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1

2

JUDGE PECHMAN

3

4

5

6

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8

9 NORTHWEST IMMIGRANT RIGHTS

10

PROJECT; TRAVELERS & IMMIGRANTS AID OF CHICAGO; INTERNATIONAL INSTITUTE

11

(San Francisco); JOHN DOES Nos. 1 through 8; JANE DOES Nos. 1 through 3,

12

Plaintiffs,

No. C88-00379MJP

13 vs.

14

THIRD AMENDED COMPLAINT - CLASS UNITED STATES BUREAU OF CITIZENSHIP ACTION

15

AND IMMIGRATION SERVICES; USCIS DIRECTOR EDUARDO AGUIRRE;

16

DEPARTMENT OF HOMELAND SECURITY; TOM RIDGE, SECRETARY OF DEPARTMENT

17

OF HOMELAND SECURITY; DEPARTMENT OF JUSTICE; ATTORNEY GENERAL JOHN

18

ASHCROFT; DEPARTMENT OF STATE; COLIN POWELL, SECRETARY OF STATE,

19

Defendants.

20

21

I. INTRODUCTION

22

1. This is a class action lawsuit brought on behalf of persons who are statutorily eligible for

23 legalization pursuant to the Immigration Reform and Control Act of 1986 (IRCA), but who have

24 been unlawfully denied access to legalization benefits by the Immigration and Naturalization

25 Service (“INS”) and now the Department of Homeland Security (“DHS”). They are subject to

26 removal by the Department of Justice, and to being denied visas by the Department of State. In

27 addition to individual plaintiffs, three immigrant legal services programing this action on behalf of

28 their clients who have been injured by the challenged policies.

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1

2. IRCA comprehensively amended the Immigration and Nationality Act (INA), providing,

2 inter alia, for a mechanism by which certain deportable aliens can legalize their status in the

3 United States to permanent residents.

4

3. To qualify for legalization, a deportable alien must establish, inter alia, that s/he entered

5 the United States “before January 1, 1982, and that he has resided continuously in the United

6 States in an unlawful status since such date and through the date the applications filed...” INS

7 §245A(a)(2), 8 U.S.C. §1255a(a)(2).

8

4. If the applicant entered the United States with a non-immigrant visa before January 1,

9 1982, the applicant must establish that (1) his or her period of authorized stay as a nonimmigrant

10 expired before January 1, 1982 through the passage of time, or (2) his or her unlawful status (i.e.

11 violation of non-immigrant status) was “known to the Government” as of such date. INA

12 §245A(a)(2)(B), 8 U.S.C. §1255a(a)(2)(B).

13

5. The legalization provisions of IRCA created a right to apply for and have adjudicated

14 applications for legalization during a twelve month period designated by the Attorney General.

15 The Act provides mandatory benefits to those who meet the eligibility qualifications of the statute.

16 The statute provides that “The Attorney General shall adjust the status” to lawful temporary

17 resident.

18

6. Throughout the legalization application period, the Immigration and Naturalization Service

19 (“INS”) implemented regulations, policies and practices deterring plaintiffs and class members

20 who entered the United States on non-immigrant visas from applying for legalization and

21 preventing such individuals from applying. INS had a policy of rejecting applications from

22 individuals deemed to be statutorily ineligible for legalization. This “pre-filing rejection policy”

23 was applied at the front desk of INS offices, and is known as “front-desking”. Pursuant to this

24 “front-desking policy”, INS refused to accept applications from the class members of this lawsuit.

25 INS broadly disseminated information that plaintiffs and class members were not eligible to

26 participate in the legalization program. INS instructed and/or trained Qualified Designated

27 Entities (QDE's), established by Congress for the purpose of accepting legalization applications

28 pursuant to INA §245A©), 8 U.S.C. §1255a©), not to prepare or accept applications from

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1 plaintiffs and class members. The INS’s “front-desking policy” was well known throughout the

2 legalization application period, and many class members failed to apply for legalization

3 substantially because of the front-desking policy. INS’s regulations, policies and practices

4 prevented plaintiffs and class members form accessing the administrative and judicial review

5 procedure established by IRCA.

6

7. On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant

7 Responsibility Act (“IIRIRA”), Pub.L.No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). According

8 to §377 of IIRIRA:

9

[N]o court shall have jurisdiction of any cause of action or claim by or on behalf of any

person asserting an interest under this section unless such person in fact filed an application

10

under this section [during the application period from May 6, 1987 to May 5, 1988], or

attempted to file a complete application and application fee with an authorized legalization

11

officer of the Service but had the application and fee refused by that officer.

12 The INS has used this provision to unlawfully and unconstitutionally block class members from

13 access to the IRCA legalization program.

14

8. The INS and defendants have unlawfully denied and has refused to grant the benefits of

15 interim stays of deportation and work authorization to plaintiffs and class members who qualify

16 for legalization as required by INA §245©), 8 U.S.C. §1255a(e)(2).

17

9. The INS failed to properly and accurately publicize the benefits of the legalization

18 program, as required INA §245A(I), 8 U.S.C. §1255a(I), and because of this failure plaintiffs and

19 class members who would otherwise have completed the application process and been granted

20 legalization did not complete the application process. Plaintiffs and class members were

21 informed by INS and by its agents, including QDE's, that they did not qualify for legalization and

22 were ineligible to apply. As a result, plaintiffs and class members were not legalized as Congress

23 intended.

24

10. The INS and defendants have unlawfully withheld benefits of legalization from plaintiffs

25 and class members who filed timely applications for legalization. INS and defendants have

26 unlawfully refused to approve their applications, holding their applications in abeyance for the past

27 fifteen years. During this time class members have been unable to travel outside the United States;

28 they have been unable to obtain the permanent resident status to which they are entitled; they have

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1 been unable to rejoin and live with family members, as is permitted under the immigration laws of

2 the United States; and they have been denied administrative and judicial review.

3

11. The plaintiffs also complain that the INS and defendants have adjudicated legalization

4 applications in an unlawful manner. The procedures arbitrarily and without a rational basis as

5 applied to the plaintiffs and class members are substantially more burdensome than the procedures

6 applied to other similarly situated applicants for legalization. The INS and defendants have not

7 provided plaintiffs and class members a full and fair opportunity to establish that they are eligible

8 for legalization. The INS and defendants have not permitted plaintiffs and class members access to

9 relevant information included in agency files, information that would establish their eligibility for

10 legalization. In adjudicating legalization applications, the INS and defendants have arbitrarily and

11 without a rational basis imposed a burden of proof on plaintiffs and class members higher than the

12 "preponderance of the evidence" standard which is required under IRCA and the Administrative

13 Procedures Act, and which is used for other similarly situated applicants.

14

12. The plaintiffs also complain that timely applicants have had their applications wrongly

15 denied, leaving them without work authorization, and depriving them of ability to obtain legal

16 status for their family members.

17

13. The plaintiffs also complain that some class members who were approved initially for

18 legalization, have since been subject to unlawful termination of their status, based on known to the

19 government procedures challenged herein.

20

II. JURISDICTION

21

14. This court has jurisdiction pursuant to 28 U.S.C. §1331 (federal question jurisdiction);

22 28 U.S.C. §2201 (jurisdiction to render declaratory judgments); 28 U.S.C. §1361 (mandamus

23 jurisdiction).

24

15. Declaratory judgment is sought pursuant to 28 U.S.C. §2202.

25

III. PARTIES

26

16. Plaintiff NORTHWEST IMMIGRANT RIGHTS PROJECT is a non-profit, legal services

27 organization in the State of Washington which provides immigration legal services to low-income

28 immigrants since [date]. It is the successor plaintiff organization to the WASHINGTON

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1 ASSOCIATION OF CHURCHES Legalization Project, having merged that project into its

2 programs some years ago. Its predecessor, former Plaintiff NORTHWEST IMMIGRANT

3 RIGHTS PROJECT, and its predecessor, Washington Association of Churches, had and have

4 clients who have been injured by defendants in a variety of ways relating to “known to the

5 government procedures,” including but not limited to, refusal to accept their applications, refusal

6 to properly adjudicate their applications, denial of their applications, and refusal to provide

7 application forms. Other clients did not file their applications substantially because of defendants’

8 front desking policies. These clients are otherwise eligible for legalization but for the challenged

9 practices of defendants. Plaintiff WASHINGTON ASSOCIATION OF CHURCHES sues on

10 behalf of its clients.

11

17. Plaintiff TRAVELERS & IMMIGRANTS AID OF CHICAGO is an organization which

12 provides, and at all relevant times has provided, legal and other assistance to individuals seeking

13 immigration assistance. At all relevant times it was a Qualified Designated Entity ("QDE")

14 authorized by the INS to accept legalization applications and assist in the preparation of such

15 applications. It has, since 1968, assisted immigrants and refugees in, inter alia, legal matters

16 regarding their status under the Immigration and Nationality Act. Plaintiff TRAVELERS &

17 IMMIGRANTS AID OF CHICAGO, during the legalization application period and at all subsequent

18 times, it has been prohibited from accepting and forwarding to INS legalization applications from

19 Plaintiffs and class members Plaintiff TRAVELERS & IMMIGRANTS AID OF CHICAGO has

20 statutory right, pursuant to INA §245A©), to accept and forward to INS late applications from

21 plaintiffs and class members. Otherwise eligible clients of the TRAVELERS & IMMIGRANTS

22 AID OF CHICAGO are deemed ineligible for legalization under defendants’ challenged policies.

23 Clients of Plaintiff TRAVELERS & IMMIGRANTS AID OF CHICAGO have been injured by

24 defendants in a variety of ways relating to “known to the government procedures,” , including but

25 not limited to, refusal to accept their applications, refusal to properly adjudicate their applications,

26 denial of their applications, and refusal to provide application forms. Other clients did not file

27 their applications substantially because of defendants’ front desking policies. These clients are

28 otherwise eligible for legalization but for the challenged practices of defendants. TRAVELERS &

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1 IMMIGRANTS AID OF CHICAGO on behalf of its members and clients.

2

18. Plaintiff INTERNATIONAL INSTITUTE (SAN FRANCISCO) is a non-profit corporation

3 dedicated, inter alia, to protecting the social and legal rights of immigrants, including immigrants

4 seeking legalization under IRCA. At all relevant times, plaintiff INTERNATIONAL INSTITUTE

5 (SAN FRANCISCO) has provided legal assistance to immigrants seeking legalization under IRCA.

6 . Clients of Plaintiff INTERNATIONAL INSTITUTE (SAN FRANCISCO) had and have clients

7 who have been injured by defendants in a variety of ways relating to “known to the government

8 procedures,” including but not limited to, refusal to accept their applications, refusal to properly

9 adjudicate their applications, denial of their applications, and refusal to provide application forms.

10 Other clients did not file their applications substantially because of defendants’ front desking

11 policies. These clients are otherwise eligible for legalization but for the challenged practices of

12 defendants. Plaintiff INTERNATIONAL INSTITUTE (SAN FRANCISCO) sues on behalf of its

13 clients.

14

19. Plaintiff JOHN DOE NUMBER 1, a resident of the State of Pennsylvania, entered the

15 United States from Nigeria on an F-1 student visa on January 20, 1980. Prior to January 1, 1982

16 he violated the terms of his nonimmigrant visa by working without authorization, and he has federal

17 tax records to establish this fact. In addition, he violated his status prior to January 1, 1982 by

18 failing to take a full course of studies and by failing to file address reports as required under INA

19 §265. He has since then maintained a continuous unlawful residence in the United States. He is a

20 member of category 1 and category 2, as defined below. JOHN DOE NUMBER 1 attempted to

21 file a complete application and application fee with an authorized legalization office of the Service

22 but had the application and fee refused by such authorized representative because of the INS's

23 policies and practices challenged in this lawsuit. JOHN DOE NUMBER 1 was told that he was not

24 eligible for the legalization program and that the INS legalization office would not accept his

25 application for filing. JOHN DOE NUMBER 1 is eligible for legalization, but for the fact that he

26 was prevented from applying during the application period because of INS's unlawful policies and

27 practices challenged herein.

