifY favorable action on their waiver application.

7. Defendants agree to:

a. keep all fees paid to the Chicago District Office by these individuals; and

b. give a credit for the filing fees individuals paid to the Chicago District Office to individuals who submit an application for a credit within one (1) year from the date of the entry of the Final approval and Dismissal Order. The credit will equal the amount paid at the time to file the application for permanent residence (Form 1-485), and, if applicable, the anlOunt paid as a penalty fee under section 245(i)(I) of the Immigration and Nationality Act ($1000 in most cases). The credit can be used only once and CIS will retain any remaining balance when the credit is used by the class member. Ifthe amount of fees is owed by the class member is greater than the amount of the credit, the class member is responsible for the difference. The credit is non-transferable, expires ten years after being issued, and can be applied by the Class members to any application or petition fees cbarged by the CIS; and

c. no credit of any kind will be issued for any fees filed in conjunction with an application for employment authorization.

d. All applications for fee credits made pursuant to paragraph ill (B)(7) must be made to the Chicago District Office ofCIS and must be made pursuant to procedures developed by Chicago CIS.

e, Defendant CIS agrees that section 245(i) applications of class members (as defined in section I.B.! and 2 of this agreement) shall not be denied for the reason that the class member had previously filed a section 2450) application during the period between January 29, 1997 through April 30, 2001.

f.

Aliens convicted of an aggravated felony are not eligible for a fee

pursuant to this Agreement.

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8. The Parties agree that Defendants' actions taken under their obligations in subparagraphs ID(B)(2) through m(B)(7) are final and nonreviewable actions pursuant to 8 U.s.C. § I 252(g), and, may not be raised in a separate legal, administrative, equitable, or declaratory proceeding, or used as a basis to seek or obtain a writ ofmandamus or habeas corpus. Plaintiffs acknowledge that defendants' decisions made pursuant to paragraphs III (B)(2) through Ill(B)(7) are solely within the proseeutorial discretion of the defendants and the outcome of the review conducted under this Agreement cannot be challenged in this or any other legal, administrative, equitable, or declaratory proceeding, or used as a basis to seek or obtain a writ ofmandamus or habeas corpus.
9. During the pendency of this case, the Defendants will file a report with the court on an annual basis that states a summary of the number of cases that have been reviewed and the number in which the Defendants have favorably exercised their prosecutorial discretion.
IV. ENFORCEMENT
A. Subject to the limitations and requirements imposed in paragraph IV(B) below, the District Court shall retain exclusive jurisdiction over the subject matter of this Agreement and over the parties to this agreement. The District court shall have exclusive jurisdiction to decide any and all issues arising under this Agreement and to resolve any and all disputes growing out ofthe interpretation or application of this Agreement. The parties agree that this agreement creates no enforceable rights or obligations other than those provided herein.
B. Motions to enforce the terms of the agreement may be commenced by any ofthe parties to this Agreement by filing a motion with the District Court, but shaH not include disagreements with actions taken by the Defendants pursuant to their obligations under subparagraphs 2 through 7 of section llI(B) labeled Duties and Obligations included in this Agreement. The Parties agree that under no circumstance shall the Defendants' determinations pertaining to the exercise of prosecutorial discretion be subject to review by this or any other court or administrative body or tribunal. In no event shall a class member's enforcement action under the provisions of thi s agreement result in a stay of the Defendants' exercise of prosecutorial functions.
C. Prior to filing a motion with the Court, the complaining party must provide the other party or parties with notice that a dispute has arisen, describe with specificity the nature of the dispute and enter into good faith negotiations with that party or parties
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in an effort to resolve the dispute. The parties will have thirty (30) days in which to attempt to resolve the dispute. If, after thirty (30) days, the dispute cannot be resolved, the complaining party may seek resolution by the Court.
D. Ifthe Court detennines that any of the parties to this Agreement failed to act in good faith to resolve the dispute prior to seeking judicial intervention, the Court may assess costs against that party.
E. Any action to enforce the terms of this Agreement on the part of the plaintiffs must be commenced within 48 months of the date that this Agreement is approved and entered by the court.

V. FEES
A. Plaintiffs' attorneys shall be entitled to reasonable attorney fees and cost, pursuant to the EAJA, 28 U.S.c. § 2412 el seq. The parties agree that Plaintiffs are entitled to attorney fees and costs in the amount of $90,000.00.
B. Plaintiffs' Counsel shall also be entitled to reasonable attorney fees and cost for any appearances and/or filings made with the Court in an effort to enforce this Agreement, but only after all reasonable attempts to resolve any dispute with any of the Defendants have failed and the Court determines that the defendants have failed to act in good faith.

MARIA RAMOS, et a1. by

THOMAS RIDGE, DEPARTMENT OF HOMELAND SECURlTY, et ai., by

M Y MEG McCARTHY CHARLES ROTH Midwest Immigrant & Human Rights Center
STE~ie=

. OSWALD Assist t United States Attorney Attorneys for the Plaintiffs
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ALONZ RIVAS JORGE SANCHEZ Mexican American Legal Defense and Educational Fund, Attorneys for Defendants APPROVED:
UNITED STATES DISTRICT JUDGE. Dated: _ _ _ _ _ _ _ _ _ _ __
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Office of the Commissioner

U.S. Department of Justice Immigration and Naturalization Service

425 J Street NW Washington, DC 2(J536
NOY 172000

HQOPP 50/4

MEMORANDUM TO REGIONAL DIRECTORS DISTRICT DIRECTORS CHIEF PATROL AGENTS REGIONAL AND DISTRJCT COUNSEL
FROM.

SUBJECT: Exercising Prosecutorial Discretion
Since the 1996 amendments to the Immigration and Nationality Act (INA) which limited the authority of immigration judges to provide relief from removal in many cases, there has been increased attention to the scope and exercise of the Immigration and Naturalization Service's (INS or the Service) prosecutorial discretion. This memorandum describes the principles with which INS exercises prosecutorial discretion and the process to be followed in making and monitoring discretionary decisions. Service officers are not only authorized bv law but expected 19 exercise discretion in a judiciolls manner at all stages of the enforcement process-from planning investigations to enforcing final orders-subject to their chains of command and to the Earticular responsibilities and authority amllicable to their specific position. In exercising this discretion. officers must take into account the principles described below in order to promote the emdent and effective enforcement of the immigration laws and the interests oj" justice.
More specific guidance geared to exercising discretion in particular program areas already exists in some instanc~s,1 and other program-specific guidance will follow separately.
I For example. standards and procedures for placing an alien in deferred action status are provided in the ~tandard Operating Procedures for Enforcement Officers: Arrest Detention Processing. and Removal (Standard Operating Procedures), Part X. This memorandum is intended to provide general principiesj and does not replace any previous specific guidance provided about particular INS actions, such as "Supplemental Guidelines on the Use of Cooperating Individuals and Confidential Informants Following the Enactment ofIlRlRA," dated December 29, 1997. This memorandum is not intended to address every situation in which the exercise ofprosecutorial discretion may be appropriate. If INS personnel in the exercise of their duties recognize apparent conflict between any of their specific policy requirements and these general guidelines, they are encouraged to bring the matter to their supervisorIS attention, and any conflict between policies should be raised through the appropriate chain of command
for resolution.
EXHIBIT
A

Memorandum tor Regional Directors, et al. Subject: Exercising Prosecutorial Discretion

Page 2

However, INS omcers should continue to exercise their prosecutorial discretion in appropriate cases during the period before more specific program guidance is issued.
A statement of principles conccrning discretion serves a number of important purposes. As described in the "Principles of Federal Prosecution," 2 part ofthe U.S. Attorneys' manual, such principles provide convenient reference points for the process of making prosecutorial decisions; facilitate the task of training new officers in the discharge of their duties; contribute to morc effective management of the Government's limited prosecutorial resources by promoting greater consistency among the prosecutorial activities of different offices and between their activities and the INS' law enforcement priorities; make possible better coordination of investigative and prosecutorial activity by enhancing the understanding between the investigative and prosccutorial components; and inform the public of the careful process by which prosccutorial decisions arc made.
Legal and Policy Background
"Prosecutorial discretion" is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce..the law against someone. The INS, like other law enforcement agencies, has prosecutorial discretion and exercises it every day. In the immigration context, the term applies not only to the decision to issue, serve, or file a Notice to Appear (NTA), but also to a broad range of other discretionary enforcement decisions, including among others: Focusing investigative resources on particular offenses or conduct; deciding whom to stop, question, and arrest; maintaining an alien in custody; seeking expedited removal or other forms of removal by means other than a removal proceeding; seuling or dismissing a proceeding; granting deferred action or staying a final order; agreeing to voluntary departure, withdrawal of an application for admission, or other action in lieu of removing the alien; pursuing an appeal; and executing a removal order.
The "favorable exercise of prosccutorial discretion" means a discretionary decision not to assert the full scope ofthe INS' enforcement authority as permitted under the law. Such decisions will take difTerent forms, depending on the status of a particular matter, but include decisions such as not issuing an NTA (discussed in more detail below under "Initiating Proceedings"), not detaining an alien placed in proceedings (where discretion remains despite mandatory detention requirements), and approving deferred action.

2 For this discussiQn~ and llluch else in this memorandum, we have relied heavily upon the Principles of Federal Prosecution, chapter 9-27.000 in the U.S. Deportment of Justice's United State, Attorn'v" Manual (Oct. 1997). There are significant differences, of course, between the role of the U,S. Attorneys' offices in the criminal justice system, and INS responsibilities to enforce the immigration laws, but the general approach to prosecutorial discretion stated in this memorandum reflects that taken by the Principles of Federal Prosecution.

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Memorandum for Regional Directors, ct al. Subject: Exercising Prosecutorial Discretion

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conduct, or one that while legal in other contexts, is not within the authority of the agency or officer taking it. Prosccutorial discretion to take an enforcement action does not modify or waive any legal requirements that apply to the action itself. For example, an enforcement decision to focus on certain types of immigration violators for arrest and removal does not mean that the INS may arrest any person without prohahle cause to do so for an offense within its jurisdiction. Service officers who are in doubt whether a particular action complies with applicable constitutional, statutory, or case law requirements should consult with their supervisor and obtain advice from the district or sector counselor representative of the Office of General Counsel to the extent necessary.
Finally, exercising prosecutorial discretion does not lessen the INS' commitment 10 enforce the immigration laws to the best of oor ahility. It is not an invitation to violate or ignore the law. Rather, it is a means to use the resources we have in a way that hest accomplishes our mission of administering and enforcing the immigration laws of the United States.
Principles of Prosecutori..1Discretiou
Like all law enforcement agencies, the INS has finite resources, and it is not possible to investigate and prosecute all immigration violations. The INS historically has responded to this limitation by setting priorities in order to achieve a variety of goals. These goals include protecting public safety, promoting the integrity orthe legal immigration system, and deterring violations of the immigration law.
It is an appropri~te exercise of proscculOrial discretion to give priority to investigating, charging, and prosecuting those immigration violations that will have the greatest impact on achieving these goals. The INS has used this principle in the design and execution of its horder enforcement strategy, its refocus on criminal smuggling networks, and its concentration on fixing benefit-granting processes to prevent fraud. An·agcncy's focus on maximizing its impact under appropriate principles, rather than devoting resources to cases that will do less to advance these overall interests, is a crucial element in effective law enforcement management.
The Principles of Federal Prosecution governing the conduct of U.S. Attorneys usc the concept ofa "substantial Federal interest." A U.S. Allorney may properly decline a prosecution if"no subslanriai Federal interest would be served by prosecution." This principle provides a useful frame of reference for the INS, although applying it presents challenges that difIer from those facing a U.S. Allorney. In particular, as immigration is an exclusively Federal responsibility, the option of an adequate alternative remedy under state law is not available. In an immigration case, the interest at stake will always be Federal. Therefore, we must place particular emphasis on the clement of substantiality. How important is the Federal interest in the case, as compared to other cases and priorities? That is the overriding question, and answering it requires examining a number of factors that may differ according to the stage ofthe case.

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As a general malter. INS officers may decline to prosecute U legally sufficient immigration Case if the Federal immigration enforcement interest that would be served hy prosecution is not substantial. 3 Except as may be provided specifically in other policy statements or directives, the responsibility for exercising prosecutorial discretion in this manner rests with the District Director (DO) or Chief Patrol Agent (CPA) based on his or her common sense and sound judgment.4 The DD or CPA should obtain legal advice from the District or Sector Counsel to the extent that such advice may be necessary and appropriate to enSure the sound and lawfiJl exercise of discretion, particularly with respect to cases pending before the Executive Office for Immigration Review (EOIR).1 The DO's Or CPA's authority may be delegated to the extent necessary and proper, except that decisions not to place a removable alien in removal proceedings, or decisions to move to terminate a proceeding which in the opinion of the District or Sector Counsel is legally sufficient, may not be delegated to an officer who is not authorized under 8 C.F.R. § 239.1 to issue an NTA. A DO's or CPA's exercise of prosecutoriaI discretion will not normally be reviewed by Regional or Headquarters authority. However, DDs and CPAs remain subject to their chains of command and may be supervised as necessary in their exercise of prosecutorial discretion.
Investigations
Priorities for deploying investigative resources are discussed in other documents, such as the interior enforcement strategy, and will not be discussed in detail in this memorandum. These previously identified priorities include identifying and removing criminal and terrorist aliens, deterring and dismantling alien smuggling, minimizing benefit fraud and document abuse, responding to community complaints about illegal immigration and building partnerships to solve local problems, and blocking and removing employers' aCCeSS to undocumented workers. Even within these broad priority areas, however, the Service must make decisions about how best to expend its resources.
Managers should plan and design operations to maximize the likelihood that serious offenders will be identified. Supervisors should ensure that front-line investigators understand that it is not mandatory to issue an NTA in every case where they have reason to believe that an alien is removable, and agents should be encouraged to bring questionable cases to a supervisor's attention. Operational planning for investigations should include consideration of appropriate procedures for supervisory and legal review of individual NTA issuing decisions.
3 In SOffit: cases even a suhstantial immigration enforcement interest in prosecuting a case could be outweighed by other interests, such as lhe foreign policy ofthe United States, Decisions that require weighing such other interests should be made at the level of responsibility within the INS or the Depanment of lustice that is appropriate in light of the circumstances and interests involved. ~ This general reference to DDs and CPAs is not intended to exclude from coverage by this memorandum other JNS personnel, such as Service Center directors, who may be called upon to exercise proseclitorial discretion and do not report to DDs or CPAs, or to change any INS chains of command. S Exercising prosecutorial discretion with respect to cases pending before EOJR involves procedures set forth at 8 eFR 239_2 and 8 CFR Pan 3, such as obtaining the court's approval ofa motion to terminate proceedings.

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Careful design of enforcement operations is a key element in the INS' exercise of prosecutorial discretion, Managers should consider not simply whether a particular effort is legally supportable, but whether it best advances the INS' goals, compared with other possible uses of those resources. As a general maner, investigations that are specifically focused to identify aliens who represent a high priority for removal should be favored over investigations which, by their nature, will identify a broader variety of removable aliens. Even an operation that is designed based on high-priority criteria, however, may still identify individual aliens who warrant a favorable exercise of prosecutoriaI discretion,6
Initiating and Pursuing Proceedings
Aliens who are subject to removal may come to the Service's anention in a variety of ways, For example, some aliens arc identified as a result of INS investigations, while others are identified when they apply for immigration benefits or seek admission at a port-of-entry, While the context in which the INS encounters an alien may, as a practical maner, affect the Service's options, it does not change the underlying principle that the TNS has discretion and should exercise that discretion appropriately given the circumstances ofthe case.
Even when an immigration oUker has reason to believe that an alien is removable and that there is sufficient evidence to obtain a final order of removal, it may be appropriate to decline to proceed with that case. This is true even whcn an alien is removable based on his or her criminal history and when the alien-if served with an NTA-would be subject to mandatory detention. The INS may exercise its discretion throughout the enforcement process. Thus, the INS can choose whether to issue an NTA, whether to cancel an NTA prior to filing with the immigration court or move for dismissal in immigration court (under 8 CFR 239.2), whether to detain (for those aliens not subject to mandatory detention), whether to offer an alternative to removal such as voluntary departure or withdrawal of an application for admission, and whether to stay an order of deportation,
The decision to exercise any of these options or other alternatives in a particular case requires an individualized determination, based on the facts and the law, As a general matter, it is better to exercise favorable discretion as early in the process as possible, once the relevant facts have been determined, in order to conserve the Service's resources and in recognition of the alien's interest in avoiding unnecessary legal proceedings, However, there is often a contlict

6 For example, operations in county jails are designed to identify and remove criminal aliens! a high priority for the Service_ Nonetheless! an investigator working 31 a county jail and his or her supervisor should still consider whether the exercise of prosecutorial discretion would be appropriate in individual caseS.

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Memorandum for Regional Directors, et al. Subject: Exercising Prosecutorial Discretion

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between making decisions as soon as possible, and making them based on evaluating as many relevant, credible facts as possihle. D~veloping an extensive factual record prior to making a charging decision may itself consume INS resources in a way that negates any saving from forgoing a removal proceeding.
Generally, adjudicators may have a better opportunity to develop a credible factual record at an earlier stage than investigative or other enforcement personnel. It is simply not practicable to require officers at the arrest stage to develop a full investigative record on the equities of each case (particularly since the alien file may not yet be available to the charging ollke), and this memorandum does not require such an analysis. Rather, what is needed is knowledge that the INS is not legally required to institute proceedings in every case, openness to that possibility in appropriate cases, development of facts relevant to the factors discussed below to the extent that it is reasonably possible to do so under the circumstances and in the timeframe that decisions must be made, and implementation of any decision to exercise prosecutorial discretion.
Tbere is no precise formula for identifying which cases warrant a favorable exercise of discretion. Factors that should be taken into account in deciding whether to exercise prosecutorial discretion include, but are not limited to, the following:
• Immigration status: Lawful permanent residents generally warrant greater consideration. However, other removable aliens may also warrant the favorable exercise of discretion, depending on all the relevant circumstances.
• Length of residence in the United States: The longer an alien has lived in the United States, particularly in legal status, the more this factor may be considered a positive equity.
• Criminal history: Officers should take into account the nature and severity of any criminal conduct, as well as the time elapsed since the offense occurred and evidence of rehabilitation. It is appropriate to take into account the actual sentence or fine that was imposed, as an indicator of the seriousness attributed to the conduct by the court. Other factors relevant to assessing criminal history include the alien's age at the time the crime was committed and whether or not he or she is a repeat offender.
• Ilumanitarian concernS: Relevant humanitarian concerns include, but are not limited to, family ties in the United States; medical conditions affecting the alien or the alien's family; the fact that an alien entered the United States at a very young age; ties to one's home country (!'..&, whether the alien speaks thc language or has relatives in the home country); extreme youth or advanced age; and home country conditions.
• Immigration history: Aliens without a past history of violating the immigration laws (particularly violations such as reentering after removal, failing to appear at hearing, or resisting arrest that show heightened disregard for the legal process) warrant favorable consideration to a greater extent than those with such a history. The seriousness of any Stich violations should also be taken into account.

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• Likelihood of ultimately removing the alien: Whether a removal proceeding would have a reasonable likelihood of ultimately achieving its intended effect, in light of the case circumstances such as the alien's nationality, is a factor that should be considered.
• Likelihood of achieving enforcement goal by other means: In many cases, the alien's departure from the United States may be achieved more expeditiously and economically by means other than removal, such as voluntary return, withdrawal of an application for admission, or voluntary departure.
• Whether the alien is eligible or is likely to become eligible for other relief: Although not determinative on its own, it is relevant to consider whether there is a legal avenue for the alien to regularize his or her status ifnot removed from the United States. The fact that the Service cannot confer complete or permanent relief, however, does not mean that discretion should not be exercised favorably if warranted by other factors.
• Effect of action on future admissibility: The effect an action such as removal may have on an alien can vary-for example, a time-limited as opposed to an indefinite bar to future admissibility-and these effects may be considered.
• Current Or past cooperation with law enforcement authorities: Current or past cooperation with the INS or other law enforcement authorities, such as the U.S. Attorneys, the Department of Labor, or National Labor Relations Board, among others, weighs in favor of discretion.
• Honorable U.S. military service: Military service with an honorable discharge should be considered as a favorable factor. See Standard Operating Procedures Part V.D.S (issuing an NTA against current or former member of armed forces requires advance approval of Regional Director).
• Community attention: Expressions of opinion, in favor of or in opposition to removal, may be considered, particularly for relevant facts or perspectives on the case that may not have been known to or considered by the INS. Public opinion or publicity (including media or congressional attention) should not, however, be used to justify a decision that cannot be supported on other grounds. Public and professional responsibility will sometimes require the choice of an unpopular course.
• Resources available to the INS: As in planning operations, the resources available to the INS to take enforcement action in the case, compared with other uses of the resources to fulfill national or regional priorities, are an appropriate factor to consider, but it should not be determinative. For example, when prosecutorial discretion should be favorably exercised under these factors in a particular case, that decision should prevail even if there is detention space available.
Obviously, not all of the factors will be applicable to every case, and in any particular case one factor may deserve more weight than it might in another case. There may be other factors, not on the list above, that are appropriate to consider. The decision should be based on the totality of the circumstances, not on anyone factor considered in isolation. General guidance such as this cannot provide a "bright line" test that may casily be applied to determine the "right" answer in every case. In maoy cases, minds reasonably can differ, different factors may point in different directions, and there is no clearly "right" anSwer. Choosing a course of action in difficult

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cases must be an exercise of judgment by the responsible officer based on his Or her experience, good sense, and consideration of the relevant factors to the best of his or her ability.
There are factors that may not bc considered. Impermissible factors include:
• An individual's race, religion, sex, national origin, or political association, activities or beliefs;7
• The onker's OWn personal fcelings regarding the individual; or • The pnssible effect of the decision on the officer's own professional or personal
circumstances.
In many cases, the procedural posture of the case, and the state of the factual record, will affect the ability of the INS to use prosecutorial discretion. For example, since the INS cannot admit an inadmissible alien to the United States unless a waiver is available, in many cases the INS' options are more limited in the admission context at a port-of-entry than in the deportation context.
Similarly, the INS may consider the range of options and information likely to be available at a later time. For example, an officer called upon to make a charging decision may reasonably determine that he or she does not havc a sufficient, credible factual record upon which to base a favorable exercise of prosecutorial discretion not (0 put the alien in proceedings, that the record cannot be developed in the timeframe in which the decision must be made, that a more informed prosecutorial decision likely could be made at a later time during the cOurse of proceedings, and that if the alien is not served with an NTA now, it will be dimeult or impossible tll do so later.
Such decisions must be made, however, with due regard for the principles of these guidelines, and in light of the other factors discussed here. For example, ifthere is nO relief available to the alien in a removal proceeding and the alien is suhject (0 mandatory detention if

7 This general guidance on 18.ctors that should not be relied upon in making 3 decision whether to enforce the law against an individual is not intended to prohibit their consideration to the extent they are directly relevant to an alien IS status under the immigration laws or eligibility for a benefit For example, religion and political beliefs arc often directly relevant in asylum ca~es and need to be assessed as part of a prosecutorial determination regarding the strength of the case, but it would be improper for an INS officer to trcat aliens differently based on hi, personal opinion about a religion or belief. Political activities may be releva.nt to a ground of removal on national security or terrorism grounds. An alien's nationality often directly affects his or her eligibility for adjustment or other relief, the likelihood that he Or shc can be removed, or the availability of prosecutoriaI options such as voluntary return; and may be considered to the extent these concerns arc pertinent.

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placed in proceedings, that situation suggests that the exercise of prosecutorial discretion, if appropriate, would be more useful to the INS ifdone sooner rather than later. It would be impropcr for an officer to assume that someone else at some later time will always be able to make a more informed decision, and therefore never to consider exercising discretion.
Factors relevant to exercising prosecutorial discretion may come to the Service's attention in various ways. For example, aliens may make requests to the INS to exercise prosecutorial discretion by declining to pursue removal proceedings. Alternatively, there may be cases in which an alien asks to be put in proceedings (for example, to pursue a remedy such as cancellation of removal that may only be available in that forum). In either case, the INS may consider the request, but the fact that it is made should not determine the outcome; and the prosecutorial decision should be based upon the facts and circumstances of the case. Similarly, the fact that an alien has I!Q1 requested prosecutorial discretion should not influence the analysis of the case. Whether, and to what extent, any request should be considered is also a matter of discretion. Although INS officers should be open to new facts and arguments, attempts to exploit prosecutorial discretion as a delay tactic, as a means merely to revisit matters that have been thoroughly considered and decided, or for other improper tactical reasons should be rejected. There is no legal right to the exercise of prosecutoriaI discretion, and (as stated at the close of this memorandum) this memorandum creates no right or obligation enforceable at law by any al ien or any other party.
Process for Decisions
Identification o{Sui/able Cases
No single process of exercising discretion will fit the multiple contexts in which the need to exercise discretion may arisc. Although this gllidance is designed to promote consistency in the application ofthe immigration laws, it is not intended to produce rigid uniformity among INS officers in all areas of the country at the expense of the fair administration of the law. Different offices face different conditions and have different requirements. Service managers and supervisors, including DDs and CPAs, and Regional, District, and Sector Counsel must develop mechanisms appropriate to the various contexts and priorities, kceping in mind that it is better to exercise discretion as early in process as possible once the factual record has been identified.' In particular, in cases where it is clear that no statutory relief will be available at the immigration hearing and where detention will be mandatory, it best conserves the Service's resources to make a decision early.
Enforcement and benefits personnel at all levels should understand that prosecutorial discretion exists and that it is appropriate and expected that the INS will exercise this authority in appropriate cases. DDs, CPAs, and other supervisory officials (such as District and
8. DDs, ePAs, and other INS personnel should also be open, howevCT, to possible reconsidemtion of decisions (either for or against the exercise of discretion) based upon further development of the facts.

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Sector Counsels) should encourage their personnel to bring potentially suitable cases for the favorable exercise of discretion to their attention for appropriate resolution. To assist in exercising their authority, DDs and CPAs may wish to convene a group to provide advice on difficult cases that have been identified as potential candidates for prosecotorial discretion.
It is also appropriate for DDs and CPAs to develop a list of "triggers" to help their personnel identify cases at an early stage that may be suitable for the exercise of prosecutorial discretion. These cases should then be reviewed at a supervisory level where a decision can be made as to whether to proceed in the ordinary course of business, to develop additional facts, or to recommend a favorable exercise of discretion. Such triggers could include the following facts (whether proven or alleged):
Lawful pennanent residents; Aliens with a serious health condition; Juveniles; Elderly aliens; Adopted children of U.S. citizens; U.S. military veterans; Aliens with lengthy presence in United States (i.e., 10 years or more); or Aliens present in the United States since childhood.
Since workloads and the type of removable aliens encountered may vary significantly both within and hetween INS offices, this list of possible trigger factors for supervisory review is intended neither to be comprehensive nor mandatory in all situations. Nor is it intended to soggest that the presence or absence of "trigger" facts should itself determine whether prosecutorial discretion should be exercised, as compared to review of all the relevant factors as discussed elsewhere in these guidelines. Rather, development of trigger criteria is intended solely as a suggested means offacilitating identification of potential cases that may be suitable for prosecutorial review as early as possible in the process.
Documenling Decisions
When a DD or CPA decides to exercise prosecutorial discretion favorably, that decision should be clearly documented in the alien file, including the specific decision taken and its factual and legal basis. DDs and CPAs may also document decisions based on a specific set of facts not to exercise prosecutorial discretion favorably, but this is not required by this guidance.
The alien should also be informed in writing of a decision to exercise prosecutnrial discretion favorably, such as not placing him or her in removal proceedings or not pursuing a case. This normally should be done hy letter to the alien and/or his or her attorney ofrecord, briefly stating the decision made and its consequences. It is not necessary to recite the facts of the case or the INS' evaluation of the facts in such letters. AIthough the specifics of the letter

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will vary depending on the circumstances of the case and the action taken. it must make it clear to the alien that exercising prosecutorial discretion does not confer any immigration status, ability to travel to the United States (unless the alien applies for and receives advance parole), immunity from future removal proceedings. or any enforceable right or benefit upon the alien, If, however, there is a potential benefit that is llnke,d to the action (for example, the availability of employment authorization for beneficiaries of deferred action), it is appropriate to identify it.
The obligation to notify an individual is limited to situations in which a specific, identifiable decision to refrain from action is taken in a situation in which the alien normally would expect enforcement action to proceed, For example, it is not necessary to notify aliens that the INS has refrained from focusing investigative resources on them, but a specific decision not to proceed with removal proceedings against an alien who has come into INS custody should be communicated to the alien in writing. This guideline is not intended to replace existing standard procedures or forms for deferred action, voluntary return, voluntary departure, or other currently existing and standardized processes involving prosecutorial discretion.
Furure Impact
An issue of particular complexity is the future effect of prosecutorial discretion dec,isions in later encounters with the alien. Unlike the criminal context, in which statutes of limitation and venue requirements often preclude one U,S. Attorney's office from prosecuting an offense that another office has declined, immigration violations are continuing offenses that, as a general principle of iml11igration law, continue to make an alien legally removable regardless of a decision not to pursue removal on a previous occasion. An alien may come to the attention of the INS in the future through seeking admission or in other ways. An INS office should abide by a favorable prosecutorial decision taken by another office as a matter of INS policy, absent new facts or changed circumstances, However, if a removal proceeding is transferred from one INS district to another, the district assuming responsibility for the case is not bound by the charging district's decision to proceed with an NTA, if the facts and circumstances at a later stage suggest that a favorable exercise of prosecutorial discretion is appropriate,
Service offices should review alien files for information on previous exercises of prosecutorial discretion at the earliest opportunity that is practicable and reasonable and take any such information into account. In particular, the otlice encountering the alien must carefully assess to what extent the relevant facts and. circumstances are the same or have changed either procedurally or substantively (either with respect to later developments, or more detailed knowledge of past circumstances) from the basis for the original exercise of discretion. A decision by an INS office to take enforcement action against the subject of a previous documented exercise of favorable prosecutorial discretion should be memorialized with a memorandum to the file explaining the basis for the decision, unless the charging documents on their face show a matcrial difference in facts and circumstances (such as a different ground of deportability).

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Legal Liability and Enforceability
The question of liability may arise in the implementation orthis memorandum. Some INS personnel have expressed concerns that, ifthey exercise prosecutorial discretion favorably, they may become subject to suit and personal liability for the possible consequences of that decision. We cannot promise INS officers that they will never be sued. However, we can assure our employees that Federal law shields INS employees who act in reasonable reliance upon properly promulgated agency guidance within the agency's legal authority - such as this memorandum-from personal legal liability for those actions.
The principles set fnrth in this memorandum, and internal offlec procedures adopted hereto, are intended solely for the guidance or INS personnel in performing their duties. They arc not intended to, do not, and may not be relied upon to create a right or benefit, suhstantive or procedural, enforceable at law by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.
Training :lnd Implementation
Training on the implementation of this memorandum for DDs, CP As, and Regional, District, and Sector Counsel will be conducted at the regional level. This training will include discussion of accountability and periodic feedback on implementation issues. In addition, following these regional sessions, separate training on prosecutorial discretion will be conducted althc district level for other staff, to be designated. The regions will report to the Office ofField Operations when this training has been completed.

.. -

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Maria Ramos and Nicolas Olivares,

)

on behalf of themselves and all others

)

similarly situated,

)

)

Plaintiffs, )

)

v.

)

)

Thomas Ridge, et aI.,

)

)

Defendants. )

No. 02 C 8266 Judge Filip

NOTICE OF PENDENCY OF CLASS ACTION AND SETTLEMENT

PLEASE READ THIS NOTICE; THE INFORMATION CONTAINED BELOW MAY BE OF BENEFIT TO YOU.

TO: If you applied for lawful permanent residence (a green card) between January 29, 1997 and April 30, 2001 under Section 245 (i) and if the Chicago District Office of the then Immigration & Naturalization Service (Chicago District Office) accepted your application for permanent residence (i.e. application was not rejected and returned to you), you may be able to benefit from
this settlement. Please read below to see if you arc a member of one of the two following
groups:

Class 1

You had a valid 1-130 visa petition filed on your behalf by a family member on or before April 30, 2001.

Class 2

You did not have a valid visa petition filed on your behalf by a fami! y member on or before April 30, 2001, but still applied lor permanent residence (a green card) under Section 245(i) between January 29,1997 and April 30, 2001.

I.

WHY IS THIS NOTICE PUBLISHED?

This notice is published to inform individuals who belong to either of the two groups described ahove (called Class 1 and 2 in this document for legal purposes), that they may benefit from a settlement (i.e. be eligible to receive benefits) in a case entitled Ramos. et al. v. Ridge. et al. This case, number 02 C 8266, in the United States District Court for the Northern District of Illinois, Eastern Division, is a class action lawsuit that is currently pending.