28

20. Plaintiff JANE DOE NUMBER 1, a resident of the State of California, entered the

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1 United States from Malaysia on an F-1 student visa in 1977. Prior to January 1, 1982 she violated

2 the terms of her nonimmigrant visa by working without authorization. In addition, she failed to

3 comply with the address reporting requirements of INA §265. She has since then maintained a

4 continuous unlawful residence in the United States. She is a member of category 1, as defined

5 below. JANE DOE NUMBER 1 took all of the steps that she reasonably could to file an

6 application for legalization during the application period, but was prevented from completing the

7 application process substantially because of INS’s front-desking policy. During the legalization

8 application period JANE DOE NUMBER 1 went to an INS Office in Los Angeles, California to

9 apply for legalization. The Immigration Officer at the front counter refused to give JANE DOE

10 NUMBER 1 the necessary application forms for the legalization program. JANE DOE NUMBER

11 1 was not made aware of any appeal from the decision to block her from completing the

12 legalization process. She is informed and believes that no administrative appeal exists. INS’s

13 failure to publicize correct information regarding eligibility criteria was also a cause of her failure

14 to complete the application process. JANE DOE NUMBER 1 is eligible for legalization, but for

15 the fact that she was prevented from applying because of INS's unlawful policies and practices

16 challenged herein.

17

21. Plaintiff JOHN DOE NUMBER 2, a resident of the State of Illinois, entered the United

18 States from Cameroon on an F-1 student visa on January 14, 1981. Prior to January 1, 1982 he

19 violated the terms of his nonimmigrant visa by working without authorization, and he has records

20 from the Social Security Administration establishing this fact. He also failed to comply with the

21 address reporting requirements of INA section 265. He has since then maintained a continuous

22 unlawful residence in the United States. He is a member of category 1, as defined below. JOHN

23 DOE NUMBER 2 took all of the steps that he reasonably could to file an application for

24 legalization during the application period; he failed to file an application for legalization

25 substantially because of INS’s front-desking policy. He received incorrect information

26 concerning eligibility requirements through the INS outreach program. JOHN DOE NUMBER 2

27 was aware that pursuant to INS’s front-desking policy, INS had refused to accept applications and

28 application fees from similarly-situated individuals who attempted to apply for legalization, and

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1 that the Immigration Officers at the front counter refused to accept their applications. Based on

2 these events, JOHN DOE NUMBER 2 understood that he was not eligible to participate in the

3 legalization program, that the Immigration Service would not accept his application and application

4 fee, and that he would not be issued work authorization if he attempted to apply. INS’s failure to

5 publicize correct information regarding eligibility criteria was also a cause of his failure to

6 complete the application process. JOHN DOE NUMBER 2 is eligible for legalization but for the

7 fact that he failed to apply substantially because of INS’s front-desking policy.

8

22. Plaintiff JOHN DOE NUMBER 3, a resident of the State of California, entered the

9 United States from Nigeria as a student on December 26, 1980. Prior to January 1, 1982 JOHN

10 DOE NUMBER 3 violated the terms of his nonimmigrant visa by by working without

11 authorization, and he has income tax returns and Social Security records to establish this fact. In

12 addition, he failed to comply with the terms of his visa by failing to file required address reports

13 and by dropping out of school prior to January 1, 1982. He is a member of categories 1 and 2, as

14 defined below. JOHN DOE NUMBER 3 filed an application for legalization during the application

15 period, and his application should have been approved and he should be a permanent resident by

16 this time. However, his application has not yet been approved because of the INS's “known to the

17 government” policies and practices challenged in this lawsuit. But for INS's unlawful policies and

18 practices, JOHN DOE NUMBER 3 would have been approved for permanent residence many years

19 ago.

20

23. JOHN DOE NUMBER 4, a resident of the Western District of the State of Washington,

21 entered the United States from Canada in 1981without inspection. After a three week trip back to

22 his homeland, the Cameroon, he re-entered the United States in 1984 on an F-1 student visa that

23 was invalid. He is a member of category 3 as defined below. JOHN DOE NUMBER 4 attempted

24 to file a completed amnesty application with application fee at the Seattle INS office in December

25 1987. The INS employee at the front counter reviewed his application and told him that he was not

26 eligible to apply and refused to accept his application and application fee because of the INS's

27 “known to the government” policies and practices challenged in this lawsuit. JOHN DOE

28 NUMBER 4 was told that he is not eligible for the legalization program and that the INS

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1 legalization office would not accept his application for filing.. JOHN DOE NUMBER 4 is eligible

2 for legalization but for the fact that he was prevented from applying because of INS’s unlawful

3 policies and practices challenged herein.

4

24. Plaintiff JOHN DOE NUMBER 5, a resident of the Western District of the State of

5 Washington, entered the United States from Nigeria on an F-1 student visa in 1980. Prior to

6 January 1, 1982 he violated the terms of his nonimmigrant visa by transferring schools without

7 prior INS approval. In addition, he failed to comply with the address reporting requirements of

8 INA §265. He has since then maintained a continuous unlawful residence in the United States. He

9 is a member of categories 1 and 2, as defined below. JOHN DOE NUMBER 5 took all of the

10 steps that he reasonably could to file an application for legalization during the application period,

11 but was prevented from completing the application process substantially because of INS’s front-

12 desking policy. During the legalization application period JOHN DOE NUMBER 5 went to the

13 INS Office in Seattle to apply for legalization. The Immigration Officer at the front counter

14 refused to give JOHN DOE NUMBER 5 the necessary application forms for the legalization

15 program. JOHN DOE NUMBER 5 was not made aware of any appeal from the decision to block

16 him from completing the legalization process. He is informed and believes that no administrative

17 appeal exists. INS’s failure to publicize correct information regarding eligibility criteria was also

18 a cause of his failure to complete the application process. JOHN DOE NUMBER 5 is eligible for

19 legalization, but for the fact that he was prevented from applying because of INS's unlawful

20 policies and practices challenged herein.

21

25. Plaintiff JANE DOE NUMBER 2, a resident of the State of South Carolina, entered the

22 United States from Egypt on August 22, 1979. JANE DOE NUMBER 2 violated the terms of her

23 nonimmigrant visa by dropping out of school prior to January 1, 1982. In addition, she failed to

24 comply with the address reporting requirements of INA §265 prior to January 1, 1982. She is a

25 member of categories 1 and 2, as defined below. JANE DOE NUMBER 2 filed an application for

26 legalization during the application period, and her application was denied on the basis that she

27 failed to satisfy the “known to the government” requirement. The Legalization Appeals Unit has

28 issued a final denial of her application for legalization. In denying JANE DOE NUMBER 2's

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1 application for legalization, INS failed to follow the procedures required by law for adjudicating

2 “known to the government” cases. JANE DOE NUMBER 2 is eligible for legalization and her

3 application for legalization would be approved, but for the failure of the defendants to follow

4 correct and lawful procedures for adjudicating “known to the government” cases.

5

26. Plaintiff JOHN DOE NUMBER 6, a resident of the State of Oregon, entered the United

6 States from Saudi Arabia on an F-1 student visa in December 1979. Prior to January 1, 1982 he

7 violated the terms of his nonimmigrant visa by failing to take a full course of studies and by failing

8 to file address reports as required under INA §265. He has since then maintained a continuous

9 unlawful residence in the United States. He is a member of category 1 and category 2, as defined

10 below. JOHN DOE NUMBER 6 attempted to file a complete application and application fee with

11 an authorized legalization office of the Service in Portland, Oregon prior to the May 5, 1988

12 deadline, but had the application and fee refused because of the INS's policies and practices

13 challenged in this lawsuit. JOHN DOE NUMBER 6 was told that he was not eligible for the

14 legalization program and that the INS legalization office would not accept his application for

15 filing. JOHN DOE NUMBER 6 is eligible for legalization, but for the fact that he was prevented

16 from applying during the application period because of INS's unlawful policies and practices

17 challenged herein.

18

27. Plaintiff JANE DOE NUMBER 3 is a citizen of the Philippines, residing in Seattle,

19 Washington. She entered the United States in April 1981 on a visitor visa. In May 1981 JANE

20 DOE NUMBER 3 began attending high school in violation of her status. She subsequently

21 submitted an application to change status to F-1 student status. Prior to January 1, 1982 JANE

22 DOE NUMBER 3 willfully failed to comply with the address report requirements of INA 265.

23 She filed a timely application for amnesty pursuant to INA 245A at Seattle, Washington, but was

24 denied by the Regional Processing Facility in 1988. She filed a timely appeal to the Legalization

25 Appeals Unit, and the appeal was denied on September 19, 2000. JANE DOE NUMBER 3's

26 application for legalization was denied because INS failed to follow correct and lawful procedures

27 concerning proof of a pre-1/1/82 violation that was "known to the government". If the Immigration

28 Service had followed correct and lawful procedures relating to the “known to the government”

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1 requirement, then her application would have been approved. Since her application was denied,

2 JANE DOE NUMBER 3 has been unable to renew her work authorization card and she no longer

3 has a stay of removal because her application for legalization is no longer pending.

4

28 Plaintiff JOHN DOE NUMBER 7 is a citizen of Iran, residing in the greater Los Angeles.

5 He entered the United States in 1978 as an F-1 student. Prior to January 1, 1982, he violated the

6 address reporting requirements of INA 265, though he was informed of the requirements in the I-

7 20 forms issued by the schools he attended. He has resided continuously in the United States

8 since 1978 and meets all the eligibility requirements for INA 245A. In December 1987 he filed a

9 timely I-687 application with an INS office in Los Angeles and was granted work authorization.

10 He was interviewed by INS in Los Angeles in February 1988 and recommended for approval. In

11 1989, he was approved for lawful temporary resident status by the INS and issued an INS

12 Temporary Resident card to show his status. Subsequently JOHN DOE NUMBER 7 applied for

13 adjustment to permanent resident status under the legalization program. In 1990, INS issued a

14 Notice of Intent to Terminate his status as a Temporary Resident. The notice informed him of the

15 intent to terminate his status unless he provided evidence that his violation of status prior to

16 January 1, 1982 was “known to the government.” He provided further evidence as requested, but

17 INS has still not approved his application for adjustment to permanent resident status. JOHN DOE

18 NUMBER 7 is unable to complete the legalization process and obtain the benefits he is entitled to

19 under the legalization program because INS has failed to follow correct and lawful procedures

20 concerning proof of a pre-1/1/82 violation that was "known to the government". If the Immigration

21 Service had followed correct and lawful procedures relating to the “known to the government”

22 requirement, then JOHN DOE NUMBER 7 would have obtained permanent resident status under

23 the legalization program many years ago.

24

29. Plaintiff JOHN DOE NUMBER 8, a resident of the Western District of the State of

25 Washington, entered the United States from the Philippines on or about April 15, 1981 on a

26 nonimmigrant visitor visa, and shortly thereafter he changed status to a nonimmigrant student.

27 Prior to January 1, 1982 JOHN DOE NUMBER 8 violated the terms of his nonimmigrant visa by

28 by working without authorization, and by failing to comply with the address reporting

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1 requirements. He is a member of category 1. JOHN DOE NUMBER 8 has maintained a

2 continuous unlawful residence in the United States since that time. JOHN DOE NUMBER 8 filed

3 an application for legalization during the application period. His application for legalization

4 should have been approved and he should be a permanent resident by this time. His application has

5 not yet been approved because of the INS's “known to the government” policies and practices

6 challenged in this lawsuit. But for INS's unlawful policies and practices, JOHN DOE NUMBER 8

7 would have been approved for permanent residence many years ago.

8

30. Defendant UNITED STATES BUREAU OF CITIZENSHIP AND IMMIGRATION

9 SERVICES (“USCIS” or “Immigration Service”) is the federal agency within the Department of

10 Homeland Security responsible for the lawful administration and implementation of the provisions

11 of the Immigration and Nationality Act that are at issue in this lawsuit. Prior to March 1, 2003,

12 the IMMIGRATION AND NATURALIZATION SERVICE (INS) was the federal agency

13 responsible for the lawful administration and implementation of these provisions. The USCIS is

14 the successor agency of the INS.

15

31. Defendant EDUARDO AGUIRRE is the Director of Defendant CIS. He is sued in his

16 official capacity.

17

32. Defendant DEPARTMENT OF HOMELAND SECURITY is the federal agency which

18 includes Defendant CIS since March 1, 2003.

19

33. Defendant TOM RIDGE is the Secretary of the Department of Homeland Security.

20 Defendant RIDGE is the official responsible for the administration of the INS and the

21 implementation and enforcement of the Immigration and Nationality Act. Defendant RIDGE is

22 sued in his official capacity.

23

34. Defendant DEPARTMENT OF JUSTICE is the federal agency of which INS was a part

24 prior to March 1, 2003. The Department of Justice continues to be responsible for detention and

25 removal of aliens.

26

35. Defendant JOHN ASHCROFT is the Attorney General of the United States and is sued

27 in his official capacity only. Defendant ASHCROFT is charged with the enforcement of the

28 Immigration and Nationality Act, including the handling of immigration cases pending before the

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1 Immigration Court under the Executive Office of Immigration Review.

2

36. Defendant SECRETARY OF STATE is responsible for overseas issuance of visas to

3 enter the United States and for implementation of the INA abroad.

4

37. Defendant COLIN POWELL is the Secretary of State. He is sued in his official

5 capacity only. He is charged with the implementation of the Immigration and Nationality Act at

6 U.S. consulates abroad.

7

IV. BACKGROUND

8

38. The Immigration Reform and Control Act (IRCA) comprehensively amended the

9 Immigration and Nationality Act (INA), 8 U.S.C. §1101 et seq., providing, inter alia, for a

10 mechanism by which certain deportable aliens were able to legalize their status in the United

11 States, by first adjusting to lawful temporary resident status, and then to lawful permanent resident

12 status.

13

39. To qualify for legalization, a deportable alien must establish, inter alia, that he entered

14 the United States before January 1, 1982, and that he has resided continuously in the United States

15 in an unlawful status since such date and through the date the application is filed . INA

16 §245A(a)(2), 8 U.S.C. §1255a(a)(2).

17

40. If the applicant entered the United States with a non-immigrant visa before January 1,

18 1982, the applicant must establish that (a) his or her period of authorized stay as a nonimmigrant

19 expired before January 1, 1982, through the passage of time, or (b) his or her unlawful status (i.e.

20 violation of non-immigrant status) was "known to the Government" as of such date. INA

21 §245A(a)(2)(B), 8 U.S.C. §1255a(a)(2)(B).

22

41. The Immigration Service adopted policies and practices designed to disqualify from the

23 legalization program plaintiffs and class members who entered the United States on ;nonimmigrant

24 visas prior to January 1, 1982 and whose visas were facially valid until after January 1, 1982. The

25 Immigration Service had a policy and practice, on a nationwide basis, of deterring plaintiffs and

26 class members from applying and making it significantly more difficult for them to file

27 applications. Through its Congressionally mandated publicity program, INS disseminated

28 information that such individuals were not eligible for legalization and should not file applications.

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1

42. Plaintiffs challenge the INS's regulations and INS practices defining and interpreting the

2 term "known to the Government", as that term is used in INA §245A. Based on such regulations

3 and practices, INS deemed the plaintiffs and class members to have non-meritorious applications

4 for legalization, and INS refused to accept applications submitted by plaintiffs and class members.

5 Plaintiffs and class members were turned away by the Immigration Service during the one year

6 legalization application period. The Immigration Service refused to accept applications from such

7 individuals; INS refused to provide application forms to such individuals; INS informed such

8 individuals that they were not eligible to apply for legalization and told such individuals that they

9 should not apply for the legalization program; and INS widely publicized their policy of deeming

10 such individuals statutorily ineligible for the legalization program and refusing to accept such

11 applications. INS told its QDE’s that such persons were not eligible under its regulations and their

12 applications would be rejected. This program of disinformation was specifically targeted at

13 plaintiffs and class members who had entered the United States on nonimmigrant visas.

14

43 The front-desking policy was one aspect of the policies and practices used by INS to

15 discourage and deter many otherwise eligible individuals from applying for legalization. Many

16 class members of this lawsuit failed to file an application for legalization during the one year

17 application period substantially because of INS's front-desking policy.

18

44. As a result of INS's policies and practices, the community of individuals and agencies

19 assisting legalization applicants became aware that the Immigration Service deemed plaintiffs and

20 class members statutorily ineligible for legalization and would not accept their legalization

21 applicants. Qualified Designated Entities ("QDE's") were contractually obligated to INS to follow

22 INS regulations and policies, and pursuant to such contractual obligation QDE's turned away

23 plaintiffs and class members. QDE's, other voluntary agencies and community organizations, and

24 attorneys advised potential applicants, specifically the plaintiffs and class members of this lawsuit,

25 that they were not eligible to participate in the legalization program, that the Immigration Service

26 would not accept their applications, that such individuals would not be granted work authorization

27 if they applied for legalization, and that they might be deported if they attempted to apply.

28

45. Under the regulations as originally promulgated, the statutory term "known to the

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1 Government" "means [known to] the Immigration and Naturalization Service." 8 C.F.R. §245a.1(d);

2 52 Federal Register at 16208 (May 1, 1987). The regulations further provided that:

3

An alien's unlawful status was "known to the Government" only if:

4

(1) The Service received factual information constituting a violation of the alien's

nonimmigrant status from any agency, bureau or department, or subdivision thereof, of

5

the Federal government, and such information was stored or otherwise recorded in the

official Service alien file, whether or not the Service took follow-up action on the

6

information received. In order to meet the standard of "information constituting a

violation of the alien's nonimmigrant status," the alien must have made a clear statement

7

or declaration to the other federal agency, bureau or department that he or she was in

violation of nonimmigrant status; or

8

(2) An affirmative determination was made by the Service prior to January 1, 1982 that the

9

alien was subject to deportation proceedings ...

10 8 C.F.R. §245a.1(d)(1) and (2) (1987), 52 Federal Register 16208 (May 1, 1987).

11

46. On November 17, 1987, defendants caused publication in the Federal Register of an

12 "interim rule" which amended their "known to the Government" policy. Defendants added the

13 following categories of applicants to those whose violation of status prior to January 1, 1982 was

14 deemed "known to the Government":

15

[4] [Applicants who produce] documentation from a school approved to enroll foreign

students under §214.3 which establishes that the said school forwarded to the Service a

16

report that clearly indicated the applicant had violated his or her nonimmigrant student

status prior to January 1, 1982. In order to be eligible under this part, the applicant

17

must not have been reinstated to nonimmigrant status ...

18

[11] A nonimmigrant who entered the United States for the duration of status ("D/S")

in one of the following classes, A, A-1, A-2, G, G-1, G-2, G-3 or G-4, whose qualifying

19

employment terminated ... prior to January 1, 1982 ...

20

[12] A nonimmigrant who entered the United States for duration of status ("D/S") in

one of the following classes, F, F-1 or F-2 who completed a full course of study ... and

21

whose time period to depart if any ... after completion of study expired prior to January

1, 1982 ...

22

[13] [A]n alien from an independent country of the Western hemisphere who was

23

present in the United States prior to March 11, 1977 and was known by the INS to have

a priority date for the issuance of an immigrant visa between July 1, 196 and December

24

31, 1976 ... [and]

25

[14] An alien who filed an asylum application prior to January 1, 1982 ...

26 8 C.F.R. §245a.1(d)(4) and §245a.2(b)(11) - (14), 52 Federal Register 43845 (November 17,

27 1987).

28

47. On June 22, 1988, after the legalization application period was over, defendant INS

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1 promulgated regulations in the Federal Register and again modified 8 C.F.R. §245a.1(d)(4), the

2 rule governing students who violated their student status prior to January 1, 1982. 53 Federal

3 Register 23880. Said regulation now reads as follows:

4

§245a.1 Definitions

5

(d) ...

(4) The applicant produces documentation from a school approved to enroll foreign

6

students under §214.3 which establishes that the said school forwarded to the Service a

report that clearly indicated the applicant had violated his or her nonimmigrant student

7

status prior to January 1, 1982. A school may submit an affirmation that the school did

forward to the Service the aforementioned report and that the school no longer has

8

available copies of the actual documentation sent. In order to be eligible under this part,

the applicant must not have been reinstated to nonimmigrant student status. [Emphasis

9

supplied to indicate new language.]

10

48. Plaintiffs and their proposed class members in the following categories are eligible for

11 legalization under the statute but have been deemed ineligible under defendants' unlawful

12 regulations and policies, and have been discouraged or prevented from applying for legalization

13 substantially because of INS's front-desking policy:

14

[1] Those who violated the terms of their nonimmigrant status prior to January 1,

1982 in a manner known to the government because documentation (including the

15

absence of records) existed in one or more government agencies which, taken as a

whole, would warrant a finding that the applicant was in an unlawful status prior to

16

January 1, 1982; or

17

[2] Those who violated the terms of their nonimmigrant visas and whose violations

were required to be made known to the INS pursuant to then existing regulations, but

18

who are unable pursuant to 8 C.F.R. §245a.1(d) and §245a.2(d) to establish to the

satisfaction of INS for purposes of legalization eligibility, that such violation was made

19

known to INS because INS either destroyed such records or failed to store, input or

otherwise record such information in the official Service alien file; or

20

[3] Those who after January 1, 1982 continuously maintained an unlawful residence in

21

the United States, and who applied for and unlawfully received reinstatement to

nonimmigrant status or change of nonimmigrant status pursuant to INS §248, or

22

adjustment or status pursuant to INA §245, or some other immigration benefit from

INS, or the Department of State.

23

48. Section 245A(e)(2) of the INA, provides that an alien who presents a prima facie

24

application for legalization may not be deported and must be granted work authorization until a

25

final determination on the application has been made. Under INS's policies and practices,

26

plaintiffs and class members of have been deemed not to have prima facie applications. Because

27

of defendants' practice and policy of deterring plaintiffs and class members from applying for

28

legalization and preventing such individuals from applying, plaintiffs and class members have been

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1 denied their statutory rights to stays of deportation and temporary work authorization or extension

2 of same pursuant to §245A(e)(2), and have not been able to obtain access to administrative and

3 judicial review of their claims to their statutory benefits.

4

49. Because of INS's unlawful policies and practices, plaintiffs and class members were

5 turned away when they attempted to file applications for legalization. These individuals were not

6 granted work authorization and stays of deportation; their applications were not accepted; they

7 were denied the benefits Congress intended to bestow upon them; and they were prevented from

8 obtaining administrative and judicial review as provided in IRCA.