II. INTRODUCTION
The U.S. Congress enacted Section 245(i) of the Immigration and Naturalization Act (INA) in August 1994 to allow people who were in the country illegally to apply for a green card at their local Immigration and Naturalization Service (INS) office, now the U.S. Citizenship and Immigration Services (CIS). According to this law, these individuals could apply in the United States without leaving their families. These individuals must have a spouse, parent, child, or sibling, who is a U.S. citizen or permanent resident, in order to apply for this benefit. Before Section 245(i) was enacted, undocumented individuals related to a U.S. citizen or permanent resident had to leave the U.S. and return to their countries of origin to apply for permanent residency at thc U.S. embassies or consulates there.
Under Section 245(i), a two-step process had to be followed to obtain permanent residency (a green card) through a family member. The first step required that a U.S. citizen or permanent resident relative request a visa for an undocumented relative by filing a petition (known as a Form 1-130) by April 30, 200l. If the relative could prove that he or she was a U.S. citizen or permanent resident, and that he or she was related to the undocumented relative in a way recognized by the INS, the visa petition would be considered "valid" and would be approved.
Under section 245(i), the only wayan individual would not have to leave his or her family in thc U.S. was to have a visa petition that was filed by April 30, 2001. This was what gave the undocumented relative the right to apply for permanent residence at a future date, when the visa number became "available." Section 245(i), however, did not protect the undocumented relative from getting deported if the INS discovered through other means that he or she was not legally present in the U.S during the time he or she was waiting for a visa number to become "immediately available".
Completing step two of this process was and still is done according to a priority system. This priority system grants visas based on the relationship that the immigrant has to the citizen or resident of the United States. This is how the priority system works: Once the visa petition is approved, the immigrant relative has to wait until a visa number becomes "available" before he or she can take the second step in the process, which is to apply for permanent residence (submitting Form T-485). The time at which a visa number becomes available, and the time at which an application for permanent residence is to be filed, varies depending on the relationship between the undocumented individual and his or her U.S. citizen or permanent resident relative. For instance, for spouses, parents, and children of U.S. citizens who are unmarried and under 21 years old (called "immediate relatives"), a visa number becomes available immediately when the relationship is proven and recognized by the INS. Tn these cases, an application for permanent residence can be filed immediately. For other familial relationships, such as siblings ofU.S.
citizens or spouses and children 0 rlawful permanent residents, it takes much more lime to
complete the second step in this process because it often takes many years for a visa to become available, and the application for permanent residence may not be filed until that happens.
2

Ill. WHAT IS TillS LAWSUIT ABOUT?
In their lawsuit, Plaintiffs Maria Rosa Ramos and Nicolas Olivares (two individuals who startcd this lawsuit), say that the Chicago District Office of the then INS did not follow thc law, INS's own regulations, nor INS's memos interpreting thosc regulations, because the INS accepted applications for permanent residence that were f1led prematurely (i.e. accepted even though the visa numbers were not yet available for the applicants) hetwcen January 29, 1997 and April 30, 2001. Many orthe people who filed these applications ended up filing prematurely, applying for a benefit for which they were not yet entitled under Section 24S(i), following the advice of fraudulent notary publics or "notarios",
The Plaintiffs also challenge the legality of the Chicago District Office's actions in keeping the significant f11ing fees that accompanied the applications for permanent residency even when the application was f11ed in error, They further question the legality of using the information contained in the applications to start investigating and deporting applicants. The law, Plaintiffs claim, required the Chicago District Officc to: (1) reject and return the applications for permanent residence that were filed prematurely; (2) refund the fees tbat accompanied those applications; (3) deny any work authorization petitions t1led with the premature applications for permanent residcnce; and (4) not usc the information provided in the premature applications for permanent residence to begin investigations against the applicants.
Defendants (representatives of the U.S. Government) deny they violated any law through their actions, and deny thcy have any obligation to Ramos, Olivares, or any of the Class Members they represent-
IV TERMS OF THE SETTLEMEMENT- WHAT MEMBERS OF CLASSES 1 AND 2 WILL BE AWARDED IF THE COURT APPROVES THE SETTLEMENT
Under the Settlement, all members of Classes I and 2 will benefit as follows:
1. CIS will review the files of all Class members who have not received any notification of a deportation hearing against them (i.e. they have not received a Notice to Appear letter). This case review will be conducted using standards set forth in a memorandum dated November 17, 2000, and issued by Doris Meissner, then Commissioner of the INS. This memorandum includes standards that are to be applied in making decisions on wben removal proceedings are to be initiated. Attorneys for the Plaintiffs believe that applying these guidelines is likely to result in a decision by the INS (now the (CIS)) not to start deportation proceedings against many of the Class members in this category. Plaintiffs believe that there arc approximately 3000 people in this category;
2. Ifthe CIS decides to begin deportation proceedings against any ofthe Class members in the category described above, the CIS will notifY those Class members of this decision and will give them thirty days to request CIS to
3

· ~, ",'

reconsider their decision to begin deportation proceedings and to submit information and documentation in support of their request;
3. For all Class members currently going through deportation hearings before the Immi~,'ration Courts or the Board of Immigration Appeals (BlA), DHS agrees to conduct a review of their files using the same Meissner memorandum mentioned above. However, any individual ordered removed before June 1, 2004 by the Immigration Judge or the Board of Immigration Appeals is not eligible to apply for this beneiit. In order for Class members in this category to take advantage of this process, they must (a) notify the Chicago Chief Counsel for the U. S. Immigration and Customs Enforcement (ICE) that they are members of any of the two classes in this suit within six months from the date the Settlement is approved, and (b) request to have their case reviewed. Plaintiffs' attorneys believe that this review may result in the termination of deportation hearings against some of these Class members. Attorneys for the Plaintiffs believe there are approximately 200 people who fall within this category;
4. All members of Class J or 2 who have been deported from the United States and are eligible for a waiver of inadmissibility may also ask that the government consider their membership in this class when applying for that waiver. Attorneys for the Plaintiffs believe there are approximately 400 people who fall within this category;
5. All Class members, whether they are still in the United States or not, shall receive
a credit n.x the fees they paid to the Chicago District Office for the filing of their
application for permanent residency ifthcy apply for a credit within one year from the date the Settlement is approved with the Chicago District Office of the U. S. Citizenship and Immigration Services (CIS). The credit should equal the amount paid at the time to file the application for permanent residence (Form I~ 485), and, if applicable, the amount paid as a penalty fee under section 24S(i)(l) of the Immigration and Nationality Act ($1000 in most cases). The credit can be used only once and CIS will rctain any remaining balance when the credit is used by the class member. Ifthc amount offees is owed by the class member is greater than the amount of thc credit, the class member is responsible for the difference. The credit is non-transferable, is valid for ten years aller bcing issued, and can be applied by the Class members to any application or petition fees charged by the CIS; and
6. If Class members re-file their applications tor permanent residency under Section 245(i) once their visa number becomes available, Defendants will not deny the application jor the reason that the Class members had filed the same application before during the period between January 29,1997 through April 30, 2001.
4

~ ',n

Even if the CIS or the ICE decide not to begin deportation proceedings or if they chose to terminate deportation proceedings that are currently pending against Class members, this does not mean that CIS or ICE will be forbidden in the future from beginning deportation proceedings against those same Clas~ membcrs if they find through means other than those mentioned in this lawsuit that the Class members are present in the United States illegally. Plaintiffs agree that decisions relating to the commencement or termination ofremoval proceedings under this Agreement are solely within the prosecutorial discretion of the Defendants and the outcome of the rcview conducted under this Agreement cannot be challenged in this or any other legal, administrative, equitable or declaratory proceeding, or used as a basis to seek or obtain a writ of mandamus or habeas corpus. Aliens convicted of an aggravated felony, individuals who are subject to administratively final orders of removal or deportation, or individuals subject to the rcinstatement of removal orders, are not eligible for re1iefpursuant to this Agreement.

The Settlemcnt also provides for a payment of $90,000 in fees and cost to the attorneys representing the Plaintiffs (Class Counsel). This payment is a substantial reduction fTOm the actual fees and costs incurred during the case, which totaled $147,986.21 for time spent to date and $2,446 in costs incurred. This total was calculated by using the Equal Access to Justice Act (EAJA) fee rate schcdule, under which Class Counsel would have been entitled to hourly rates of $145.87, $148.43, and $148.75 for years 2002, 2003 and 2004, respectively. The total hours spent by thc attorneys each year are 326.5 for 2003, 334.7 for 2003 and 347.7 lor 2004.

V. WHO REPRESENTS THE CLASS?

The following attorneys represent Maria Ramos and Nicolas Olivares and are Class Counsel:

Steven Saltzman 122 S. Michigan Avenue, Suite 1850 Chicago, IL 60603

Mary M. McCarthy Charles Roth Midwest Innnigrant & Human Rights Center 208 S. LaSalle Strect Suitc 1881 Chicago, IL 60604

Alonzo Rivas Jorge Sanchez MALDEF 188 West Randolph Strect, Suite 1405 Chicago, IL 60601

5

1) If you believe you are a member of either Class 1 or 2, Class Counsel represents your interests in this lawsuit 2) You will not be charged for their services. 3) You may, however, hire your own attorney at your own expense to advise you on the terms of the Settlement Agreement.
VI. WHAT DO I NEED TO DO?
If you believe you are a member of either Class I or 2, you do not need to do anything until this settlement is finally approved by the Court. You should not contact immigration authorities, including CIS. However, if you have any questions about this case or settlement, you may consult Class Counsel by calling _ _ _ _ _'
You are encouraged to see the complete file, including a copy of the Settlement Agreement You may do so by visiting the Office of the Clerk, United States District Court for the Northern District ofI11inois, Everett McKinley Dirksen Building, 219 South Dearborn Street, Chicago, Illinois 60604. The Clerk will make the files relating to this lawsuit available to you for inspection and copying at your own expense. DO NOT ADDRESS ANY QUESTIONS ABOUT THE CASE TO THE CLERK OF THE COURT OR THE ,JUDGE, OR THE IMMIGRATION AUTHORITIES.
VII. FAIRNESS HEARING. A hearing will be held on the fairness of this proposed settlement on [date], before the
Honorable Mark Filip, District Judge for the Northern District of Illinois, in Courtroom 1725 of the Everett McKinley Dirksen Building, 219 South Dearborn Street, Chicago, lllinois 60604. At the hearing, the Court will hear any objections and arguments from parties that filed written objections by [date] concerning the fairness (lfthe proposed settlement, induding the fees awarded to Class Counsel. YOU DO NOT NEED TO APPEAR AT THIS HEARING UNLESS YOU OBJECT TO THE SETTLEMENT.
BY ORDER OF THE COURT.
6

 
 F I l E D UNITED STATES DISTRICT COURT
C FOR THE NORTHERN DISTRICT OF ILLINO,«

EASTERN DIVISION

JUL 2 1 2005

Maria Ramos and Nicolas Olivares

)

on behalf of themselves and others similarly)

situated,

)

)

Plaintiffs, )

)

v.

)

)

MICHAEL W. DOBBINS CLERK, U.S. DISTRICT COURJ;
No. 02 C 8266 Judge Mark Filip

Michael Chertotf, et al.,

) ) Defendants. )

AGREED MOTION ADOPT THE PARTIES' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

The parties, through their respective attorneys, respectfully requcst this Court to adopt their proposed findings of fact and conclusions of law on the issue of attorneys' fees and cost, Exhibit 1, which they filed with this Court on Juoe 28, 2005.

WHEREFORE, Parties pray for entry of an Order adopting their proposed findings of fact and conclusions oflaw.

Respectfully submitted,

Alonzo Rivas MALDEF 188 West Randolph St., Suite 1405 Chicago, IL 60601 (312)782-1422

Steven Saltzman 122 S. Michigan, Ste. 1850 Chicago, lllinois 60603 (312) 427-4500
. ,
'-.:::J ""';,...i - \.-

Mary M. McCarthy Charles Roth Midwest Immigrant & Human Rights Center, Heartland Alliance 208 S. LaSalle Street, Ste. 1818 Chicago, IL 60604 (312) 660-l351

Thomas Walsh, Civil Chief Sheila M. Entenman, Special AUSA Craig A. Oswald, AUSA U.S Attorney's Office 219 S. Dearborn St, 5th Floor, Chicago, Illinois 60604 Phone: (312) 353-5300

2

UNITED STA1'ESDIS1'RICT COURT

, ,

FOR THE NORTHERN DISTRICT OF ILLINOIS'

I

EASTERN DIVISION

, • _II·
, ,

Please take notice that on Tuesday, June 28. 2005, the undersigned filed with the Clerk of the United SUItes District Court fot the Northern District ofIDinois, Eastern Division, the attached Agreed Proposed Findings of Fact and ConclllSi.ons of Law 011 the Issue of Attomeys' F_ 8lldCosts, a true copy ofwbich is hereby served upon you. "

c:7h;y: /2 ~ .
ODe of the Attorneyll for Plaintiffs

Alonzo Rivas MALDEF ISg West Randolph Street, Suite,l405
Chicago, IL 60601 (312) 782-1422

Steven SaltzQlan 122 S, Michigan Avenue, Suite 1850 Chicago, IL 60603 (312) 427-4500

Mmy M, McCar1hy

Cbarles Roth Midwest Immigrant & Human Rights Center, Heartland Alliauce

20g S, LaSalle Street

Suite 1881 Chicago; IL 60604

.IltCEI,-,';.I,'f~F(\' .'...y_1' 2',..'1p.. ' . . . F'[· '"I'I''·'·U' ·
05JU\~2G f\\';.i:29

1

CL\:.RK 'r 1

U.S, DISTRICT COUI

.. ".'-: -(':'" ~',\ '" - . . ..... ;~ .~-

EXHIBIT

- - - - - - - - - - - - - - - - - - _.._,,------------..

CERTIFICATE OF SERVICE
The undersigned states that a copy ofthe Notice of Filing and Agreed Proposed Findings ofFaet aDd ConclllSions of Law on the Issue of Attorneys' Fees and Corits, was
servoo personally on counsel listed below on June 28, 2005. Thomas Walsh, Civil·Chief SheilaM. Errtenmon, Special AUSA Craig A. Oswald, AUSA 219 S. Dearbom St, 5th Floor Chicago, IllinoiB60(j04 Phone: (312) 353-5300 Fax: (312) 886-4073
Alonzo Rivas, StaffAttorney, MALDEF
2

,'., ..........

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

,If

EASTERN DIVISION

Maria Ramos and Nicolas Olivares,

)

on behalf oftbemsclves and all others

)

similarly situated,

)

)

Pl.ai:D.tiffi;, )

)

v.

)

)

Thomas Ridge, et aL,

)

)

De:fundants. )

No. 02C 8266 Judge Mark Filip

AGREED PROPOSED FINDINGS OF FACT AND CONCLUSIONS of LAW ON THE ISSUE OF ATTORNEYS' FEES AND COSTS
-I· ,J..

Pursuant to their obligations under Federal Rule of Civil Procedure 23(h).

the Plaintiffs, through their IJIldersigned attorneys, and with the expressed

agreemeot ofthe Defendants, through their attorneys. respectfully submit to this

Court the instant Proposed Find.itJss ofFact and Conclusions of Law on the Issue

ofAttorneys' Fees IIIld Costs.

FiDdjnr ofFact Undc.r the tepD.s of their settlemeDt, the parties in this case agfeed to an award of 1IttdmeyS' fees' and costs 0[$90,000 for Plaintiffs' counsel Tlm1 figure·isa substantial . reduCtion from the tota1 fees the attorneys for the plaibtiffs may have recovered under the Equal ~ss to Justice Am (BAJA), and the actual costs incurred liti~ this case. M
it was included in the fee reports furniahed by class COUDBe1 to this Gourt, the attorneys
for the Plaintiffs expended a total of 1008.9 combined hpurs. The reports, which also detailed information on the mannr:.r in which time was used and the attorneys that
1
. _ _ _M'. _ _ _ _ _ _ __

pelfDmlcd any giveD. work, calculated the total hours for each year as 326.5 for 2002, 334.7for 2003, and 347.7 for 2004. Under BAJA, the hourly rate for this case would" have been $145.87 in 2002, $148.43 in 2003, and $148.75 in 2004. Ifthe plaintiffs bad SO\lgbt compensation for actaal holltS expended and costs incurred., attorneys' fees would have amounted to $147,986.21 for time spent, plus $2,446 in costs incut.red.

COJlclUllioDf of Law

The Court ill required under Federal Ru1e of Civil Procedure 23(e) "to make·

independent determination as to appropriate attomey fees upon approving sllttl.cment

agree:ment providing for attorney fees." See Montgomery v. Aetna Plywood, Inc., 231

F.3d 399,413 (7th Cir. 2000)(citing Strongv. BellSouth Telecomms. Inc., 137 F.3d 844,

849·~0 (5th Cir.1998){h(llding that "[e]venwhen the district court finds the settlement agreem.e.nt to be untainted by collusion; fraud. and other irregularitie~, the court mUllt

thoroughly review the attomeys' fees agreed to by .the pllJ1.i.es in the proposed actt1ement

agreement.'')) "The purpose ofthis salutary requirement ill to protect the nonparty

members ofthe class from. unjUllt or unfW settlements affecting their rights." Piambtno·
". Bailey, 610 F.2d 1306, 1327·28 (5th dr. 1980), rehearing dellied, 618 F.2d 1390,
I
certiorari denied, 101 S.Ct568, 449 U.S. 1011, 66 L.Ed.2d 469 (1980). Failure ob
district court to cOnduct sUch asseSSlllent can result in a reversal ofthat court's approval

of a settlement agreement. See it1. at 1328.

The pa¢es in this elISe agreed to an atto:meys' fees and costs award based on

BAJA rates, and Defendants agree that the Plaintiff. meet the requirem.ents to recover

fees and costs mlCler BAJA. See 28 USC § 2412(d)(1)(B) (2005). However, the Court

.

"

2
. '.
- - -..•- -

must stilldetetmine whether the !WIOunt ofthe fees award to vvhicll the parties agreed is reasonable. The reasonableJll:sB of a request for ~st fees isdetmmined by_ fullowing the staIidatdsofJohnson 1'. Georgia Highway Express, 488 F.2d 714 (5th Cir., 1974). The Fifth Circuit established iJlJohnson 12 factors to determine the reasonableoess offee awards: (1) the time and labor required; (2) the novelty and difficulty ofthe questions; (3) the skill requisite to perfollll the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the !WIOUIlt involved and the results obtained; (9) the experience, reputation, and ability ofthe attomeys; (10) the "undesirability" ofthe case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19. The CoUrt does not need to discuas every single one ofthe Johnson factors in reaching a detwninaijon ofreasonableoes/J, "so long as the record cleady indicates that •.• [it] ...has utilized the Johnson framework as the basis of its analysis, has not proceeded in a summary fashion, and has arrived at lID. llIIlOuntthat can be said to bejuat compensation." See Cobb v. Miller, 818 F.2d 1227, 1232 (5th Cir. 1987).
i-
The part:ie~ in this case can establish the reasonableness oftheir agreed attorneys' fees under the Johnson factors. While there is no evidence thatattomeys for the class were precluded from taking other cases because oftheir participatiOll iJl this case, the iofonnation they submitted to this Court shows that theysprot a considerable amount of til!le litigating this case. The attorneys sprota total of 326.5 in 2002, 334.7 in 2003, and, 347.7 in 2004 (a grand total oflOOS.9 combined hours) w~kingin tins case. The
3
- - - - - _..- - - - - - - - - - - _ . _ - - - - - - - - - - - - - - - - - - - -

documents submitwd by the attomeys detail that the majority oftheir 'lime was spent doing substantive work, such as legal reseatcll, drafting pleadings, motions, discovery :requests, I.Uld other. legal documents on a variety of difficult. constitutional and statutory questions.
The issues raised in thiJ; case were so con:rplex, that there was a need to recruit the legal expertise of Steven Saltzman. Despite the combined knowledge sud expertise ofthe attorneys for the Midwest Immigrsnt and Huttum Rights Center (MIHRC), who bad worked in the previous incarnation ofthis case and were representing class members in their individual cases through the immigration courts, and the Mexitan American Legal Defense and Educational Fund (MALDEF), whose attorneys specialize in high-impact civil rights litigation and had filed actions against the former Immigration and Naturalization Service in the past, Mr. SBltzman's civil rights expertise was needed to lead the Plaintiffs' legal team.
Given the amount of work aIle) the complexity of the legal issues involved in this case, the fee award to which Plaintiffs agreed is indeed reasonable. The hourly rate they :requested; as provided by EAJA, was $145.87 for 2002, $148.43 for 2003, and $148.75 .
., for 2004. Had the Plairitiffi: sought compensationfor ac:tual hours expended they may
have been entitled to $147,98621. Such rates are, for most ofthe attorneys involved, less
to than hBlf oftheir market rate. However, the Plaintiffs agreed furtb~ reduce their rates
and agreed to a. $90,000 award for their attorneys' fees and costs COlllbinod in the interest of settling this case expeditiously to save as many class members as possible frmn
we receiving :final orders ofdeportation. While there are nO similar cases to which can
4

I •
compare this action, an award of$90,OOO for attorneys' fees and costs for close to three years of litigation cannot be considered excessive, unfair, or utIl'eI1Sonable.
Finally, thm is no doubt that the results obtained through this B~lement BItl snbstantial and !w.ve the potential ofhelping thollSllllds ofptlople. Under the WIms of then settlt:ment ~ement with the Govemrnent, Plaintiffs stand to bendit in fout major ways: First, by having the Govemmont not begin deportation procoodlngs against those class members who have not :receivtld any noti:5cation of a deportation hearing; second, by tellIlina:ting the deportation bellrings ofthose class =bers who are currently going through deportation proceedings; third, by allowing all class members to apply for a credit ofthe fees they paid with their application; and fourth, by allowing class members to Ie-fUe their applications for Adjustment of Status UDder Section 245(i) once a visa number becomes available for them.
The settleinent sufficiently favors the PlaiJ:rtiffs in this case:. The termB ofthe settlement are very much in line with what the Plaint.i:ffs were trying to achieve through
their lawsuit. A briefreview ofthe Plaintiffs' Prayer for Reliefin their pleadings shows
that one of the plaintiffs' main goals in this action was to bave the Court enter an order . enjoining the Government from using the ilIformation Plaintiffs providedin their '. applications for adjustment of status to start or continue deportation proceediDgs against . them, and from retaining the fees paid by the Plaintiffs when they filed those applications. This bas been accomplished, to a great cxient, by the settlt:ment agreement.
5

Conclusion
For the reasons stated above, this Court should adopt the Porties Proposed Findings ofFflCt and Conclusions ofLaw.

One of the Attorneys for Plaintiffs

Alonzo Rivas MALDEF 188 West Randolph Street, SUite 1405
Chicago, II. 60601 (312) 7&2-1422

Steven Saltzman 122 S. Michigan Avenue, SUite 18S0 Cldcago,II. 60603 (312) 427~500

Mary M McCarthy
Charles Roth Midwest Jmmigrant& Human Rights Center, Heartland Alliance
208 S. LaSalle Street SUite 1881 Chicago, II.. 60604 .

6

 
 Maria Rosa Ramos, Apolinar Ochoa, Argmira )

Ochoa, Nicolas Olivares, Fermin Gutierrcz, )

Fernando Carranza, Gabriel Tones, Juan

)

Rodriguez, Hector Diaz, Justino Castaneda, )

and Efren de la Toffy

)

)

Plaintiffs, )

)

Vo

)

)

John AshcroR, Attorney General;

)

Immigration and Naturalization Service;

)

James W. Ziglar, Commissioner,

)

Immigration and Naturalization Service;

)

Brian Perryman, Director of the Chicago

)

District Office of the Immigration and

)

Naturalization Service,

).

) Defendants. )

02C 826,6
Civil Action Nc~U~jGE LINDBERG
Judge
Mag. JudMgeAGISTRATE JUDGE

COMPLAINT

I. PRELIMINARY STATEMENT.

1. This case concerns the actions of the Chicago District Oflqce of the Immigration

and Nationality Service (INS) in failing to properly implement Congressional and INS policies

with due process to Mlow immigrants with close relatives in the United States to have that

relationship recognized by INS pursuant to Section 245(i) of the Immigration and Nationality Act,

(INA), 8 U.S.C. §12550) so that they later could adjust their status without having to leave the

United States for a period often years.

2. Named Plaintiffs are themselves immigrants and long term residents of the United

States whose rights under the INA and its regulations and the Due Process Clause of the Fifth

Amendment have been violated due to a combination of factors, including: congressionally imposed deadlines to file family visa applications; malfeasance by the Chicago District Office in improperly processing Adjustment of Status applications and improperly issuing work authorization permits; lack of notice by that office of how to take proper advantage of Congressional policies designed to promote such family unification; and the actions of unscrupulous persons preying on these immigrants, which the Chicago District Office knew of and supported through its malfeasance. The result was that hundreds of immigrants were preyed upon by unscrupulous individuals, filed applications too early, and wound up in a trap in which the hundreds of dollars they spent to file a premature application to adjust status resulted in deportation proceedings that defeated the whole purpose of the law they were trying to follow. The Chicago District Office apparently corrected its process sometime in 2001, but these changes did not help individuals whose applications were improperly handled before that point.
3. Plaintiffs on behalf of themselves and the class they seek to represent bring this action pursuant to the Administrative Procedure Act (APA) and the Due Process Clause of the Fifth Amendment against the governmental officials responsible for their unlawful and unconstitutional treatment. They seek equitable relief to have INS ordered to return hundreds of dollars in application fees wrongly accepted and. to prevent INS from using information acquired through the Chicago Dislrict Office’s malfeasance and failure to follow federal law and due process requirements.
II. JURISDICTIONAL AND VENUE ALLEGATIONS 4. The Court has jurisdiction under the APA, 5 U.S.C. §§ 701 et seq., as well as 28 U.S.C. §1331.
2

5. Pursuant to 28 U.S.C. §§ 2201 and 2202, the Court has power to award declaratory relief in this case.
6. Venue is proper in the Northern Distr/ct of Illinois under 28 U.S.C. § 1391(e). The vast majority of Plaintiffs reside in the Northern District of Illinois; all class members filed their Adjustment of Status applications in Chicago. The INS District Office which has acted on plaintiffs’ applications is located in Chicago, and in cases where class members were placed into removal proceedings, the INS has filed its charging document in Immigration Courts located in Chicago.
IIL PARTIES Plaintiffs
The named Plaintiffs are: A. Mafia Ramos, an individual in removal proceedings due to her attempt to became a permanent resident. B. Apolinar Ochoa, an individual in removal proceedings due to his attempt to become a permanent resident, on appeal to the Board of Immigration Appeals; C. Argmira Ochoa, an individual in removal proceedings due to her attempt to become a permanent resident; D. Nicolas Olivares, an individual in removal proceedings due to his attempt to become a permanent resident; E. Fermin Gutierrez, an individual who was placed into removal proceedings due to his attempt to become a permanent resident, F. Fernando Carranza, an individual in removal proceedings due to his attempt

to become a permanent resident; G. Gabriel Tortes, an individual placed into removal proceedings due to his
attempt to become a permanent resident, who was subsequently ordered to Voluntarily Depart the United States, and who was then granted a stay of removal; and
H. Juan Manuel Rodriguez, an individual placed into removal proceedings due to his attempt to become a permanent resident, who was subsequently ordered to voluntarily depart the United States, which order is on appeal to the Board of Immigration Appeals.
I. Hector Diaz, an individual in removal proceedings due to his attempt to become a permanent resident, who was ordered to voluntarily depart the United States, whose case is currently on appeal to the Board of Immigration Appeals;
J. Justino Castaneda~ an individual who was in removal proceedings due to his attempt to become a permanent resident, who was subsequently ordered to Voluntarily Depart the United States; and
K. Efren de la Ton’e, an individual who was placed into removal proceedings due to his attempt to become a permanent resident, who was ordered removed in absentia.
Plaintiffs’ Class Action Allegations 8. The named plaintiffs bring this action on their own behalf and on behalf of a class of other similarly situated persons pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 9. The plaintiff class consists of:
Individuals whose Application for Adjustment of Sta~_s (INS form 1-485) was accepted for filing by the Chicago District Office of the INS between January 29, 1997, and April 13, 2001, where there was no prima facie eligibility for that benefit, in violation of applicable law, regulations and procedures; and who were
4

prejudiced by such improper action. Prima faeie eligibility for Adjustment of Status requires that the individual had an approved visa petition which was immediately available to them at time of filing, or a not-yet-approved visa petition whose approval would make that visa immediately available for use. Prejudice to class members includes loss of application fees, and in many cases, institution of removal proceedings. 10. Named Plaintiffs are low-income immigrants who filed facially deficient applications for "Adjustment of Status" under INA §245. Typically, they relied on the advice of unqualified and unscrupulous "immigration consultants" to do so. Due to these applications being filed too early or in inappropriate situations, Plaintiffs’ sincere effort to acquire legal permanent residence and keep their families intact instead set in motion a train of events that could lead instead to their deportation. Most plaintiffs have received a denial of their Adjustment of Status applications. Many have also been placed into proceedings seeking their removal from the United States. Some plaintiffs have had their applications denied, but have not yet been placed into removal proceedings. Finally, some plaintiffs have not yet received any response from the Chicago District Office on their applications.
11. The Plaintiff class is so numerous that the joinder of all members is impractical. At least four hundred (400) individual affected by CDO’s policy have contacted the Midwest Immigrant & Human Rights Center (MIHRC) and the Legal Assistance Foundation of Chicago, counsels in a multi-plaintiff suit challenging the Defendants’ procedures. However, it is reasonably estimated on information and belief that 5000 or more improperly filed Adjustment of Status applications were accepted by the defendants during the time period alleged.
12. There are questions of law and fact common to the class, including the factual scenario whereby Plaintiffs and class members were enticed by Chicago District Office malfeasance and the actions of unscrupulous individuals to file an application for which they were
5

not yet eligible; whether Chicago District Office has violated the INA and INS regulations through its policy of accepting Adjustment of Status applications for processing where there is no prima facie eligibility for the relief; and whether the Defendants’ actions violated the Plaintiffs’ constitutional rights as alleged herein.
13. The claims of Named Plaintiffs are typical of the claims of the class. Named Plaintiffs, like all class members, have been negatively impacted by Chicago District Office’s policies by losing their filing and processing fees, and/or having their applications used as a basis to institute removal proceedings against them.
14. Named Plaintiffs are adequate representatives of the class who will adequately and fairly protect the interests of the class because they seek relief on behalf of the class as a whole and have no interests antagonistic to other members of the class. They are represented by attorneys employed by the Midwest Immigrant & Human Rights Center (MIHRC) and the Mexican American Legal Defense and Educational Fund (MALDEF), and by Steven Saltzrnan, all of whom are attorneys who are experienced in federal litigation and/or immigration law and have litigated complex class action civil rights cases.
15. In addition, the defendants have acted and/or refused to act on grounds generally applicable to the plaintiff class, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the class as a whole, making class certification appropriate under Fed.R.Civ.P. 23(b)(2).
Defendants 16. John Ashcrofl is the United States Attorney General. He oversees the Department of Justice and the INS, an agency of the Justice Department and is responsible for the actions of

....................................... ~! ........

I, LI

INS including the INS District offices. Mr. Ashcrofi is sued in his official capacity. 17. James W. Ziglar is Commissioner of the INS. He is responsible for the actions of
INS including the INS District offices He is sued in his official capacity. 18.. The INS is an administrative agency within the Department of Justice that
implements our nation’s immigration laws. The INS is responsible for processing and adjudicating all section 2450) applications for adjustment of status. The Chicago District Office of the INS is a district office responsible for processing and adjudicating all section 2450) applications for adjustment of status The APA claim is brought against the agency and its Chicago District Office.
19. Brian Perryman is the District Director of the Chicago District Office and is its Chief Administrative Officer. He has official responsibility for its acts, including the orders and actions described herein. The Chicago District Office has a duty to review applications for Adjustment of Status filed by persons residing in the state of Illinois to see if they are "properly filed." Mr. Perryman is sued in his official capacity.
FACTUAL ALLEGATIONS Overview of Visa Processing and Adjustment of Status Under the INA 20. Under the INA, to obtain lawful permanent resident status through a family member, a two step process is followed. First, a petition for an immigrant visa must be filed on the immigrant’s behalf by a U.S. citizen or resident alien relative (the petitioner). If the petitioner can demonstrate their own legal status, and that the family relation exists, the INS approves the visa petition. Second, the immigrant relative must file and have approved an application to adjust his/her status to a lawful resident. In order for this application to be granted, a visa must become

"immediately available." For spouses, parents, and minor, unmarried childrcn of U.S. citizens, any approvable visa is "immediately available"; these individuals arc called "immediate relatives." For all other visa categories - such as siblings of U.S. citizens or grown children or children of lawful permanent resident parents- there arc waiting lists of many years before the approved visa becomes "immediately available." Once a visa is "immediately available," the beneficiary may either (a) apply for legal permanent residence at the U.S. embassy or consulate in their country of nationality ("consular processing"), or Co) if certain conditions are met, file an application for adjustment of status to legal permanent residence with their local INS office in the United Statcs. At this point, the individual must show that they are not "inadmissible" to the United States for having committed crimes in this country, not having communicable diseases, etc. Completing this last step by filing an adjustment of status application in the U.S. is preferable to completing the process abroad, for various reasons (see ¶ 22, infra).
21. The INS has a policy and practice, which is well known in immigrant communities, of not using the information provided in an approved visa petition to commence rctnoval proceedings against the immigrant beneficiary, even though the petition may reveal the bencficiary’s unlawful presence in the U.S. Thus, applying for the visa petition does not cause the immigrant relative to put himself/herself in jcopardy of being dcportc& However, having an approved petition does not entitle the beneficiary to live or work in the U.S., nor does it protect the beneficiary from deportation if the beneficiary comes to the INS’s attention through some other avenue. The approved petition only secures the beneficiary’s place in line for eventual visa availability.
22. Section 245(i) of the INA was adopted to allow families to remain unified in the
8