9

50. Throughout the legalization application period, the Immigration Service refused to

10 accept applications from plaintiffs and class members of this lawsuit; INS deemed such applicants

11 to be statutorily ineligible for legalization, and deemed their applications to be frivolous. INS

12 informed such individuals that they could be put in deportation proceedings if they attempted to

13 file applications for legalization. INS told plaintiffs and class members not to apply for

14 legalization and denied them their right to apply.

15

51. Throughout the legalization application period, the Immigration Service failed to provide

16 correct and accurate information to plaintiffs and class members concerning their rights to apply

17 for legalization and concerning their rights to legalization under IRCA; widely disseminated

18 erroneous information that caused individuals to fail to apply; and caused a wide array of attorneys,

19 immigration consultants, organizations and the media to disseminate INS’s misinformation to

20 plaintiffs and class members.

21

55. On September 30, 1996, Congress enacted the Illegal Immigration Reform and

22 Immigrant Responsibility Act ("IIRIRA"), section 377 of which provides:

23

[N]o court shall have jurisdiction of any cause of action or claim by or on behalf of any

person asserting an interest under this section unless such person in fact filed an application

24

under this section within the period specified by subsection (a)(1) [May 5, 1987 to May 4,

1988], or attempted to file a complete application and application fee with an authorized

25

legalization officer of the Service but had the application and fee refused by that officer.

26 According to the DHS, the only individuals who are authorized to bring claims are individuals who

27 tendered a complete application and application fee to on Immigration Service office. DHS

28 refuses to acknowledge claims of class members who "attempted to file a complete application

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1 and application fee". Furthermore, DHS refuses to acknowledge claims of class members who

2 failed to file applications substantially because of INS's front-desking policy.

3

56. Plaintiffs and members of the proposed class who filed applications in a timely manner

4 have been subjected to unfair and discriminatory adjudication procedures. Such plaintiffs and

5 class members have been required to meet an impossibly difficult burden of proof, one which

6 contravenes the Administrative Procedures Act and governing case law.

7

57. When INS adjudicates legalization applications, it has a policy of reviewing only

8 information contained in an applicant's INS "A" file, but not other information in INS records

9 maintained elsewhere, such as "alpha files", I-94 files, and address report lists. When INS

10 adjudicates an application to determine whether a violation of status was "known to the

11 Government," INS does not review all relevant INS records; INS does not provide the applicant

12 with access to all relevant INS records; and INS does not disclose that it does not review all INS

13 records. As a result, a determination as to whether the "known to the Government" standard has

14 been met is made without a review of all relevant information; and a record adequate for

15 administrative and judicial review is not compiled.

16

58. The INS has a policy and practice of not adjudicating legalization applications timely

17 filed by individuals who fall in one or more of the proposed classes in this lawsuit. As a result,

18 these plaintiffs and class members have not been able to adjust their status and have been

19 unlawfully denied benefits to which they are statutorily entitled. Because they have not been

20 approved for legalization, their family members have been unable to obtain legal status. The

21 applicants have been unable to obtain administrative and judicial review of INS's unlawful practices

22 and policies.

23

59. At various times during the course of this litigation, the INS has finally denied pending

24 legalization applications of class members for “known to the government” reasons, which are

25 challenged herein. Class members with a finally denied legalization application are not able to

26 obtain work authorization nor a stay of removal. Such class members cannot obtain judicial review

27 of the denial without turning themselves in to DHS to be placed in removal proceedings.

28

60. Some class members did obtain approval of their applications, but INS or its successor

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1 agency later decided to rescind the approval and/or terminate the applicant’s temporary resident

2 status. The INS has taken steps to terminate, or has terminated the temporary resident status

3 granted to class members, and has refused to adjust their status to permanent resident.

4

V. CLASS ACTION ALLEGATIONS

5

61. Plaintiffs bring this action on behalf of themselves and all other persons similarly

6 situated pursuant to F.R.C.P. Rules 23(a) and 23(b). The subclasses, as proposed by plaintiffs,

7 consist of:

8

All persons who entered the United States in a non-immigrant status prior to January 1,

1982, who are otherwise eligible for legalization under INA §245A, 8 U.S.C. §1255a,

9

who were deterred from filing an application for legalization substanially because of

INS's regulations and policies, INS’s dissemination of incorrect information on

10

eligibility, or who filed a legalization application which has been rejected, denied,

approved and then subsequently subjected to the termination process, or not

11

adjudicated, and who:

12

[1] Violated the terms of their nonimmigrant status prior to January 1, 1982 in a manner

known to the government because documentation (including the absence of certain records)

13

existed in one or more government agencies which, taken as a whole, would warrant a finding

that the applicant was in an unlawful status prior to January 1, 1982; and/or

14

[2] Violated the terms of their nonimmigrant visas before January 1, 1982, but INS records

15

for the relevant period, including required school and employer reports of status violations,

were not maintained in the official Service alien file or were destroyed by INS and the person

16

is unable to meet the requirements of 8 C.F.R. §245a.1(d) and §245a.2(d) without such

records; and/or

17

[3] After January 1, 1982 continuously maintained an unlawful residence in the United

18

States and who, after January 1, 1982 applied for and unlawfully received a reinstatement to

nonimmigrant status, change of nonimmigrant status pursuant to INA §248, adjustment of

19

status pursuant to INA §245, or some other immigration benefit from INS, or the Department

of State.

20

62. The requirements of Rules 23(a) and 23(b)(2) are met in that the class is so numerous

21

that joinder of all members is impracticable (plaintiffs estimate that there are thousands of class

22

members), there are questions of law and fact common to the class (including whether defendants'

23

interpretation of §245A(a)(2)(B) and §245A(a)(2)(A) is in compliance with the statute, and the

24

equal protection and due process guarantees of the Fifth Amendment, whether class members'

25

violation of their nonimmigrant visas was "known to the Government" as required by statute, and

26

whether class members continue to maintain an unlawful residence), the claims of the

27

representative parties are typical of the claims of the class, the representative parties will fairly

28

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1 and adequately represent the interests of the class because they are represented by pro bono

2 counsel with extensive expertise in class action litigation regarding the rights of immigrants, and

3 the party opposing the class has acted on grounds generally applicable to the class, thereby making

4 appropriate final injunctive relief with respect to the class as a whole.

5

VI. IRREPARABLE INJURY

6

63. Plaintiffs, the members and clients of the plaintiff organizations, and members of the

7 plaintiff class, have suffered and will suffer irreparable harm because of defendants' challenged

8 policies and practices as described throughout this complaint. Plaintiffs, members and clients of

9 the plaintiff organizations, and members of the plaintiff class have experienced and will continue

10 to experience improper denial of the right to apply for legalization, issuance of employment

11 authorization, loss of employment, loss of family unity benefits, delays in obtaining lawful

12 permanent resident status, and possible deportation.

13

VII. CLAIMS FOR RELIEF

14

A. First Claim for Relief

Defendants’ Policy of Deterring Applicants From Filing Applications

15

64. Plaintiffs reallege and by this reference incorporate the allegations contained in

16

paragraphs 1 through 63.

17

65. The defendants' regulations adopted at 8 C.F.R. §245a.1(d)(2), 245.2(b) and .2(c), and

18

the policies and practices adopted pursuant thereto, including refusing to provide application

19

forms, deterring students and other individuals who entered the United States before January 1,

20

1982 on nonimmigrant visas that were facially valid after January 1, 1982 and who were otherwise

21

qualified for legalization, from applying for legalization, making it more difficult for such

22

individuals to submit applications for legalization, and such regulations, practices and policies

23

constitute a violation of and are inconsistent with §245A(a) (application rules and procedures),

24

§245A(e) (work authorization and stays of deportation), §245A(f) (administrative and judicial

25

review) and §245A(I) (dissemination of information) of the Immigration and Nationality Act,

26

§§701-706 of the Administrative Procedures Act, and also constitute a violation of and are

27

inconsistent with the Due Process Clause and the Equal Protection Guarantee of the United States

28

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1 Constitution.

2

3

B. Second Claim for Relief

Defendants’ Dissemination and Publication of Incorrect Information

4

Concerning the Legalization Program

5
66. Plaintiffs reallege and by this reference incorporate the allegations contained in
6
paragraphs 1 through 63.
7
67. Defendants' policy and practice of failing to provide correct and accurate information to
8
individuals eligible for legalization concerning both their rights to apply for legalization and
9
concerning their rights to legalization under IRCA; widely disseminating erroneous and unlawful
10
regulations policies, practices that (1) caused individuals to fail to apply, (2) caused a wide array
11
of attorneys, immigration consultants, organizations and the media, relying on such illegal and
12
incorrect regulations, policies and practices, to misinform otherwise eligible individuals, and
13
refuse to assist them in filing legalization applications, resulting in the failure of plaintiffs and
14
class members to timely complete the application process, and (3) resulted in improper
15
expulsions of and denials of temporary stays of deportation and work authorization to individuals
16
eligible for legalization, violates the rights of plaintiffs and class members under §245A(a), (e),
17
(f) and (I), and under the Due Process Clause and the Equal Protection Guarantee of the Fifth
18
Amendment to the U.S. Constitution.
19

20

C. Third Claim for Relief

21

Defendants' Front-Desking Policy

22

68. Plaintiffs reallege and by this reference incorporate the allegations contained in

23 paragraphs 1 through 63.

24

69. Defendants’ front-desking policy, which (1) caused individuals to fail to apply for

25 legalization during the one year application period, (2) caused a wide array of attorneys,

26 immigration consultants, organizations and the media to misinform otherwise eligible individuals,

27 and refuse to assist them in filing legalization applications, resulting in the failure of plaintiffs and

28 class members to timely complete the application process, and (3) resulted in improper

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1 expulsions of and denials of temporary stays of deportation and work authorization to individuals

2 eligible for legalization, violates the rights of plaintiffs and class members under §245A(a), (e),

3 (f) and (I), and under the Due Process Clause and the Equal Protection Guarantee of the Fifth

4 Amendment to the U.S. Constitution.

5

6

D. Fourth Claim for Relief

Defendants’ Denial of Temporary Stays of Deportation and Employment

7

Authorization

8

70. Plaintiffs reallege and by this reference reincorporate the allegations contained in

9 paragraphs 1 through 63.

10

71. Defendants’ regulations, policies and practices as challenged above have denied and

11 continue to deny temporary stays of deportation and employment authorization to plaintiffs and

12 class members in violation of INA §245A(e)(2), 8 U.S.C. §1255a(e)(2), and the due process and

13 equal protection guarantees of the Fifth Amendment to the United States Constitution.

14

15

E. Fifth Claim for Relief

Defendants’ Regulations and Policies of Refusing to Accept Evidence of

16

Government Knowledge of a Violation of Status

17

72. Plaintiffs reallege and by this reference incorporate the allegations contained in

18 paragraphs 1 through 63.

19

73. The defendants' regulations and policies defining acceptable proof of government

20 knowledge to meet the "known to the government" element, including regulations promulgated at 8

21 C.F.R. §245a.1(d) and procedures for adjudicating legalization applications, impose a much higher

22 burden of proof and impose greater procedural burdens on plaintiffs and class members, including

23 (1) individuals whose violation of status was not recorded in an “official Service alien file” (“A-

24 file”), but can be shown by an I-94 card or other credible documentation (or the absence of

25 records, such as the lack of required quarterly or annual address reports or AR-11 forms) that

26 exists in one or more federal agency (including INS); (2) students and temporary workers who can

27 establish that their violation of status was reported to INS, but who are unable to obtain records in

28 INS files showing that such a report was made (while not requiring such proof from students with

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1 duration of status visas who graduated before January 1, 1982, or from diplomats, consular

2 officers and other officials and employees of accredited foreign governments or international

3 organizations and their immediate families); and (3) nonimmigrants who were improperly

4 reinstated to status after January 1, 1982, all of whom are unable, under INS practices and

5 procedures, including destruction of records after a specified time period or failure to retain them

6 in the “official Service alien files”, to obtain reasonable access to relevant records and documents

7 maintained by INS in order to support their claims to legalization. These regulations, policies and

8 procedures are in violation of and inconsistent with §245A(a)(2)(B) of the Immigration and

9 Nationality Act, the Administrative Procedures Act, 5 U.S.C. §§551, et seq., the Due Process

10 Clause of the Fifth Amendment and the Equal Protection Guarantee of the United States

11 Constitution.

12

13

F. Sixth Claim for Relief

Defendants’ Failure to Adopt Its Policies and Procedures in Compliance with

14

the APA

15

74. Plaintiffs reallege and by this reference incorporate the allegations contained in

16 paragraphs 1 through 63.

17

75. The defendants' policies and practices challenged in the prior claims, inter alia its

18 Legalization Wires, were not published in the Federal Register although such instructions

19 constitute substantive rules of general applicability, statements of general policy, and

20 interpretations of general applicability within the meaning of the Freedom of Information Act, 5

21 U.S.C. §552(a)(1)(D), and are thereby required to be published in the Federal Register. The

22 failure to solicit and consider public comment regarding such instructions violates the APA, 5

23 U.S.C. §553(b)-(c). The failure to comply with such Acts renders the instructions void and

24 inapplicable to plaintiffs and the class. The legalization regulations issued by defendants on May

25 1, 1987, were similarly issued without publication of proposed regulations, the opportunity for

26 public comment, and consideration of public comment, in violation of the Administrative

27 Procedure Act, 5 U.S.C. §553(b)-(c).

28

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1

G. Seventh Claim for Relief

Defendants’ Failure to Grant Advance Parole

2

76. Plaintiffs reallege and by this reference incorporate the allegations contained in

3

paragraphs 1 through 63.

4

77. Defendants’ policy and practice of refusing to grant advance parole to plaintiffs and class

5

members to permit brief, innocent and casual absences from the United States other than for

6

family emergencies involving the illness or death of immediate family members, and defendants’

7

policy and practice of subjecting plaintiffs and class members who travel abroad for brief, casual

8

and innocent reasons without INS advance parole to detention, exclusion and deportation, violates

9

INA §245A(a)(3)(B), and the due process and equal protection guarantees of the Fifth Amendment

10

to the U.S. Constitution.

11

12

H. Eighth Claim for Relief

13

Defendants’ Policy of Holding Applications In Abeyance

14

78. Plaintiffs reallege and by this reference incorporate the allegations contained in

15 paragraphs 1 through 63.

16

79. INS's policy of indefinitely holding class members' legalization applications in abeyance

17 and failure to adjudicate and approve such applications within a reasonable time after filing

18 violates §245A(a),(b) and (f) of the Immigration and Nationality Act, the Administrative

19 Procedures Act, 5 U.S.C. §§551, et. seq, and the Due Process Clause and the Equal Protection

20 Guarantee of the United States Constitution.

21

22

I.

Ninth Claim for Relief

Refusal to Accept Applications From QDE’s

23

80. Plaintiffs reallege and by this reference incorporate the allegations contained in

24

paragraphs 1 through 63.

25

81. INS’ refusal to permit QDE’s to accept legalization applications filed by plaintiffs and

26

class members, and INS’ refusal to allow such applications when forwarded by QDE’s to the

27

Immigration Service, constitute a violation of INA §245A(c), 8 U.S.C. §1255a(c).

28

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1

J. Tenth Claim for Relief

Agency's Interpretation of IIRIRA §377

2

82. Plaintiffs reallege and by this reference incorporate the allegations contained in

3

paragraphs 1 through 63.

4

83. INS's interpretation of §377, and its refusal to accept applications from class members

5

who "attempted to file a complete application and application with an authorized legalization

6

officer", violates INA §245A(f)(4), 8 U.S.C. §1255a(f)(4), and a violation of the Due Process

7

Clause and the Equal Protection Guarantee of the United States Constitution.

8

9

K. Eleventh Claim for Relief

10

IIRIRA §377

11

84. Plaintiffs reallege and by this reference incorporate the allegations contained in

12 paragraphs 1 through 63.

13

85. Section 377 of the Illegal Immigration Reform and Immigrant Responsibility Act

14 violates the Due Process Clause and the Equal Protection Guarantee of the United States

15 Constitution.

16

17

L. Twelfth Claim for Relief

Final Denials of Applications for §245A Legalization

18

86. Plaintiffs reallege and by this reference incorporate the allegations contained in

19

paragraphs 1 through 63.

20

87. The policy of INS and DHS to issue final denials of legalization applications filed by

21

class members, and the failure to follow the procedures established by this court, are in violation

22

of and inconsistent with §245A(a)(2)(B) of the Immigration and Nationality Act, the

23

Administrative Procedures Act, 5 U.S.C. §§551, et seq., the Due Process Clause of the Fifth

24

Amendment and the Equal Protection Guarantee of the United States Constitution.

25

26

M. Thirteenth Claim for Relief

27

Termination, or Intent to Terminate Temporary Resident Status, Based on

Challenged Known to the Government Policies and Procedures

28

THIRD AMENDED COMPLAINT–25

GIBBS HOUSTON PAUW 1000 SECOND AVENUE, SUITE 1600 SEATTLE, WASHINGTON 98104-1094
(206) 682-1080

Case 2:88-cv-00379-JLR Document 431 Filed 02/06/04 Page 26 of 30

1

88. Plaintiffs reallege and by this reference incorporate the allegations contained in

2 paragraphs 1 through 63.

3

89 The policy of INS and DHS to terminate and/or issue notices of intent to terminate, on

4 the basis of their challenged “known to the government” policies, the lawful permanent resident

5 status previously granted to class members, violates and is inconsistent with §245A(a)(2)(B) of

6 the Immigration and Nationality Act, the Administrative Procedures Act, 5 U.S.C. §§551, et seq.,

7 the Due Process Clause of the Fifth Amendment and the Equal Protection Guarantee of the United

8 States Constitution.

9

10

11

PRAYER FOR RELIEF

12

WHEREFORE, plaintiffs request that this Court:

13

1. Assume jurisdiction over this case;

14

2. Certify this case as a class action lawsuit, as proposed herein;

15

3. Issue declaratory judgment that defendants' challenged policies, practices and

16 regulations are in violation of the Immigration and Nationality Act, as amended by the Immigration

17 Reform and Control Act of 1986, the Administrative Procedures Act, and the due process and

18 equal protection guarantees of the Fifth Amendment;

19

4. Issue a preliminary and permanent injunction enjoining defendants from expelling

20 plaintiffs and class members from the country, preventing their return to the United States

21 following improper expulsions from the country, refusing to accept and process applications filed

22 by plaintiffs and class members after the termination of the legalization application period,

23 refusing to grant temporary employment authorization and stays of deportation based on the

24 challenged regulations, policies, and practices, refusing to grant advance parole, and further

25 enjoining implementation and of defendants' challenged policies, practices and regulations as

26 described throughout this complaint, and preventing defendants from relying on these unlawful

27 regulations and the adverse determinations made based on them.

28

5. Issue a preliminary and permanent injunction requiring defendants to reopen on its own

THIRD AMENDED COMPLAINT–26

GIBBS HOUSTON PAUW 1000 SECOND AVENUE, SUITE 1600 SEATTLE, WASHINGTON 98104-1094
(206) 682-1080

Case 2:88-cv-00379-JLR Document 431 Filed 02/06/04 Page 27 of 30

1 motion all final §245A denials based in whole or in part on the“known to the government” policies

2 and procedures challenged herein, reinstate employment authorization without fee for all such

3 cases, provide notice to the applicants in these reopened cases of the orders of this court, provide

4 the applicants in such reopened cases with an opportunity to review their legalization files and all

5 other government records, and an opportunity to supplement their legalization application files,

6 and requiring the defendants to readjudicate the application in accordance with the orders issued

7 by this court.

8

6. Issue a preliminary and permanent injunction requiring defendants to reopen on its own

9 motion all cases in which INS or DHS has issued a final order terminating §245A temporary

10 resident status based in whole or in part on the“known to the government” policies and procedures

11 challenged herein, reinstate employment authorization without fee for all such cases, provide

12 notice to the applicants in these reopened cases of the orders of this court, provide the applicants

13 in such reopened cases with an opportunity to review their legalization files and all other

14 government records, and an opportunity to supplement their legalization application files, and

15 requiring the defendants to readjudicate the application in accordance with the orders issued by

16 this court;

17

7. Issue a preliminary and permanent injunction requiring defendants to provide notice to

18 any class members whose applications are pending before DHS; such notice to inform such class

19 member that (1) the class members of this lawsuit will have their applications adjudicated under

20 certain evidentiary standards and procedures as ordered by the court, (2) class members will have

21 an opportunity to obtain a copy of their legalization files and evidence from any other records

22 maintained by the government; (3) defendants shall not deny the applications filed by class

23 members or terminate the status of class members until they have had an opportunity to review

24 their files and all relevant government records, including records concerning their violation of

25 status and the government’s actual or imputed knowledge of same, (4) class members are entitled

26 to obtain a stay of removal and an employment authorization document during the pendency of the

27 adjudication process;

28

8. Issue a preliminary and permanent injunction requiring the defendants to accept

THIRD AMENDED COMPLAINT–27

GIBBS HOUSTON PAUW 1000 SECOND AVENUE, SUITE 1600 SEATTLE, WASHINGTON 98104-1094
(206) 682-1080

Case 2:88-cv-00379-JLR Document 431 Filed 02/06/04 Page 28 of 30

1 legalization applications from individuals who were deterred from applying during the legalization

2 application period, and requiring further that such applications be deemed to have been filed not

3 later than May 4, 1988, and requiring further that individuals who submit such applications be

4 granted work authorizations and stays of deportation pursuant to INA §245A(e)(2).

5

9. Issue a preliminary and permanent injunction requiring the defendants to comply with

6 the terms of IRCA as applicable to plaintiffs' claims raised herein, and to adopt proper and lawful

7 procedures for adjudicating legalization applications;

8

10. Issue a preliminary and permanent injunction requiring that if the Bureau of Citizenship

9 and Immigration Services approves any pending legalization application pursuant to the orders of

10 this court, then such application shall be deemed to have been approved nunc pro tunc as of

11 December 1, 1990; and if the Bureau of Citizenship and Immigration Services approves a class

12 member's application for permanent resident status under INA §245A(b), 8 U.S.C. §1255a(b), then

13 such application for permanent residence shall be deemed to have been approved nunc pro tunc as

14 of December 1, 1995.

15

11. Issue a preliminary and permanent injunction requiring that the defendants reopen and

16 vacate any exclusion, deportation, or removal orders entered against any class members on or after

17 May 1, 1987, and requiring that defendants readmit without delay all class members, and their

18 family members who are eligible for benefits under the Family Unity program, who were removed

19 from or who departed from the United States, including under “voluntary departure”, so that such

20 class members and their family members may pursue the benefits that they are entitled to under

21 this lawsuit;

22

12. Award plaintiffs their costs, reasonable attorneys' fees, and such other relief as the Court

23 deems just and proper to remedy the injuries suffered by the plaintiffs and their class members.

24

25

Dated this 6th day of February, 2004.