United States while the family member’s status is being adjusted. Beneficiaries of approved visa petitions who have entered or remained in the United States unlawfully are permitted to apply for Adjustment of Status in the United States, instead of having to retttm to their countries of origin for "consular processing," i.e., immigrant visa interviews at U.S. embassies or consulates there. Adjustment of Status under this provision requires payment of a 5; 1000 "special processing fee." INA §245(i) effectively "forgives" unlawful status, permitting immigrants to adjust their status to legal permanent residence nonetheless. It avoids the need to wait abroad for "consular processing" to be completed, which often entailed lengthy separations from family members in the U.S. Prior to Section 2450) being adopted, family members seeking to adjust their status had to leave the United States, although only temporarily, to adjust their status.
23. INA §245(i) is also important because §301 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) introduced new rules that an immigrant seeking to "reenter" the United States after being unlawfully present in the U.S. for more than a year is barred from returning for ten years. See 8 U.S.C. § 1182(a)(9)(B), INA §212(a)(9)(B). A waiver is available only if the immigrant can show "extreme hardship" to a U.S. citizen or resident alien spouse or parent, i.e. not the immigrant actually seeking the waiver. 8 U.S.C. § 1182(a)(9)(B)(v), INA §212(a)(9)(B)(v).
24. Immigrants who are able to obtain residency within the United States under INA §245(i) do not depart the United States. Thus, they have no need to reenter the United States and they are able to avoid the 10 year bar oflNA §212(a)(9)(B).
25. When a visa becomes "immediately available," a beneficiary may then file an application for "Adjustment of Status" to permanent residence, using INS form 1-485. When

filing, the applicant must pay an application fee to the INS. The fee for the 1-485 was $130 before October 12, 1998; it was then raised to $220 until February 19, 2002, when it was raised to its current level of $255. In addition, individuals applying under §245(i)must pay a $1,000 "special processing fee" to forgive their unlawful status.
Chicago District Office Policy 26. Prior to January 29, 1997, on infon’nation and belief, applications for Adjustment of Status had to be submitted to the Chicago District Office in person. The applicant would go to the INS office with the forms and the application fees, and wait to speak with an INS officer. That officer would then review the forms and fees to make sure that they were correct, and if they were correct, the application would be accepted for filing. If a visa was not immediately available, the application would not be processed and the fees returned. No use was made of the information contained in the rejected application. 27. On January 29, 1997, on information and belief, the Chicago District Office adopted a new procedure re~luiring that applications for Adjustment of Status (I-485) be submitted by mail. The former procedure, which involved screening for prima facie eligibility, was eliminated. 28. The Chicago District mail-in system permitted an application for Employment Authorization, on INS form 1-765, to be submitted along with the Adjustment of Status application. As part of this new procedure, the Chicago District Office had improperly trained personnel reviewing these applications. 29. Many applications, for which a visa was not immediately available and hence there was no prima facie eligibility, were accepted and work authorization was issued. Once the
10

application was reviewed, it would be denied and the information contained in it that showed that the applicant was in the United States unlawfully would then be transmitted to persons charged with initiating deportation proceedings.
30. The Chicago District Office’s improper actions in accepting visa adjustment applications for which there was no prima facie eligibility due to the lack of an immediately available visa and improperly granting work authorization created situations whereby inappropriate or ill-timed requests for Adjustment of Status were rewarded with a temporary work authorization card but then resulted in the Chicago District Office initiating removal proceedings against the applicant.
3 I. The Chicago District Office policy, as described above, was in effect f~om January 29, 1997, through April 13, 2001. During that time period, the INS and the Chicago District Office encouraged lawfully admitted immigrants and citizens to submit visa petitions for their family members in the United States unlawfully because there was a deadline by which such petitions had to be submitted if the immigrant was to be able to take advantage of the benefits of INA Section 245(i) and avoid having to leave the United States for ten years.
32. The Chicago District Office’s policy was different from the policy employed in other INS offices around the country. The policy used in other district offices was consistent with the one used by the Chicago District Office prior to January 29, 1997, resulting in the return of a premature application (one for which no visa was immediately available) and the fees and no other use was made of the information contained in premature applications processed by these other district offices.
33. On information and belief, the Chicago District Office instituted a project

specifically targeting individuals for removal who had filed premature applications for Adjustment of Status. Through this "Special NTA Project," the Chicago District Office targeted Named Plaintiffs and the Plaintiff Class who had erroneously submitted 1-485 applications that had been improperly accepted by the Chicago District Office and used the information from applications as the basis for instituting removal proceedings. On information and belief, the Chicago District Office did not target any other group of persons who submitted 1-485 applications in the same hammer. The targeting was in contravention of a national policy not to begin removal proceedings based upon family visa petitions.
Practices of Unscrupulous Notarios and The Effect of Those Practices Caused by the Chicago District Office’s Policy
34. The Chicago District Office was aware, even prior to adopting this new policy in January, 1997 due to many complaints by community organizations, its own investigations and prosecutions and civil lawsuits by state and local authorities that "Immigration consultants," called notarios in Mexican communities, often "represented" immigrants in obtaining immigration benefits. These consultants were able to use their knowledge of English, as well as some knowledge of immigration law, to be able to claim expertise within those communities, to charge fees for their services, and to, in effect, practice law without a license.
35. The Chicago District Office was also aware, well before adopting its new policy in January 1997, that the most tangible and sought-after immigration benefit is a work authorization document. The Chicago District Office and District Director Perryman thus knew or should have known that its policy of accepting premature adjustment of status applications and granting work authorization would cause notarios and "Immigration consultants" to solicit and cause immigrants to file cosily but premature adjustment of status applications, instead of the simple visa petition
~.2

that should have been filed. 36. During the dates in question, community and immigrant groups told the Chicago
INS Office, over and over again, of the problems caused by the District Office’s improper policies. During the dates in question, the City of Chicago and the State of Illinois both handled civil and criminal actions against Notarios and Immigration Consultants. During the dates in question, the Chicago INS Office had, on information and belief, independent knowledge of the problem of fraud on irnrnigrants caused by the District’s policies. Still, the Chicago INS Office did nothing to correct its mistakes until approximately April 2001.
37. There was a direct and causal link between the Chicago INS District Office’s act of granting work permits inappropriately and the massive fraud perpetrated upon unsuspecting immigrants by "Notarios" and "Immigration Consultants" during the time period in question.
38. Even after the Chicago District Office’s decision to change its handling of applications for Adjustment of Status, to correct its past practices, the Chicago District Office has continued to prosecute removal eases against individuals who applied to the Chicago District Office prior to the change of policy in April 2001.
39. The Chicago District Office, on information and belief, has not processed any refund of fees for class members and has not returned any applications it improperly accepted from class members during the period of January 29, 1997 to April 13, 2001.
Application of Defendants’ Policies and Practices to Plaintiffs and Members of the Plaintiff Class
40. The named plaintiffs have been and continue to be subjected to the policies and practices described above in paragraphs 26-37, as follows:
a. Plaintiff Maria Rosa Ramos

i. Maria Rosa Ramos is a Mexican citizen. She last entered the United States in October 1996, without inspection. Ms. Ramos, who is divorced, is raising her three children alone: they are ages 16, 10, and 5. Her youngest child is a U.S. citizen, as is her brother.
ii. In January 1999, advised by Notary Public Antonio Perez, who charged her $400, Ms. Ramos applied for Adjustment of Status through her brother, a legal resident alien at that time. The visa petition could not be approved because that family relationship was not recognized for passing immigration benefits under the INA; only U.S. citizens can petition for siblings. 8 U.S.C. § 1151(a), (b). There was therefore no visa "immediately available" at the time of the application.
iii. Although Ms. Ramos’ application was facially deficient, the Chicago District Office accepted Ms. Ramos’ application for filing. The INS then denied the application, kept the $345 in application fees, and placed Ms. Ramos into removal proceedings. The INS has never processed a refund of Mrs. Ochoa’s application fees.
b. Plaintiff Apolinar Ochoa
i. Apolinar Ochoa is a Mexican citizen, who has resided in the United States since April 1989. Mr. Ochoa resides in the United States with his wife, also a plaintiff in this suit, and their three U.S. citizen children. Mr. Ochoa’s parents are both Lawful Permanent Residents in the United States. Two of his siblings are U.S. citizens, and two are permanent residents.
ii. Advised by a Notary Public at Jade Enterprises, who charged Mr. Ochoa $1200, Mr. Ochoa applied for Adjustment of Status through his U.S. citizen brother. Because the visa through his brother was not immediately available, Mr. Oehoa was not yet prima facie eligible to apply for Adjustment of Status.
iii. Although Mr. Ochoa’s application was facially deficient, the Chicago INS District accepted the application for filing. After accepting the Adjustment of Status application, the Chicago District Office then denied the application, kept the application fees, and placed Mr. Ochoa into removal proceedings. Mr. Ochoa has not received a refund of his application fees.
c. Plaintiff Argrnira Ochoa
i. Argmira Ochoa is the wife of Apolinar Ochoa, the lead plaintiff in this action. See ¶40(b). She is a citizen of Mexico, and has resided in the United States since April 1989. She applied for Adjustment of Status as a derivative beneficiary of the petition filed on behalf of her husband by his U.S. citizen brother. At the time she applied for Adjustment of Status, she was not prima facie eligible for that benefit, because the visa petition was not yet "immediately available."
14

ii. The Chicago District Office accepted Mrs. Ochoa’s Adjustment of Status application. The INS then denied the application, kept the application fees, and placed Mrs. Ochoa into removal proceedings. The INS has never processed a refund of Mrs. Ochoa’s application fees.
iii. Mrs. Ochoa resides in the United States with her husband, also a plaintiff in this suit, and their three U.S. citizen children. Mrs. Ochoa’s mother is a U.S. citizen. Her husband’s parents are both Lawful Permanent Residents in the United States, and of her husband’s siblings, two are U.S. citizens and two are permanent residents.
d. Plaintiff Nicolas Olivarcs
i. Nicolas Olivares is a Mexican citizen. He last entered the United States in January 1995, without inspection, but has been residing in the United States continuously since February 1988.
ii. In January 1998, Mr. Olivares paid $300 to Alfredo Estrada, a Notary Public, to help him apply for Adjustment of Status through his lawful permanent resident brother. Because there is no visa category for siblings of permanent residents, Mr. Olivares was not prima facie eligible for Adjustment of Status when he applied.
iii. The Chicago District Office accepted Mr. Olivares’s Adjustment of Status application. The INS then denied the application, kept the application fees, and placed Mr. Olivares into removal proceedings.
e. Plaintiff Fermin Gutierrez
i. Fermin Gutierrez is a Mexican citizen. He last entered the United States in 1990, without inspection. He lives with his wife and two U. S. citizen daughters. His sister, a U.S. citizen, filed a visa petition on his behalf.
ii. In November 1997, Mr. Gutierrez paid $500 to an individual named Alfredo Estrada, and his assistant, Esteban Beltran. Through Mr. Beltran, Mr. Gutierrez applied for Adjustment of Status application through his U.S. citizen sister. However, Mr. Gutierrez had no visa number "immediately available" at the time of his application. He was thus not prima facie eligible to apply for Adjustment of Status.
iii. On July 6, 2000, Mr. Gutierrez filed a criminal complaint against Mr. Beltran for deception and fraud. Mr. Gutierrez also filed a complaint with the City of Chicago Department of Consumer Services. On January l 0, 2001, Esteban Beltran pied liable to two counts of deceptive practice in an administrative hearing. In a signed statement, Beltran admitted, among other things, that he had prepared the immigration documents for Mr. Gutierrez.
15

iv. The Chicago District Office accepted Mr. Gutierrez’s Adjustment of Status application. The INS then denied the application, kept the application fees, and placed Mr. Gutierrez into removal proceedings. He has received no refund of application fees.
f. Plaintiff Fernando Carrartza
i. Fernando Carranza is a Mexican citizen. He last entered the United States in April 1993, without inspection. Mr. Carranza is married to an immigrant and has three children, all U.S. citizens under the age of 10. His U.S. citizen mother filed a visa petition on his behalf, which was approved with a priority date of May 29, 1997.
ii. In June 1999, Mr. Carranza paid $200 to James Giuseffi of Centro Medico de Arrmestia (Medical Amnesty Center), and gave him $1,345 for the INS. Through Mr. Giuseffi, Mr. Carranza filed an application for Adjustment of Status. However, at the time he applied for Adjustment of Status, there was no visa"immediately available" to Mr. Carranza. He was therefore not prima facie eligible to apply for Adjustment of Status. The Chicago District Office denied Mr. Carranza’s section 245(i) application, kept the $1,345 in processing fees, issued him a Notice to Appear on July 6, 1999, and placed him in removal proceedings in immigration court.
iii. The Chicago District Office accepted Mr. Carranza’s Adjustment of Status application. The INS then denied the application, kept the $1,345 in processing fees, and placed Mr. Carranza into removal proceedings. Mr Carranza has never received any refund from the INS of his application fees.
g. Plaintiff Gabriel Tortes
i. Gabriel Tortes is a citizen of Mexico, who has resided in the United States since 1995. His father, a permanent resident alien, filed a visa petition for him in 1997.
ii. In 1999, Mr. Torres paid Notary Public Antonio Perez $500 to assist him in applying for legal status. Through Perez, Mr. Torres applied for Adjustment of Status. Mr. Torres’ visa petition was not yet "immediately available" at the time he applied for Adjustment of Status. He was thus not prima facie eligible to apply for Adjustment of Status.
iii. The INS accepted Mr. Torres’ Adjustment of Status application for filing. The INS accepted the fees, processed the application, denied it, and placed Mr. Torres into removal proceedings. Mr. Torres has never received a refund from the INS of his application fees.
iv. At an April 11, 2001, hearing before an Immigration Judge, Mr. Torres admitted the allegations that he had no permission to be in the United States, and accepted
16

an order of Voluntary Departure in lieu of an order of removal. As a result of this lawsuit, the INS agreed to grant him a Stay of Removal through February 12, 2002, which they subsequently extended to August 13, 2002. Mr. Torres has not departed the United States.

h. Plaintiff Juan Manuel Rodriguez

i. In May 1999, Juan Manuel Rodriguez went to Notary Public Antonio Perez, who "helped" him apply for Adjustment of Status through his U.S. citizen brother, Javier Rodriguez Cholico. There was not a visa number immediately available to Mr. Roddguez at the time of his application. He was therefore not prima facie eligible to apply for Adjustment of Status.
ii. The Chicago District Office accepted the Adjustment of Status application. The INS then denied the application, kept the application fees, and began removal proceedings against Mr. Rodriguez.

iii. Mr. Rodriguez has never received any refund of his application fees.

i.

Plaintiff Hector Diaz

i. Hector Diaz also applied for Adjustment of Status with "assistance" from Antonio Perez, a Notary Public. Mr. Diaz is unmarried, but has two U.S. children, with whom he lives. His father, a legal resident, filed a visa petition on his behalf, which was approved with a priority date of April 13, 1992. At the time Mr. Diaz applied for Adjustment of Status, there was no visa "immediately available" to him. He was thus not prima facie eligible to apply for Adjustment of Status.

ii. The Chicago District Office accepted the Adjustment of Status application. It then denied the application, kept the processing fees, and placed Mr. Diaz into removal proceedings.

iii. The INS has never issued Mr. Diaz of any application fees.

j.

Plaintiff Justino Castaneda

i. Justino Castaneda is a citizen of Mexico who entered the United States in 1996. He applied for Adjustment of Status through a Fourth Preference visa petition which had earlier been filed by his brother on his behalf. The priority date of his 4th Preference petition is December 27, 1989, which was not "immediately available" at the
time the application was filed.

ii. Because no visa was "immediately available" at that time, Mr. Castaneda was not prima facie eligible to apply for Adjustment of Status.

17

iii. The Chicago District Office accepted Mr. Castaneda’s application for Adjustment of Status. It then denied the application for Adjustment of Status, kept the application fees, and placed Mr. Castaneda into removal proceedings.
iv. On December 12, 2000, Mr. Castaneda appeared in Immigration Court, and accepted Voluntary Departure. He was required to depart by April 12, 2001, with that order automatically converting into an order of removal against him if he failed to timely depart
v. Mr. Castaneda subsequently asked the INS to extend the period of his Voluntary Departure. The INS found that it was statutorily unable to extend the period of Voluntary Departure, 8 U.S.C. §1229c(a)(2), but granted him a Stay of Removal through April 5, 2002. It subsequently granted an extension of the stay through June 5, 2002.
k. Plaintiff Efren de la Torre
i. Efren de la Torre is a 23 year old citizen of Mexico, who has resided in the United States since 1994, when he was 15 years old. He paid Antonio Perez $200 to file an application for Adjustment of Status through a U.S. citizen aunt. In fact, aunts and uncles cannot petition for nieces and nephews; this is not a visa category recognized by law.
ii. Because there was no visa "immediately available" to Mr. de la Torre at the time of the application, he was not prima facie eligible for Adjustment of Status.
iii. The Chicago District Office accepted Mr. de la Torre’s application for Adjustment of Status. The INS then denied the application, kept the application fees, and put Mr. de la Torre into removal proceedings.
iv. Mr. de la Torre was ordered removed in absentia on January 10, 2001. He has filed a Motion to Rescind that order, which remains pending at the Board of Immigration Appeals. The INS granted him a Stay of Removal, in connection with this case, which expires on August 13, 2002.
v. Mr. de la Torre has never received any refund of his INS application fees.
41. Defendants’ policies as described in paragraphs 26-38 have been applied, and will
continue to be applied, unless enjoined, to both Named Plaintiffs and to the members of the
Plaintiff class.

42. Members of the Plaintiff class have been subjected to, are being subjected to, and, unless the policies and practices of the Chicago District Office are enjoined, will continue to bc subjected to, the same or similar types of injuries as have the named plaintiffs. The named plaintiffs will continue to be subject to the same or similar types of injury, unless such policies arc enjoined.
V. EXHAUSTION OF ADMINISTRATIVE REMEDIES 43. Plaintiffs have exhausted their administrative remedies. The scope of exhaustion in the APA context is defined by statute at 5 U.S.C. §704 (2002). Plaintiffs have met this standard, in that the INS, in contravention of its own rules, has failed to process any refunds of the fees wrongfully accepted from named Plaintiffs and the Plaintiff class, and has refused to return the application which it wrongfully processed as alleged herein. In addition, Plaintiffs need not exhaust administrative remedies as to the constitutional claims made herein, as the Immigration courts have no power to correct those errors.
VI. CLAIMS FOR RELIEF COUNT ONE (Administrative Procedures Act.) 1 .-43. Plaintiffs reallege and incorporate by reference the allegations contained in ~ 143 as ¶¶1-43 of Count I. 44. The Chicago District Office policy in effect from January 29, 1997, through April 13,2001, is in direct violation of the INA and INS regulations. 45. The statutory requirements for adjustment of status are found in INA §245, 8 U.S.C. § I255. That section governs the circumstances under which the Attorney General can accept an Adjustment of Status application, and specifically requires that a visa bc "immediately available" at the time such application is filed. Further, the regulations governing Adjustment of
19

Status filings are found at 8 C.F.R. §245.2. These regulations were promulgated, and are binding
upon the Respondents.
46. The general rule for applications to the INS is that applications are "properly
filed"when they are received, signed and with proof of proper payment affixed. 8 C.F.R. §
103.2(a)(7)(i) (2000). But this rule does not apply to Adjustment of Status applications. Instead,
Adjustment of Status applications are governed by their own regulation, which states:
Proper filing of application-(i) Under section 245. Before an application for adjustment of status under section 245 oft.he Act may be considered properly filed, a visa must be immediately available. If a visa would be immediately available upon approval of a visa petition, the application will not be considered properly filed unless such petition has first been approved. If an immediate relative petition filed for classification under section 201(b)(2)(A)(i) of the Act or a preference petition filed for classification under section 203(a) of the Act [family-sponsored immigrants] is submitted simultaneously with the adjustment application, the adjustment application shall be retained for processing only if approval of the visa t~etition would make a visa immediately available at the time of filing the adiustment application. If the visa petition is subsequently approved, the date of filing the adjustment application shall be deemed to be the date on which the accompanying petition was filed.
S C.F.R. § 245.2 (a)(2)(i) (2000) (emphasis added).
47. Thus, under the regulations issued to implement INA §245, an Adjustment of
Status application is not "properly filed" unless it is signed, the proper fee is tendered, and it is
accompanied by proof that the visa petition (a) has a current priority date, or (b) is of the type
that creates an immediate entitlement to a visa once it is approved (i.e., the beneficiary is the
immediate relative of a U.S. citizen petitioner).
48. An INS employee can readily determine if condition (a) is satisfied by checking the
priority date on the petition’s approval notice againstthe State Department’s monthly bulletin of
current priority dates. See Exhibit A. That same INS employee can readily determine if condition
20

(b) is satisfied by seeing if the visa petition is filed by a U.S. citizen on behalf of a spouse, parent, or unmarried child as defined in the INA.
49. On information and belief, most district and subdistrict offices of the INS around the U.S. comply with the regulations and review all Adjustment of Status applications to make sure that the application includes proof that a visa is "immediately available," in order to be deemed "properly filed." On information and belief, most of these offices reject for processing any applications that are not "properly filed," including those that fail to demonstrate that a visa is "immediately available," and return them to the applicant, along with the special processing and filing fees. These district and subdistdct offices do not attempt to deal with the applications on their merits without making that threshold determination, nor do they put applicants into removal proceedings based on the information disclosed in their applications.
50. The Chicago District Office’s policy undercut local anti-consumer fraud enforcement, and undermined efforts by elected officials, consumer groups, and agencies that serve immigrant populations to educate immigrant communities about the perils of relying on "immigration consultants."
51. The Chicago District Office continued to adhere to its policy with respect to Adjustment of Status applications for, on information and belief, more than a year after becoming aware of these facts.
52. The Chicago District Office’s failure to comply with the INA and INS regulations has resulted in thousands of unsuspecting immigrants losing the filing and processing fees they paid to the INS, and/or having their applications for legal permanent residence, which should
__1

nevel" have been processed, used as a basis for instituting removal proceedings against them. The actions, as applied to the named Plaintiffs and to the Plaintiff class, are final agency orders.
53. That Chicago District Office’s handling of applications for Adjustment of Status was and remains an agency action which is arbitrary, capricious, or not in accordance with the law, in that it fails to comply with the INA, as well as the INS regulations. Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.
54. The INS and its district and subdistrict offices are "agencies" as defined in the Administrative Procedure Act. See 5 U.S.C. § 701(b)(1).
55. As a direct and proximate result of Chicago District Office’s policy violating provisions of the INA and its regulations, Plaintiffs suffered injuries including the loss of the significant filing fees they paid to the INS, and/or having their applications used as a basis for instituting removal proceedings against them.
COUNT TWO (Procedural Due Process) 1.-55. Plaintiffs reallege and incorporate by reference ¶¶1-55 as ~]1-55 of Count II. 56. Under the Fifth Amendment to the United States Constitution, those threatened with the loss of liberty or property due to actions by the federal government are entitled to due process. When Congress passed 8 U.S.C. 1255(i), it gave certain individuals the statutory right to file for lawful residency within the United States. This statute, and the INS regulations and policy implementing that right, gave the Plaintiffs a protected liberty interest in being able to apply for residency within the United States. 57. The Chicago District Office’s policies, as recounted in ¶¶26-41, created a trap whereby members of the Plaintiff Class were prevented from exercising that right. Plaintiffs and

the Plaintiff Class were enticed by the INS to file an application to protect an important right established by Congress - to adjust their status without having to leave the United States for ten years - but due to the interrelationship of the statutory deadlines, the Chicago District Office’s unlawfifl policies, and the actions of the unscrupulous notafios, of which the Chicago District Office was aware, Plaintiffs wound up filing a document that had the actual effect of undermining that very right that they thought they were protecting.
58. In these circumstances, the policy and actions oftha Chicago District Office violated due process and fundamental fairness. Because of the malfeasance of the Chicago District Office in improperly accepting applications for filing, and the actions of the unscrupulous notarios, of which the Chicago District Office was aware, the effect of filing these INS forms was completely altered from their ordinary purpose. Plaintiffs and the Plaimiff class were entitled to be given meaningful and timely notice of the new rules of the game: that the filing of an application to adjust their status without a visa being immediately available would result in the loss of the substantial filing fee and the loss of the benefit given to them by Congress in being able to adjust their status without leaving the United States for ten years once a visa did become available.
59. As a result Plaintiffs and the Plaintiff Class has been denied due process and fundamental fairness by Defendants Chicago District Office, Perryman, and Asherott in violation of the Fifth Amendment to the United States Constitution.
COUNT THREE (Equal Protection) 1 .-59. Plaintiffs re.liege and incorporate by reference ~]1-59 as ~]1-59 of Count III. 60. Defendants’ actions also violated the Equal Protection prong of the Due Process Clause of the Fifth Amendment to the United States Constitution. Defendants have treated and
23

are continuing to treat like individuals differently, without any substantial justification. Where an individual filed only an "I-130" petition, Defendants do not seek to remove that individual on the basis of the information in that petition. However, where such individual also filed form "1-485," and where that application was actually accepted for filing due to Defendants’ own malfeasance, Defendants seek to remove those individuals from the country on the basis of the information in that petition, thus depriving them of the opportunity to apply for residency under INA 245(i).
61. In addition, the Chicago District Office treated Plaintiffs and the Plaintiff Class by targeting them for special action, as alleged in ¶33, that was adverse and different than that accorded other similarly situated individuals.
62. Defendants’ actions are not pursuant to a Congressional command, or in furtherance of any Congressional mandate. Indeed, the actions of Defendants as alleged herein undercut the Congressional intent of the statute by limiting INA 245(i) in ways not intended by Congress. Where the actions of an agency in differentiating like groups is not pursuant to statutory command or requirement, those actions do not receive deferential "rational basis" treatment, but rather, are subject to a more searching analysis.
63. Defendants’ actions, in treating like individuals differently, cannot withstand even the most lenient of standards, rational relationship and they certainly cannot withstand any kind of heightened scrutiny required when an agency treats people differently despite a Congressional mandate to treat them the same.
COUNT FOUR (Substantive Due Process-Right of Familial Association) 1.-63. Plaintiffs reallege and incorporate by reference the allegations contained in ¶¶1-63 as ¶¶1.-63 of Count IV.
24

64. Plaintiffs and the Plaintiff class have a constitutional fight to associate with close family members, e.g. children, parents, grandparents and siblings, who are either United States citizens or lawful permanent residents in the United States consistent with the policies enunciated in INA Section 245(i) that as long as they applied and were eligible for a visa petition before a specific deadline, the information they provided to INS would not be used as a basis to separate them from their family members through removal procedures.
65. Through the policies and practices described in ¶¶1-42, Defendants have unconstitutionally interfered with that right.
COUNT FIVE (Declaratory_ JudgmenO !.-65. Plaintiffs incorporate by reference and reallege the allegations contained in ¶¶ 165 as ¶¶1.-65 of Count V. 66. An actual and substantial controversy has arisen between the parties, and that controversy continues to exist regarding their respective rights and duties, including without limitation the proper handling of plaintiffs’ Adjustment of Status applications and the propriety of ongoing efforts to remove members of the plaintiff class. 67. Declaratory relief is necessary in that, as noted herein, the plaintiffs contend, and Defendants deny, that the plaintiffs’ applications and fees should be returned to them, and that the Defendants’ actions are in violation of the statutory and regulatory obligations of the INS.
IRREPARABLE INJURY ALLEGATIONS 68. Plaintiffs have no adequate remedy at law to redress the violations of law and the injuries alleged herein and this suit for declaratory judgment and injunctive relief is their only means of securing adequate redress from defendants’ unlawful policy. Plaintiffs have and will
25

continue to suffer irreparable injury from defendants’ policy and practices set forth herein unless
enjoined by this court. Unless restrained and enjoined by this Court, defendants will continue
their unlawful acts as alleged herein, causing the plaimiffs irreparable injury.
PRAYER FOR RELIEF
Wherefore, Plaintiffs request that this Court:
A. Certify the Plaintiff Class pursuant to Rules 23(a) and 23(b)(2) of the
Federal Rules of Civil Procedure.
B. Find and declare defendants’ actions are arbitrary, capricious, and not in
accordance with the INA, its regulations, and Operations Instructions.
Specifically, plaintiffs pray that this Court:
Declare that the Chicago Dislriet Office has violated 8 U.S.C. §1255 and 8 C.F.R. §245.2(a)(2)(i) by failing to reject and return adjustment of status applications that are not "properly filed" because they fail to demonstrate that a visa is "immediately available," as wall as the fees associated with those applications.
Declare that the promulgated regulations require the Chicago District Office to review Adjustment of Status applications to see whether a visa is "immediately available" to the applicant, prior to accepting such applications.
Declare that, where no visais "immediately available," the regulations require the Chicago District Office to reject the application and return it forthwith to the applicant, along with the special processing and filing fees.
Declare that in no event shall the Chicago District Office’s erroneous denial of an Adjustment of Status application on the ground that a visa is not "immediately available" be deemed a decision on the merits of such an application.
o Declare that the policies and practices have violated Plaintiffs’ constitutional rights as alleged herein.
26

Ct

Enjoin the INS, nationally and in the Chicago District Office from:

Acting on the merits of any Adjustment of Status application from Plaintiffs or Plaintiff Class members which was accepted prior to the institution of the current procedures, where there is no visa immediately available.

Retaining the fees for pending applications accepted prior to the currently instituted policy where there is no immediately available
visa, and for applications denied prior to this lawsuit due to lack of an immediately available visa.

Using the information obtained from a premature Application to Adjust Status from Plaintiffs or Plaintiff Class Members for the issuance of any Notice to Appear (NTA) on the denial on the merits
of an Adjustment of Status application that was not "properly filed,"and should not have been accepted, or of filing any such NTAs with any immigration court.

Proceeding with removal proceedings where any NTA was based on the violations outlined above.

Taking any other steps that are not authorized under the statute, regulations, and Operations Instructions governing applications for Adjustment of Status.

Order the Respondents, INS and the Chicago District Office, to return all

improperly filed Adjustment of Status applications, together with the fees

that accompanied those applications.

Award Plaintiffs’ costs and a reasonable attorneys’ fee.

Grant any further relief that this Court deems necessary and proper.

27

DATED this

day of November, 2002. Respectfully submitted:

O~ntiffs

PaWicia Mendoza Alonzo Rivas Mexican American Legal Defense and Educational Fund 188 West Randolph St., Suite 1405 Chicago, IL 60601 (312) 782-1422

Steven Saltzman 122 S. Michigan, Ste. 1850 Chicago, Illinois 60603 (312) 427-4500

Mary Meg McCarthy Charles Roth Midwest Immigrant & Human Rights Center 208 S. LaSalle Street, Ste. 1818 Chicago, IL 60604 (312) 660-1351

Attorneys for Plaintiffs and Plaintiff Class

28

~,~’isa Bulletin

Page 1 of 5

Number 52 Volume VIII

United States Department of State Bureau of Consular ~ffairs
Visa Bulletin
Washington, D.C

IMMIGRANT NUMBERS FOR DECEMBER 2002
A. STATUTORY NUMBERS
1. This bulletin summarizes the availability of immigrant numbers during December. Consular officers are required to report to the Department of State doeumentarily qualified applicants for numerically limited visas; the Immigration and Naturalization Service reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by November 8th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-offdate, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.
2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum familysponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320
3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:
FAMILY-SPONSORED PREFERENCES
First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:
A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.
Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

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Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.
EMPLOYMENT-BASED PREFERENCES
First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other
Workers."
Fourth: Certain Special Immigrants: 7.1% of the worldwide level.
Fifth:Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by See. 610 of P.L. 102-395.
4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed ehargeability areas: MEXICO and PHILIPPINES.
5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Priority Dates for Family Based Immigrant Visas

All Chargeability MEXICO Areas Except These Listed

PHILIPPINES

Family

1st 08APR99

15OCT92 01ARPg0

2A* 22SEP97

08APR95 22SEP97

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01NOV91 08APR94 01NOV92 01DEC89 01NOV90 01DEC81

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*NOTE: For December, 2A numbers EXEMPT from per- ountry limit are available to applicants from all countries with priority dates
earlier than 08APR95. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08APR95 and earlier than 22SEP97. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

Priority Dates for Employment-Based Immigrant Visas

All Chargeability MEXICO Areas Except Those
Listed

PHILIPPINES

Employment-Based

ist

C

C

2nd

C

C

C

3rd

C

C

C

Other Workers

C

4th

C

C

C

C

Certain Refigious

C

Workers

5th

C

C

C

C

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The Department of State has available a recorded message with visa availability information which can be heard at (202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.
B. DIVERSITY IMMIGRANT (DV) CATEGORY
Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NCARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NCARA program. This reduction has resulted in the DV-2003 annual limit being redneed to 50,000. DV visas are divided emong six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.
For December, immigrant numbers in the DV category are available to qualified DV-2003 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-offnumber:
All DV Chargeability Areas Except Those Listed Separately
Region
AFRICA: AF 9,800 ASIA: AS 4,075 EUROPE: EU 15,850 NORTH AMERICA (BAHAMAS): NA 10 OCEANIA: OC 200 SOUTH AMERICA, and the CARIBBEAN: SA 625
Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2003 program ends as of September 30, 2003. DV visas may not be issued to DV-2003 applicants after that date. Similarly, spouses and children accompanying or following to j.oin DV2003 principals are only entitled to derivative DV status until September 30, 2003. DV vasa availability through the very end of FY-2003 cannot be taken for granted. Numbers could be exhausted prior to September 30. Once all numbers provided by law for the DV-2003 program have been used, no further issuances will be possible.
C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN JANUARY
For January, immigrant numbers in the DV category are available to qualified DV-2003 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
All DV Chargeability Areas Except Those Listed Separately

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Region
AFRICA: AF 11,500 ASIA: AS 5,200 Except: BANGLADESH 5,060 EUROPE: EU 18,000 NORTH AMERICA (BAHAMAS): NA 11 OCEANIA: OC 256 SOUTH AMERICA, and the CARIBBEAN: SA 700

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D. OBTAINING THE MONTHLY VISA BULLETIN The Department of State’s Bureau of Consular Affairs offers the monthly Visa Bulletin on the INTERNET’S WORLDWIDE WEB. The INTERNET Web address to access the Bulletin is:
http://travel.state.gov
From the home page, select the VISA section which contains the Visa Bulletin.
Individuals may also obtain the Visa Bulletin by FAX. From a FAX phone, dial (202) 647-3000. Follow the prompts and enter in the code 1522 to have each Bulletin FAXed.
To be placed on the Department of State’s E-mail subscription list for the Visa Bulletin, please provide your E-mall information to the following E-mail address:
VISABULLETIN@STATE.GOV
The Department of State also has available a recorded message with visa cut-off dates which can be heard at (202) 663-1541. The recording is normally updated by the middle of each month with information on cut-off dates for the following month.
The Visa Bulletin can also be contacted by e-mail at the following address:
VISABULLETIN@STATE.GOV Department of State Publication 9514 CA/VO:November 8, 2002
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CIVIL COVER SHEET

The J$-44 ~ cover sheet =nd the information contafned herein neithec replete ncx supplemenl the ~ng and service ol p~eading= o¢ other pape~ as req~m

PLAINTIFFS

DEFENDANTS

Jusclno Ca~taneda, Ellen de la re

~a~ia ~amos~ Apolinar Ochoa, Argmir~ John Ashcroft, Attorney General; l..ni~ratlon

Ochoa, ~icolas Olivares, Fermin

and Naturalization Service; James ~. Zlglar,

Gutlerrez, Fernando Carranza, Gabriel Commissioner, INS; and Br~an Perryman~ Direct

Tortes, Juan R~u~kHE~tu~.Di~

of Chicago Vistrlct_0~fi~e of the INS

Mexican ~erican Legal Defense and Ed. Fund 188 West Randolph St., Ste 140~__

"~

. ~

~

~.~

.

IV. ORIGIN
V, NATURE OF SUIT (pLACE ~ "X" IN ONE ~C~ ONLv) P|’~SGNAL

FORFEI’I UREJPENALTY BANKRUPT_CY r~ ~e LKlU~ ~

- PR~;ONER FE’TI1)ON~

SOCIAL 8ECURrFY

VL CAUSE OF ACTION
Adm~nistratlve P~ocedures Act, Declaratory Judgmen~ Act, and EquaPlrotection and Due Process Clauses of the F~fth Amendment

VII. REOUESTED IN COMPLAINT

CHECK IF THI~ I~ .% CLASS ACTION DEMAND UNDER F.FLC~. 23

CHECK YeS ~ # c,~=,~,-,:,,~ rn o.-~,~
JURY DEMAND:.

V ! l I. Thb cs=e ’ [~] ’is ~ot a rcfilin~ ors prrvio~sly dismissed ~o~.

[~] b s ~filins of _~s¢ numbcr__O~ prcvJously dismissed by 3udge~C_ oar

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UN#’~D STATES DISTRICT COURTcw,% NORTHERN DISTRICT OF ILLINOIS

Page 1 of 2

e :JUDGE LINDBERG
APPEARA~CBS AR~ HF_~EI~Y ~ BY TH]E UNDER~GNED AS ATTO~I~~ ~UDGE Bu~,~.
Maria Ramps, Aoo|~=~ °~e°r Argmira Ochoa, Nicolas 01ivares, Fermin Guti~rrez~Fernando Carranza, Gabriel Tor_res, Juan Manual Rodri~u~z, Hector Dtaz.~Ju~ttno~astaneda. E~ren de ~a To,re

Patric~a Mendoza ~ Mexican-American Le .a~ ~efense and Ed m~~~est Randolph S~reet, Sulte1405
312-782.1422 pmendoza@maldef

Steve Salt~man
122 Chicago, lllinols 60603
312-427-4500 ssal 3129156

Maz Meg McCarthy Midwest.Immigrant & Human Rights Cente
208 S. LaSalle Street, Sulte. 1818

Cha: Midwest I~tgran~: &ttuman Rights Center 208 S. LaSalie S~reet, Sul.te L818

marymeg@tia-mirc

~ 12-6 29-I 969

312-42 [~23

York State Third Department

Page

In-tb~ Ma~tcr of "
Marla Ramos, et al.,

NORTHERN DISTRICT OF ILLIN OIS

John Aschcrof~, Attorney Genaral,

312-782-1424

 
 UNITED STATES DISTRICT COURT

FIL D

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

F~ 1 4 2003

Maria Ramos, et al.,

on behalf of themselves and all others ))

similarly situated,

)

~IC~AEL w. ~O~SINS
CLERK. 11.$. DISTRICT COURT

Vo
John Ashcroft, et al.,

Plaintiffs, )
))
) ) ) )
Defendants. )

No. 02 C 8266
Judge David H.
Class Action Complaint for Decl~ato~ ~d Inj~ctive Relief

NOTICE OF FILING

To: See Attached Certificate of Service

Please take notice that on Friday, February 14, 2003, the undersigned filed with the Clerk of the

United States District Court for the Northern Plaintiffs’ First Amended Complaint.