26
Respectfully submitted,
27

28

THIRD AMENDED COMPLAINT–28

GIBBS HOUSTON PAUW 1000 SECOND AVENUE, SUITE 1600 SEATTLE, WASHINGTON 98104-1094
(206) 682-1080

Case 2:88-cv-00379-JLR Document 431 Filed 02/06/04 Page 29 of 30

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
THIRD AMENDED COMPLAINT–29

/s/ Robert H. Gibbs Robert Pauw Robert H. Gibbs 1000 Second Ave., Suite 1600 Seattle, WA 98104 Peter Schey Center for Human Rights and
Constitutional Law 256 South Occidental Blvd. Los Angeles, CA 90057 Michael Rubin Altshuler, Berzon, Nussbaum,
Rubin & Demain 177 Post Street, Suite 300 San Francisco, CA 94108 Attorneys for Plaintiffs
GIBBS HOUSTON PAUW 1000 SECOND AVENUE, SUITE 1600 SEATTLE, WASHINGTON 98104-1094
(206) 682-1080

Case 2:88-cv-00379-JLR Document 431 Filed 02/06/04 Page 30 of 30

1

CERTIFICATE OF SERVICE

2

I hereby certify that on February 6, 2004, I electronically filed the foregoing Third Amended

3 Complaint with the Clerk of the Court using the CM/ECF system which will send notification of

4 such filing to the following CM/ECF participants:

5
Christopher Pickrell 6 Assistant United States Attorney
Western District of Washington 7 601 Union Street, Suite 5100
Seattle, WA 98101-3903 8 Email: Chris.Pickrell@usdoj.gov

9 David E Dauenheimer US DEPARTMENT OF JUSTICE (BOX 878)
10 PO BOX 878 WASHINGTON, DC 20044
11 Phone: 202-616-9777 Email: david.dauenheimer@usdoj.gov
12

13

/s/ Robert H. Gibbs

14

Robert H. Gibbs, WSBA 5932

GIBBS HOUSTON PAUW

15

1000 Second Ave. Suite 1600

Seattle, WA 98104

16

Phone: (206) 682-1080

Fax: (206) 689-2270

17

18

19

20

21

22

23

24

25

26

27

28

THIRD AMENDED COMPLAINT–30

GIBBS HOUSTON PAUW 1000 SECOND AVENUE, SUITE 1600 SEATTLE, WASHINGTON 98104-1094
(206) 682-1080

 
 Case 2:88-cv-00379-JLR Document 543 Filed 09/08/08 Page 1 of 3

1

The Honorable James Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9

)

10 NORTHWEST IMMIGRANT RIGHTS )

PROJECT, et al.,

)

11

Plaintiffs,

)

v.

)

12

)

)

13

)

)

14 UNITED STATES CITIZENSHIP AND )

IMMIGRATION SERVICES, et al.,

)

15

)

Defendants )

16

)

)

17 ____________________________________)

NO. C88-379R
STIPULATION AND ORDER AS TO ADDRESS CHANGES UNDER SETTLEMENT AGREEMENT

18 Plaintiffs, by and through their attorneys, and Defendants, by and through their attorneys,
19 stipulate and agree to the following:
20 1. The parties have submitted for the Court’s consideration a Stipulation Of Settlement
21 with accompanying exhibits and attachments, for the proposed submission of class membership
22 applications and other documents to USCIS.
23 2. In order to centralize consideration of class membership submissions and payments
24 the agency has made several address changes.
25 3. Therefore, it is stipulated and agreed that the addresses provided in the Stipulation of
26 Settlement and accompanying exhibits and attachments are changed as follows:
27

28

Case 2:88-cv-00379-JLR Document 543 Filed 09/08/08 Page 2 of 3

1 OLD ADDRESS

NEW ADDRESS

2 Stipulation of Settlement, at 9, ¶ (4)(C)(1): 3 (NWIRP Class Member Worksheet)
4 USCIS, California Service Center 24000 Avila RD. 2nd Fl, Room 2312
5 Laguna Niguel, CA 92677

USCIS-National Benefits Center P.O. Box 9001 Lees’ Summit, Mo. 64002-9001

6 Stipulation of Settlement, at 10, ¶ (4)(C)(2): (NWIRP Worksheet and I-290B)
7

8

USCIS P.O. Box 805876

9 Chicago, Illinois, 60680-4120

USCIS-NWIRP P.O. Box 804727 Chicago, Illinois 60680-4108

10 Class Notice (Exhibit 1), at 4:
(How do I prove I am a Class member.) 11

12

USCIS, California Service Center 24000 Avila Rd. 2nd Fl, Room 2312

13 Laguna Niguel, CA 92677

USCIS-National Benefits Center P.O. Box 9001 Lees’ Summit, Mo. 64002-9001

14 Instructions And Class Member Worksheet (Exhibit 2), at 5:
(via Postal Service) 15

US Citizenship and Immigration Services 16 P.O. Box 805876

USCIS-NWIRP P.O. Box 804727

17 Chicago, Illinois, 60680-4120

Chicago, Illinois 60680-4108

18 Instructions And Class Member Worksheet (Exhibit 2), at 5: (Sending via other means)

19

U.S. Citizenship and Immigration Services 20 427 S. LaSalle, 3rd Floor

USCIS Attn: NWIRP

21 Chicago, Illinois 60605-1029

131 South Dearborn-3rd Floor Chicago, Il 60603-5517

22 Class Member Worksheet, at 1, ¶ (a)(2):
23 (NWIRP Worksheet and I-290B)

24 USCIS P.O. Box 805876
25 Chicago, Illinois, 60680-4120
26

USCIS-NWIRP P.O. Box 804727 Chicago, Illinois 60680-4108

27

28

2

Case 2:88-cv-00379-JLR Document 543 Filed 09/08/08 Page 3 of 3

1 Class Member Worksheet, at 2, ¶ (b):
(NWIRP Worksheet and I-290B) 2

3

USCIS P.O. Box 805876

4 Chicago, Illinois, 60680-4120

5 /s/ Robert H. Gibbs ___________
6 ROBERT H. GIBBS 1000 Second Avenue, Suite 1600
7 Seattle, WA 98104 206-224-8790
8 Counsel for Plaintiffs

9

10

11 IT IS SO ORDERED.

12
Dated: 13

, 2008.

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

USCIS-NWIRP P.O. Box 804727 Chicago, Illinois 60680-4108
/s/Anthony Norwood ANTHONY NORWOOD Office of Immigration Litigation Box 878 Washington, DC 20044 Counsel for Defendants
ORDER
_______________________________ HONORABLE JAMES L. ROBART UNITED STATES DISTRICT JUDGE

3

 
 ~-
' ;
~.

Case 2:88-cv-00379-JLR Document 548 Filed 09/09/08 Page 1 of 7 Case 2:88-cv-00379-JLR Document 503-8 Filed 05129/2008 Page 1 of 7

I

The Honorable James Robart

2

3

4

5

6

7

8

9

10
11 ••

12

13

14

15

UNITED STATES DISTRICT COURT

16

WESTERN DlSTRICT OF WASHINGTON

17

AT SEATTLE

18

19

20

21 NORTHWEST IMMIGRANT RIGHTS )

22 PROJECT, et al.,

)

23

Plaintiffs,

)

NO. C88-379R

24

······v. .....

)

25

)

26 UNITED STATES CITIZENSHIP AND)

27 IMMIGRATION SERVICES, et al., )

28

)

29

)

30

)

31 Defendants

)

32 33 34

____________________

)
) )

STIPULATION AND ORDER OF PROTECTION REGARDING PRIVACY ACT INFORMATION AND INFORMATION COVERED BY 8 U.S.C: § 1255a(c)(5)

35

36

37

38 39

lllllllltllllllllllllllllllllllllllilllllllif -- - i

40 41

11111111111111111111111111111111111

88-CV-00379-0RD

-- ---- ··---

----

Case 2:88-cv-00379-JLR Document 548 Filed 09/09/08 Page 2 of 7 Case 2:88-cv-00379-JLR Document 503-8 Filed 05/29/2008 Page 2 of 7

1"

Plaintiffs, by and through their attorneys, and Defendants, by and through their

2 attorneys, stipulate and agree to the following:

3

1. This Stipulation and Order is agreed to and entered pursuant to Fed. R. Civ. P.

4 26(c), which provides for the issuance ofprotective orders limiting the disclosure of

5 privileged and confidential documents and information in appropriate circumstances, and

6 5 U.S.C. § 552a(b)(ll) and (g)(l), which provide an excePtion to the Privacy Act of 1974

7 for documents and information released pursuant to a court order.

8

2. This Stipulation and Order relates to a class action brought pursuant to Section

9 24SA ofthe Immigration and Nationality Act ("lNA''), 8 U.S.C. § 1255a (legalization

10 applications); 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 2201 (the

11 Declaratory Judgment Act); and 5 U.S.C. § 701 (the Administrative Procedures Act).

12 The class action challenges Defendants' procedures for the adjudication oflNA §245A

· 13 legalization applications.

14

3. The parties have entered into a Settlement Agreement dated [DATE TO BE

15 SUPPLIED], which contemplates the disclosure of documents and information that may

16 be protected from release by the Privacy Act of 1974, 5 U.S.C. § 552(a) and/or by 8

17 U.S.C. § 1255a(c)(5). Specifically, the Settlement Agreement provides that United States

18 Citizenship and Immigration Services ("USCIS") will provide class counsel with

19 identifying information on legalization applicants that fall within the class, i.e. name, date

20 and place ofbirth, last known mailing address, SSN, counsel name and contact

21 information and all other available identifying information. It also provides that

2
ORDER OF PROTECTION
REGARDING PRlVACY ACf INFORMATION- 2
(C88-379R)

Case 2:88-cv-00379-JLR Document 548 Filed 09/09/08 Page 3 of 7 Case 2:88-cv-00379-JLR Document 503-8 Filed 05/29/2008 Page 3 of 7

1 Defendants shall provide copies to Plaintiffs' counsel of all denials oflegalization, and

2 for Defendants to provide periodic reports to class counsel concerning notice to class

3 members and adjudication oftheir legalization applications.

4

4. While disclosure ofsuch information ordinarily is prohibited in civil

5 litigation, the Privacy Act provides, as an exception, that such records may be released

6 "pursuant to the order ofa court ofcompetent jurisdiction." 5 U.S.C. § 552a(b)(ll). An

7 order ofthis Court, therefore, would provide a basis for release of the requested

8 information pursuant to the Privacy Act and Fed. R. Civ. Pro. 26(c), as well as insulate

9 Defendants from potential liability for improper disclosure. See 5 U.S.C. § 552a(g)(l)..

10

5. While 8 U.S.C. § 1255A(e)(5) ordinarily limits the disclosure of information

11 furnished by an applicant in a legalization application, an order of this court would provide a

12 basis for release ofthe requested information and insulate Defendants from potential liability for

- . ....... ~. ··-

..

.. ..

-

. -- .

13 improper disclosure. See Zambrano v. INS, 972 F.2d 1122 (9th Cir. 1992), vacated on other

14 grounds, 509 U.S. 918 (1993).