District

of

Illinois,

Eastern

Division,.¢t-h, e

attached

./

One ofth~ Attorneys for Plainti.ff~

Patricia Mendoza Alonzo Rivas Mexican American Legal Defense
and Educational Fund 188 West Randolph St., Suite 1405 Chicago, IL 60601

Steven Saltzman 122 S. Michigan, Ste. 1850 Chicago, Illinois 60603

Mary Meg McCarthy Charles Roth Midwest Immigrant & Human Rights Center
208 S. LaSalle Street, Ste. 1818 Chicago, IL 60604

CERTIFICATE OF SERVICE
The undersigned states that a copy of the Notice of Filing and Plaintiffs’ First Amended Complaint was served personally on counsel listed below on February 14, 2003.
Thomas Walsh, Civil Chief Sheila M. Entenman, Special AUSA Craig A. Oswald, AUSA 219 S. Dearborn St, 5th Floor, Chicago, Illinois 60604 Phone: (312)353-5300 Fax: (312)353-2067

FILED UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

FEB 1 4 2003

Maria Rosa Ramos, Apolinar Ochoa, ArgmirA Ochoa, Nicolas Olivares, Fermin Gutierrez, Fernando Carranza,

CLERMKI,CUH.AS,E,,.L_u’IW_~’TOOFtBlCBTINC8OURT

Gabriel Torres, Juan Rodriguez, Hector

Diaz, Justino Castaneda, and Efren de

la Torre,

FE~ 2 0 2003

Plaintiffs

No. 02 C 8266

Judge David H. Coat

John Ashcroft, Attorney General; Immigration and Naturalization Service; James W. Ziglar, Commissioner, Immigration and Naturalization Service; Brian Perryman, Director of the Chicago District Office of the Immigration and Naturalization Service,

Class Action Complaint for Declaratory and Injunctive Relief

Defendants.

PLAINTIFFS’ FIRST AMENDED COMPLAINT I. PRELIMINARY STATEMENT
1. This case concerns the actions of the Chicago District Office of the Immigration and Nationality Service (INS) in failing to properly implement Congressional and INS policies with due process to allow immigrants with close relatives in the United States to have that relationship recognized by INS p~suant to Section 2450) of the Immigration and Nationality Act, (INA), 8 U.S.C. §1255(i) so that they later could adjust their status without having to leave the United States for a period of ten years.

2. Named Plaintiffs are themselves immigrants and long term residents of the United States whose rights under the INA and its regulations and the Due Process Clause of the Fifth Amendment have been violated due to a combination of factors, including: congressionally imposed deadlines to file family visa applications; malfeasance by the Chicago District Office in improperly processing Adjustment of Status applications and improperly issuing work authorization permits; lack of notice by that office of how to take proper advantage of Congressional policies designed to promote such family unification; and the actions of unscrupulous persons preying on these immigrants, which the Chicago District Office knew of and supported through its malfeasance. The result was that hundreds of immigrants were preyed upon by unscrupulous individuals, filed applications too early, and wound up in a trap in which they spent hundreds of dollars to file a premature application to adjust their status, and had the information they provided in their applications used to open investigations against them with hopes that such information would lead to their deportation. This action by the defendants defeated the whole purpose of the law these applicants were trying to foIlow. The Chicago District Office apparently corrected its process sometime in 2001, but these changes did not help individuals whose applications were improperly handled before that point.
3. Plaintiffs on behalf of themselves and the class they seek to represent bring this action pursuant to the Administrative Procedure Act (APA) and the Due Process Clause of the Fifth Amendment against the governmental officials responsible for their unlawful and unconstitutional treatment. They seek equitable relief to have INS ordered to return hundreds of dollars in application fees wrongly accepted and to prevent INS from using information acquired
2

through the Chicago District Office’s malfeasance and failure to follow federal law and due process requirements.
lI. JURISDICTIONAL AND VENUE ALLEGATIONS The Court has jurisdiction under the APA, 5 U.S.C. 88 701 et seq., as well as 28 U.S.C. 81331. 5. Pursuant to 28 U.S.C. 8§ 2201 and 2202, the Court has power to award declaratory relief in this case. 6. Venue is proper in the Northem District of Illinois under 28 U.S.C. § 139 l(e). The vast majority of Plaintiffs reside in the Northern District of Illinois; all class members filed their Adjustment of Status applications in Chicago. The INS District Office which has acted on plaintiffs’ applications is located in Chicago, and in cases where class members were placed into removal proceedings, the INS has filed its charging document in Immigration Courts located in Chicago.
III. PARTIES Plaintiffs
7. The named Plaintiffs are: A. Maria Ramos, an individual who was investigated and then placed in
removal proceedings due to her attempt to become a permanent resident. B. Apolinar Ochoa, an individual who was investigated and then placed in
removal proceedings due to his attempt to become a permanent resident, on appeal to the Board of Immigration Appeals;
3

C. Argmira Ochoa, an individual who was investigated and then placed in removal proceedings due to her attempt to become a permanent resident;
D. Nicolas Olivares, an individual who was investigated and then placed in removal proceedings due to his attempt to become a permanent resident;
E. Fermin Gutierrez, an individual who was investigated and then placed into removal proceedings due to his attempt to become a permanent resident,
F. Fernando Carranza, an individual who was investigated and then placed in removal proceedings due to his attempt to become a permanent resident;
G. Gabriel Tortes, an individual who was investigated and then placed into removal proceedings due to his attempt to become a permanent resident, who was subsequently ordered to Voluntarily Depart the United States, and who was then granted a stay of removal; and
H. Juan Manuel Rodriguez, an individual who was investigated and then placed into removal proceedings due to his attempt to become a permanent resident, who was subsequently ordered to voluntarily depart the United States, which order is on appeal to the Board of Immigration Appeals.
I. Hector Diaz, an individual who was investigated and then placed in removal proceedings due to his attempt to become a permanent resident, who was ordered to voluntarily depart the United States, whose case is currently on appeal to the Board of Immigration Appeals;
J. Justino Castaneda, an individual who was investigated and then placed in removal proceedings due to his attempt to become a permanent resident, and who was subsequently ordered to Voluntarily Depart the United States; and
K. Efren de la Torre, an individual who was investigated and then placed into

removal proceedings due to his attempt to become a permanent resident, who was ordered
removed in absentia.
Plaintiffs’ Class Action Allegations
8. The named plaintiffs bring this action on their own behalf and on behalf of a class
of other similarly situated persons pursuant to Rules 23(a) and (b)(2) of the Federal Rules of
Civil Procedure.
9. The plaintiff class consists of:
Individuals whose Application for Adjustment of Status (INS form 1-485) was accepted for filing by the Chicago District Office of the INS between January 29, 1997, and April 13, 2001, where there was no prima facie eligibility for that benefit, in violation of applicable law, regulations and procedures; and who were prejudiced by such improper action. Prima facie eligibility for Adjustment of Status requires that the individual had an approved visa petition which was immediately available to them at time of filing, or a not-yet-approved visa petition whose approval would make that visa immediately available for use. Class members were prejudiced by the loss of application fees, and/or by the fact that the information they provided in their applications was used to target them for investigations and, in many cases, such investigations resulted in the institution of removal proceedings.
10. Named Plaintiffs are low-income immigrants who filed facially deficient
applications for "Adjustment of Status" under INA §245. Typically, they relied on the advice of
unqualified and unscrupulous "immigration consultants" to do so. Due to these applications
being filed too early or in inappropriate situations, Plaintiffs’ sincere effort to acquire legal
permanent residence and keep their families intact instead set in motion a train of events that
could lead instead to their deportation. Most plaintiffs have received a denial of their Adjustment
of Status applications. The information plaintiffs provided in their applications was then used to
open investigations against them, and many have been placed into proceedings seeking their
5

removal from the United States as a result of those investigations. Some plaintiffs have had their applications denied, but have not yet been placed into removal proceedings as a result of defendants’ investigations. Finally, some plaintiffs have not yet received any response from the Chicago District Office on their applications.
11. The Plaintiff class is so numerous that the joinder of all members is impractical. At least four hundred (400) individual affected by CDO’s policy have contacted the Midwest Immigrant & Human Rights Center (MIHRC) and the Legal Assistance Foundation of Chicago, counsels in a multi-plaintiff suit challenging the Defendants’ procedures. However, it is reasonably estimated, on information and belief, that 5000 or more improperly filed Adjustment of Status applications were accepted by the defendants during the time period alleged.
12. There are questions of law and fact common to the class, including the factual scenario whereby Plaintiffs and class members were enticed by Chicago District Office malfeasance and the actions of unscrupulous individuals to file an application for which they were not yet eligible; whether Chicago District Office has violated the INA and INS regulations through its policy of accepting Adjustment of Status applications for processing where there is no prima facie eligibility for the relief; and whether the Defendants’ actions violated the Plaintiffs’ constitutional rights as alleged herein.
13. The claims of Named Plaintiffs axe typical of the claims of the class. Named Plaintiffs, like all class members, have been negatively impacted by Chicago District Office’s policies by losing their filing and processing fees, and/or having their applications used as a basis to open investigations against them which have either resulted or will result in the institution of removal proceedings.

14. Named Plaintiffs are adequate representatives of the class who will adequately and fairly protect the interests of the class because they seek relief on behalf of the class as a whole and have no interests antagonistic to other members of the class. They are represented by attorneys employed by the Midwest Immigrant & Human Rights Center (MIHRC) and the Mexican American Legal Defense and Educational Fund (MALDEF), and by Steven Saltzman, all of whom are attorneys who are experienced in federal litigation an~or immigration law and have litigated complex class action civil rights cases.
15. In addition, the defendants have acted and/or refused to act on grounds generally applicable to the plaintiff class, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the class as a whole, making class certification appropriate under Fed.R.Civ.P. 23(b)(2).
Defendants 16. John Ashcroft is the United States Attorney General. He oversees the Department of Justice and the INS, an agency of the Justice Department and is responsible for the actions of INS including the INS District offices. Mr. Ashcroft is sued in his official capacity. 17. James W. Ziglar is Commissioner of the INS. He is responsible for the actions of INS inciuding the INS District offices He is sued in his official capacity. 18. The INS is an administrative agency within the Department of Justice that implements our nation’s immigration laws. The INS is responsible for processing and adjudicating all section 245(i) applications for adjustment of status. The Chicago District Office of the INS is a district office responsible for processing and adjudicating all section 245(i)
7

applications for adjustment of status The APA claim is brought against the agency and its Chicago District Office.
19. Brian Perryman is the District Director of the Chicago District Office and is its Chief Administrative Officer. He has official responsibility for its acts, including the orders and actions described herein. The Chicago District Office has a duty to review applications for Adjustment of Status filed by persons residing in the state of Iltinois to see if they are "properly filed." Mr. Perryman is sued in his official capacity.
FACTUAL ALLEGATIONS Overview of Visa Processing and Adjustment of Status Under the INA 20. Under the INA, to obtain lawful permanent resident status through a family member, a two step process is followed. First, a petition for an immigrant visa must be filed on the immigrant’s behalf by a U.S. citizen or resident alien relative (the petitioner). If the petitioner can demonstrate their own legal status, and that the family relation exists, the INS approves the visa petition. Second, the immigrant relative must file and have approved an application to adjust his/her status to a lawful resident. In order for this application to be granted, a visa must become "immediately available." For spouses, parents, and minor, unmarried children of U.S. citizens, any approvable visa is "immediately available"; these individuals are called "immediate relatives." For all other visa categories - such as siblings of U.S. citizens or grown children or children of lawful permanent resident parents- there are waiting lists of many years before the approved visa becomes "immediately available." Once a visa is "immediately available," the beneficiary may either (a) apply for legal permanent residence at the U.S. embassy

or consulate in their country of nationality ("consular processing"), or (b) if certain conditions are met, file an application for adjustment of status to legal permanent residence with their local INS office in the United States. At this point, the individual must show that they are not "inadmissible" to the United States for having committed crimes in this country, not having communicable diseases, etc. Completing this last step by filing an adjustment of status application in the U.S. is preferable to completing the process abroad, for various reasons (see ¶ 22, infra).
21. The INS has a policy and practice, which is well known in immigrant communities, of not using the information provided in an approved visa petition to commence removal proceedings against the immigrant beneficiary, even though the petition may reveal the beneficiary’s unlawful presence in the U.S. Thus, applying for the visa petition does not cause the immigrant relative to put himself/herself in jeopardy of being deported. However, having an approved petition does not entitle the beneficiary to live or work in the U.S., nor does it protect the beneficiary from deportation if the beneficiary comes to the 1NS’s attention through some other avenue, The approved petition only secures the beneficiary’s place in line for eventual visa availability.
22. Section 245(i) of the INA was adopted to allow families to remain unified in the United States while the family member’s status is being adjusted. Beneficiaries of approved visa petitions who have entered or remained in the United States unIawfully are permitted to apply for Adjustment of Status in the United States, instead of having to return to their countries of origin for "consular processing," i.e., immigrant visa interviews at U.S. embassies or consulates there. Adjustment of Status under this provision requires payment of a $1000 "special processing fee."

INA §245(i) effectively "forgives" unlawful status, permitting immigrants to adjust their status to legal permanent residence nonetheless. It avoids the need to wait abroad for "consular processing" to be completed, which often entailed lengthy separations from family members in the U.S. Prior to Section 245(i) being adopted, family members seeking to adjust their status had to leave the United States, although only temporarily, to adjust their status.
23. INA §245(i) is also important because 9301 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) introduced new rules that an immigrant seeking to "reenter" the United States after being unlawfully present in the U.S. for more than a year is barred from returning for ten years. See 8 U.S.C. § 1182(a)(9)(B), INA §212(a)(9)(B). A waiver is available only if the immigrant can show "extreme hardship" to a U.S. citizen or resident alien spouse or parent, i.e. not the immigrant actually seeking the waiver. 8 U.S.C. § 1182(a)(9)(B)(v), INA §212(a)(9)(B)(v).
24. Immigrants who are able to obtain residency within the United States under INA §245(i) do not depart the United States. Thus, they have no need to reenter the United States and they are able to avoid the 10 year bar ofINA §212(a)(9)(B).
25. When a visa becomes "immediately available," a beneficiary may then file an application for "Adjustment of Status" to permanent residence, using INS form 1-485. When filing, the applicant must pay an application fee to the INS. The fee for the 1-485 was $130 before October 12, 1998; it was then raised to $220 until February 19, 2002, when it was raised to its current level of $255. In addition, individuals applying under §245(i) must pay a $1,000 "special processing fee" to forgive their unlawful status.
l0

Chicago District Office Policy 26. Prior to Jal3.uary 29, 1997, on information and belief, applications for Adjustment of Status had to be submitted to the Chicago District Office in person. The applicant would go to the INS office with the forms and the application fees, and wait to speak with an INS officer. That officer would then review the forms and fees to make sure that they were correct, and if they were correct, the application would be accepted for filing. If a visa was not immediately available, the application would not be processed and the fees were returned. No use was made of the information contained in the rejected application. 27. On January 29, 1997, on information and belief, the Chicago District Office adopted a new procedure requiring that applications for Adjustment of Status (I-485) be submitted by mail. The former procedure, which involved screening for prima facie eligibility, was eliminated. 28. The Chicago District mail-in system permitted an application for Employment Authorization, on INS form 1-765, to be submitted along with the Adjustment of Status application. As part of this new procedure, the Chicago District Office had improperly trained personnel reviewing these applications. 29. Many applications, for which a visa was not immediately available and hence there was no prima facie eligibility, were accepted and work authorization was issued. Once the application was reviewed, it would be denied and the information contained in it that showed that the applicant was in the United States unlawfully would then be transmitted to persons charged with opening investigations that led in many cases to the initiation of deportation proceedings. 30. The Chicago District Office’s improper actions in accepting visa adjustment

applications for which there was no prima facie eligibility due to the lack of an immediately available visa and improperly granting work authorization created situations whereby inappropriate or ill-timed requests for Adjustment of Status were rewarded with a temporary work authorization card but then resulted in the Chicago District Office opening investigations against the applicant, which in many case led to the initiation of removal proceedings.
31. The Chicago District Office policy, as described above, was in effect from January 29, 1997, through April 13, 2001. During that time period, the INS and the Chicago District Office encouraged lawfully admitted immigrants and citizens to submit visa petitions for family members who were in the United States unlawfully because there was a deadline by which such petitions had to be submitted if the immigrant was to be able to take advantage of the benefits of INA Section 245(i) and avoid having to leave the United States for ten years.
32. The Chicago District Office’s policy was different from the policy employed in other INS offices around the country. The policy used in other district offices was consistent with the one used by the Chicago District Office prior to January 29, 1997, resulting in the return of a premature application (one for which no visa was immediately available) and the fees and no other use was made of the information contained in premature applications processed by these other district offices.
33. On information and belief, the Chicago District Office instituted a project specifically targeting individuals who had filed premature applications for Adjustment of Status for investigations. Through this "Special NTA Project," the Chicago District Office targeted Named Plaintiffs and the Plaintiff Class who had erroneously submitted 1-485 applications that had been improperly accepted by the Chicago District Office and used the information from

applications to open investigations against them. Such investigations eventually led, in many cases, to the institution of removal proceedings. On information and belief, the Chicago District Office did not target any other group of persons who submitted 1-485 applications in the same manner. The targeting was in contravention of a national policy not to begin removal proceedings based upon family visa petitions.
Practices of Unscrupulous Notarios and The Effect of Those Practices Caused by the Chicago District Office’s Policy
34. The Chicago District Office was aware, even prior to adopting this new policy in January, 1997, due to many complaints by community organizations, its own investigations and prosecutions and civil lawsuits by state and local authorities that "Immigration consultants," called notarios in Mexican communities, often "represented" immigrants in obtaining immigration benefits. These consultants were able to use their knowledge of English, as well as some knowledge of immigration law, to be able to claim expertise within those communities, to charge fees for their services, and to, in effect, practice law without a license.
35. The Chicago District Office was also aware, well before adopting its new policy in January 1997, that the most tangible and sought-after immigration benefit is a work authorization document. The Chicago District Office and District Director Perryman thus knew or should have known that its policy of accepting premature adjustment of status applications and granting work authorization would cause notarios and "Immigration consultants" to solicit and cause immigrants to file costly but premature adjustment of status applications, instead of the simple visa petition that should have been filed.
36. During the dates in question, community and immigrant groups told the Chicago 3_3

INS Office, over and over again, of the problems caused by the District Office’s improper policies. During the dates in question, the City of Chicago and the State of Illinois both handled civil and criminal actions against Notarios and Immigration Consultants. During the dates in question, the Chicago INS Office had, on information and belief, independent knowledge of the problem of fraud on immigrants caused by the District’s policies. Still, the Chicago INS Office did nothing to correct its mistakes until approximately April 2001.
37. There was a direct and causal link between the Chicago INS District Office’s act of granting work permits inappropriateIy and the massive fraud perpetrated upon unsuspecting immigrants by "Notarios" and "Immigration Consultants" during the time period in question.
38. Even after the Chicago District Office’s decision to change its handling of applications for Adjustment of Status, to correct its past practices, the Chicago District Office has continued to use the information provided in the premature applications for Adjustment of Status filed between January 29, 1997, and April 13, 2001 to prosecute removal cases.
39. The Chicago District Office, on information and belief, has not processed any refund of fees for class members and has not returned any applications it improperly accepted from class members during the period of January 29, 1997 to April 13, 2001.
Application of Defendants’ Policies and Practices to Plaintiffs and Members of the Plaintiff Class
40. The named plaintiffs have been and continue to be subjected to the policies and practices described above in paragraphs 26-37, as follows:
a. Plaintiff Maria Rosa Ramos i. Maria Rosa Ramos is a Mexican citizen. She last entered the United States 14

in October 1996, without inspection. Ms. Ramos, who is divorced, is raising her three children alone: they are ages 16, 10, and 5. Her youngest child is a U.S. citizen, as is her brother.
ii. In January 1999, advised by Notary Public Antonio Perez, who charged her $400, Ms. Ramos applied for Adjustment of Status through her brother, a legal resident alien at that time. The visa petition could not be approved because that family relationship was not recognized for passing immigration benefits under the INA; only U.S. citizens can petition for siblings. 8 U.S.C. § 1151(a), (b). There was therefore no visa "immediately available" at the time of the application.
iii. Although Ms. Ramos’ application was facially deficient, the Chicago District Office accepted Ms. Ramos’ application for filing. The INS then denied the application, kept the $345 in application fees, and used the information in her application to open an investigation targeting her, which eventually led to the initiation of removal proceedings against Ms. Ramos. The INS has never processed a refund of Mrs. Ochoa’s application fees.
b. Plaintiff Apolinar Ochoa
i. Apolinar Ochoa is a Mexican citizen, who has resided in the United States since April 1989. Mr. Ochoa resides in the United States with his wife, also a plaintiff in this suit, and their three U.S. citizen children. Mr. Ochoa’s parents are both Lawful Permanent Residents in the United States. Two of his siblings are U.S. citizens, and two are permanent residents.
ii. Advised by a Notary Public at Jade Enterprises, who charged Mr. Ochoa $1200, Mr. Ochoa applied for Adjustment of Status through his U.S. citizen brother. Because the visa through his brother was not immediately available, Mr. Ochoa was not yet prima facie eligible to apply for Adjustment of Status.
iii. Although Mr. Ochoa’s application was facially deficient, the Chicago INS District accepted the application for filing. After accepting the Adjustment of Status application, the Chicago District Office then denied the application, kept the application fees, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr. Ochoa. Mr. Ochoa has not received a refund of his application fees.
c. Plaintiff Argmira Ochoa
i. Argmira Ochoa is the wife of Apolinar Ochoa, the lead plaintiff in this action. See ¶40(b). She is a citizen of Mexico, and has resided in the United States since April I989. She applied for Adjustment of Status as a derivative beneficiary of the petition filed on behalf of her husband by his U.S. citizen brother. At the time she
3_5

applied for Adjustment of Status, she was not prima facie eligible for that benefit, because the visa petition was not yet "immediately available."
ii. The Chicago District Office accepted Mrs. Ochoa’s Adjustment of Status applic.ation. The INS then denied the application, kept the application fees, and used the information in her appIication to open an investigation targeting her, which eventually led to the initiation of removal proceedings against Mrs. Ochoa. The INS has never processed a refund of Mrs. Ochoa’s application fees.
iii. Mrs. Ochoa resides in the United States with her husband, also a plaintiff in this suit, and their three U.S. citizen children. Mrs. Ochoa’s mother is a U.S. citizen. Her husband’s parents are both Lawful Permanent Residents in the United States, and of her husband’s siblings, two are U.S. citizens and two are permanent residents.
d. Plaintiff Nicolas Olivares
i. Nicolas Olivares is a Mexican citizen. He last entered the United States in January 1995, without inspection, but has been residing in the United States continuously since February 1988.
ii. In January 1998, Mr. Olivares paid $300 to Alfredo Estrada, a Notary Public, to help him apply for Adjustment of Status through his lawful permanent resident brother. Because there is no visa category for siblings of permanent residents, Mr. Olivares was not prima facie eligible for Adjustment of Status when he applied.
iii. The Chicago District Office accepted Mr. Olivares’s Adjustment of Status application. The INS then denied the application, kept the application fees, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr. Olivares.
e. Plaintiff Fermin Gutierrez
i. Fermin Gutierrez is a Mexican citizen. He last entered the United States in 1990, without inspection. He lives with his wife and two U. S. citizen daughters. His sister, a U.S. citizen, filed a visa petition on his behalf.
ii. In November 1997, Mr. Gutierrez paid $500 to an individual named Alfredo Estrada, and his assistant, Esteban Beltran. Through Mr. Beltran, Mr. Gutierrez applied for Adjustment of Status application through his U.S. citizen sister. However, Mr. Gutierrez had no visa number "immediately available" at the time of his application. He was thus not prima facie eligible to apply for Adjustment of Status.
iii. On July 6, 2000, Mr. Gutierrez filed a criminal complaint against Mr. Beltran for deception and fraud. Mr. Gutierrez also filed a complaint with the City of
3.6

Chicago Department of Consumer Services. On January 10, 2001, Esteban Beltran pied liable to two counts of deceptive practice in an administrative hearing. In a signed statement, Beltran admitted, among other things, that he had prepared the immigration documents for Mr. Gutierrez.
iv. The Chicago District Office accepted Mr. Gutierrez’s Adjustment of Status application. The INS then denied the application, kept the application fees, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr. Gutierrez. He has received no refund of application fees.
f. Plaintiff Femando Carranza
i. Femando Carranza is a Mexican citizen. He last entered the United States in April 1993, without inspection. Mr. Carranza is married to an immigrant and has three children, all U.S. citizens under the age of 10. His U.S. citizen mother filed a visa petition on his behalf, which was approved with a priority date of May 29, 1997.
ii. In June 1999, Mr. Carrartza paid $200 to James Giuseffi of Centro Medico de Amnestia (Medical Amnesty Center), and gave him $1,345 for the INS. Through Mr. Giuseffi, Mr. Carranza flied an application for Adjustment of Status. However, at the time he applied for Adjustment of Status, there was no visa"immediately available" to Mr. Carranza. He was therefore not prima facie eligible to apply for Adjustment of Status. The Chicago District Office denied Mr. Carranza’s section 245(i) application, kept the $1,345 in processing fees, issued him a Notice to Appear on July 6, 1999, and placed him in removal proceedings in immigration court.
iii. The Chicago District Office accepted Mr. Carranza’s Adjustment of Status application. The INS then denied the application, kept the $1,345 in processing fees, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr Carranza. Mr. Carranza has never received any refund from the INS of his application fees.
g. Plaintiff Gabriel Torres
i. Gabriel Torres is a citizen of Mexico, who has resided in the United States since 1995. His father, a permanent resident alien, filed a visa petition for him in 1997.
ii. In 1999, Mr. Torres paid Notary Public Antonio Perez $500 to assist him in applying for legal status. Through Perez, Mr. Torres applied for Adjustment of Status. Mr. Torres’ visa petition was not yet "immediately available" at the time he applied for Adjustment of Status. He was thus not prima facie eligible to apply for Adjustment of Status.
3_7

iii. The INS accepted Mr. Torres’ Adjustment of Status application for filing. The INS accepted the fees, processed the application, denied it, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr. Torres. Mr. Tortes has never received a refund from the INS of his application fees.
iv. At an April 11, 2001, hearing before an Immigration Judge, Mr. Torres admitted the allegations that he had no permission to be in the United States, and accepted an order of Voluntary Departure in lieu of an order of removal. As a result of this lawsuit, the INS agreed to grant him a Stay of Removal through February 12, 2002, which they subsequently extended to August 13, 2002. Mr. Torres has not departed the United States.
h. Plaintiff Juan Manuel Rodriguez
i. In May 1999, Juan Manuel Rodriguez went to Notary Public Antonio Perez, who "helped" him apply for Adjustment of Status through his U.S. citizen brother, Javier Rodriguez Cholico. There was not a visa number immediately available to Mr. Rodriguez at the time of his application. He was therefore not prima facie eligible to apply for Adjustment of Status.
ii. The Chicago District Office accepted the Adjustment of Status application. The INS then denied the application, kept the application fees, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr. Rodriguez.
iii. Mr. Rodriguez has never received any refund of his application fees.
Plaintiff Hector Diaz
i. Hector Diaz also applied for Adjustment of Status with "assistance" from Antonio Perez, a Notary Public. Mr. Diaz is unmarried, but has two U.S. children, with whom he lives. His father, a legal resident, filed a visa petition on his behalf, which was approved with a priority date of April 13, 1992. At the time Mr. Diaz applied for Adjustment of Status, there was no visa "immediately available" to him. He was thus not prima facie eligible to apply for Adjustment of Status.
ii. The Chicago District Office accepted the Adjustment of Status application. It then denied the application, kept the processing fees, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr. Diaz.
iii. The INS has never issued Mr. Diaz of any application fees.

j.

PIaintiff Justino Castaneda

i. Justino Castaneda is a citizen of Mexico who entered the United States in 1996. He applied for Adjustment of Status through a Fourth Preference visa petition which had earlier been filed by his brother on his behalf. The priority date of his 4th
Preference petition is December 27, 1989, which was not "immediately available" at the
time the application was filed.

ii. Because no visa was "immediately available" at that time, Mr. Castaneda was not prima facie eligible to apply for Adjustment of Status.

iii. The Chicago District Office accepted Mr. Castaneda’s application for Adjustment of Status. It then denied the application for Adjustment of Status, kept the application fees, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr. Castaneda.

iv. On December 12, 2000, Mr. Castaneda appeared in Immigration Court, and accepted Voluntary Departure. He was required to depart by April 12, 2001, with that order automatically converting into an order of removal against him if he failed to timely depart

v. Mr. Castaneda subsequently asked the INS to extend the period of his Voluntary Departure. The INS found that it was statutorily unable to extend the period of Voluntary Departure, 8 U.S.C. §I229c(a)(2), but granted him a Stay of Removal through April 5, 2002. It subsequently granted an extension of the stay through June 5, 2002.

k. Plaintiff Efren de la Torte

i. Efren de la Torre is a 23 year old citizen of Mexico, who has resided in the United States since 1994, when he was 15 years old. He paid Antonio Perez $200 to file an application for Adjustment of Status through a U.S. citizen aunt. In fact, aunts and uncles cannot petition for nieces and nephews; this is not a visa category recognized by law.

ii. Because there was no visa "immediately available" to Mr. de la Torre at the time of the application, he was not prima facie eligible for Adjustment of Status.

iii. The Chicago District Office accepted Mr. de la Torre’s application for Adjustment of Status. The INS then denied the application, kept the application fees, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr. de la Torte.

iv. Mr. de la Torte was ordered removed in absentia on January 10, 2001. He

2
has filed a Motion to Rescind that order, which remains pending at the Board of Immigration Appeals. The INS granted him a Stay of Removal, in connection with this case, which expires on August 13, 2002.
v. Mr. de la Torre has never received any refund of his INS application fees.
41. Defendants’ policies as described in paragraphs 26-38 have been applied, and will continue to be applied, unless enjoined, to both Named Plaintiffs and to the members of the Plaintiff class.
42. Members of the Plaintiff class have been subjec.ted to, are being subjected to, and, unless the policies and practices of the Chicago District Office are enjoined, will continue to be subjected to, the same or similar types of injuries as have the named plaintiffs. The named plaintiffs will continue to be subject to the same or similar types of injury, unless such policies are enjoined.
V. EXHAUSTION OF ADMINISTRATIVE REMEDIES 43. Plaintiffs are excused from exhausting their administrative remedies. First, and foremost, the Plaintiffs are raising substantial constitutional questions which are not mere procedural errors that can be corrected by the immigration court, but rather are constitutional errors pre-dating the proceedings and are, thus, insulated from review by institution of removal proceedings. 44. Secondly, the Immigration Courts lack the ability and competence to adjudicate class-wide claims and to grant class-wide relief. The jurisdiction of the Immigration Courts is limited to the individuals in removal proceedings before them by 8 C.F.R. §3.14. Also, there is no right of discovery dur!ng removal proceedings, and the Immigration Courts have very limited
20

discovery powers, thus, preventing the development of an administrative record of the constitutional claims for the Circuit Court. Thus, the Immigration Courts are particularly illsuited for considering constitutional claims requiring discovery and/or factfinding between multiple parties.
45. Aditionally, requiring exhaustion would be futile since the Immigration Court would not be able to adjudicate the class-wide constitutional and statutory claims presented in this complaint, and, therefore, Plaintiffs would not be able to develop an adequate record of those claims for review in the Circuit Court.
46. Finally, Plaintiffs do not concede that they have failed to exhaust their administrative remedies since Plaintiffs complain of the act of the Defendants in wron~ accepting their applications for Adjustment of Status and using the information in those applications to open investigations against them. Those acts were complete upon acceptance of the application, and defendants’ procedures and regulations do not provide for any means, other than the institution of this lawsuit, for challenging the propriety of their acts in this regard.
VI. CLAIMS FOR RELIEF COUNT ONE (Administrative Procedures Act) 1 .-46. Plaintiffs reallege and incorporate by reference the allegations contained in ¶¶ 146 as ¶¶1-46 of Count I. 47. The Chicago District Office policy in effect from January 29, 1997, through April 13, 2001, is in direct violation of the INA and INS regulations. The statutory requirements for adjustment of status are found in INA {}245, 8 That section governs the circumstances under which the Attorney General can
2~.

accept an Adjustment of Status application, and specifically requires that a visa be °’immediately
available" at the time such application is filed. Further, the regulations goveming Adjustment of
Status filings are found at 8 C.F.R. §245.2. These regulations were promulgated, and are binding
upon the Respondents.
49. The general rule for applications to the INS is that applications are "properly
filed"when they are received, signed and with proof of proper payment affixed. 8 C.F.R. §
103.2(a)(7)(i) (2000). But this rule does no~t apply to Adjustment of Status applications. Instead,
Adjustment of Status applications are governed by their own regulation, which states:
Proper filing of application-(i) Under section 245. Before an application for adjustment of status under section 245 of the Act may be considered properly filed, a visa must be immediately available. If a visa would be immediately available upon approval of a visa petition, the application will not be considered properly filed unless such petition has first been approved. If an immediate relative petition filed for classification under section 201(b)(2)(A)(i) of the Act or a preference petition filed for classification under section 203(a) of the Act [family-sponsored immigrants] is submitted simultaneously with the adjustment application, the adjustment application shall be retained for processing only if approval of the visa petition would make a visa immediately available at the time of filing the adjustment application. If the visa petition is subsequently approved, the date of filing the adjustment application shall be deemed to be the date on which the accompanying petition was filed.
8 C.F.R. § 245.2 (a)(2)(i) (2000) (emphasis added).
50. Thus, under the regulations issued to implement INA §245, an Adjustment of
Status application is not "properly filed" unless it is signed, the proper fee is tendered, and it is
accompanied by proof that the visa petition (a) has a current priority date, or (b) is of the type that
creates an immediate entitlement to a visa once it is approved (i.e., the beneficiary is the
"immediate relative" of a U.S. citizen petitioner).
22

51. An INS employee car~ readily determine if condition (a) is satisfied by checking the priority date on the petition’s approval notice against the State Department’s monthly bulletin of current priority dates. See Exhibit A. That same INS employee can readily determine if condition (b) is satisfied by seeing if the visa petition is filed by a U.S. citizen on behalf of a spouse, parent, or unmarried child as defined in the INA.
52. On information and belief, most district and subdistrict offices of the INS around the U.S. comply with the regulations and review all Adjustment of Status applications to make sure that the application includes proof that a visa is "immediately available," in order to be deemed "properly filed." On information and belief, most of these offices reject for processing any applications that are not "properly filed," including those that fail to demonstrate that a visa is "immediately available," and return them to the applicant, along with the special processing and filing fees. These district and subdistrict offices do not attempt to deal with the applications on their merits without making that threshold determination, nor do they put applicants into removal proceedings based on the information disclosed in their applications.
53. The Chicago District Office’s policy undercut local anti-consumer fraud enforcement, and undermined efforts by elected officials, consumer groups, and agencies that serve immigrant populations to educate immigrant communities about the perils of relying on "immigration consultants."
54. The Chicago District Office continued to adhere to its policy with respect to Adjustment of Status applications for, on information and belief, despite being aware of these facts.
23

55. The Chicago District Office’s failure to comply with the INA and INS regulations has resulted in thousands of unsuspecting immigrants losing the filing and processing fees they paid to the INS, and/or having the information provided in their applications for legal permanent residence, which should never have been processed, used to open investigations against them which either have led or will lead to the institution of removal proceedings against them. The actions, as applied to the named Plaintiffs and to the Plaintiff class, are final agency orders.
56. That Chicago District Office’s handling of applications for Adjustment of Status was and remains an agency action which is arbitrary, capricious, or not in accordance with the law, in that it fails to comply with the INA, as well as the INS regulations. Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.
57. The INS and its district and subdistrict offices are "agencies" as defined in the Administrative Procedure Act. See 5 U.S.C. § 70I(b)(1).
58. As a direct and proximate result of Chicago District Office’s policy violating provisions of the INA and its regulations, Plaintiffs suffered injuries including the loss of the significant filing fees they paid to the INS, and/or having their applications used as a basis for instituting removal proceedings against them.
COUNT TWO (Procedural Due Process) 1.-58. Plaintiffs reallege and incorporate by reference ¶¶1-58 as ¶¶1-58 of Count II. 59. Under the Fifth Amendment to the United States Constitution, those threatened with the loss of liberty or property due to actions by the federal government are entitled to due process. When Congress passed 8 U.S.C. 1255(i), it gave certain individuals the statutory right
24

to file for lawful residency within the United States. This statute, and the INS regulations and policy implementing that right, gave the Plaintiffs a protected liberty interest in being able to apply for residency within the United States.
60. The Chicago District Office’s policies, as recounted in ¶¶26-42, created a trap whereby members of the Plaintiff Class were prevented from exercising that right. Plaintiffs and the Plaintiff Class were enticed by the INS to file an application to protect an important right established by Congress - to adjust their status without having to leave the United States for ten years - but due to the interrelationship of the statutory deadlines, the Chicago District Office’s unlawful policies, and the actions of the unscrupulous notarios, of which the Chicago District Office was aware, Plaintiffs wound up filing a document that had the actual effect of undermining that very right that they thought they were protecting.
61. In these circumstances, the policy and actions of the Chicago District Office violated due process and fundamental fairness. Because of the malfeasance of the Chicago District Office in improperly accepting applications for filing, and the actions of the unscrupulous notarios, of which the Chicago District Office was aware, the effect of filing these INS forms was completely altered from their ordinary purpose. Plaintiffs and the Plaintiff class were entitled to be given meaningful and timely notice of the new rules of the game: that the filing of an application to adjust their status without a visa being immediately available would result in the loss of the substantial filing fee and the loss of the benefit given to them by Congress in being able to adjust their status without leaving the United States for ten years once a visa did become available.
25

62. As a result Plaintiffs and the Plaintiff Class has been denied due process and fundamental fairness by Defendants Chicago District Office, Perryman, and Ashcroft in violation of the Fifth Amendment to the United States Constitution.
COUNT THREE (Equal Protection) 1 .-62. Plaintiffs reallege and incorporate by reference ¶¶1-62 as ¶¶1-62 of Count III. 63. Defendants’ actions also violated the Equal Protection prong of the Due Process Clause of the Fifth Amendment to the United States Constitution. Defendants have treated and are continuing to treat similarly situated individuals differently, without any substantial justification. Where only a form "I-130" (Petition for Visa) was filed, Defendants did not use the information provided in the petition to open an investigation that would lead to the initiation of removal proceedings against the individual on whose behalf the petition was being filed (called the "beneficiary"). However, where a form "I-485" (Application for Adjustment of Status) was also filed and where that application was actually accepted for filing due to Defendants’ own malfeasance, as Plaintiffs did in this case, Defendants used the information provided in both forms to open an investigation, in fact targeting the Plaintiffs for special action, as aIleged in ¶33. These investigations eventually led to the initiation of removal proceedings against the Plaintiffs, who would have been the "beneficiaries" of the visa petition (form "I-I30"). 64. This differential treatment deprived the Plaintiffs of the opportunity to apply for residency under INA 245(i), while those who only submitted a form "I-130" were left unharmed and were not deprived of the opportunity to apply for the same benefit at a later date.

65. In addition, the Defendants have also treated and are continuing to treat Plaintiffs and the Plaintiff Class differently from similarly situated individuals who also filed a form "I485" (Application for Adjustment of Status) prematurely, without any substantial justification.
66. Where an individual submitted his or her form "I-485" (Application for Adjustment of Status) prematurely either before January 29, 1997, or after April 13, 2001, the INS officer receiving the application reviewed that application to make sure that the application included proof that a visa was "inunediately available," and, consequently, that the application was "properly filed." If the officer determined that there was no visa immediately available, the officer did not process nor reviewed the merits of the application, but rather rejected the application as not "properly filed," and returned it to the applicant, along with the special processing and filing fees, allowing the applicant to apply at a later date. Furthermore, submitting a premature Application for Adjustment of Status did not target the applicant for special action whereby the information he provided in his or her application would be used to open an investigation the would lead to the initiation of that individual’s removal proceedings.
67. In contrast, where an individual, like the Plaintiffs, submitted his or her form ’2485" (Application for Adjustment of Status) prematurely between January 27, 1997 and April 13, 2001, that individual’s application was accepted for processing without first determining whether there was a visa immediately available for the applicant, or, in other words, there was no determination of whether the application was "properly filed". Once the application was processed, it was reviewed and then denied on the merits on the basis that the application showed no evidence that there was a visa immediately available. Neither the application nor the filing fees were returned to the applicant. In addition, once the application was denied, the applicant
27

was targeted for special action whereby the information he provided in his or her application would be used to open an investigation that, in many cases, led to the initiation of that individual’s removal proceedings.
68. Defendants’ actions are not pursuant to a Congressional command, or in furtherance of any Congressional mandate. Indeed, the actions of Defendants as alleged herein undercut the Congressional intent of the statute by limiting INA 245(i) in ways not intended by Congress. Where the actions of an agency in differentiating like groups is not pursuant to statutory command or requirement, those actions do not receive deferential "rational basis" treatment, but rather, are subject to a more searching analysis.
69. Defendants’ actions, in treating like individuals differently, cannot withstand even the most lenient of standards, rational relationship and they certainly cannot withstand any kind of heightened scrutiny required when an agency treats people differently despite a Congressional mandate to treat them the same.
COUNT FOUR (Substantive Due Process-Right of Familial Association) 1.-69. Plaintiffs reallege and incorporate by reference the allegations contained in ¶¶1-69 as ¶¶1.-69 of Count IV. 70. Plaintiffs and the Plaintiff class have a constitutional right to associate with close family members, e.g. children, parents, grandparents and siblings, who are either United States citizens or lawful permanent residents in the United States consistent with the policies enunciated in INA Section 245(i) that as long as they applied and were eligible for a visa petition before a
28

specific deadline, the information they provided to INS would not be used as a basis to separate them from their family members through removal procedures.
71. Through the policies and practices described in ¶¶1-42, Defendants have unconstitutionally interfered with that right.
COUNT FIVE (Declaratory Judgment) 1.-71. Plaintiffs incorporate by reference and reallege the allegations contained in ¶¶ 171 as ¶¶1.-71 of Count V. 72. An actual and substantial controversy has arisen between the parties, and that controversy continues to exist regarding their respective rights and duties, including without limitation the proper handling of plaintiffs’ Adjustment of Status applications and the propriety of ongoing efforts to remove members of the plaintiff class. 73. Declaratory relief is necessary in that, as noted herein, the plaintiffs contend, and Defendants deny, that the plaintiffs’ applications and fees should be returned to them, and that the Defendants’ actions are in violation of the statutory and regulatory obligations of the INS.
IRREPARABLE INJURY ALLEGATIONS 74. Plaintiffs have no adequate remedy at law to redress the violations of law and the injuries alleged herein and this suit for declaratory judgment and injunctive relief is their only means of securing adequate redress from defendants’ unlawful policy. Plaintiffs have and will continue to suffer irreparable injury from defendants’ policy and practices set forth herein unless
29

enjoined by this court. Unless restrained and enjoined by this Court, defendants will continue
their unlawful acts as alleged herein, causing the plaintiffs irreparable injury.
PRAYER FOR RELIEF
Wherefore, Plaintiffs request that this Court:
A. Certify the Plaintiff Class pursuant to Rules 23(a) and 23(b)(2) of the
Federal Rules of Civil Procedure.
B. Find and declare defendants’ actions are arbitrary, capricious, and not in
accordance with the 1NA, INS’s regulations, and the Due Process Clause
of the Fifth Amendment. Specifically, plaintiffs pray that this Court:
Declare that the Chicago District Office has violated 8 U.S.C. §1255 and 8 C.F.R. §245.2(a)(2)(i) by failing to reject and return adjustment of status applications that are not "properly filed" because they fail to demonstrate that a visa is "immediately available," as well as the fees associated with those applications.
Declare that the promulgated regulations require the Chicago District Office to review Adjustment of Status applications to see whether a visa is "immediately available" to the applicant, prior to accepting such applications.
o Declare that, where no visa is "immediately available," the regulations require the Chicago District Office to reject the application and remm it forthwith to the applicant, along with the special processing and filing fees.
o Declare that in no event shall the Chicago District Office’s erroneous denial of an Adjustment of Status application on the ground that a visa is not "immediately available" be deemed a decision on the merits of such an application.
Declare that the policies and practices have violated Plaintiffs’ constitutional rights as alleged herein.
3O

Enjoin the INS, nationally and in the Chicago District Office from:
Acting on the merits of any Adjustment of Status application from Plaintiffs or Plaintiff Class members which was accepted prior to the institution of the current procedures, where there is no visa immediately available.
Retaining the fees for pending applications accepted prior to the currently instituted policy where there is no immediately available visa, and for applications denied prior to this lawsuit due to lack of an immediately available visa.
Using the information obtained from a premature Application to Adjust Status from Plaintiffs or Plaintiff Class Members for any investigation that would lead to the issuance of any Notice to Appear (NTA) on the denial on the merits of an Adjustment of Status application that was not "properly filed,"and should not have been accepted, or of filing any such NTAs with any immigration court.
Using any information obtained Applications for Adjustment of Status filed by Plaintiffs and the Plaintiff Class prematurely in any removal proceedings and/or to cause someone to be physically removed, voluntarily or otherwise, from the United States.
Taking any other steps that are not authorized under the INA, or INS’s regulations that govern applications for Adjustment of Status filed pursuant to INA Section 245(i).
Order the Respondents, INS and the Chicago District Office, to return all
improperly filed Adjustment of Status applications, together with the fees
that accompanied those applications.
Award Plaintiffs’ costs and a reasonable atto~eys’ fee.
Grant any further relief that this Court deems necessary and proper.

v

DATED this

day of February, 2003.

Patricia Mendoza Alonzo Rivas Mexican American Legal Defense and Educational Fund 188 West Randolph St., Suite 1405 Chicago, IL 60601 (312) 782-1422

Respectfully submitted:
ay
One ofAttome s~
Steven Saltzman 122 S. Michigan, Ste. 1850 Chicago, Illinois 60603 (312) 427-4500

Mary Meg McCarthy Charles Roth Midwest Immigrant & Human Rights Center 208 S. LaSalle Street, Ste. 1818 Chicago, IL 60604 (312) 660-1351

Attomeys for Plaimiffs and Plaintiff Class

32

Number 52 Volume VIII

United States Department of State Bureau of Consular Affairs
Visa Bulletin
Washington, D. C.

IMMIGRANT NUMBERS FOR DECEMBER 2002
A. STATUTORY NUMBERS
1. This bulletin summarizes the availability of immigrant numbers during December. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Immigration and Naturalization Service reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by November 8th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.
2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum familysponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and elnployment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320
3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:
FAMILY-SPONSORED PREFERENCES
First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.
Second: Spouses and Children, and Umnarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:
A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. Unmarried Sons and Daughters (2i years of age or older): 23% of the overall second preference limitation.
Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

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Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.
EMPLOYMENT-BASED PREFERENCES
First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Seeoud: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers."
Fourth: Certain Special hnmigrants: 7.1% of the worldwide level.
Fifth: Employment Creation: 7.1% of the worldwide level, not tess than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. I02-395.
4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: MEXICO and PHILIPPINES.
5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph l); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Priority Dates for Family Based Immigrant Visas

All Chargeability MEXICO Areas Except Those Listed

PHILIPPINES

Family

1st 08APR99

15OCT92 01ARP90

2A* 22SEP97

08APR95 22SEP97

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2B 08APR94 3rd 22DEC96 4th 08DEC90

01NOV91 08APR94 01NOV92 01DEC89 01NOV90 01DEC81

*NOTE: For December, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 08APR95. 2A numbers SUBJECT to per-country limit are
available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08APR95 and earlier than 22SEP97. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

Priority Dates for Employment-Based Immigrant Visas

All Chargeability Areas Except Those
Listed

MEXICO

PHILIPPINES

Employment-Based

1st

C

C

2nd

3rd

C

Other Workers

C

.4th

C

C

C

C

C

Certain Religious

C

Workers

5th

C

C

C

C

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Targeted Employment C Areas/Regional Centers

C

C

The Department of State has available a recorded message with visa availability information which can be heard at (202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.
B. DIVERSITY IMMIGRANT (DV) CATEGORY
Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NCARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NCARA program. This reduction has resulted in the DV-2003 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.
For December, immigrant numbers in the DV category are available to qualified DV-2003 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
All DV Chargeability Areas Except Those Listed Separately
Region
AFRICA: AF 9,800 ASIA: AS 4,075 EUROPE: EU 15,850 NORTH AMERICA (BAHAMAS): NA 10 OCEANIA: OC 200 SOUTH AMERICA, and the CARIBBEAN: SA 625
Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2003 program ends as of September 30, 2003. DV visas may not be issued to DV-2003 applicants after that date. Similarly, spouses and children accompanying or following to join DV2003 principals are only entitled to derivative DV status until September 30, 2003. DV visa availability through the very end of FY-2003 cannot be taken for granted. Nmnbers could be exhausted prior to September 30. Once all numbers provided by law for the DV-2003 program have been used, no further issuances will be possible.
C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN JANUARY
ForJanuary, immigrant numbers in the DV category are available to qualified DV-2003 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
All DV Chargeability Areas Except Those Listed Separately

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Region
AFRICA: AF 11,500 ASIA: AS 5,200 Except: BANGLADESH 5,060 EUROPE: EU I8,000 NORTH AMERICA (BAHAMAS): NA 11 OCEANIA: OC 256 SOUTH AMERICA, and the CARIBBEAN: SA 700
D. OBTAINING THE MONTHLY VISA BULLETIN
The Department of State’s Bureau of Consular Affairs offers the monthly Visa Bulletin on the INTERNET’S WORLDWIDE WEB. The INTER_NET Web address to access the Bulletin is:
http://travel.state.gov
From the home page, select the VISA section which contains the Visa Bulletin. Individuals may also obtain the Visa Bulletin by FAX. From a FAX phone, dial (202) 647-3000. Follow the prompts and enter in the code 1522 to l~ave each Bulletin FAXed.
To be placed on the Department of State’s E-mail subscription list for the Visa Bulletin, please provide your E-mail information to the following E-mail address:
VISABULLETIN@STATE.GOV The Department of State also has available a recorded message with visa cut-off dates which can be heard at (202) 663-1541. The recording is normally updated by the middle of each month with information on cut-off dates for the following month.
The Visa Bulletin can also be contacted by e-mail at the following address:
VISABULLETIN@STATE.GOV Department of State Publication 9514 CA/VO:November 8, 2002
~.9._ ~: o,.. tl h e..v. 2 s ~....~.? ,.r...~ :i-~.’.-.~..~ ¯ ~ _a cg ?

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 UNITED STATES DISTRICT COURT
FOR THE NORTHE~D~[STRIC,T OF ILLINOIS EASTERN DIVISION
Maria Ramos, et al., on behalf of themselves and all others similarly situated,

Plaintiffs,
John Ashcroft, Attorney General et al Defendants.

No. 02 C 8266 o Judge David H. Co~ g~
DOCKETED

TO: Craig Oswald and Shelia Entenman 219 S. Dearbom, 5th F1.
Chicago, Illinois 60604

Please take notice that on January 26, 2004 1 filed Plaintiff’s Second Amended Complaint with the Clerk of the U.S. District Court for the Northern District of Illinois, 219 S. Dearborn, Chicago, I1. 60604

M~a..~ry,MM~.. /c~C~a, rth~y
PROOF OF SERVICE
I, Mary M. McCarthy, an attorney state that on January 26, 2004, I caused this Notice and the attached Second Amended Complaint to be served by first class U.S. mail, postage prepaid on all other attorneys at the addresses listed above by placing same in the U.S. mailbox at 208 S. LaSalle Street on or before 5:00 p.m.

Mary M. McCarthy Midwest Immigrant and Human Rights Center 208 S. LaSalle St., Suite 1818 Chicago, IL 60604 (312) 660-1351

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Maria Rosa Ramos, Apolinar Ochoa, )

Fermin Gutierrez, Femando Carranza, )

Gabriel Torres, Hector Diaz, Juan

)

Rodriguez, Nicolas Olivares and Efren de )

la Torre,

)

)
Plaintiffs

No. 02 C 8266

Vo

Judge David H. Coar

Thomas Ridge, Secretary of Department

of Homeland Security; U.S. Department

of Homeland Security; U.S. Citizenship

and Immigration Services; U.S. Immigration)

and Customs Enforcement; Eduardo )

Aguirre, Jr., Director, U.S. Citizenship and ) Immigration Services; Donald Monica, )

Director of the Chicago District Office of)

the U.S. Citizenship and Immigration )

Services; Michael Garcia, Assistant

)

Secretary for U.S. Immigration and

)

Customs Enforcement; Deborah Achim, )

Acting Director, Chicago Field Office, )

U.S. Immigration and Customs Enforcement;)

)
Defendants. )

Class Action Complaint f,9r , Declaratory and Injunctive R¢lief~
~..! " "" ".’.L~

PLAINTIFFS’ SECOND AMENDED COMPLAINT I. PRELIMINARY STATEMENT
1. This case concerns the actions of the Chicago District Office of the then Immigration and Nationality Service (INS) in failing to properly implement Congressional and INS policies with due process and equal protection to allow immigrants with close relatives in the United States to have that relationship recognized by the then-INS pursuant to Section 245(i)

3_

of the Immigration and Nationality Act, (INA), 8 U.S.C. §1255(i), so that they later could adjust their status without having to leave the United States for a period of ten years.
2. Named Plaintiffs Mafia Rosa Ramos, Apolinar Ochoa, Fermin Gutierrez, Fernando Carranza, Gabriel Torres, Hector Diaz, Juan Rodriguez, Nicolas Olivares and Efren de la Torte are themselves immigrants and long term residents of the United States whose rights under the INA and its regulations have been violated due to a combination of factors caused in large part by the malfeasance of the Chicago District Office that resulted in their losing the protections of Section 245(i) and being investigated and ultimately placed into removal proceedings. Due to the Chicago District Office’s malfeasance, other Named PIaintiffs spent hundreds of dollars filing an application to adjust their status (I-485’s) for which they did not receive and could not receive any benefit. The actions by Defendants defeated the whole purpose of the law these applicants were trying to follow. The Chicago District Office apparently corrected its process sometime in 2001, but these changes did not help individuals whose applications were improperly handled before that point.
3. Plaintiffs (all but Nicholas Olivares and Efren de la Torte) on behalf of themselves and the class they seek to represent bring this action pursuant to the Administrative Procedure Act (APA) against the governmental officials responsible for their unlawful and unconstitutional treatment. They seek equitable relief to have the Defendants ordered to return hundreds of dollars in application fees wrongly accepted and to prevent the Defendants from using information acquired through the Chicago District Office’s malfeasance and failure to follow federal law and due process and equal protection requirements. Plaintiffs Olivares and de la Torre on behalf of themselves and the class they seek to represent bring this action pursuant to

the APA to receive restitution for moneys they spent filing an application for which they could receive no benefit.
II. JURISDICTIONAL AND VENUE ALLEGATIONS 4. The Court has jurisdiction under the APA, 5 U.S.C. §§ 701 ct scq., as well as 28 U.S.C. §1331. 5. Pursuant to :28 U.S.C. §§ 2201 and 2202, the Court has power to award declaratory relief in this case. 6. Venue is proper in the Northern District of Illinois under 28 U.S.C. § 1391(e). The vast majority of Plaintiffs reside in the Northem District of Illinois; all class members (except for the class represented by Olivares and de la Torte) had qualifying visa petitions filed on their behalf by family members, and filed their premature Adjustment of Status applications in Chicago. The then INS District Office which has acted on plaintiffs’ applications is located in Chicago, and in cases where class members were placed into removal proceedings, the INS filed its charging document in Immigration Courts located in Chicago.
III. PARTIES Plaintiffs
7. The named Plaintiffs are: A. Maria Ramos, an individual who was investigated and then placed in removal proceedings due to her attempt to become a permanent resident. B. Apolinar Ochoa, an individual who was investigated and then placed in removal proceedings due to his attempt to become a permanent resident; C. Fermin Gutierrez, an individual who was investigated and then placed into removal proceedings due to his attempt to become a permanent resident,

D. Femando Carranza, an individual who was investigated and then placed in

removal proceedings due to his attempt to become a permanent resident;

E. Gabriel Torres, an individual who was investigated and then placed into

removal proceedings due to his attempt to become a permanent resident, who was

subsequently ordered to VoluntariIy Depart the United States, and who was then

granted a stay of removal; and

F. Hector Diaz, an individual who was investigated and then placed in

removal proceedings due to his attempt to become a permanent resident, who was

ordered to voluntarily depart the United States, and has in fact departed;

G. Juan Manuel Rodriguez, an individual who was investigated and then

placed into removal proceedings due to his attempt to become a permanent

resident, who was subsequently ordered to voluntarily depart the United States,

and has in fact departed;

H. Nicolas Olivares, an individual who was investigated and then placed in

removal proceedings due to his attempt to become a permanent resident; and

I.

Efren de la Torte, an individual who was investigated and then placed into

removal proceedings due to his attempt to become a permanent resident, who was

ordered removed in absentia.

Plaintiffs’ Class Action Allegations

8. Named Plaintiffs Ramos, Ochoa, Gutierrez, Carranza, Torres, Rodriquez and Diaz

bring this action on their own behalf and on behalf of a cIass of other similarly situated persons

pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure. Named Plaintiffs

Olivares and de la Torte bring this action on their own behalf and on behalf of a class of other 4

similarly situated persons pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil
Procedure.
9. The Plaintiff class represented by Plaintiffs Ramos, Ochoa, Gutierrez, Carranza,
Torres, Rodriquez and Diaz consists of:
All persons who were entitled to the benefits of Section 245(i) of the INA because a colorable petition for an immigrant visa (form 1-130) was filed on their behalf by a qualifying family member within the time periods specified by Congress, but who were, are or will be deprived of the benefits of Section 245(i) because they prematurely filed an Application for Adjustment of Status (form 1-485) between January 29, 1997 through April 13,2001 and that application was accepted by the Chicago District Office in violation of applicable law, regulations, procedures and the Constitution of the United States. ("the Ramos Class").
10. The Plaintiff class represented by Plaintiffs Olivares and de la Torre consists of:
All persons whose Applications for Adjustment of Status (form 1-485) were accepted between January 29, 1997 through April 13, 2001 by the Chicago District Office of the then INS in violation of applicable law, regulations, and procedures when there was no coIorable visa petition (form I-I30) also filed and the persons did not receive work authorization as part of the filing of the 1-485 or subsequent relief from deportation or removal.
("the Olivares Class"). This class seeks restitution of the application fees wrongly
accepted by the Chicago District Office.
11. Both Plaintiff classes are so numerous that the j oinder of all members is
impractical. At least four hundred (400) individual affected by the Chicago District Office’s
policy have contacted the Midwest Immigrant & Human Rights Center (MIHRC) and the Legal
Assistance Foundation of Chicago. However, it is reasonably estimated, on information and
belief, that 5000 or more improperly filed Adjustment of Status applications were accepted by

the defendants during the time period alleged and that at least several thousand of them are members of each class.
12. There are questions of law and fact common to the classes, including the factual scenario whereby Plaintiffs and class members were enticed by Chicago District Office malfeasance and the actions of unscrupulous individuals to fiIe for adjustment of status when a visa was not yet immediately available; whether the Chicago District Office has violated the INA and applicable regulations through its policy of accepting Adjustment of Status applications for processing without first conducting a prima facie screening to determine whether the application was properly filed; and whether the Chicago District office policy of not rejecting premature applications for Adjustment of Status and not returning the application and the accompanying fees to the applicants was contrary to the policies of other INS district offices, and was, thus, agency action that was arbitrary and capricious; and
13. The claims of Named Plaintiffs of each class are typical of the claims of their classes. Named Plaintiffs, like all class members, have been negatively impacted by Chicago District Office’s policies by losing their filing and processing fees, and/or having their applications used as a basis to open investigations against them which have either resulted or will result in the institution of removal proceedings.
14. Named Plaintiffs of each class are adequate representatives of the class who will adequately and fairly protect the interests of the class because they seek relief on behalf of the class as a whole and have no interests antagonistic to other members of the class. They are represented by attorneys employed by the Midwest Immigrant & Human Rights Center (MIHRC) and the Mexican American Legal Defense and Educational Fund (MALDEF), and by

Steven Saltzman, all of whom are attorneys who are experienced in federal litigation and/or immigration law and have litigated complex class action civil rights cases.
15. In addition, Defendants have acted and/or refused to act on grounds generally applicable to the Plaintiff classes, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the class as a whole, making class certification appropriate under Fed.R.Civ.P. 23(b)(2).
Defendants 16. Thomas Ridge is the Secretary of the Department of I-tomeland Security. He oversees the Department of I-Iomeland Security, including two successor agencies to the former INS: U.S. Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (CIS). Mr. Ridge is sued in his official capacity. 17. The CIS is an administrative agency within the Department of Homeland Security that implements our nation’s immigration laws. The CIS is responsible for processing and adjudicating applications for adjustment of status, including under section 245(i). The Chicago District Office of the CIS is a successor to the Chicago District Office of the former 1NS, and together with the Chicago Field Office of the ICE, comprises the former Chicago District Office of the INS. The APA claim is brought against the agency and its Chicago District Office. 18. The ICE is an administrative agency within the Department of Homeland Security that enforces our nation’s immigration laws. The ICE is responsible for initiating investigations and enforcement actions within the United States. The Chicago Field Office of the ICE is a successor to the Chicago District Office of the former INS, and together with the Chicago District Office of the CIS, comprises the former Chicago District Office of the INS. The APA claim is brought against the agency and its Chicago Field Oft’ice.
7

19. Eduardo Aguirre is Director of the CIS, which is within the Department of Homeland Security. He is responsible for the actions of CIS, including CIS District offices, which are successors to INS district offices. He is sued in his official capacity.
20. Michael Garcia is Assistant Secretary for ICE, within the Department of Homeland Security. He is responsible for the actions of ICE, including ICE field offices, which are successors to INS district offices. He is sued in his official capacity.
2I. Donald Monica is Acting District Director of the Chicago District Office of the CIS, which is a successor to the Chicago District Office of the former INS. He has official responsibility for the acts of his office, and the acts of its predecessor, including the orders and actions described herein. The Chicago District Office had, and has, a duty to review applications for Adjustment of Status to determine whether they are "properly flied." Mr. Monica is sued in his official capacity
22. Deborah Achim is the Acting Field Director of the Chicago Field Office of the ICE which is a successor agency to the Chicago District Office of the former INS. She has official responsibility for the acts of her office, and the acts of its predecessor, including the orders and actions described herein. Ms. Achim is sued in her official capacity.
IV. FACTUAL ALLEGATIONS Overview of Visa Processing and Adjustment of Status Under the INA 23. At all times relevant to this action, reader the INA, a two step process had to be followed to obtain lawful permanent resident status through a family member. First, a petition for an immigrant visa (I-130) must be filed on the immigrant’s behalf by a U.S. citizen or resident aIien relative (the petitioner). If the petitioner can demonstrate their own legaI status, and that the family relation exists, the CIS (formerly the INS) approves the visa petition.

Second, the immigrant relative must file and have approved an application to adjust his/her status to a lawful resident (I-485). In order for this application to be granted, a visa must become "immediately available." For spouses, parents, and minor, unmarried children of U.S. citizens, any approvable visa is "immediately available"; these individuals are called "immediate relatives." For all other visa categories - such as sibIings of U.S. citizens or grown children or children of lawful permanent resident parents- there are waiting lists of many years before the approved visa becomes "immediately available." Once a visa is "immediately available," the beneficiary may either (a) apply for legal permanent residence at the U.S. embassy or consulate in their country of nationality ("consular processing"), or (b) if certain conditions are met, file an application for adjustment of status to legal permanent residence with their Iocal CIS (formerly INS) office in the United States. At this point, the individual must show that they are not "inadmissible" to the United States for having committed crimes in this country, not having communicable diseases, etc. Completing this last step by filing an adjustment of status application in the U.S. is preferable to completing the process abroad, for various reasons (see ¶¶ 25-27, infra).
24. The CIS (formerly the INS) has a policy and practice, which is well known in immigrant communities, of not using the information provided in an approved visa petition to commence removal proceedings against the immigrant beneficiary, even though the petition may reveal the beneficiary’s unlawful presence in the U.S. Thus, applying for the visa petition does not cause the immigrant relative to put himself/herself in jeopardy of being deported. However, having an approved petition does not entitle the beneficiary to live or work in the U.S., nor does it protect the beneficiary from deportation if the beneficiary comes to the Government’s attention

through some other avenue. The approved petition only secures the beneficiary’s place in line for eventual visa availability.
25. Section 245(i) of the INA was adopted to allow families to remain unified in the United States while the family member’s status is being adjusted. Beneficiaries of approved visa petitions who have entered or remained in the United States unlawfully are permitted to apply for Adjustment of Status in the United States, instead of having to return to their countries of origin for "consular processing," i.e., immigrant visa interviews at U.S. embassies or consulates there. Adjustment of Status under this provision requires payment of a $1000 "special processing fee." INA §245(i) effectively "forgives" unlawful status, permitting immigrants to adjust their status to legal permanent residence nonetheless. It avoids the need to wait abroad for "consular processing" to be completed, which often entailed lengthy separations from family members in the U.S. Prior to Section 245(i) being adopted, family members seeking to adjust their status had to leave the United States, although onIy temporarily, to adjust their status.
26. INA §245(i) is also important because §301 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (I][RIRA) introduced new rules that an immigrant seeking to "reenter" the United States after being unlawfully present in the U.S. for more than a year is barred from returning for ten years. See 8 U.S.C. § 1182(a)(9)(B), 1NA §212(a)(9)(B). A waiver is available only if the immigrant can show "extreme hardship" to a U.S. citizen or resident alien spouse or parent, i.e. not the immigrant actually seeking the waiver. 8 U.S.C. § 1182(a)(9)(B)(v), INA §212(a)(9)(B)(v).
27. Immigrants who are able to obtain residency within the United States under I"NA §245(i) do not depart the United States. Thus, they have no need to reenter the United States and they are able to avoid the 10 year bar ofINA §212(a)(9)(B). To take advantage of Section
3.O

245(i), a immigrant had to have a family visa petition (but not an adjustment of status application) filed on his/her behalf before the congressionally imposed deadline, which was changed by Congress.
28. When a visa becomes "immediately available," a beneficiary may then file an application for "Adjustment of Status" to permanent residence, using Government form 1-485. When filing, the applicant must pay an application fee to the CIS (formerly the INS). The fee for the 1-485 was $130 before October 12, 1998; it was then raised to $220 until February 19, 2002, when it was raised to its current level of $255. In addition, individuals applying under §245(i) must pay a $1,000 "special processing fee" to forgive their unlawful status.
Chicago District Office Policy 29. Prior to January 29, 1997, on information and belief, applications for Adjustment of Status had to be submitted to the Chicago District Office in person. The applicant would go to the INS office with the forms and the application fees, and wait to speak with an INS officer. That officer would then review the forms and fees to make sure that they were correct, and if they were correct, the application would be accepted .for filing. If a visa was not immediately available, the application would not be processed and the fees were returned. The INS had a policy and/or custom of not making use of the information contained in the rejected application. 30. On January 29, 1997, on information and belief, the Chicago District Office, under then-District Director Brian Perryman, adopted a new procedure requiring that applications for Adjustment of Status (I-485) be submitted by mail. The former procedure, which involved screening for prima facie eligibility, was eliminated. 31. The Chicago District Office’s mail-in system permitted an appIication for Employment Authorization, on INS form 1-765, to be submitted along with the Adjustment of
3_1

Status application. As part of this new procedure, the Chicago District Office had improperly trained personnel reviewing these applications.
32. Many Adjustment of Status applications, for which a visa was not yet immediately available, were accepted and work authorizations were issued. Once the application was reviewed, it would be denied and the information contained in it that showed that the appIicant was in the United States unlawfully would then be transmitted to persons charged with opening investigations that led in many cases to the initiation of deportation proceedings.
33. The Chicago District Office’s improper actions in accepting applications for Adjustment of Status for which there were no visa immediately available yet, and in improperly granting work authorization created situations whereby inappropriate or ill-timed requests for Adjustment of Status were rewarded with a temporary work authorization card but then resulted in the Chicago District Office opening investigations against the applicant, whicla in many case led to the initiation of removal proceedings.
34. On information and belief, the Chicago District Office policy, as described above, was in effect from January 29, 1997, through April I3, 2001. During that time period, the INS and the Chicago District Office encouraged lawfully admitted immigrants and citizens to submit visa petitions for family members who were in the United States unlawfully because there was a deadline by which such petitions had to be submitted if the immigrant was to be able to take advantage of the benefits of INA Section 245(i) and avoid having to leave the United States for ten years but due to its unlawful policy and practice of accepting premature Adjustment for Status applications, this encouragement contributed to the loss of the Ramos Class Members right to the benefits of Section 245(i).

35. The Chicago District Office’s policy as described above was different from the policy and practice employed in other INS offices around the country. The policy used in other district offices was consistent with the one used by the Chicago District Office prior to January 29, 1997, resulting in the retum of a premature application (one for which no visa was immediately available) and the fees and no other use being made of the information contained in premature applications processed by these other district offices.
36. On information and belief, the Chicago District Office instituted a project specifically targeting individuals who had filed premature applications for Adjustment of Status for investigations. Through this "Speciai NTA Project," the Chicago District Office targeted Named Plaintiffs and the Plaintiff Class who had erroneously submitted 1-485 applications that had been improperly accepted by the Chicago District Office and used the information from applications to open investigations against them. Such investigations eventually led, in many cases, to the institution of removal proceedings. On information and belief, the Chicago District Office did r~ot target any other group of persons who submitted 1-485 applications in the same manner. The targeting was in contravention of a national policy not to begin removal proceedings based upon family visa petitions.
Practices of Unscrupulous Notarios and The Effect of Those Practices Caused by the Chicago District Office’s Policy
37. The Chicago District Office was aware, even prior to adopting this new policy in January, 1997, due to many complaints by community organizations, its own investigations and prosecutions and civil lawsuits by state and local authorities that "immigration consultants," calIed notarios in Mexican communities, often "represented" immigrants in obtaining immigration benefits. These consultants were able to use their knowledge of English, as well as
3_3

some knowledge of immigration law, to be able to claim expertise within those communities, to charge fees for their services, and to, in effect, practice law without a license.
38. The Chicago District Office was also aware, well before adopting its new policy in January 1997, that the most tangible and sought-after immigration benefit is a work authorization document. The Chicago District Office and then District Director Perryman thus knew or should have known that its policy of accepting premature adjustment of status applications and granting work authorization would cause notarios and "immigration consultants" to solicit and cause immigrants to file costly but premature adjustment of status applications, instead of the simple visa petition that should have been filed.
39. During the dates in question, community and immigrant groups told the Chicago INS Office, over and over again, of the problems caused by the District Office’s improper policies. During the dates in question, the City of Chicago and the State of Illinois both handled civil and criminal actions against notarios and "immigration consultants." During the dates in question, the Chicago INS Office had, on information and belief, independent knowledge of the problem of fraud on immigrants caused by the District’s policies. Still, the Chicago INS Office did nothing to correct its mistakes until approximately April 2001.
40. There was a direct and causal link between the Chicago INS District Office’s act of granting work permits inappropriately and the massive fraud perpetrated upon unsuspecting immigrants by notarios and "immigration consultants" during the time period in question.
41. Even after the Chicago District Office’s decision to change its handling of applications for Adjustment of Status, to correct its past practices, the Chicago District Office has continued to use the information provided in the premature applications for Adjustment of Status filed between January 29, 1997, and April 13, 2001 to prosecute removal cases.