15

6. The purposes of this Stipulation and Order include protecting the

16 confidentiality of certain information while ensuring that the parties are able to quickly

·17 and accurately identify and contact potential class members and provide them the relief

18 they tnay be entitled to under the Settlement Agreement. as well as to monitor

19 compliance with the Settlement Agreement. Accordingly, the parties, subject to the

20 Court's approval, stipulate and agree that the procedures set out in the ensuing paragraphs

3
ORDER OF PROTECTION REGARDING PRIVACY ACT INFORMATION- 3 (C88-379R)

Case 2:88-cv-00379-JLR Document 548 Filed 09/09/08 Page 4 of 7 Case 2:88-cv-00379-JLR Document 503-8 Filed 05/29/2008 Page 4 of 7

I shall be followed with respect to information provided by Defendants pursuant to the

2 Settlement Agreement and this Stipulation and Order.

3

6. All information provided pursuant to the Settlement Agreement and this

4 Stipulation and Order shall be used solely in connection with this lawsuil No

5 information may be released or disclosed to any person other than:

6

a. the potential class member the information relates to or Class

7

Counsel in this action, or other counsel or representative of

8

the class member;

9

b. secretaries, paralegal assistants, and other employees and

10

agents of Class Counsel who are engaged in assisting Class

11

Counsel in the preparation ofthis action;

12

c. outside consultants and experts consulted or retained for the

13

purpose of assisting in the preparation of this action, upon

14

condition that, before making disclosure, Class Counsel must

15

obtain and retain an agreement in writing from the outside

16

expert or consultant reciting that he or she has read a copy of

17

this Stipulation and Order and agrees to be bound by its

18

provisions;. and

19

-d. · · ·any other person mutually authorized by all counse]·to ·

20

examine such information and materials.

21

22

7. Any person having access to the information disclosed by Defendants

23 pursuant to the Settlement Agreement and this Stipulation and Order, such as paralegals

24 or other staff or agents ofPlaintiffs' counsel, shall be informed that the information is

25 confidential and subject to a non-disclosure Order of the Court. No such person shall

26 release or disclose the information to any person other than those specifically identified

27 in paragraph 6, above, without further order of the Court or stipulation of the parties.

28

8. IfClass Counsel intends to file any motion, opposition, reply or any other

29 filing with the Court and attach thereto or set forth therein any document or information

4 ORDER OF PROTECI'ION REGARDING PRIVACY ACf INFORMATION- 4
(C88-379R)

Case 2:88-cv-00379-JLR Document 548 Filed 09/09/08 Page 5 of 7 Case 2:88-cv-00379-JLR Document 503-8 Filed 05/29/2008 Page 5 of 7

1 that Defendants have provided pursuant to the Settlement Agreement or this Stipulation

2 and Order, Class Counsel shall file tlie document under seal or redact identifying

3 information.

4

9. Within sixty days following the termination ofjurisdiction .pursuant to the

5 Settlement Agreement, any originals or reproductions ofany the information provided by

6 Defendants under the Settlement Agreement and this Stipulation and Order shall.be

7 destroyed by Class Counsel or returned to the custody of counsel for the Defendants. If

8 the documents are destroyed, Class Counsel shall so notify Defendants' counsel in

9 writing.

10

10. Any specific part or parts of the restrictions imposed by this Stipulation and

11 Order may be terminated at any time by a letter from counsel for Defendants to Class

12 Counsel or byan order ofthe Court.

13

14
15
16 I obeit H. Gibbs 17 ROBERT H. GIBBS 18 1000 Second Avenue, Suite 1600 19 Seattle, WA 98104 20 206-224-8790 21 Counsel for Plaintiffs 22 23
24
25
26 27 28

ANTH NY NORWOOD
Office ofinimigration Litigation Box878 Washington, DC 20044 Counsel for Defendants

5
ORDER OF PROTECTION REGARDING PRIVACY ACT INFORMATION- 5 (C88-379R)

Case 2:88-cv-00379-JLR Document 548 Filed 09/09/08 Page 6 of 7 Case 2:88-cv-00379-JLR Document 503-8 Filed 05/29/2008 Page 6 of 7

1
2 The parties having stipulated, it is hereby ORDERED as follows:

3

I. Notwithstanding any other provision of the Privacy Act, 5 U.S.C. § 552a, et

4 seq., United States Citizenship and Immigration Services ("USCIS"), its officers, agents,

5 employees and representatives (including, but not limited to, the United States Attorney's

· 6 Office for the Western District ofWashington) are hereby authorized under 5 U.S.C. §

7 552a(b)(ll) to release to Class Counsel the information identified herein.

8

2. Notwithstanding any provision of8 U.S.C § 1255A(c)(5), USCIS, its

9 officers, agents, employees and representatives (including, but not limited to, the United

10 States Attorney's Office for the Western District of Washington) are hereby authorized to

II release to Class Counsel the information identified herein.

12

3. Class Counsel shall utilize such information only for the purpose of

. 13 locating-potential class members in order to notifY them oftheir rights under the .

14 Settlement Agreement, and to monitor compliance with the S~ement Agreement, and

15 sha1I make no further disclosure ofsuch information beyond what is necessary to

16 accomplish these purposes.

17

4. The USCIS, its officers, agents, employees and representatives are hereby

18 relieved of any obligation under 5 U.S.C. § SS2a(c) to make or keep any accounting of

19 any disclosure or, under 5 U.S.C.§ SS2a(e)(8), to provide notice of any disclosure to any

20 individual, made under the authority ofthis order.

21

5. The purpose of this order is to enable the USCIS its officers, agents,

22 employees and representatives to provide information which they might otherwise be

6
ORDER OF PROTECTION REGARDING PRIVACY ACT INFORMATION- 6 (C88-379R)

Case 2:88-cv-00379-JLR Document 548 Filed 09/09/08 Page 7 of 7 Case 2:88-cv-00379-JLR Document 503-8 Filed 05/29/2008 Page 7 of 7

1 prohibited from disclosing under the Privacy Act, 5 U.S.C. § 552a and/or 8 U.S.C. §

2 1255a(c)(5). However, it is understood and agreed that this order doeil not constitute an

3 agreement or a ruling that any particular evidence is discoverable, relevant or admissible

4 in this matter, nor, except in so far as may be necessary to ensure that any disclosure does

5 not violate an provision of8 U.S.C. § 1255a(c)(5), may this order be construed to compel

6 any action on the part ofthe USCIS or any of its officers, agents, employees or

7 representatives.

8

9

DATED this ~day of 9.e_15s-

• 2008.

10

11

12

13

14

15 16 17 18 19 20 21

7
ORDEROFPROTBCnON
REGARDING PRIVACY ACT INFORMATION- 7.
(C88-379R)

 
 Case 2:88-cv-00379-JLR Document 550 Filed 09/09/08 Page 1 of 2 Case 2:88-cv-00379-JLR Document 503-9 Filed 05/29/2008 Page 1 of 2

-FILED LOOGEO

-_RECEENITE~REEOO

1
SEP 9- 2008

The Honorable James L. Robart

2

, A' s<Am.•

UNITED STATES DISTRICT COURT

3-J

s~LEERRN~DuISs1RoIC11sTOiuFCW1 AcoSuHR'";"10OwEPU1'1

WESTERN DISTRICT OF WASHINGTON

.

AT SEATTLE

"' 4

NORTHWEST IMMIGRANT RIGHTS PROJECT )

5 ET AL.

)

6

vs.

~

NO. 88-379R

7 U.S. BUREAU OF CITIZENSHIP AND

)
) JOINT STIPULATION OF

IMMIGRATION SERVICES, ET AL.
8

) SETTLEMENT RE: ) ATTORNEY'S FEES AND COSTS

9

10

The subst~ce of this action having been settled fully by the agreement filed

11 concurrently herewith, plaintiffs and defendants, by and through their undersigned

12 counsel, hereby agree and stipulate to settle plaintiffs' claims for attorney's fees and

13 costs incurred in this action as follows:

14

1. Defendants will pay Plaintiffs $1,775,000 in full settlement of all claims they

IJe. 15 ~ay ~"e fo_ratto~ney~'_f~s, pittS costs to ~temized ~n<_i no_t _t~ ex<:_e~ $35,()00, ...

16 whether under the Equal Access to Justice Act ("EAJA") 28 U.S.C. § 2412(d), or

17 otherwise, provided that the Court approves the stipulation for settlement of the merits

18 filed concurrently herewith, and final judgment is entered not subject to appeal or

19 termination. In the event the Court declines to approve the stipulation for settlement of

2 0 the merits filed concurrently herewith, this stipulation shall be null and void.

21

2. Attorneys fees and costs under this agreement shall be made payable to

22 Gibbs, Houston & Pauw, 1000 Second Ave. Suite 1600, Seattle, WA 98104, and such

2 3 payment will release Defendants from all payment obligations to Plaintiffs under EAJA

24 and any other applicable law or regulation.

25

26 -Tlllmlllllfmmiimlllilllllllllllllllllll

27

11111111111111111111111111111111111

28

88-CV-00379-PET

Case 2:88-cv-00379-JLR Document 550 Filed 09/09/08 Page 2 of 2 Case 2:88-cv-00379-JLR Document 503-9 Filed 05/29/2008 Page 2 of 2

: &L~ood U.S. ifft:rtment of Justice
3 P.O. Box 878, Ben Franklin Station
Washington, DC 20044 4 202-616-4883

~
ert . Gib , ESq. Robert Pauw, E:;q.
Gibbs Houston Pauw 1000 Second Ave. Suite 1600 Seattle, WA 98104

5 Counsel for Defendants
6 Dated: ~ ?l,2co(
7

Counsel for Plaintiffs
Dated: t:;;'/Z,'6} &1)

8

9

10

11

12

13
14 IT IS SO ORDERED.
15
I 16 . l)~t~= OJ q ,2008.

ORDER

17

18

19

20

21

22

23

24

25

26

27

28

2

 
 Case 2:88-cv-00379-JLR Document 551 Filed 09/09/08 Page 1 of 5 Case 2:88-cv-00379-JLR Document 503-7 Filed 0512912008 Page 1 of 5

1

2

The Honorable James L. Robart

3

4

5

7
8

9

10

ll

UNITED STATES DISTRICf COURT

12 WESTERN DISTRICf OF WASHINGTON
13

I

AT SEATTLE

15

16 NORTHWEST IMMIGRANT RIGHTS •PROJECT, "ET"AL~
17 PLAINTIFFS,
vs.

) )

Case .

No- ..

88. -3. 7.9R-

...

) D'PAP88tiBt ORDER OF ) FINAL JUDGMENT )

~ U.S. CffiZENSHIP AND IMMIGRATION (Exhibit 5)

SERVICES, ET AL.

)

~

)

DEFENDANTS.

22

)

)

23

)

24

25 II I

26

-----

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27

111111111111111111111111111111111111111111111

28

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88-CV-00379-RCYf

Case 2:88-cv-00379-JLR Document 551 Filed 09/09/08 Page 2 of 5 Case 2:88-cv-00379-JLR Document 503-7 Filed 05/29/2008 Page 2 of 5

1

Rule 23(e) of the Federal Rules of Civil Procedure provides:

2

A class action shall not be dismissed or compromised without the approval of the

3

court, and notice of the proposed dismissal or compromise shall be given to all

4

members of the class in such manner as the court directs.

5

With respect to the merits of the settlement, Rule 23{e) requires the Court to

6
determine whether a proposed settlement in a class action is fundamentally fair,
7

8 adequate, and reasonable. Class Plainti(fs v. Cit:JI ofSeattle, 955 F.2d 1268, 1276 (9th Or.