42. The Chicago District Office has not processed any refund of fees for class

members and has not returned any applications it improperly accepted from class members

during the period of January 29, 1997 to April 13, 2001.

Application of Defendants’ Policies and Practices to Plaintiffs and Members of the Plaintiff Class

43. Named Plaintiff members of the Ramos Class have been and continue to be

subjected to the policies and practices described above in paragraphs 29-42 in that visa petitions

were submitted on their behalf in a timely manner that should have allowed them to obtain the

benefits of Section 245(i) but because of the policies and practices of the Chicago District Office

they have been denied those benefits and have had fees improperly kept by the then INS as

follows:

a. Plaintiff Maria Rosa Ramos

i.

Maria Rosa Ramos is a Mexican citizen. She last entered the United

States in October 1996, without inspection. Ms. Ramos, who is divorced, is raising

her three children alone: they are ages 17, 1 I, and 6. Her youngest child is a U.S.

citizen, as is her brother.

ii. In January 1999, advised by Notary Public Antonio Perez, who charged her $400, Ms. Ramos applied for Adjustment of Status through her brother, a legal resident alien at that time. The visa petition could not be approved because that family relationship was not recognized for passing immigration benefits under the INA; only U.S. citizens can petition for siblings. 8 U.S.C. § l151(a), (b). There was therefore no visa "immediately available" at the time of the application.

iii. Although Ms. Ramos’ application was facially deficient, the Chicago District Office accepted Ms. Ramos’ application for filing. The INS then denied the application, kept the $345 in application fees, and used the information in her application to open an investigation targeting her, which eventually led to the initiation of removal proceedings against Ms. Ramos. The Government has never processed a refund of Mrs. Ramos’ application fees.

b. Plaintiff Apolinar

i. OchoaApolinar Ochoa is a Mexican citizen, who has resided in the United States since April 1989. Mr. Ochoa resides in the United States with his wife, now a permanent resident, and their three U.S. citizen children. Mr. Ochoa’s parents are both Lawful Permanent Residents in the United States. Two of his siblings are U.S. citizens, and two are permanent residents.

ii. Advised by a Notary Public at Jade Enterprises, who charged Mr. Ochoa $1200, Mr. Ochoa applied for Adjustment of Status through his U.S. citizen brother.
Because the visa through his brother was not immediately available, Mr. Ochoa was not yet prima facie eligible to apply for Adjustment of Status.

iii. Although Mr. Ochoa’s application was facially deficient, the Chicago INS District accepted the application for filing. After accepting the Adjustment of Status application, the Chicago District Office then denied the application, kept the application fees, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr. Ochoa.

iv.

Mr. Ochoa has not received a refund of his application fees.

c. PlaintiffFermin Gutierrez

i. Fermin Gutierrez is a Mexican citizen. He last entered the United States in 1990, without inspection. He lives with his wife and two U. S. citizen daughters. His sister, a U.S. citizen, filed a visa petition on his behalf.

ii. In November I997, Mr. Gutierrez paid $500 to an individual named Alfredo Estrada, and his assistant, Esteban Beltran. Through Mr. Beltran, Mr. Gutierrez applied for Adjustment of Status application through his U.S. citizen sister. However, Mr. Gutierrez had no visa number "immediately available" at the time of his application. He was thus not prima facie eligible to apply for Adjustment of Status.

iii. On July 6, 2000, Mr. Gutierrez filed a criminal complaint against Mr. Beltran for deception and fraud. Mr. Gutierrez also flied a complaint with the City of Chicago Department of Consumer Services. On January 10, 2001, Esteban Beltran pled liable to two counts of deceptive practice in an administrative hearing. In a signed statement, Beltran admitted, among other things, that he had prepared the immigration documents for Mr. Gutierrez.

iv. The Chicago District Office accepted Mr. Gutierrez’s Adjustment of Status application. The INS then denied the application, kept the application fees, and used the information in his application to open an investigation targeting him,
3-6

which eventually led to the initiation of removal proceedings against Mr. Gutierrez. He has received no refund of application fees.

d. Plaintiff Fernando Carranza

i.

Femando Carranza is a Mexican citizen. He last entered the United States.

In April 1993, without inspection. Mr. Carranza is married to an immigrant and has

three children, alI U.S. citizens under the age of 10. His U.S. citizen mother filed a

visa petition on his behalf, which was approved with a priority date of May 29, 1997.

ii. In June 1999, Mr. Carranza paid $200 to James Giuseffi of Centro Medico de Amnestia (Medical Amnesty Center), and gave him $1,345 for the INS. Through Mr. Giuseffi, Mr. Carranza filed an application for Adjustment of Status. However, at the time he applied for Adjustment of Status, there was no visa "immediately available" to Mr. Carranza. He was therefore not prima facie eligible
to apply for Adjustment of Status.

iii. The Chicago District Office accepted Mr. Carranza’s Adjustment of Status application. The INS then denied the application, kept the $1,345 in processing fees, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr Carranza. Mr. Carranza has never received any refund from the Government of his application fees. ~"

e. Plaintiff Gabriel Torres

i. Gabriel Torres is a citizen of Mexico, who has resided in the United States since 1995. His father, a permanent resident alien, filed a visa petition for him in 1997.
ii. In 1999, Mr. Tortes paid Notary Public Antonio Perez $500 to assist him in applying for legal status. Through Perez, Mr. Torres applied for Adjustment of Status. Mr. Torres’ visa petition was not yet "immediately available" at the time he applied for Adjustment of Status. He was thus not prima facie eligible to apply for Adjustment of Status.
iii. The INS accepted Mr. Torres’ Adjustment of Status application for filing. The INS accepted the fees, processed the application, denied it, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr. Tortes. Mr. Torres has never received a refund from the Goverm-nent of his application fees.
iv. At an April 11, 2001, hearing before an Immigration Judge, Mr. Torres admitted the allegations that he had no permission to be in the United States, and accepted an order of Voluntary Departure in lieu of an order of removal. As a result
3.7

of this lawsuit, the INS agreed to grant him a Stay of Removal through February 12, 2002, which they subsequently extended to August 13, 2002. Mr. Torres has not departed the United States.

f. Plaintiff Hector Diaz

i. Hector Diaz also applied for Adjustment of Status with "assistance" from Antonio Perez, a Notary Public. Mr. Diaz is unmarried, but has two U.S. children, with whom he lives. His father, a legal resident, filed a visa petition on his behalf, which was approved with a priority date of April 13, 1992. At the time Mr. Diaz applied for Adjustment of Status, there was no visa "immediately available" to him. He was thus not prima facie eligible to apply for Adjustment of Status.

ii. The Chicago District Office accepted the Adjustment of Status application. It then denied the application, kept the processing fees, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr. Diaz. Mr. Diaz was ordered to voluntarily depart the United States, in lieu of being removed by the Government; he complied with that order, and is current in Mexico.

iii.

The Government has never issued Mr. Diaz any refund of application fees.

Plaintiff Juan Manuel Rodriguez i. In May 1999, Juan Manuel Rodriguez went to Notary Public Antonio Perez, who "helped" him apply for Adjustment of Status through his U.S. citizen brother, Javier Rodriguez Cholico. There was not a visa number immediately available to Mr. Rodriguez at the time of his application. He was therefore not prima facie eligible to apply for Adjustment of Status.

ii. The Chicago District Office accepted the Adjustment of Status application. The INS then denied the application, kept the application fees, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr. Rodriguez. Mr. Rodriguez was ordered to voluntarily depart the United States, in lieu of being removed by the Government; he complied with that order, and is current in Mexico.

111.

Mr. Rodriguez has never received any refund of his application fees.

44. Named Plaintiff members of the Olivares Class have been and continue to be

subjected to the policies and practices described above in paragraphs 29-42 in that adjustment of

status applications and the fees for those applications were accepted by INS without lawful basis

18

to do so and thus these Plaintiffs have been deprived of the funds used for these application fees

as follows:

a. Plaintiff Nicolas Olivares

i.

Nicolas Olivares is a Mexican citizen. He last entered the United

States in January 1995, without inspection, but has been residing in the United States

continuously since February 1988.

ii. In January 1998, Mr. Olivares paid $300 to Alfredo Estrada, a Notary Public, to heIp him apply for Adjustment of Status through his lawful permanent resident brother. Because there is no visa category for sibIings of permanent residents, Mr. Olivares was not prima facie eligible for Adjustment of Status when he applied.

iii. The Chicago District Office accepted Mr. Olivares’s Adjustment of Status application. The INS then denied the application, kept the application fees, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr. Olivares.

b. PlaintiffEfren de la Torte

i. Efren de la Torre is a 25 year old citizen of Mexico, who has
resided in the United States since 1994, when he was 15 years old. He paid Antonio Perez $200 to file an application for Adjustment of Status through a U.S. citizen aunt. In fact, aunts and uncles cannot petition for nieces and nephews; this is not a visa category recognized by law.

ii. Because there was no visa "immediately available" to Mr. de la Torte at the time of the application, he was not prima facie eligible for Adjustment of Status.

iii. The Chicago District Office accepted Mr. de la Torre’s application for Adjustment of Status. The INS then denied the application, kept the application fees, and used the information in his application to open an investigation targeting him, which eventually led to the initiation of removal proceedings against Mr. de la Torre.

iv. Mr. de la Torre was ordered removed in absentia on January 10, 2001. The INS granted him a Stay of Removal, in connection with this case, which expires on August 13, 2002. He remains within the United States.

Mr. de la Torre has never received any refund of his INS application fees.

45. Defendants’ policies as described in paragraphs 29-42 have been applied, and will continue to be applied, unless enjoined, to both Named Plaintiffs and to the members of the both Plaintiff classes.
46. Members of the Plaintiff classes have been subjected to, are being subjected to, and, unless the policies and practices of the Chicago District Office are enjoined, will continue to be subjected to, the same or similar types of injuries as have the named plaintiffs. The named plaintiffs will continue to be subject to the same or similar types of injury, unless such policies are enjoined.
V. EXHAUSTION OF ADMINISTRATIVE REMEDIES 47. Plaintiffs are excused from exhausting their administrative remedies. First, and foremost, the Plaintiffs are raising substantial constitutional questions which are not mere procedural errors that can be corrected by the immigration court, but rather are constitutional errors pre-dating the proceedings and are, thus, insulated from review by institution of removal proceedings. 48. Secondly, the Immigration Courts lack the ability and competence to adjudicate class-wide claims and to grant class-wide relief. The jurisdiction of the Immigration Courts is limited to the individuals in removal proceedings before them by 8 C.F.R. §3.14. Also, there is no right of discovery during removal proceedings, and the Immigration Courts have very limited discovery powers, thus, preventing the development of an administrative record of the constitutional claims for the Circuit Court. Thus, the Immigration Courts are particularly illsuited for considering constitutional claims requiring discovery and/or factfinding between multiple parties.
2o

49. Additionally, requiring exhaustion would be futile since the Immigration Court would not be able to adjudicate the class-wide constitutional and statutory claims presented in this complaint, and, therefore, Plaintiffs would not be able to develop an adequate record of those claims for review in the Circuit Court.
50. Finally, Plaintiffs do not concede that they have failed to exhaust their administrative remedies since Plaintiffs complain of the act of the Defendants in wrongfully accepting their applications and retaining fees for Adjustment of Status and using the information in those applications to open investigations against them. Those acts were complete upon acceptance of the application, and defendants’ procedures and regulations do not provide for any means, other than the institution of this lawsuit, for challenging the propriety of their acts in this regard or obtaining restitution for fees wrongfully retained.
VI. CLAIMS FOR RELIEF COUNT ONE (Administrative Procedures Act by the Ramos Class
and Named Members of that Class) 1 .-50. Plaintiffs reallege and incorporate by reference the allegations contained in ¶¶ 150 as ¶¶1-50 of Count I. 51. The Chicago District Office policy in effect from January 29, 1997, through April 13, 2001, was and remains an agency action not in accordance with the law because it violates the INA, as well as the INS regulations. Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. 52. The statutory requirements for adjustment of status are found in INA §245, 8 U.S.C. § 1255. That section governs the circumstances under which the Attorney General can accept an Adjustment of Status application, and specifically requires that a visa be "immediately available" at the time such application is flied. Further, the regulations governing Adjustment of
21

Status filings are found at 8 C.F.R. §245.2. These regulations were promulgated, and are binding
upon the Defendants.
53. The general rule for applications to the INS was that applications were "properly
filed" when they are received, signed and with proof of proper payment affixed. 8 C.F.R.
§ 103.2(a)(7)(i) (2000). Adiustment of Status applications filed pursuant to section 245, however,
have additional requirements to be considered "properly filed." 8 C.F.R. §245.2 states:
Proper filing of application-(i) Under section 245. Before an application for adjustment of status under section 245 of the Act may be considered properly filed, a visa must be immediately available. If a visa would be immediately available upon approval of a visa petition, the application will not be considered properly filed unIess such petition has first been approved. If an immediate relative petition filed for classification under section 201(b)(2)(A)(i) of the Act or a preference petition filed for classification under section 203(a) of the Act [family-sponsored immigrants] is submitted simultaneously with the adjustment application, the adjustment application shall be retained for processing only if approval of the visa petition would make a visa immediateIy available at the time of filing the adjustment application. If the visa petition is subsequently approved, the date of filing the adjustment application shall be deemed to be the date on which the accompanying petition was filed.
8 C.F.R. § 245.2 (a)(2)(i) (2000) (emphasis added).
54. Thus, under the regulations issued to implement INA §245, an Adjustment of
Status application is not "properly filed" unless it is signed, the proper fee is tendered, and it is
accompanied by proof that the visa petition (a) has a current priority date, or (b) is of the type
that creates an immediate entitlement to a visa once it is approved (i.e., the beneficiary is the
"immediate relative" of a U.S. citizen petitioner).
55. An employee of the CIS (formerly INS) can readily determine if condition (a) is
satisfied by checking the priority date on the petition’s approval notice against the State
22

Department’s monthly bulletin of current priority dates. See Exhibit A. That same employee can readily determine if condition (b) is satisfied by seeing if the visa petition is filed by a U.S. citizen on behalf of a spouse, parent, or unmarried child as defined in the INA.
56. The Chicago District Office’s handling of applications for Adjustment of Status was and remains an agency action which is also arbitrary and capricious because it was contrary to the policies of other district and subdistrict offices of the INS. Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.
57. On information and belief, most district and subdistrict offices of the INS around the U.S. complied with the regulations and review all Adjustment of Status applications to make sure that the application includes proof that a visa is "immediately available," in order to be deemed "properly filed." On information and belief, almost all of these offices reject for processing any applications that are not "properly filed," including those that fail to demonstrate that a visa is "immediately availabIe," and return them to the applicant, along with the special processing and filing fees. These district and subdistrict offices do not attempt to deal with the applications on their merits without making that threshold determination, nor do they investigate applicants or put them into removal proceedings based on the information disclosed in their applications.
58. The Chicago District Office’s failure to comply with the INA and INS regulations has resulted in thousands of unsuspecting immigrants losing the filing and processing fees they paid to the INS, and/or having the information provided in their applications for legal permanent residence, which should never have been processed, used to open investigations against them which either have led or will lead to the institution of removal proceedings against them. The actions, as applied to the named Plaintiffs and to the Plaintiff class, are final agency orders. 23

59. The CIS and its district and subdistrict offices are "agencies" as defined in the Administrative Procedure Act, as are the ICE and its field offices. See 5 U.S.C. § 701(b)(1).
60. As a direct and proximate result of Chicago District Office’s unlawful and arbitrary policy, Plaintiffs suffered injuries including the loss of the significant filing fees they paid to the INS, and/or having their applications used to open investigations against them which led or will lead to the institution of removal proceedings.
COUNT TWO (Declaratory Judgment by Ramos Class and Named Plaintiff Members of that Class)
1.-60. Plaintiffs incorporate by reference and reallege the allegations contained in ¶¶ 176 as ¶¶1.-76 of Count V.
61. An actual and substantial controversy has arisen between the parties, and that controversy continues to exist regarding their respective rights and duties, including without limitation the proper handling of plaintiffs’ Adjustment of Status applications and the propriety of ongoing efforts to remove members of the plaintiff class.
62. Declaratory relief is necessary in that, as noted herein, the plaintiffs contend, and Defendants deny, that the plaintiffs’ applications and fees should be returned to them, and that the Defendants’ actions are in violation of the statutory and regulatory obligations of the Government.
COUNT THREE (Claim for Restitution Under the APA by the Olivares Class and Named Members of that Class)
1 .-62. Plaintiffs incorporate by reference and reallege the allegations contained in ¶¶ 178 as ¶¶1.-78 of Count VI.
24

63. That Chicago District Office’s handling of applications for Adjustment of Status and keeping the fees for improperly accepted applications was and remains an agency action which is arbitrary, capricious, or not in accordance with the law, in that it fails to comply with the INA, as well as the applicable regulationAs.dministrative Procedure Act, 5 U.S.C. §§ 701 et seq.
64. The CIS and its district and subdistrict offices are "agencies" as defined in the Administrative Procedure Act, as are the ICE and its field offices. See 5 U.S.C. § 701(b)(1).
65. As a direct and proximate result of Chicago District Office’s policy violating provisions of the INA and its regulations, the Oliveres Class members and Named Plaintiffs suffered the loss of the significant filing fees they paid to the INS.
COUNT SEVEN (Declaratory Judgment by Olivares Class and Named Plaintiff Members of that Class)
1.-65. Plaintiffs incorporate by reference and reallege the allegations contained in ¶¶ 181 as¶¶l.-81 of Count V.
66. An actual and substantial controversy has arisen between the parties, and that controversy continues to exist regarding their respective rights and duties, including without limitation the proper handling of plaintiffs’ Adjustment of Status applications.
67. Declaratory relief is necessary in that, as noted herein, the plaintiffs contend, and Defendants deny, that the plaintiffs’ applications and fees should be returned to them, and that the Defendants’ actions are in violation of the statutory and regulatory obligations of the Government.
VII. IRREPARABLE INJURY ALLEGATIONS
25

68. Plaintiffs have no adequate remedy at law to redress the violations of law and the injuries alleged herein and this suit for declaratory judgment and injunctive relief is their only means of securing adequate redress from defendants’ unlawful policy. Plaintiffs have and will continue to suffer irreparable injury from defendants’ policy and practices set forth herein unless enjoined by this court. Unless restrained and enjoined by this Court, defendants will continue their unlawful acts as alleged herein, causing the plaintiffs irreparable injury.
VIII. PRAYER FOR RELIEF Wherefore, Plaintiffs request that this Court: I. As to Plaintiffs Ramos, Ochoa, Gutierrez, Carranza, Torres, Rodriguez, and Diaz, and
members of the Ramos Class: A. Certify the Plaintiff Class pursuant to Rules 23(a) and 23(b)(2) of the F. R.Civ. P. B. Find and declare Defendants’ actions are arbitrary, capricious, and not in
accordance with the INA, applicable regulations, and the Due Process and Equal Protection requirements of the Fifth Amendment. Specifically, Plaintiffs pray that this Court:
1. Declare that Defendants have violated 8 U.S.C. §1255 and 8 C.F.R. §245.2(a)(2)(i) by failing to reject and return adjustment of status applications that are not "properly filed" because they fail to demonstrate that a visa is "immediately available," as well as the fees associated with those applications.
2. Declare that the promulgated regulations required the Chicago District Office to review Adjustment of Status applications to see

whether a visa is "immediately available" to the applicant, prior to accepting such applications. 3. Declare that, where no visa is "immediately available," the reguIations required the Chicago District Office to reject the application and return it forthwith to the applicant, along with the special processing and filing fees. 4. Declare that in no event shall the Chicago District Office’s erroneous denial of an Adjustment of Status application on the ground that a visa is not "immediately available" be deemed a decision on the merits of such an application. 5. Declare that the policies and practices have violated Plaintiffs’ constitutional fights as alleged herein, Enjoin the Defendants, nationally and in the Chicago District Office from: 1. Acting on the merits of any Adjustment of Status application from Plaintiffs or Plaintiff Class members which was accepted prior to the institution of the current procedures, where there is no visa immediately available. 2. Retaining the fees for pending applications accepted prior to the currently instituted policy where there is no immediately available visa, and for applications denied prior to this lawsuit due to lack of an immediately available visa. 3. Using the information obtained from a premature Application to Adjust Status from Plaintiffs or Plaintiff Class Members for any 27

investigation that would lead to tlae issuance of any Notice to Appear (NTA) on the denial on the merits of an Adjustment of Status application that was not "properly filed," and should not have been accepted, or of filing any such NTAs with any immigration court. 4. Using any information obtained from the Applications for Adjustment of Status filed by Plaintiffs and the Plaintiff Class prematurely in any removal proceedings and/or to cause someone to be physically removed, voluntarily or otherwise, from the United States. 5. Taking any other steps that are not authorized under the 1NA, or Government’s regulations that govern applications for Adjustment of Status filed pursuant to INA Section 245(i). D. Order the Defendants to return all improperly filed Adjustment of Status applications, together with the fees that accompanied those applications. E. Award Plaintiffs’ costs and a reasonable attorneys’ fee. F. Grant any further relief that this Court deems necessary and proper. II. As to Plaintiffs Olivares and de la Torre, and members of the Olivares Class: A.. Find and declare Defendants’ actions are arbitrary, capricious, and not in accordance with the INA and applicable regulations. Specifically, Plaintiffs pray that this Court: 1. Declare that Defendants have violated 8 U.S.C. §1255 and 8 C.F.R. §245.2(a)(2)(i) by failing to reject and return adjustment of status applications that are not "properly filed" because they fail to
28

demonstrate that a visa is "immediately available," as well as the fees associated with those applications. 2. Declare that the promulgated regulations required the Chicago District Office to review Adjustment of Status applications to see whether a visa is "immediately available" to the applicant, prior to accepting such applications. 3. Declare that, where no visa is "immediately available," the regulations re__q.uired the Chicago District Office to reject the application and return it forthwith to the applicant, along with the special processing and filing fees. Order the Defendants to return all improperly filed Adjustment of Status applications, together with the fees that accompanied those applications. Award Plaintiffs’ costs and a reasonable attorneys’ fee. Grant any further relief that this Comrt deems necessary and proper. DATED this 26th day of January, 2004. Respectfully submitted: ~ ~

One oI" Attdrffeys for Plaintiffs and Plaintifa~lass

Alonzo Rivas Mexican American Legal Defense and Educational Fund 188 West Randolph St., Suite 1405 Chicago, IL 60601 (312) 782-1422

Steven Saltzman 122 S. Michigan, Ste. 1850 Chicago, Illinois 60603
(312) 427-4500

Mary Meg McCarthy Charles Roth Midwest Immigrant & Human Rights Center 208 S. LaSalle St. Ste. 1818 Chicago, IL 60604
(312) 660-I351

29

Number 52 Volume VIII

United States Department of State Bureau of Consular Affairs
Visa Bulletin
Washington, D. C.

IMMIGRANT NUMBERS FOR DECEMBER 2002
A. STATUTORY NUMBERS
l. This bulletin summarizes the availability of immigrant numbers during December. Consular officers are required to report to the Department of State doeumentarily qualified applicants for numerically limited visas; the Immigration and Naturalization Service reports .applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by November 8th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which detrtand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-offdate, supplemental requests for numbers will be honored only if the priority date fails within the new cut-offdate.
2. Section 201 of the Immigration and Nationality Act (INA) sets an artnual minimum familysponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least I40,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320
3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:
FAMILY-SPONSORED PREFERENCES
First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: I 14,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:
A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.
Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers.not required by first and second preferences.

http://travel.state.gov/visa_bulletin.html

11 / 13]02

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.
EMPLOYMENT-BASED PREFERENCES
First: Priority Workers: 28.6%.of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers."
Fourth: Certain Special Immigrants: 7.1% of the worldwide level.
Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. I02-395.
4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: MEXICO and PHILIPPINES.
5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Priority Dates for Family Based Immigrant Visas

¯ AR Chargeability MEXICO Areas Except Those Listed

PHILIPPINES

Family

1st 08APR99

15OCT92 01ARP90

2A* 22SEP97

08APR95 22SEP97

http://travel.state.gov/visa__bulletin.html

11/13/02

2B 08APR94 3rd 22DEC96 4th 08DEC90

01 NOV91 08APR94 01NOV92 01DEC89 01NOV90 01DEC81

*NOTE: For December, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 08APR95. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with p~iority dates beginning 08APR95 and earlier than 22SEP97. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

Priority Dates for Employment-Based Immigrant Visas

All Chargeability Areas Except Those
Listed

MEXICO

PHILIPPINES

Employment-Based

1st

C

C

C

2nd

C

3rd

C

C

C

C

C

Other Workers

C

4th

C

C

C

C

C

Certain Religious Workers

5th

C

C

C

C

C

http://travel.state.gov/visa_bulletin.html

1 I/13/02

Targeted Employment C Areas/Regional Centers

The Department of State has available a recorded message with visa availability information which can be heard at (202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.
B. DIVERSITY IMMIGRANT (DV) CATEGORY
Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for.persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NCARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NCARA program. This reduction has resulted in the DV-2003 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.
For December, immigrant numbers in the DV category are available to qualified DV-2003 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
All DV Chargeability Areas Except Those Listed Separately
Region
AFRICA: AF 9,800 ASIA: AS 4,075 EUROPE: EU 15,850 NORTH AMERICA (BAHAMAS): NA l0 OCEANIA: OC 200 SOUTH AMERICA, and the CARIBBEAN: SA 625
Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for. all applicants registered for the DV-2003 program ends as of September 30, 2003. DV visas may not be issued to DV-2003 applicants after that date. Similarly, spouses and children accompanying or following to join DV2003 principals are only entitled to derivative DV status until September 30, 2003. DV visa availability through the very end of FY-2003 cannot be taken for granted. Numbers could be exhausted prior to September 30. Once all numbers provided by law for the DV-2003 program have been used, no further issuances will be possible.
C. ADVANCE NOTIFICATION OF TIlE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN JANUARY
ForJanuary, immigrant numbers in the DV category are available to qualified DV-2003 applicants ehargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
All DV Chargeability Areas Except Those Listed Separately

http://travel.state.gov/visa_bulletin.html

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Region
AFRICA: AF 11,500 ASIA: AS 5,200 Except: BANGLADESH 5,060 EUROPE: EU 18,000 NORTH AMERICA (BAHAMAS): NA 11 OCEANIA: OC 256 SOUTH AMERICA, and the CARIBBEAN: SA 700
D. OBTAINING THE MONTHLY VISA BULLETIN The Department of State’s Bureau of Consular Affairs offers the monthly Visa Bulletin on the INTERNET’S WORLDWIDE WEB. The INTERNET Web address to access the Bulletin is:
http://travel.state.gov ¯ From the home page, select the VISA seetior~ which contains the Visa Bulletin.
Individuals may also obtain the Visa Bulletin by FAX. From a FAX phone, dial (202) 647-3000. Follow the prompts and enter in the code 1522 to have each Bulletin FAXed.
To be placed on the Department of State’s E-mail subscription list for the Visa Bulletin, please provide your E-mail information to the following E-mail address:
VISABULLETIN@STATE.GOV The Department of State also has available a recorded message with visa cut-off dates which can be heard at (202) 663-1541. The recording is normally updated by the middle of each month with information on eut-offdates for the following month.
The Visa Bulletin can also be contacted by e-mail at the following address:
VISABULLETIN@STATE.GOV
Department of State Publication 9514 CA/VO:November 8, 2002

http://travel.state.gov/visa_.bulletin.html

I 1/13/02

 
 Ramos v. Ashcroft, Not Reported in F.Supp.2d (2004)
2004 WL 161520 Only the Westlaw citation is currently available.
United States District Court, N.D. Illinois, Eastern Division.
Maria Rosa RAMOS, et. al, Plaintiffs, v.
John ASHCROFT, et al, Defendants.
No. 02 C 8266. | Jan. 16, 2004.
Attorneys and Law Firms
Mary Margaret McCarthy, Charles G. Roth, Midwest, Immigrant & Human, Steven I. Saltzman, Attorney at Law, Patricia Mendoza, Alonzo Rivas, Mexican–American Legal Defense and Educational Fund, Chicago, IL, for plaintiffs.
AUSA, Sheila McNulty Entenman, Chicago, IL, for defendants.
Opinion
MEMORANDUM OPINION AND ORDER
COAR, J.
*1 This case comes before the Court on Defendants’ Motion to Dismiss Plaintiff’s Complaint for failure to state a claim, pursuant to Federal Rules of Civil Procedure 12(b)(6). Both parties have fully briefed the issues in Defendant’s Motion and it is now ripe for decision.
I. FACTUAL AND PROCEDURAL BACKGROUND Eleven immigrant plaintiffs filed this class action complaint on November 15, 2002, on behalf of a class of immigrant plaintiffs who filed applications for adjustment of status under Section 245(i) of the Immigration and Nationalization Act in the Chicago District Office of the Immigration and Naturalization Service (INS) between January 29, 1997, and April 13, 2001. The complaint challenges the policies of the Chicago District Office of the INS relating to the processing of applications for adjustment of status under Section 245(i). Subsequent to the processing of these applications, the Chicago office relied on the information in the applications for adjustment of status to initiate investigations and removal proceedings against the unsuccessful applicants.
The Court will again review the law governing the

applications for adjustment of status under Section 245(i). In 1994, Congress enacted Section 245(i) of the Immigration and Nationalization Act to permit undocumented immigrants already in the United States to stabilize their immigration status if they were related to persons who were in the United States legally. See 8 U.S.C. § 1255(i). Although it was not referred to as an amnesty program, for those undocumented immigrants who qualified for an adjustment of status under § 245(i), it had the effect of excusing their undocumented entry to the United States. The qualifying relative could file an immediate relative visa petition on behalf of the undocumented relative (INS form I–130). Once the petition was filed and approved, the undocumented relative could submit the application for adjustment of status (INS form I–485). If a visa was immediately available to the applicant, the application could be approved at the discretion of the Attorney General and the undocumented relative could obtain a work authorization.
Plaintiffs allege that the acceptance and processing of these applications in the Chicago District Office during the class period was improper under the regulatory scheme. They contend that the applications should not have been processed under the statute and accompanying regulations unless a visa was immediately available to the applicant. Defendants assert that the Plaintiffs’ reading of the immigration statutes and regulations is incorrect. They contend that the sole proper consequence of filing an application for adjustment of status when a visa was not immediately available is to deny the application.
Defendants previously moved to dismiss the complaint for lack of jurisdiction. On September 30, 2003, this Court denied that motion in a written order. See Ramos v. Ashcroft, No. 02 C 8266, 2003 WL 22282521 (N.D.Ill., Sept.30, 2003). Defendants now seek to dismiss the Complaint for failure to state a claim. Their Motion to Dismiss states several grounds for dismissal. First, they contend that the actions of the Chicago District Office were proper under the statute. Second, they contend that Plaintiffs’ constitutional claims cannot be sustained as a matter of law. Finally, they assert that the Plaintiffs are ineligible for the injunctive relief that they seek in their Complaint.
II. STANDARD OF REVIEW *2 In reviewing a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the district court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the plaintiff. See Transit Exp. Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir.2001). The district court should not grant a motion to dismiss “unless it appears beyond doubt that the plaintiff can prove no set of facts in
1

Ramos v. Ashcroft, Not Reported in F.Supp.2d (2004)
support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
III. DISCUSSION The central dispute between the parties in this case revolves around an interpretation of the statutes and regulations that govern the acceptance and processing of Applications for Adjustment of Status under Section 245(i) of the Immigration and Naturalization Act, 8 U.S.C. § 1255(i). The Court will begin its discussion there and then it will move on to discuss the constitutional allegations in the Complaint and the possibility of injunctive relief.
A. Count I: Violation of the Administrative Procedures Act Plaintiffs allege in Count I that the policies and practices of the Chicago District Office of the INS with respect to the applications for adjustment of status violated the Administrative Procedures Act, 5 U.S.C. § 706. In order to survive a motion to dismiss, this complaint under the Administrative Procedures Act (APA) must allege that the challenged federal agency action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See 5 U.S.C. § 706.
1. Interpretation of 8 U.S.C. § 1255 Section 245(i) of the Immigration and Naturalization Act, 8 U.S.C. § 1255(i), sets forth the relevant law relating to the adjustment of status program. The law declares that the Attorney General “may accept such application [for adjustment of status] only if the alien remits with such application a sum equalling $1,000 as of the date of receipt of the application.” 8 U.S.C. § 1255(i)(1). According to the face of the statute, then, the $1,000 special processing fee is a co-requisite of filing the application. The law further states that “upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if ... an immigrant visa is immediately available to the alien at the time the application is filed.” 8 U.S.C. § 1255(i)(2). The application cannot be granted under Section 245(i) of the Act unless a visa is immediately available.
The Code of Federal Regulations contains the specific regulations that individuals must follow if they choose to seek the benefits of the statute. The parties disagree about which section of the Code of Federal Regulations governs filing of an application for adjustment of status. Defendants assert that the general filing procedures for applications to the INS, found at 8 C.F.R. § 103.2 (2000),

governs the filing of these adjustment applications. Plaintiffs claim that the specific filing procedures for applications for adjustment of status found at 8 C.F.R. § 245.2(a)(2)(i) (2000) sets forth the governing filing requirements. The general rule which Defendants urge allows that applications are properly filed when they are received, signed, and accompanied by proper payment.
*3 Defendants point to the incorporation of these requirements in 8 C.F.R. § 245.10 as support for their position. Defendants assert that the “explicitness of 8 C.F.R. § 245.10 and its incorporated reference to 8 C.F.R. § 103.2(a)(1) and (a)(2)” is determinative. (Def. Mot. Dismiss at 5.) Defendants are correct that the explicitness of 8 C.F.R. § 245.10 is determinative of its content, but they are incorrect that it explicitly sets forth filing requirements for Adjustment of Status Applications. Section 245.10 explicitly sets filing requirements for the qualifying immigrant visa petitions that the relative of the undocumented immigrant must file prior to the application for the adjustment of status. The regulation that Defendants rely on does not reference or even mention the applications for adjustment of status that are at issue here.1
The regulation that the Plaintiffs highlight, by contrast, is entitled “Proper Filing of application under Section 245.” 8 C.F.R. § 245.2(a)(2)(i) (2000) The regulation, as it was during the class period,2 read:
Before an application for adjustment of status under section 245 of the Act may be considered properly filed, a visa must be immediately available. If a visa would be immediately available upon approval of a visa petition, the application will not be considered properly filed unless such petition has first been approved. If an immediate relative petition filed for classification under section 201(b)(2)(A)(i) of the Act or a preference petition filed for classification under section 203(a) of the Act is submitted simultaneously with the adjustment application, the adjustment application shall be retained for processing only if approval of the visa petition would make a visa immediately available at the time of filing the adjustment application. If the visa petition is subsequently approved, the date of filing the adjustment application shall be deemed to be the date on which the accompanying petition was filed.
2

Ramos v. Ashcroft, Not Reported in F.Supp.2d (2004)
The Court holds that the filing requirements for applications for adjustment of status are clearly set forth in 8 C.F.R. § 245.2(a)(2)(i) (2000). Defendants are right, however, that Section 245.2(a)(2)(i) cannot be looked at in a vacuum, as there are significant filing requirements (location, fees, etc.) that are not discussed there. Consequently, the Court holds that the filing requirements of Section 245.2(a)(2)(i) supplement the general filing requirements of Section 103.2 and, in the event of a conflict between them, the specific requirements listed above would prevail.
By its own terms, then, the regulation dictates that the adjustment of status applications would not be considered “properly filed” unless a visa would be “immediately available.” This begs the question that underlies this lawsuit: what are the consequences, if any, of filing an application for adjustment of status under § 245(i) when a visa is not immediately available? Or, to put it another way, what happens to a filing that is not “properly filed”?
*4 Plaintiffs allege that the practice in most INS district and subdistrict offices was to return the applications along with the filing and processing fees if a visa was not immediately available to the applicant. (Pl.Comp.¶ 52) Plaintiffs urge that the Chicago District Office of the INS was similarly required by statute to return the application and the fees to the applicant if the visa was not immediately available. In support of their position, they point to the language of the Section 245.2(a)(2)(i) that indicates that the applications “shall be retained for processing only if approval of the visa petition would make a visa immediately available at the time of filing the adjustment application.” 8 C.F.R. § 245.2(a)(2)(i). In the full context of the regulation (which is quoted above), however, it is clear that this circumstance does not apply directly to every Application for Adjustment of Status; it only applies directly when the adjustment application “is submitted simultaneously” with the immediate relative visa petition. It is not clear from the complaint that any of the named Plaintiffs submitted their adjustment applications simultaneously with an immediate relative visa petition, but it is possible that some of the class members did so.
Even if none of the class members filed their applications simultaneously with an immediate relative visa petition, this would not doom the Complaint. Plaintiffs urge that the regulations should be interpreted to require a visa to be immediately available before an application for adjustment of status is accepted in the INS District Office. The policies underlying this interpretation are consistent with the policies of the statute as a whole. The statute is designed to encourage undocumented immigrant relatives to stabilize their immigration status in the United States without requiring them to leave the country. There is no apparent reason to differentiate between the premature adjustment application that is filed simultaneously with an

immediate relative visa petition and a premature adjustment application that is filed subsequent to an immediate relative visa petition. If a visa is not immediately available, the applications in both instances would be denied under the statute. Plaintiffs assert that the regulations should be interpreted to require immediate availability of visas. This interpretation is compelling enough to be endorsed by the American Law Reports. See 4 A.L.R. Fed. 557, § 14 (“The regulations state that before an application for adjustment of status under § 245 may be accepted and considered properly filed, a visa must be immediately available to the applicant ...”).
At this stage, this Court does not need to determine whether the statute affirmatively requires the INS to reject premature adjustment applications without processing them. If many other INS district offices in the country returned both the application and the accompanying fees to applicants when visas were not immediately available, as alleged, Plaintiffs’ Complaint states a claim that the challenged agency action was arbitrary and capricious. That is all that is required to state a claim under the APA.
*5 Accepting the allegations as true, Count I of Plaintiff’s Complaint states a claim under the APA. Consequently, the Motion to Dismiss will be denied as to Count I of the Complaint.
B. Count II: Procedural Due Process Count II of Plaintiff’s Complaint alleges that the policy and actions of the Chicago District Office of the INS violated their procedural due process rights under the Fifth Amendment. In order to state a claim for a procedural due process violation, the Plaintiffs must allege that they have a constitutionally protected property or liberty interest. This must be a “legitimate claim of entitlement to [the benefit]” rather than “an abstract need or desire for it.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
Plaintiffs cannot sustain their procedural due process claim. The Plaintiffs have conceded that they were ineligible for an adjustment of status at the time they submitted their applications. Moreover, even if the Plaintiffs were eligible for an adjustment of status, mere eligibility under the statute is not determinative of an adjustment: the Attorney General retains discretion to deny adjustment even for those who are statutorily eligible. Cf. Drax v. Reno, 338 F.3d 98, 113 (2d Cir.2003) (“an adjustment of status under § 245(a) is entirely discretionary[;] ... even where an alien satisfies the statutory requirements of eligibility for an adjustment of status ..., ‘the [INS] has discretion under section 245 to deny the application.’ Jain v. INS, 612 F.2d 683, 687 (2d Cir.1979).”). The Supreme Court has confirmed that the INS need not have even considered their statutory
3

Ramos v. Ashcroft, Not Reported in F.Supp.2d (2004)
eligibility if, in its discretion, the agency determined that they were otherwise ineligible for an adjustment. See INS v. Bagamasbad, 429 U.S. 24, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) (per curiam). Since the Plaintiffs cannot show that they had a legitimate entitlement to the ultimate benefit of the adjustment application, their claim that the way their applications were handled is a constitutional problem of procedural due process under the Fifth Amendment is unavailing.
C. Count III: Equal Protection of the Laws Plaintiffs claim in Count III that Defendants’ actions deprived them of equal protection of the laws. Because the Plaintiffs are challenging the actions of the federal government, this claim arises under the Fifth Amendment’s Due Process Clause, which contains an implicit guarantee of equal protection of the laws, rather than the Fourteenth Amendment’s Equal Protection Clause (which only applies to the states). In order to sustain their complaint of an equal protection violation, the Plaintiffs must allege that the law creates distinctions between classes of aliens that were not supported by a rational basis. See Matthews v. Diaz, 426 U.S. 67, 80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976).
Here, Plaintiffs do not challenge the distinctions created by the law; rather they challenge the distinctions that the INS created between classes of aliens who were seeking an adjustment of status. Although this is cast as an equal protection claim, it is more properly depicted as a selective enforcement challenge to the Chicago District Office’s enforcement policy. According to Plaintiff’s Complaint, the Chicago District Office chose to investigate those immigrants who submitted premature applications for adjustment of status during the class period and it chose not to investigate those who submitted premature applications before or after the class period.
*6 The Supreme Court has counseled strongly against accepting a selective enforcement claim in the immigration context. See Reno v. American–Arab Anti–Discrimination Committee [Reno v. AAADC], 525 U.S. 471, 488–92, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). In Reno, the Court announced that “as a general matter ... an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.” Id. at 488. The concerns that counsel caution in selective enforcement claims generally “are greatly magnified in the deporation context.” Id. at 490.
To the extent that Plaintiff’s purported equal protection claim alleges that this class of immigrants was treated differently than other similar classes without any rational basis to do so, such allegations would buttress their claim that the agency action was arbitrary and capricious in violation of the Administrative Procedures Act. It does

not, however, state a separate constitutional claim.
D. Count IV: Substantive Due Process In Count IV, Plaintiffs claim that the Defendants’ actions in investigating and commencing proceedings against them interfered with their right of familial association which is protected among other substantive rights under the Due Process Clause of the Fifth Amendment. The claim that enforcement of immigration statutes unconstitutionally impinges on family relationships has never gotten far in American courts. See, e.g., Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (holding that it did not violate equal protection for natural mothers to receive immigration privileges that natural fathers did not); Newton v. I.N.S., 736 F.2d 336 (6th Cir.1984) (holding that it did not violate U.S. citizen children’s rights to deport their parents). It gets no farther today, even though Plaintiffs are right that the statute in question seeks to permit laudatory family unification.
In their response to the Motion to Dismiss, Plaintiffs contend that they are arguing in Count IV “that Defendants’ actions are contrary to the spirit of section 245(i) and to the section’s implementing regulations, and have interfered with their federally protected right to unite with their citizen and legal permanent resident family members.” (Pl. Resp. Mot. Dismiss, at 11.) As noted above in the discussion of the procedural due process claim, the Plaintiffs do not have a “federally protected right to unite with their citizen and legal permanent resident family members.” They have a federally created opportunity to apply for an adjustment of status that, if granted, would permit them to unite legally with their citizen and legal permanent resident family members. Defendants’ actions are arguably contrary to the Administrative Procedures Act, but they do not run afoul of the Plaintiffs’ substantive due process rights.
E. Limitations on Injunctive Relief Defendants assert that Plaintiffs are statutorily precluded from granting injunctive relief on Plaintiff’s Complaint under Section 242(f) of the Immigration and Naturalization Act, 8 U.S.C. § 1252(f). This portion of the statute prohibits courts other than the Supreme Court from “enjoin[ing] or restrain[ing] the operation of provisions of chapter 4 of Title II.” 8 U.S.C. § 1252(f)(1). Defendants are right that this does impose “nothing more or less than a limit on injunctive relief.” Reno v. AAADC, 525 U.S. at 481. By its own terms, however, it would not prevent the court from considering the injunctive relief sought in this case. Plaintiffs seek to enjoin what they allege are improper practices under 8 U.S.C. § 1255 and its accompanying regulations. This is outside of the scope of the statutory limitation on injunctive relief. See Catholic
4

Ramos v. Ashcroft, Not Reported in F.Supp.2d (2004)
Social Services, Inc. v. I.N.S., 232 F.3d 1139, 1150 (9th Cir.2000) (en banc) (“[T]he district court ... issued the preliminary injunction under 8 U.S.C. § 1255a.... Therefore, by its terms, the limitation on injunctive relief does not apply to the preliminary injunction granted by the district court.”). The Court makes no determination on the propriety of the injunctive relief that Plaintiffs seek in this case.

CONCLUSION
*7 For the foregoing reasons, the Defendants’ Motion to Dismiss Plaintiffs’ Complaint for failure to state a claim is granted as to Counts II through IV and denied as to Count I.
	  

5

 
 Ramos v. Ashcroft
United States District Court for the Northern District of Illinois, Eastern Division September 29, 2003, Decided ; September 30, 2003, Docketed No. 02 C 8266

Reporter: 2003 U.S. Dist. LEXIS 17426; 2003 WL 22282521 MARIA ROSA RAMOS, et. al, Plaintiffs, v. JOHN ASHCROFT, et al, Defendants.
Prior History: Rosa Ramos v. Ashcroft, 2002 U.S. Dist. LEXIS 1918 (N.D. Ill., 2002)
Disposition: [*1] Defendants' Motion to Dismiss Plaintiffs' Complaint denied.
Counsel: For Maria Rosa Ramos, Apolinar Ochoa, Argmira Ochoa, Nicolas Olivares, Fermin Gutierrez, Fernando Carranza, Gabriel Torres, Juan Rodriguez, Hector Diaz, Justino Castaneda, Efren De La Torre, PLAINTIFFS: Mary Margaret McCarthy, Midwest Immigrant & Human, Chicago, IL USA. Charles G Roth, Midwest Immigrant & Human, Chicago, IL USA. Steven I Saltzman, Attorney at Law, Chicago, IL USA. Patricia Mendoza, Mexican American Legal Defense & Educational Fund, Chicago, IL USA. Alonzo Rivas, Mexican-American Legal Defense and Educational Fund, Chicago, IL USA.
For John Ashcroft, Immigration and Naturalization Service, James W Ziglar, Brian Perryman, DEFENDANTS: AUSA, United States Attorney's Office, Chicago, IL USA.
Judges: David H. Coar, United States District Judge.
Opinion by: David H. Coar

Chicago District Office Immigration and Naturalization Service (INS) relating to the processing of applications for Adjustment of Status under Section 245(i) of the Immigration and Naturalization Act, 8 U.S.C. §§ 1255(i). This Court dismissed the earlier case for failure to exhaust administrative remedies on February 5, 2002. Three of the same plaintiffs, along with eight others, filed a class action complaint on November 15, 2002, seeking to challenge the policies of the Immigration and Naturalization Service (INS) relating to the processing of applications for Adjustment of Status under Section 245(i) on behalf of a class of immigrant plaintiffs who filed such applications in the Chicago District Office between January 29, 1997 and April 13, 2001.
[*3] The factual allegations of the instant class action complaint are essentially identical to those of the earlier complaint. The putative class of plaintiffs are individuals whose Applications for Adjustment of Status (INS form I485) were accepted in the Chicago district office of the INS during the class period. Plaintiffs allege that the acceptance and processing of these applications was improper under the regulatory scheme unless a visa would be immediately available to the applicant. Subsequent to the processing of these applications, the Chicago office relied on the information in the Applications for Adjustment of Status to initiate investigations and removal proceedings against the unsuccessful applicants.

Opinion
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Defendants' Motion to Dismiss Plaintiff's Complaint for want of jurisdiction and failure to state a claim, pursuant to Federal Rules of Civil Procedure 12(b)(1)and 12(b)(6) [*2] . Both parties have fully briefed the issues in Defendant's Motion and it is now ripe for decision.
Factual and Procedural Background
This case is a reincarnation of an earlier case, Ramos v. Ashcroft, No. 01-CV-2633. The factual allegations supporting both lawsuits are the same, though the legal presentation is slightly different. Fifteen immigrant plaintiffs filed the earlier case to challenge policies of the

In 1994, Congress enacted Section 245(i) of the Immigration and Naturalization Act (""Act"") to permit immigrants with qualifying family relationships who were in the United States illegally to stabilize their status through an Adjustment of Status. The process of adjusting an immigrant's status under Section 245(i) had several steps. First, a qualifying family member had to file an Immigrant Visa Petition (INS form I130) on behalf of the immigrant relative who sought to [*4] obtain lawful status by a certain date. The petition had to demonstrate two things: that the petitioner was lawfully in the United States and that the petitioner had the requisite family relationship with the relative. If the Immigrant Visa Petition met those requirements, the INS approved the petition. Next, the unlawfully present immigrant relative could submit the Application for Adjustment of Status (INS form I-485).
The requirements that accompany the submission and processing of Applications for Adjustment of Status

2003 U.S. Dist. LEXIS 17426, *4

Page 2 of 3

constitute the central dispute in this litigation. Plaintiffs assert

General to commence proceedings, adjudicate cases,

that the statute and accompanying regulations require a visa to

or execute removal orders against any alien under

be immediately available before an Application for

this chapter.8 U.S.C. § 1252(g). Pursuant to the

Adjustment of Status can be processed. Defendants contend

express language of Section 1252(g), the district

that there is no such prerequisite for processing the

court's power to review cases is barred only when an

applications. Plaintiffs also argue that Defendants cannot rely

alien challenges the Attorney General's decision to

upon the information contained in Applications for

(1) commence proceedings, (2) adjudicate

Adjustment of Status to open an investigation against them.

cases, [*7] and (3) execute removal orders. See

In the Motion to Dismiss presently before the Court, the Defendants seek to dismiss Plaintiff's complaint for want of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure [*5] and for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. As the Plaintiffs point out in their Response, in January the Court

Reno v. American-Arab Anti-Discrimination Committee ("AADC"), 525 U.S. 471, 482, 142 L. Ed. 2d 940, 119 S. Ct. 936 (1999); Fornalik v. Perryman, 223 F.3d 523, 531 (7th Cir. 2000). As will be discussed below, the plaintiffs' claim does not fall into the three categories articulated in § 1252(g).

ordered the parties to brief only the issues relating to The Defendants' position on the jurisdictional question in this

jurisdiction. See Min. Ord. of Jan. 28, 2003. In the interim, the case is strikingly similar to its position in the earlier case. The

Court struck all the briefs related to the Motion to Dismiss, Defendants assert that the Plaintiffs cannot assert their

but it did not vacate or alter the January order. In the challenge to the processing of Applications for Adjustment of

reiterated motion, the Defendants chose to brief both the Status because, subsequent to the allegedly improper

issues relating to Rule 12(b)(6) and Rule 12(b)(1). At this processing, the Attorney General decided to initiate removal

stage, the Motion to Dismiss for failure to state a claim is not proceedings against them. Although Defendants contend

properly before the Court. Consequently, it will be denied. otherwise, their position runs counter to the holding of the

The Court will now proceed to the analysis of Defendant's Supreme Court in AADC.

Motion to Dismiss for want of jurisdiction pursuant to Rule

12(b)(1).

Plaintiffs here seek to challenge two things: (1) the processing

of Applications for Adjustment of Status when visas were not

I. STANDARD OF REVIEW
In reviewing a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the district court employs the familiar standard from Rule 12(b)(6) and must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the plaintiff. [*6] See Transit Exp. Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001). Unlike a Motion to Dismiss under Rule 12(b)(6), however, the parties are permitted to submit evidence outside the four corners of the complaint to address the jurisdictional question. See Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993).

immediately available for the applicant; and (2) the decision to utilize denied Applications for Adjustment of Status to initiate investigations. The former is a straightforward argument for declaratory [*8] relief based on Plaintiffs' interpretation of the statutes and accompanying regulations. This bears little resemblance to any of the three areas that Section 1252(g) excludes from judicial review. The closest fit is with the proscription from reviewing decisions to adjudicate cases, but the Plaintiffs are not challenging the adjudication (and denial) of their applications. Instead, they are challenging the procedures relating to the acceptance and processing of the applications. Such a challenge is not excluded from the jurisdiction of the district courts in Section

II. DISCUSSION

1252(g).

Section 1252(g) of the Immigration and Naturalization Act forecloses judicial challenges to certain discretionary decisions and actions of the Attorney General and his agents. The statute reads:

As for the latter challenge to the initiation of investigations, a footnote in AADC illuminates the precise nature of the Supreme Court's holding with respect to whether decisions to initiate investigations can be challenged under Section 1252(g). See AADC, 525 U.S. at 485 n.9. The Court, in

Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney

AADC, limited Section 1252(g) to apply to only those three categories of prosecutorial behavior explicitly mentioned in the statute: commencing proceedings, adjudicating cases, and executing removal orders. Justice Souter believed that the Court's explicit and limiting construction of Section 1252(g) "strain[s] [*9]

2003 U.S. Dist. LEXIS 17426, *9

Page 3 of 3

the meaning of the text." AADC, 525 U.S. at 502 (Souter, J., legal claim that "the Attorney General is unfairly executing a

dissenting). Specifically, Justice Souter could not agree that removal order, but rather that a prior, unrelated error makes

Section 1252(g) would "bar aliens already in proceedings . . . [their] removal improper." Fornalik v. Perryman, 223 F.3d at

from challenging the commencement of proceedings against 532. As this Court noted previously, "the present action does

them, but to permit the same aliens to challenge, say, the not qualify as a challenge to the adjudication of the plaintiffs'

decision of the Attorney General to open an investigation." Id. adjustment of status application and is not barred by the door

at 506. In a footnote responding to Justice Souter's concern, closing statute set forth in § 1252(g)." Ramos v. Ashcroft, No.

the Court declared that Section 1252(g) was directed against 01-C-2633, 2002 U.S. Dist. LEXIS 1918, at *6-*7 (N.D. Ill.,

those phases of the process that had been most commonly Feb. 5, 2002).

brought to judicial review. Id. at 485 n.9. The Court

speculated that decisions to open investigations were not often CONCLUSION

challenged "perhaps because such decisions are rarely made public." Id. Regardless of why such decisions are rarely challenged, the Supreme Court in AADC clearly held that they could be challenged when it chose to read the three areas

For the foregoing reasons, the Defendants' Motion to Dismiss Plaintiffs' Complaint for lack of jurisdiction and for failure to state a claim is denied.

in Section 1252(g), "commence proceedings, adjudicate cases, or execute removal orders," to "mean precisely what they David H. Coar

say." Id.

United States District Judge

The Plaintiffs here are challenging the INS Chicago District Office's procedures relating to Applications for

Dated: September 29, 2003

Adjustment [*10] of Status. They are not presenting a

 
 Press Office U.S. Department of Homeland Security

Press Release

April 29, 2005

NOTICE OF CLASS ACTION SETTLEMENT
CHICAGO – Today, the Department of Homeland Security announced that a settlement has been reached in the case Ramos v. Chertoff (02 C 8266, Northern District, Illinois). This lawsuit involved individuals who filed applications for adjustment of status under Section 245(i) of the Immigration and Nationality Act between January 29, 1997, and April 30, 2001, with the Chicago Office of the former Immigration and Naturalization Service (INS). Individuals who filed their applications during this period of time, which were processed and denied because their applications were either premature, or defective because an approvable visa petition had not been filed for them, may be eligible for a credit for their filing fees and other relief under the settlement announced today.
Individuals who filed 245(i) applications between January 29, 1997, and April 30, 2001, who believe they might be eligible for relief, should contact class representatives at (312) 660-1898.
THIS IS NOT AN ANMESTY. This settlement creates no new rights or means for obtaining residency status in the United States.
The Court has preliminarily approved the settlement in this case and has scheduled a hearing on the fairness of this settlement for June 10, 2005, at 10:00 a.m. Class members who object to any of the terms of the settlement must file their written objections with the Office of the Clerk, United States District Court for the Northern District of Illinois, Everett McKinley Dirksen Building, 219 South Dearborn Street, 20th Floor, Chicago, Illinois, 60604, by May 27, 2005. Class members may hire their own attorney to represent them or contact the class representatives at (312) 660-1898. Class counsel advises that immigration authorities should not be directly contacted at this time.

www.dhs.gov

 
 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

Maria Ramos and Nicolas Olivares, et al.,

)

Plaintiffs,

)

)

v.

)

)

Michael Chertoff, et al.,

)

Defendants.

)

No. 02 C 8266 Judge Mark Filip

SUMMARY NOTICE OF PENDENCY OF CLASS ACTION AND SETTLEMENT
PLEASE READ THIS NOTICE CAREFULLY; THIS INFORMATION MAY BE OF BENEFIT TO YOU.
TO: All persons who applied for permanent residence (a green card) pursuant to Section 245(i) of the Immigration and Nationality Act between January 29, 1997 and April 30, 2001, in the Chicago Office of the former INS, but who were not then eligible to be approved, because (1) a visa petition was filed before April 30, 2001, but was not yet “current” when the residence application was filed (Class 1); or (2) a visa petition had not been filed for the applicant (Class 2).
I. WHY IS THIS NOTICE PUBLISHED? This notice is published to inform individuals who belong to either Class 1 or 2 in the above entitled case. This case arose out of the alleged difficulties people had during the period between January 29, 1997 and April 30, 2001, when they sought to protect their rights under Section 245(i) of the Immigration and Nationality Act. Plaintiffs Maria Ramos and Nicolas Olivares argued that the Chicago Office of the INS violated laws, regulations, and INS procedures by accepting prematurely-filed applications for residence between January 29, 1997 and April 30, 2001; and then keeping the filing fees and using the information in the applications to begin investigations and removal proceedings against the applicants. Defendants (representatives of the U.S. Government) deny their actions violated any laws, and deny they have any obligation to Ramos, Olivares, or any of the Class Members they represent.
Under the Settlement, all members of Classes 1 and 2: (1) may apply for a credit for application fees for their residence applications; (2) if they are in removal proceedings, may seek the government’s agreement to terminate those proceedings for humanitarian reasons within six months of the agreement; and (3) if they are not now in removal proceedings, may benefit from a decision not to begin removal proceedings on the basis of their applications. The Settlement also provides for a payment of $90,000 in fees to the attorneys representing the Plaintiffs. MORE DETAILS CONCERNING THIS CASE AND SETTLEMENT TERMS IS INCLUDED IN THE NOTICE FILED WITH THE COURT ON MARCH 30, 2005. IT IS RECOMMENDED THAT ALL CLASS MEMBERS OBTAIN A COPY OF THAT NOTICE AND REVIEW THE CASE FILE.

II.

WHO REPRESENTS THE CLASS? The following attorneys represent Maria Ramos and Nicolas

Olivares (Class Counsel):

Steven Saltzman 122 S. Michigan Ave., Ste 1850 Chicago, IL 60603

Mary M. McCarthy, Charles Roth Midwest Immigrant & Human Rights Ctr. 208 S. LaSalle St., Ste 1818 Chicago, IL 60604

Alonzo Rivas, Jorge Sanchez MALDEF 188 W. Randolph St., Ste 1405 Chicago, IL 60601

III. WHAT DO I NEED TO DO? If you believe you are a member of either Class 1 or 2, Class Counsel represent your interests and you do not need to do anything until this settlement is finally approved by the Court. You should not contact the immigration authorities at this point. If you have any questions about this case or settlement, you may consult Class Counsel by calling 312-660-1898. You may also hire an attorney at your own expense to advise you on the terms of the Settlement Agreement, and whether to file written objections to any of the terms of this Agreement.

You may see the complete case file, including the full Notice and Settlement Agreement, and may file your written objections concerning the fairness of this Agreement, including the fees awarded to Class Counsel, at the Office of the Clerk, United States District Court for the Northern District of Illinois, Everett McKinley Dirksen Building, 219 South Dearborn Street, 20th Floor, Chicago, Illinois 60604. The Clerk will make the files relating to this lawsuit available to you for inspection and copying at your own expense. DO NOT ADDRESS ANY QUESTIONS ABOUT THE CASE TO THE CLERK OF THE COURT, THE JUDGE, OR THE IMMIGRATION AUTHORITIES.

IV. FAIRNESS HEARING. A hearing will be held on the fairness of this Settlement Agreement on June 10, 2005 at 10:00 a.m., before the Honorable Mark Filip, District Judge for the Northern District of Illinois, in Courtroom 1725 of the Everett McKinley Dirksen Building, 219 South Dearborn Street, Chicago, Illinois 60604. At the hearing, the Court will hear any objections and arguments from parties that file their written objections with the Office of the Clerk by May 27, 2005. YOU DO NOT NEED TO APPEAR AT THIS HEARING UNLESS YOU OBJECT TO THE SETTLEMENT.

BY ORDER OF THE COURT.

 
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BOBRICK, CLOSED
United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 3.0 (Chicago)
CIVIL DOCKET FOR CASE #: 1:02-cv-08266

Ramos, et al v. Ashcroft, et al Assigned to: Honorable Mark Filip Demand: $0 Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 11/14/2002 Date Terminated: 08/12/2005 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Maria Rosa Ramos

represented by Patricia Mendoza Mexican American Legal Defense & Educational Fund 188 West Randolph Street Suite 1405 Chicago, IL 60601 (312) 782-1422 TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alonzo Rivas Jacobs Burns Orlove Stanton & Hernandez 122 South Michigan Avenue 1720 Chicago, IL 60603 (312)327-3450 Email: ARIVAS@JBOSH.COM ATTORNEY TO BE NOTICED

Charles Roth Midwest Immigrant & Human Rights Center 208 South LaSalle Suite 1818 Chicago, IL 60604 312-629-1960 Email: croth@heartlandalliance.org ATTORNEY TO BE NOTICED

Jorge Sanchez Despres Schwartz and Geoghegan 77 West Washington Street #711

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Plaintiff Apolinar Ochoa
Plaintiff Argmira Ochoa

Chicago, IL 60602 (312) 372-2511 Email: attysanchez@sbcglobal.net ATTORNEY TO BE NOTICED
Mary Margaret McCarthy Midwest Immigrant & Human Rights Center 208 South LaSalle Suite 1818 Chicago, IL 60604 312-629-1960
Steven I. Saltzman Attorney at Law 122 South Michigan Avenue Suite 1850
Chicago, IL 60603 (312) 427-4500 Email: ssaltzcases@aol.com ATTORNEY TO BE NOTICED
represented by Patricia Mendoza (See above for address) TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alonzo Rivas (See above for address) ATTORNEY TO BE NOTICED
Charles Roth (See above for address) ATTORNEY TO BE NOTICED
Jorge Sanchez (See above for address) ATTORNEY TO BE NOTICED
Mary Margaret McCarthy (See above for address)
Steven I. Saltzman (See above for address) ATTORNEY TO BE NOTICED
represented by Patricia Mendoza

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Plaintiff Nicolas Olivares

(See above for address) TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alonzo Rivas (See above for address) ATTORNEY TO BE NOTICED
Charles Roth (See above for address) ATTORNEY TO BE NOTICED
Jorge Sanchez (See above for address) ATTORNEY TO BE NOTICED
Mary Margaret McCarthy (See above for address)
Steven I. Saltzman (See above for address) ATTORNEY TO BE NOTICED
represented by Patricia Mendoza (See above for address) TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alonzo Rivas (See above for address) ATTORNEY TO BE NOTICED
Charles Roth (See above for address) ATTORNEY TO BE NOTICED
Jorge Sanchez (See above for address) ATTORNEY TO BE NOTICED
Mary Margaret McCarthy (See above for address)
Steven I. Saltzman (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff Fermin Gutierrez
Plaintiff Fernando Carranza

represented by Patricia Mendoza (See above for address) TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alonzo Rivas (See above for address) ATTORNEY TO BE NOTICED
Charles Roth (See above for address) ATTORNEY TO BE NOTICED
Jorge Sanchez (See above for address) ATTORNEY TO BE NOTICED
Mary Margaret McCarthy (See above for address)
Steven I. Saltzman (See above for address) ATTORNEY TO BE NOTICED
represented by Patricia Mendoza (See above for address) TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alonzo Rivas (See above for address) ATTORNEY TO BE NOTICED
Charles Roth (See above for address) ATTORNEY TO BE NOTICED
Jorge Sanchez (See above for address) ATTORNEY TO BE NOTICED
Mary Margaret McCarthy (See above for address)
Steven I. Saltzman (See above for address)

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Plaintiff Gabriel Torres
Plaintiff Juan Rodriguez

ATTORNEY TO BE NOTICED
represented by Patricia Mendoza (See above for address) TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alonzo Rivas (See above for address) ATTORNEY TO BE NOTICED
Charles Roth (See above for address) ATTORNEY TO BE NOTICED
Jorge Sanchez (See above for address) ATTORNEY TO BE NOTICED
Mary Margaret McCarthy (See above for address)
Steven I. Saltzman (See above for address) ATTORNEY TO BE NOTICED
represented by Patricia Mendoza (See above for address) TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alonzo Rivas (See above for address) ATTORNEY TO BE NOTICED
Charles Roth (See above for address) ATTORNEY TO BE NOTICED
Jorge Sanchez (See above for address) ATTORNEY TO BE NOTICED
Mary Margaret McCarthy (See above for address)

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Plaintiff Hector Diaz
Plaintiff Justino Castaneda

Steven I. Saltzman (See above for address) ATTORNEY TO BE NOTICED
represented by Patricia Mendoza (See above for address) TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alonzo Rivas (See above for address) ATTORNEY TO BE NOTICED
Charles Roth (See above for address) ATTORNEY TO BE NOTICED
Jorge Sanchez (See above for address) ATTORNEY TO BE NOTICED
Mary Margaret McCarthy (See above for address)
Steven I. Saltzman (See above for address) ATTORNEY TO BE NOTICED
represented by Patricia Mendoza (See above for address) TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alonzo Rivas (See above for address) ATTORNEY TO BE NOTICED
Charles Roth (See above for address) ATTORNEY TO BE NOTICED
Jorge Sanchez (See above for address) ATTORNEY TO BE NOTICED
Mary Margaret McCarthy

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Plaintiff Efren de la Torre
V. Defendant John Ashcroft Attorney General,
Defendant Immigration and Naturalization Service Defendant

(See above for address)
Steven I. Saltzman (See above for address) ATTORNEY TO BE NOTICED
represented by Patricia Mendoza (See above for address) TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alonzo Rivas (See above for address) ATTORNEY TO BE NOTICED
Charles Roth (See above for address) ATTORNEY TO BE NOTICED
Jorge Sanchez (See above for address) ATTORNEY TO BE NOTICED
Mary Margaret McCarthy (See above for address)
Steven I. Saltzman (See above for address) ATTORNEY TO BE NOTICED
represented by Sheila McNulty United States Attorney's Office (NDIL) 219 South Dearborn Street Suite 500 Chicago, IL 60604 (312) 353-5300 Email: sheila.mcnulty@usdoj.gov ATTORNEY TO BE NOTICED
represented by Sheila McNulty (See above for address) ATTORNEY TO BE NOTICED

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James W Ziglar Commissioner Immigration and Naturalization Service
Defendant
Brian Perryman Director of the Chicago District Office of the Immigration and Naturalization Service

represented by Sheila McNulty (See above for address) ATTORNEY TO BE NOTICED
represented by Sheila McNulty (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/14/2002
11/14/2002 11/18/2002 11/22/2002 11/23/2002
11/25/2002
01/15/2003 01/16/2003 01/16/2003 01/22/2003

#

Docket Text

1 COMPLAINT (Attachments) - Civil cover sheet - Appearance(s) of Patricia Mendoza, Steven I. Saltzman, Mary Margaret McCarthy, Charles G Roth, Alonzo Rivas as attorney(s) for plaintiffs (Four original and four copies summons(es) issued.) (Documents: 1-1 through 1-4) (hp) (Entered: 11/15/2002)

RECEIPT regarding payment of filing fee paid; on 11/14/02 in the amount of $150.00, receipt # 10316982. (hp) (Entered: 11/15/2002)

2 DESIGNATION OF ATTORNEY Sheila McNulty Entenman as US Attorney. (yp) (Entered: 11/20/2002)

3 MOTION by plaintiff for reassignment ; Memorandum in support (Attachments); Notice. (jmp) (Entered: 11/25/2002)

4 MINUTE ORDER of 11/23/02 by Hon. George W. Lindberg : Plaintiff's motion for reassignment is granted [3-1]. This action will be reassigned to the calendar of Judge David H. Coar. Mailed notice (jmp) (Entered: 11/25/2002)

5 REASSIGNMENT ORDER of 11/25/02 This case is reassigned to the Hon. David H. Coar from Hon. George W. Lindberg pursuant to 40.3(B) (2); this case appears to involve the same parties and subject matter as case number 01 C 2633 assigned to the calendar of Judge David H. Coar and dismissed prior to the filing of this case. (For further detail see order.) Mailed notice (jmp) (Entered: 11/26/2002)

SCHEDULE set on 1/15/03 by Hon. David H. Coar : Status hearing set to 9:00 1/28/03 . Mailed notice (pm) (Entered: 01/15/2003)

6 MOTION by plaintiffS for class certification , and to stay briefing schedule ; Notice (rmm) (Entered: 01/27/2003)

7 MOTION by plaintiffs for preliminary injunction , and to stay briefing schedule (rmm) (Entered: 01/27/2003)

8 MINUTE ORDER of 1/22/03 by Hon. David H. Coar: Plaintiffs' motion for preliminary injunction [7-1] and to stay briefing schedule [7-2] and Motion for class certification [6-1] and to stay briefing schedule [6-2] are entered and continued to 9:00 1/28/03. No notice (rmm) (Entered:

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01/24/2003 01/28/2003
02/14/2003 02/18/2003 02/28/2003 06/10/2003 06/10/2003
06/23/2003 07/01/2003 08/07/2003 08/13/2003

01/27/2003)
9 MOTION by defendants to dismiss case for lack of jurisdiction (Attachments); Memorandum in support; Notice. (air) (Entered: 01/29/2003)
10 MINUTE ORDER of 1/28/03 by Hon. David H. Coar: Answer brief to defendants' motion to dismiss case for lack of jurisdiction [9-1] due 2/18/03. Reply to answer brief due 2/28/03. Ruling on defendants' motion to dismiss will be by mail. Status hearing held. The briefing for the motion to dismiss is regarding the issue of jurisdiction. The briefing on the motion to dismiss for failure to state a claim will not proceed. Discovery is stayed pending ruling on jurisdiction. The motions for preliminary injunction [7-1] and motion for class certification [6-1] are continued until after the ruling on the jurisdictional issues. Mailed notice (air) Modified on 08/14/2003 (Entered: 01/29/2003)
11 FIRST AMENDED COMPLAINT [1-1] by plaintiffs (Attachments); Notice. (fce) (Entered: 02/20/2003)
12 MEMORANDUM by plaintiffs in opposition to defendants' motion to dismiss for lack of jurisdiction [9-1]; Notice. (fce) (Entered: 02/20/2003)
13 REPLY MEMORANDUM by government defendants in support of motion to dismiss case for lack of jurisdiction [9-1]; Declaration of Shirley Roberts. (jmp) (Entered: 04/30/2003)
14 MOTION by plaintiff for leave to conduct limited discovery Memorandum in support (Attachments); Notice. (jmp) Modified on 06/11/2003 (Entered: 06/11/2003)
15 MINUTE ORDER of 6/10/03 by Hon. David H. Coar : Plaintiffs' motion for leave to conduct limited discovery is granted to the extend that this Court will allow the taking of a one and half hour deposition of Shirley J. Roberts, said deposition is limited to what's in her declaration, the remainder of the motion is denied at this time[14-1]. Mailed notice (jmp) (Entered: 06/11/2003)
16 MOTION by plaintiffs' attorney, Patricia Mendoza to withdraw ; Notice (las) (Entered: 07/02/2003)
17 MINUTE ORDER of 7/1/03 by Hon. David H. Coar : Motion of Patricia Mendoza to withdraw is granted [16-1]. Leave granted Patricia Mendoza to withdraw as one of the attorneys for the plaintiffs. Mailed notice (las) (Entered: 07/02/2003)
18 MOTION by plaintiffs for leave to file a surreply in opposition to defendants' motion to dismiss ; Notice (hp) (Entered: 08/14/2003)
19 MINUTE ORDER of 8/13/03 by Hon. David H. Coar : Plaintiff's motion for leave to file a surreply in opposition to motion to dismiss is denied [18-1]. All briefs that are currently on file as to the motion to dismiss are stricken. Plaintiff to re-file an answer brief to the motion to dismiss within seven days; Defendants to re-file a reply brief sueven days

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08/20/2003 08/20/2003 08/27/2003 09/03/2003 09/29/2003 10/06/2003 10/29/2003
11/19/2003 11/19/2003 11/24/2003
11/24/2003

thereafter. Mailed notice (hp) Modified on 08/14/2003 (Entered: 08/14/2003)
20 STATEMENT by parties regarding compliance with Court's August 13, 2003 order; Notice. (hp) (Entered: 08/27/2003)
21 MOTION by defendants to dismiss case for lack of jurisdiction ; Memorandum in support (Attachment). (hp) (Entered: 08/27/2003)
22 MEMORANDUM by plaintiffs in opposition to defendants' motion to dismiss case for lack of jurisdiction [9-1] [21-1] (Attachments); Notice. (hp) (Entered: 08/29/2003)
23 REPLY BRIEF by defendants in support of its motion to dismiss [21-1] (hp) (Entered: 09/08/2003)
24 MINUTE ORDER of 9/29/03 by Hon. David H. Coar : For the reasons given in the attached memorandum opinion, defendants' motion to dismiss [Doc. 21] is denied in its entirly. (Entered Memorandum Opinion and Order.) Mailed notice (hp) (Entered: 09/30/2003)
SCHEDULE set on 10/6/03 by Hon. David H. Coar : Status hearing set to 9:00 10/29/03, all parties shall appear in courtroom #1419, 219 S. Dearborn Street, Chicago, Illinois. Mailed notice (pm) (Entered: 10/06/2003)
SCHEDULE set on 10/29/03 by Hon. David H. Coar : The governmetn is give to 11/19/03 to file a motion. Status hearing held and continued to 9:00 11/24/03. Final Pretrial conference set to 9:00 11/24/03 in chambers. Report of planning conference pursuant to Rule 26(f) and proposed scheduling order pursuant to Rule 16(b) to be filed in chambers. (See reverse side of scheduling order. Copies of form reports of planning conference and proposed scheduling order are available in chambers or on the court's web page.) Mailed notice (pm) (Entered: 10/29/2003)
25 REPORT by parties of planning conference; Notice (hp) (Entered: 11/20/2003)
26 MOTION by defendants to dismiss case ; Memorandum in support (hp) (Entered: 11/21/2003)
SCHEDULE set on 11/24/03 by Hon. David H. Coar : Status hearing held. Rule 16(b) scheduling conference held. All disclosures required by Rule 26(a)(1) have been made. Any amendments to pleadings or actions to join other parties shall be filed on or before 1/5/04. Motion Dispositive - Rule 56 Motions due on or before 6/15/04. Discovery ordered closed on 5/17/04. Final pretrial order to be submitted on 9/23/04 . Pretrial conference set to 11:00 10/1/04. If necessary, Jury trial set to 10:00 10/4/04. The parties are directed to review this court's standing orders. Copies are available in chambers or through the court's web page. Mailed notice (pm) (Entered: 11/24/2003)
27 MINUTE ORDER of 11/24/03 by Hon. David H. Coar : Filed defendants motion to dismiss. [26-1] Answer brief to motion due 12/15/03. Reply to

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12/15/2003 01/05/2004 01/05/2004 01/12/2004 01/15/2004
01/15/2004
01/26/2004 02/06/2004 03/03/2004 03/08/2004
03/19/2004 03/22/2004 03/24/2004 03/25/2004

answer brief due 01/05/04. Ruling on motion to dismiss by defendants [26-1] set for 01/14/04 at 9:00 a.m. The Court will enter the discovery and trial schedule as stated on the record. Notices mailed by judge's staff (hp) (Entered: 11/25/2003)
28 MEMORANDUM by plaintiffs in opposition to defendants' motion to dismiss for failure to state a claim [26-1] (Attachment); Notice (hp) (Entered: 12/16/2003)
29 REPLY brief by defendants in support of motion to dismiss case [26-1]. (jmm) Modified on 01/13/2004 (Entered: 01/07/2004)
32 MOTION by plaintiffs for leave to file second amended complaint (Attachments); Notice (ntf) (Entered: 01/16/2004)
30 MINUTE ORDER of 1/12/04 by Hon. David H. Coar : Ruling on the motion to dismiss is reset to 01/15/04 at 9:00 a.m. [26-1] The date of 01/14/04 is stricken. Telephoned notice (hp) (Entered: 01/13/2004)
31 MINUTE ORDER of 1/15/04 by Hon. David H. Coar : For the reasons given in the attached memorandum opinion and order, defendants' motion to dismiss case Doc. [26-1] is granted in part and denied in part; the motion is granted as to Count II, Count III, and Count IV, but it is denied as to Count I. Entered Memorandum Opinion and Order. No notice (eav) (Entered: 01/16/2004)
33 MINUTE ORDER of 1/15/04 by Hon. David H. Coar : Plaintiffs motion for leave to file second amended complaint is granted [32-1]. Second Amended Complaint to be filed on or before 01/26/04. No notice (ntf) (Entered: 01/16/2004)
34 SECOND AMENDED COMPLAINT [11-1] by plaintiffs (Attachments); Notice (hp) (Entered: 01/27/2004)
35 TRANSCRIPT of proceedings for the following date(s): 01/27/04 Before Honorable David H. Coar (hp) (Entered: 02/09/2004)
EXECUTIVE committee 3/3/04 This case is reassigned to the Hon. Mark Filip Mailed notice (amb) (Entered: 03/05/2004)
36 MINUTE ORDER of 3/8/04 by Hon. Mark Filip : This matter is set for a status conference on 3/25/04 at 4:00 p.m. (Entered Order Requiring Status Report and Setting Status Hearing for Cases Newly Assigned to Judge Filip). Mailed notice (las) (Entered: 03/08/2004)
39 MOTION by defendants' to extend time to answer or otherwise plead to the second amended complaint ; Notice. (vmj) (Entered: 03/26/2004)
37 JOINT STATUS REPORT by parties; Notice. (hp) (Entered: 03/24/2004)
38 RESPONSE by plaintiffs to defendants motion to extend time to answer or otherwise plead; Notice. (hp) (Entered: 03/25/2004)
40 MINUTE ORDER of 3/25/04 by Hon. Mark Filip: Status hearing held and continued to 10:00 a.m. on 5/13/04. Defendants' motion to extend

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04/05/2004 04/07/2004 04/09/2004 04/12/2004
04/27/2004 05/03/2004 05/04/2004 05/04/2004
05/05/2004 05/10/2004 05/10/2004

time to answer or otherwise plead to the second amended complaint, to and including 4/5/04, is granted [39-1]. Plaintiffs are given to and including 4/9/04 in which to file their motion for class certification. Defendants are given until 5/10/04 to file response to class certification motion and plaintiffs are given until 6/7/04 to file reply. Ruling will be by mail. Settlement conference set for 11:00 a.m. on 5/11/04. Mailed notice (vmj) (Entered: 03/26/2004)
41 MOTION by defendants to dismiss the second amended complaint ; Memorandum in support (Attachment). (hp) (Entered: 04/06/2004)
43 NOTICE by defendants of motion regarding motion to dismiss the second amended complaint [41-1] (Attachments). (cem) (Entered: 04/13/2004)
42 MOTION by plaintiffs for class certification ; Memorandum in support (Attachments); Notice (hp) (Entered: 04/12/2004)
44 MINUTE ORDER of 4/12/04 by Hon. Mark Filip : Plaintiffs to respond to defendants' motion to dismiss second amended complaint [41-1] on or before 4/27/04; defendants reply due by 5/11/04. Ruling on motion to dismiss will be by mail. Telephoned notice (cem) (Entered: 04/13/2004)
45 MEMORANDUM of law by plaintiffs in opposition to defendants' motion to dismiss the second amended complaint [41-1]; Notice. (hp) (Entered: 04/28/2004)
46 MOTION by plaintiffs for a protective order ; Memorandum in support (Attachments); Notice. (hp) (Entered: 05/06/2004)
ORAL MOTION by plaintiffs to continue motion for a protective order . (hp) (Entered: 05/06/2004)
47 MINUTE ORDER of 5/4/04 by Hon. Mark Filip : On plaintiffs' oral motion, [0-0] motion for a protective order [46-1] is entered and continued to 05/10/04 at 11:00 a.m. Telephoned notice (hp) (Entered: 05/06/2004)
48 AMENDED motion by plaintiffs for a protective order [46-1]; Notice. (hp) (Entered: 05/11/2004)
ORAL MOTION by plaintiffs for Jorge Sanchez for leave to file his appearance as additional counsel (hp) (Entered: 05/11/2004)
49 MINUTE ORDER of 5/10/04 by Hon. Mark Filip : Filed plaintiff's amended motion for a protective order. [48-1] Answer brief to motion due 05/24/04. Reply to answer brief due 05/31/04. Ruling on plaintiffs' amended motion for a protective order set for 06/07/04 at 11:00 a.m. Oral motion of Jorge Sanchez for leave to file his appearance as addition counsel for plaintiffs is granted. [0-1] Briefing on motion for class certification is held in abeyance pending ruling on amended motion for protective order. [42-1] Mailed notice (hp) Modified on 05/11/2004 (Entered: 05/11/2004)

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05/10/2004 05/10/2004 05/10/2004 05/11/2004 05/11/2004
06/03/2004 07/06/2004
08/17/2004 09/09/2004 09/24/2004 09/27/2004 09/27/2004 09/28/2004 11/17/2004 11/30/2004

50 NOTICE of motion by plaintiffs regarding motion to supplement the record. (hp) (Entered: 05/12/2004)
51 MOTION by plaintiffs for leave to conduct limited discovery (hp) (Entered: 05/12/2004)
52 MEMORANDUM of law by plaintiffs in opposition to defendants' motion to dismiss second amended complaint [41-1] (Attachments). (hp) (Entered: 05/12/2004)
SCHEDULE set on 5/11/04 by Hon. Mark Filip : Settlement conference set for 11:00 6/3/04 . No notice (tbk) (Entered: 05/11/2004)
53 MINUTE ORDER of 5/11/04 by Hon. Mark Filip: Plaintiffs' motion to supplement the record is stricken without prejudice to refiling at an appropriate juncture in the case. Mailed notice (hp) (Entered: 05/12/2004)
54 MINUTE ORDER of 6/3/04 by Hon. Mark Filip : Settlement conference held and continued to 07/06/04 at 11:00 a.m. Mailed notice (hp) (Entered: 06/04/2004)
55 MINUTE ORDER of 7/6/04 by Hon. Mark Filip: Settlement conference held. All pending motions are withdrawn without prejudice to reinstatement. Settlement conference continued to 08/20/04 at 11:00 a.m. Mailed notice (ntf) (Entered: 07/07/2004)
SCHEDULE set on 8/17/04 by Hon. Mark Filip : Settlement conference re- set for 11:00 9/9/04 . Mailed notice (tbk) (Entered: 08/17/2004)
56 MINUTE ORDER of 9/9/04 by Hon. Mark Filip : Settlement conference held and continued to 9/23/04 at 11:00 a.m. Mailed notice (cem) (Entered: 09/10/2004)
57 MINUTE ORDER of 9/24/04 by Hon. Mark Filip : Settlement conference held and continued to 09/27/04 at 11:00 a.m. No notice (hp) (Entered: 09/27/2004)
SCHEDULE set on 9/27/04 by Hon. Mark Filip : Settlement conference held. No notice (tbk) (Entered: 09/27/2004)
SCHEDULE set on 9/27/04 by Hon. David H. Coar : Pretrial conference scheduled for 10/1/04 before Judge Coar is stricken. Mailed notice (pm) (Entered: 09/27/2004)
SCHEDULE set on 9/28/04 by Hon. David H. Coar : Trial scheduled for 10/4/04 before Judge Coar is stricken, as this case is now before Judge Filip. No notice (pm) (Entered: 09/28/2004)
SCHEDULE set on 11/17/04 by Hon. Mark Filip : Status hearing set to 9:30 11/30/04 . Mailed notice (tbk) (Entered: 11/17/2004)
SCHEDULE set on 11/30/04 by Hon. Mark Filip : Status hearing held. Settlement conference set for 11:00 12/14/04 . No notice (tbk) (Entered: 11/30/2004)

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12/14/2004 12/22/2004
01/06/2005 01/19/2005 01/28/2005 02/03/2005 02/16/2005 02/25/2005 03/04/2005 03/30/2005 03/30/2005 03/30/2005 03/30/2005
04/05/2005

SCHEDULE set on 12/14/04 by Hon. Mark Filip : Settlement conference set for 12:00 12/22/04 . No notice (tbk) (Entered: 12/15/2004)
58 MINUTE ORDER of 12/22/04 by Hon. Mark Filip : The settlement conference is rescheduled for 01/06/05 at 10:00 a.m. The government is requested to bring someone from C.I.S. to the conference with settlement authority. Mailed notice (hp) (Entered: 12/27/2004)
SCHEDULE set on 1/6/05 by Hon. Mark Filip : Status hearing set to 9:45 1/20/05 . Settlement conference held. No notice (tbk) (Entered: 01/06/2005)
59 MINUTE entry before Judge Mark Filip : Status hearing reset for 1/28/2005 at 09:30 AM. (No notices, notified counsel by phone) (tbk, ) (Entered: 01/19/2005)
60 MINUTE entry before Judge Mark Filip : Status hearing held on 1/28/2005 Status hearing set for 2/9/2005 at 09:30 AM. (No notices, advised in open court) (tbk, ) (Entered: 01/28/2005)
61 MINUTE entry before Judge Mark Filip : Status hearing reset for 2/16/2005 at 09:30 AM. (Notified counsel by telephone) (tbk, ) (Entered: 02/03/2005)
62 MINUTE entry before Judge Mark Filip : Status hearing held on 2/16/2005. Status hearing set for 2/25/2005 at 09:30 AM. (no notices, advised in open court) (tbk, ) (Entered: 02/16/2005)
63 MINUTE entry before Judge Mark Filip : Status hearing held on 2/25/2005 Status hearing set for 3/4/2005 at 09:30 AM. No notice (tbk, ) (Entered: 02/25/2005)
64 MINUTE entry before Judge Mark Filip : Status hearing held on 3/4/2005; No notice (tbk, ) (Entered: 03/04/2005)
65 AGREED MOTION by Plaintiffs for preliminary approval of settlement agreement. (rbf, ) Additional attachment(s) added on 10/27/2006 (cdy, ). (Entered: 03/31/2005)
66 NOTICE of Motion by Alonzo Rivas for presentment of motion for preliminary approval of settlement agreement 65 before Honorable Mark Filip on 4/5/2005 at 10:30 AM. (rbf, ) (Entered: 03/31/2005)
67 AGREED MOTION by parties for approval of attorney's fees and cost pursuant to settlement agreement.(rbf, ) (Entered: 03/31/2005)
68 NOTICE of Motion by Alonzo Rivas for presentment of motion for approval of attorney's fees and costs pursuant to the settlement agreement 67 before Honorable Mark Filip on 4/5/2005 at 10:30 AM. (rbf, ) (Entered: 03/31/2005)
69 MINUTE entry before Judge Mark Filip : MOTION by Plaintiffs Justino Castaneda, Efren de la Torre, Maria Rosa Ramos, Apolinar Ochoa, Argmira Ochoa, Nicolas Olivares, Fermin Gutierrez, Fernando Carranza,

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05/27/2005 05/27/2005 05/27/2005 05/27/2005 05/27/2005 05/27/2005 05/27/2005 05/27/2005 06/10/2005
06/28/2005 07/21/2005

Gabriel Torres, Juan Rodriguez, Hector Diaz65,for Preliminary Approval of Settlement Agreement is Granted. MOTION by Plaintiffs Justino Castaneda, Efren de la Torre, Maria Rosa Ramos, Apolinar Ochoa, Argmira Ochoa, Nicolas Olivares, Fermin Gutierrez, Fernando Carranza, Gabriel Torres, Juan Rodriguez, Hector Diaz67for Approval of Attorneys Fees is entered and continued generally. Fairness hearing set for 6/10/2005 at 10:00 AM. Judicial staff mailed notice (tbk, ) (Entered: 04/05/2005)
70 OBJECTION by Cristano Leyva to proposed settlement agreement (gma, ) Modified on 3/1/2007 (lcw) (Entered: 05/31/2005)
71 NOTICE of Motion by Crisanto Leyva for presentment of OBJECTION to proposed settlement agreement before Honorable Mark Filip on 6/10/2005 at 09:00 AM. (gma, ) (Entered: 05/31/2005)
72 MOTION by F.C. and L.O. requesting clarification of the proposed settlement agreement (gma, ) (Entered: 05/31/2005)
73 NOTICE of Motion by F.C., L.O. for presentment of MOTION by F.C. and L.O. requesting clarification of the proposed settlement agreement 72 before Honorable Mark Filip on 6/10/2005 at 10:00 AM. (gma, ) (Entered: 05/31/2005)
74 OBJECTION by Martin Barrios to proposed settlement agreement (gma, ) Modified on 3/1/2007 (lcw, ). (Entered: 05/31/2005)
75 NOTICE of Motion by Martin Barrios for presentment of OBJECTION to proposed settlement agreement before Honorable Mark Filip on 6/10/2005 at 09:00 AM. (gma, ) (Entered: 05/31/2005)
76 NOTICE of Motion by Leonor Garcia for presentment of OBJECTION to proposed settlement agreement before Honorable Mark Filip on 6/10/2005 at 09:00 AM. (gma, ) (Entered: 05/31/2005)
83 OBJECTION by Leonor Garcia to proposed settlement agreemant. (Previously Misplaced Document) (Document Not Scanned) (lcw, ) (Entered: 03/01/2007)
77 MINUTE entry before Judge Mark Filip : Fairness hearing held. This Court overrules the objections of Leonor Garcia, Crisanto Leyva, and Martin Barrios. Attorney Steven Saltzman appointed as class counsel. MOTION by Plaintiffs Justino Castaneda, Efren de la Torre, Maria Rosa Ramos, Apolinar Ochoa, Argmira Ochoa, Nicolas Olivares, Fermin Gutierrez, Fernando Carranza, Gabriel Torres, Juan Rodriguez, Hector Diaz67,for approval of attorneys' fees and costs is granted. MOTION to clarify72is denied for reasons stated on the record. No notice (tbk, ) (Entered: 06/10/2005)
78 AGREED PROPOSED FINDINGS of fact and conclusions of law on the issue of attorneys fees and costs 67 by Plaintiffs ; Notice of filing. (hp, ) (Entered: 07/01/2005)
79 AGREED MOTION by parties to adopt the parties' proposed findings of

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07/21/2005 08/11/2005
08/12/2005

fact and conclusions of law (Exhibits) (las, ) (Entered: 07/22/2005)
80 NOTICE of Motion by parties for presentment of their agreed motion to adopt the parties' proposed findings of fact and conclusions of law79 before Honorable Mark Filip on 8/1/2005 at 09:30 AM. (las, ) (Entered: 07/22/2005)
81 MINUTE entry before Judge Mark Filip : The Parties' Agreed Motion to adopt their Proposed Findings of Fact and Conclusions of Law on the Issue of Attorneys' Fees and Costs, and the Parties' Agreed Motion for Approval of Attorneys' Fees and Costs Pursuant to the Settlement Agreement (D.E. 79), are granted 79. The findings of fact and conclusions of law are entered, as modified and as stated below, and Plaintiffs are awarded $90,000.00 in fees and costs, which consist of $87,554.00 in fees and $2,446.00 in costs ($150.00 in filing fees; $1,075.45 for deposition transcripts; and $1,220.55 in copying costs). As explained further below, the Court commends all counsel for their efforts in the case. Mailed notice (rmm, ) (Entered: 08/15/2005)
82 MINUTE entry before Judge Mark Filip : All matters in controversy having been settled, the above-entitled case is hereby dismissed. Any and all pending motions are dismissed as moot. Civil case terminated. Mailed notice (hp, ) (Entered: 08/16/2005)

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9/5/2007

 
 Ramos v. Ashcroft
United States District Court for the Northern District of Illinois, Eastern Division February 5, 2002, Decided ; February 7, 2002, Docketed Case Number: 01 C 2633

Reporter: 2002 U.S. Dist. LEXIS 1918; 2002 WL 193404 MARIA ROSA RAMOS, et. al, Plaintiffs, v. JOHN ASHCROFT, Attorney General; IMMIGRATION & NATURALIZATION SERVICE; KEVIN D. ROONEY, Acting Commissioner, Immigration & Naturalization Service, BRIAN PERRYMAN, District Director of the Immigration and Naturalization Service, Defendants.
Subsequent History: Related proceeding at Ramos v. Ashcroft, 2003 U.S. Dist. LEXIS 17426 (N.D. Ill., Sept. 29, 2003)
Disposition: [*1] Defendant's motion to dismiss plaintiff's complaint GRANTED. Action DISMISSED.
Counsel: For MARIA ROSA RAMOS, plaintiff: Carol Anne Waldman, Lisa J. Palumbo, Diana White, Legal Assistance Foundation of Chicago, Mary Margaret McCarthy, Sioban L. Albiol, Charles G Roth, Midwest Immigrant & Human, Chicago, IL.
For JOHN ASHCROFT, IMMIGRATION AND NATURALIZATION SERVICE, KEVIN D ROONEY, BRIAN PERRYMAN, defendants: AUSA, Sheila McNulty Entenman, United States Attorney's Office, Chicago, IL.

Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(1) [*2] for lack of subject matter jurisdiction and Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief may be granted. For the reasons discussed below, the INS's motion to dismiss is granted.
Discussion
The INS urges this court to dismiss the Plaintiffs' suit for lack of subject matter jurisdiction. Specifically, the INS argues that statutory bars as well as the absence of a waiver of the government's sovereign immunity precludes judicial review of this case. The INS also maintains that the plaintiffs' failure to exhaust their administrative remedies also forecloses jurisdiction. In addition, the INS seeks dismissal of the Plaintiffs' complaint for failure to state a claim. Although the door-closing statutes invoked by the INS do not preclude jurisdiction, the court finds that plaintiffs' failure to exhaust their administrative remedies forecloses judicial review. Therefore, the court declines to hear this case prior to allowing the administrative tribunal an opportunity for review. 1
[*3] A. Statutory Bars to Judicial Review

Judges: David H. Coar, United States District Judge.
Opinion by: David H. Coar
Opinion
MEMORANDUM OPINION AND ORDER
The underlying suit is brought on behalf of fifteen immigrants ("Plaintiffs") who filed applications to adjust their status from unlawful presence in the United States to lawful permanent residence. Plaintiffs, who were denied adjustment of status, seek declaratory and injunctive relief against the Immigration and Naturalization Service ("INS"). Plaintiffs challenge the INS's practice of denying their adjustment applications based on the immediate unavailability of visas and using these denied applications to initiate removal proceedings. The INS moves to dismiss

The plaintiffs challenge the INS's practice of denying, on the merits, adjustment applications that suffer from the procedural deficiency of not having a visa immediately available. Plaintiffs claim that the INS's practices violates the procedures outlines in INS regulations 8 U.S.C. § 1255(i) and 8 C.F.R. § 245.2(a)(2)(i), which, according to Plaintiffs, directs the INS to reject applications without immediate visas. Once these applications are rejected, assert Plaintiffs, they cannot be used as a basis to commence removal proceedings. The INS contends that sections 1252(g) and 1252(a)(2)(B)(i) of the Immigration and Naturalization Act ("INA") strip this court of jurisdiction over the instant suit. See8 U.S.C. §§ 1252(g), 1252(a)(2)(B)(i).
Section 1252(g) forecloses challenges to certain decision and actions of the Attorney General. 2 The statute reads:
Except as provided in this section and notwithstanding any other provision of law, no

1 Because the jurisdictional issue is dispositive, the court will not address whether the complaint survives the defendants' Rule 12(b)(6) challenge.
2 Section 242(g) reads:

2002 U.S. Dist. LEXIS 1918, *5

Page 2 of 4

court shall have jurisdiction to hear any cause or deny an adjustment of status application when no visa is

claim by or on behalf of any alien arising from the immediately available to the applicant. They do not attack the

decision or action by the Attorney General [*4] to disposition of their cases-- in other words, they do not seek an

commence proceedings, adjudicate cases, or execute adjustment of status. Rather, they seek to halt the processing

removal orders against any alien under this of their applications when the procedural prerequisites set

chapter.Although the statute curtails judicial review forth in the regulations (the immediate availability of a visa)

of immigration cases, it is limited in scope. Pursuant have not been satisfied. Plaintiffs argue that the regulations

to the express language of § 1252(g), the district require the INS to reject and return any application that does

court's power to review cases is barred only when an not have a visa immediately available rather than adjudicating

alien challenges three types of decisions: the the substance of the case. When the plaintiffs' claim is fleshed

Attorney General's decision to (1) commence out, then, it is clear that their complaint is directed at a

proceedings, (2) adjudicate cases, and (3) execute procedural matter that precedes the adjudication of their

removal orders. Reno v. American-Arab Anti- adjustment of status applications.

Discrimination Committee ("AADC"), 525 U.S. 471, 482, 119 S. Ct. 936, 142 L. Ed. 2d 940 (1999); Fornalik v. Perryman, 223 F.3d 523, 531 (7th Cir.

To reiterate, the plaintiffs attack the manner in which their applications are processed in the stages preliminary to the

2000).

adjudication of their cases. As such, the present action does

not qualify as a challenge to the adjudication of the plaintiffs'

[*5] As will be discussed below, the plaintiffs' claim does adjustment of status application and is not [*7] barred by the

not fall into the three categories articulated in § 1252(g). The door closing statute set forth in § 1252(g). See Fornalik, 223

INS acknowledges that this action does not qualify as an F.3d at 532 (dismissing argument that claim for adjustment of

attack on the execution of a removal order. Nor does this case status was challenge to execution of removal order because

fall into the other two categories cited in the statute: plaintiffs claim in fact challenged "a prior, unrelated error" that resulted

challenge neither the INS's decision to commence removal in improper removal); Moro, 58 F. Supp. 2d at 858-59

proceedings nor its adjudication of their cases.

(distinguishing claim challenging detention from the three

discrete actions precluded from judicial review by § 1252(g)). Certainly, the plaintiffs bring this case because they wish not

to be subject to removal, "but that cannot be a sufficient basis Likewise, the plaintiffs' claim cannot be construed as a

for invoking § 1252(g) . . . [because] almost every alien who request for relief from a decision to commence proceedings.

brings a claim to federal court . . . does so because she is Some of the plaintiffs had not even received Notices to

threatened with removal." Fornalik, 223 F.3d at 531 (rejecting Appear, which formally initiates a removal case, as of the date

expansive reading of § 1252(g)). Thus, the plaintiffs' claim of the submission of their reply brief. See Fornalik, 223 F.3d

must be strictly construed to determine whether it challenges at 532 (rejecting argument that claim of entitlement to an

the three types of decisions set forth in § 1252(g). See adjustment of status could be construed as request for relief

Fornalik, 223 F.3d at 531 ("[Section] 1252(g) is applicable from decision to commence proceedings because INS did not

only where the alien's well-plead complaint is based on one of issue Notice to Appear until more then ten months after denial

§ 1252(g)'s three listed factors."); Moro v. Immigration and of adjustment application). Because the challenged decision

Naturalization Service, 58 F. Supp. 2d 854, 858-59 (N.D. Ill. does not fall within the scope of § 1252(g), that provision

1999). [*6]

does not bar judicial review of this case. 3 [*8]

The plaintiffs present a question of law as to whether the INS, [*9] Nor does § 1252(a)(2)(B)(i) divest this court of

pursuant to immigration statutes and regulations, can

jurisdiction. Section 1252(a)(2)(B), which is entitled

Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
3 In addition, it is doubtful that § 1252(g) applies to denials of adjustment of status. In view of the Supreme Court's narrow construction of § 1252(g) in AADC, the court is hesitant to read the statute as applying to non-deportation decisions. If "it is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings," 525 U.S. at 485, 119 S. Ct. at 944 n.9, it is "even less plausible that the mention of

2002 U.S. Dist. LEXIS 1918, *9

Page 3 of 4

"denials of discretionary relief," forecloses judicial review of Vargas v. Immigration and Naturalization Services, 831 F.2d

adjustment of status applications. See8 U.S.C. § 906, 909 (9th Cir, 1987)).

1252(a)(2)(B)(i). 4 By its plain terms, then, § 1252(a)(2)(B) applies to denials of discretionary relief. Fornalik, 223 F.3d at 523. No discretion is implicated in the decisions challenged by the present suit, however. None of the plaintiffs was denied adjustment of status on discretionary grounds. Rather, the plaintiffs' theory is that the INS improperly carried out a blanket policy that subject the applications to a mechanical process that denied the applications based on a technicality, that is, the absence of an immediately available visa, rather than based on a substantive and discretionary review.

Although plaintiffs have no direct recourse for the denial of their adjustment of status applications, they may renew their requests if and when the immigration services institutes removal proceedings. See 8 C.F.R. §§ 240.1(a)(ii), 245. Here, plaintiffs concede that they have not exhausted their remedies. Yet they argue that this case is not amenable to administrative relief because it presents a "pattern and practice" claim that requires an immigration judge to modify the general practices of the Chicago District Office rather than merely adjudicating individual removal cases. Even if this court were to find that

[*10] Unlike substantive determinations of whether to grant the INS's current practices violated the immigration

or deny adjustment of status applications, the ministerial statutes, [*12] this court's ruling would only bind the parties

decisions at issue here do not fall within the ambit of the before it. In other words, since this case is not being brought

discretionary decisions contemplated by § 1252(a)(2)(B). See as a class action suit, this court could not dictate that the

Fornalik, 223 F.3d at 532 (suggesting that petitioner's case applications of non-parties be processed differently. Thus,

falls outside scope of § 1525(a)(2)(B) because "he is even if the administrative judges can only review individual

challenging a pure error of law . . . and not an exercise of removal cases, that it sufficient, for that is the same scope of

discretion"); Paunescu, 76 F. Supp. 2d at 900 (finding no relief available to the plaintiffs in this court.

discretionary calls involved where INS failed to act on completed adjustment of status application). Accordingly, § 1252(a)(2)(B)(i) poses no bar to this court's review of this case.

Plaintiffs' suit is premature. Plaintiffs do not present a due process claim, and they are not otherwise immune from the exhaustion requirement. In accordance with the law of this Circuit, this court declines to review the merits of this case at

B. Exhaustion of Remedies

this juncture. See Cardoso, 216 F.3d at 518 (dismissing

challenge to denial of adjustment application where plaintiff

Although Plaintiffs have overcome the hurdles posed by the failed to exhaust remedies and listing cases); McBrearty v.

door-closing statutes, their suit is nevertheless foreclosed by Perryman, 212 F.3d 985, (7th Cir. 2000); Fornalik, 223 F.3d the exhaustion requirement. As a jurisdictional matter, a court at 532; Moro, 58 F. Supp. 2d at 859-60. may not review the administrative decisions of the INS unless

the plaintiff has exhausted all administrative remedies. Conclusion

Cardoso v. Reno, 216 F.3d 512, 518 (7th Cir. 2000) (citing 8 U.S.C. § 1252(d)). As a general rule, exhaustion is not For the foregoing reasons, the INS's motion to dismiss required for [*11] due process claims because the Board of Plaintiffs' complaint is granted.

Immigration Appeals' does not have the authority to adjudicate constitutional issues. Castaneda-Suarez v. INS, 993 Enter:

F.2d 142, 144 (7th Cir. 1993). Even within the exception for constitutional claims, however, exhaustion is required when a David H. Coar

claim involves "procedural errors administrative tribunal." Id. (quoting

correctable

by

the

United States District Judge

these discrete events was a shorthand way of referring to all claims brought in immigration matters." Paunescu v. Immigration and Naturalization Service, 76 F. Supp. 2d 896, 899 (N.D. Ill. 1999). See also525 U.S. at 485, 119 S. Ct. at 944 n.9 (observing that § 1252(g) applies to "specific steps in the deportation process"); Fornalik, 223 F.3d at 531 (rejecting the INS's argument that § 1252(g) precludes jurisdiction of "all claims brought after removal is threatened").
4 Section 1252(a)(2)(B)(i) states:
Notwithstanding any other provision of law, no court shall have jurisdiction to review any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 [governing applications for adjustment of status] of this title.8 U.S.C. § 1252(a)(2)(B)(i).

2002 U.S. Dist. LEXIS 1918, *12

Page 4 of 4

Dated: FEB - 5 2002

IT IS HEREBY ORDERED AND ADJUDGED that the

JUDGMENT [*13] IN A CIVIL CASE

Immigration and Naturalization Service's Motion to Dismiss

plaintiff's complaint is granted. This action is Dismissed and

Decision by Court. This action came to trial or hearing before closed.

the Court. The issues have been tried or heard and a decision

has been rendered.

Date: 2/5/2002