9 1992). It is the settlement taken as a whole, rather than the individual component parts, 10
that must be examined for overall fairness. O{ficers for lustice v. Civil Serv. Cornrn'n f!/San 11 12 Francisco. 688 F.2d 615, 628 (9th Cir. 1982). The decision to approve or reject a settlement

17

For the reasons set out in the parties' Joint Statement re Final Approval of Settlement,

.20 Accordingly,

21

IT IS HEREBY ORDERED that the proposed settlement is approve and each and

22 every claim of the Complaint, as amended, is dismissed with prejudice, and any
23
injunctive orders and decisions of this Court are dissolved.
24

25

IT IS FURTHER ORDERED that the settlement class be certified pursuant to Rule 23

26 of the Federal Rules of Civil Procedure as follows:
27
28
2
Settlement

Case 2:88-cv-00379-JLR Document 551 Filed 09/09/08 Page 3 of 5 Case 2:88-cv-00379-JLR Document 503-7 Filed 05/29/2008 Page 3 of 5

1

All persons who entered the United States in a non-immigrant status prior to

2

January 1, 1982, who are otherwise primafade eligible for legalization under§ 245A

3

of the INA, 8 U.S.C. § 1255a, who are within one or more of the Enumerated

4

Categories described below in paragraph 2, and who -

5

A) between May 5, 1987 and May 4, 1988, attempted to ffie a complete

6

application for legalization under § 245A of the INA and fees to an INS

7

officer or agent acting on behalf of the INS, including a Qualified Designated

8

Agency ("QDE"), and whose applications were rejected £or filing

9

(hereinafter referred to as "Sub-class A members"); or

1

B) between May 5,1987 and May4, 1988, attempted to apply for legalization

11

with an INS officer, or agent acting on behalf of the INS, including a QDE,

12

under § 245A of the INA, but were advised that they were ineligible for

13

legalization, or were refused legalization application forms, and for whom

1

such information, or inability to obtain the required application forms, was a

15

substantial ,cause of their failure to file or complete a timely written

16

. appli~tio11, ~~ter ~fet:red toas. "$u~Sl! E!'' mJ:!:mb~:r!l); or...... __

17

.

'

C) filed a legalization application under INA § 245A and fees with an INS

18

officer or agent acting on behalf of the INS, including a QDE, and whose

19

application

20 21 22 23 24
25 26
27 28
Settlement

i. has not been finally adjudicated or whose temporary resident status has been proposed for termination (hereinafter referred to as "Sub-class C.i. members"),
ii. was denied or whose temporary resident status was. terminated,
where the INS or OS action or inaction was because INS or OS believed the applicant had failed to meet the "known to the
government" requirement, or the requirement that s/he demonstrate
that his/her unlawful residence was continuous (hereinafter referred to as "Sub-class C.ii. members").
3

Case 2:88-cv-00379-JLR Document 551 Filed 09/09/08 Page 4 of 5 Case 2:88-cv-00379-JLR Document 503-7 Filed 05/29/2008 Page 4 of 5

1 2. Enumerated Categories

2

(1) Persons who violated the terms of their nonimmigrant status prior to

3

January 1, 1982 in a manner known to the government because

4

documentation or the absence thereof (including, but not limited to, the

5

absence of quarterly or annual address reports required on or before

6

December 31, 1981) existed in the records of one or more government

7

agencies which, taken as a whole, warrants a finding that the applicant was

8

in an unlawful status prior to January 1, 1982 in a manner known to the

9

government.

10

(2) Persons who violated the terms of their nonimmigrant visas before January

11

1, 1982, for whom INS/DHS records for the relevant period (including

12

required school and employer reports of status violations) are not contained

13

in the alien's A-file, and who are unable to meet the requirements of 8 C.F.R.

1

§§ 245a.1(d) and 245a.2(d) without such records.

15

(3) Persons whose facially valid "lawful status" on or after January 1, 1982 was

16

o):)tain~d by ,fraud_ o~ ~stake, whetl:ler sut:h "la~~s!atus" was th,e result of

17

(a) reinstatement to nonimmigrant status;

18

(b) change of nonimmigrant status pursuant to INA § 248;

19

. (c) adjustment of status pursuant to INA§ 245; or

20

(d) grant of some other immigration benefit deemed to interrupt the

21

continuous unlawful residence or continuous physical presence

22

requirements of INA § 245A.

23

'2008
Presented by:
Settlement

le James L Robart tates District Judge
4

Case 2:88-cv-00379-JLR Document 551 Filed 09/09/08 Page 5 of 5 Case 2:88-cv-00379-JLR Document 503-7 Filed 05/29/2008 Page 5 of 5
1 2
3
4
5 6 7 8 9
12
Attorneys for Defendants
17 18 1 20 21 22 23 24 25 26 27 28
5
Settlement

 
 709 F.Supp. 998 (1989)
IMMIGRATION ASSISTANCE PROJECT OF THE LOS ANGELES COUNTY FEDERATION OF LABOR, et al., Plaintiffs, v.
IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants.
No. C88-379R.
United States District Court, W.D. Washington.
March 7, 1989.
999 *999 Robert H. Gibbs, Seattle, Wash., for plaintiffs.
Donald Keener, U.S. Dept. of Justice, Office of Immigration Litigation, Civil, Washington, D.C., for defendants.
1000 *1000 ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION TO DISMISS
ROTHSTEIN, Chief Judge.
THIS MATTER comes before the court on plaintiffs' motion for summary judgment and defendants' second motion to dismiss or in the alternative for summary judgment. Having reviewed the motions, together with all documents filed in support and in opposition, and being fully advised, the court finds and rules as follows:
I. FACTS
On November 4, 1988, this court granted in part and denied in part defendant Immigration and Naturalization Service's ("INS") motion to dismiss. See Order Granting In Part and Denying In Part Defendants' Motion to Dismiss ("Order"). The court dismissed plaintiffs' claim for an extension of the deadline for legalization applications under the Immigration Reform and Control Act of 1986 ("IRCA"), 8 U.S.C. § 1255a, as well as those claims decided in Ayuda, et. al. v. Meese, et. al, 687 F.Supp. 650 (D.D.C.1988) that the INS did not appeal.
In addition, the court ruled that since plaintiffs' amended complaint failed to allege that the individual named plaintiffs submitted timely applications for legalization, these individual plaintiffs lacked standing. In a companion order, the court denied plaintiffs' motion for class certification. See Order Denying Plaintiffs' Motion for Provisional Class Certification.
The court did not dismiss the suit, ruling instead that the various organizational plaintiffs had standing in their own right to seek relief from the INS's regulations and practices. The court held that it had jurisdiction over plaintiffs' amended complaint and that plaintiffs' claims were ripe for adjudication, but questions of fact precluded summary judgment. The parties have subsequently taken depositions and exchanged discovery materials. Plaintiffs now move for summary judgment, and defendants move to dismiss or in the alternative for summary judgment.
II. DISCUSSION
A. Standard For Summary Judgment
A grant of summary judgment is appropriate if it appears, after viewing the evidence in the light most favorable to the opposing party, that there are no genuine issues of material fact and that the moving party is entitled to

judgment as a matter of law. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630-631 (9th Cir.1987); Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir.1985). Summary judgment is not appropriate if "a result other than that proposed by the moving party is possible under the facts and applicable law." Aronsen v. Crown Zellerbach, 662 F.2d 584, 591 (9th Cir.1981).
B. Background
To define the eligibility of nonimmigrants for legalization, Congress adopted 8 U.S.C. § 1255a(a)(2)(B), which provides that:
[i]n the case of an alien who entered the United States as a nonimmigrant before January 1, 1982, the alien must establish that the alien's period of authorized stay as a nonimmigrant expired before such date through the passage of time or the alien's unlawful status was known to the Government as of such date.
8 U.S.C. § 1255a(a)(2)(B). The United States District Court for the District of Columbia in Ayuda v. Meese rejected the INS's restrictive definition of the phrase "known to the Government". Ayuda, 687 F.Supp. at 660-66.
The Ayuda court held that to prove an alien's unlawful status was known to the government,
a nonimmigrant alien must establish that prior to January 1, 1982, documentation existed in one or more government agencies so that such documentation taken as a whole would warrant the finding that the non-immigrant alien's status in the United States was unlawful.
1001 Id. at 666 (supplemental order). Plaintiffs here challenge the INS's application of the *1001 Ayuda standard to three categories of applicants and as a consequence, plaintiffs' arguments present technical variations on the issues first discussed in Ayuda.
C. Section 265 Applicants
Prior to 1982, section 265 of the Immigration and Naturalization Act required all aliens residing temporarily in the United States to report their addresses to the INS each quarter or each year. See 8 U.S.C. § 1305. If an alien willfully failed to register his or her address, the INS could seek criminal penalties as well as deportation. In its prior order, this court held that violations of section 265 were not merely technical, but rather made an alien's status unlawful and therefore eligible for legalization under the "known to the government" standard.[1]See Order at 17; Ayuda, 687 F.Supp. at 668 (supplemental order V).
Plaintiffs contend that in spite of this and other courts' rulings, the INS refuses to approve section 265 applicants. The INS, according to plaintiffs, gives the formal explanation that it is holding these applications in abeyance while litigation continues. See Deposition of Terrance O'Reilly at A2, exhibit A to Plaintiffs' Reply Memorandum in Support of Summary Judgment. Informally, however, INS agents have allegedly told the directors of various plaintiff organizations that section 265 applications will be denied. See Plaintiffs' Memorandum in Opposition at 4.
In response, the INS contends that it has no such policy. The previous stance of the INS, that violations of section 265 were technical and did not entitle an alien to legalization, was a "litigation position" which the INS has abandoned. The INS does not contest that it is holding section 265 applications in abeyance, arguing instead that it has decided to process these applications case-by-case. Finally, the INS renews its objection to judicial review on the grounds that the legal issue is not ripe.
This court affirms its prior ruling that violations of section 265 create unlawful status and therefore qualify for consideration under the "known to the government" standard. To the extent that case-by-case determinations might permit an INS adjudicator to rule that section 265 violations, as a matter of law, do not create unlawful status, this would allow legal error. Since the INS has applied this "litigation position" to actual cases in the past, the court finds the possibility of erroneous denial substantial enough to warrant summary judgment here.

Therefore, the court grants plaintiffs' request for declaratory relief and holds that violations of section 265 create unlawful status for purposes of eligibility for legalization.[2]
However, the court shall not, at this time, grant plaintiffs' request for injunctive relief requiring the INS to process section 265 applications. Since the outcome of the Ayuda appeal and other litigation may affect the status of these applications, this court withholds entry of such an order. Therefore, the court retains jurisdiction over plaintiffs' first claim.
D. Category 2 Applicants
In § 1255a(a)(2)(B), Congress described two classes of nonimmigrants eligible for legalization.
[T]he alien must establish that the alien's period of authorized stay expired before such date through the passage of time or the alien's unlawful status was known to the government as of such date.
§ 1255a(a)(2)(B) (emphasis added). The INS has applied this distinction to applicants who violated duration of status ("D/s") visas, dividing them into two categories. The first category includes students admitted under an d/s 1002 F visa who *1002 remain in the United States after they graduate. In legalization wire number 26, the INS instructed its examiners to classify graduated students with F visas under the "passage of time" standard, exempting these applicants from proving their unlawful status was known to the government. See Legalization Wire Number 26, exhibit 20 to Plaintiffs' Memorandum in Support of Summary Judgment.
For those students who violated their d/s visas by not fulfilling some condition of the visa, failing to take the required number of class hours for example, the INS categorizes these applications under the "known to the government" standard. See 8 U.S.C. § 1255a(a)(2)(B); Ayuda, 687 F.Supp. at 666 (Supplemental Order). Plaintiffs contend that by judging these applications under the "known to the government" test, the INS imposes a greater quantum of proof on the applicants without a rational basis for doing so, and consequently violates the equal protection guarantee of the Fifth Amendment.
The INS acknowledges that it categorizes applicants under the "passage of time" and "known to the government" provisions, but denies that this distinction violates the equal protection guarantee. First, the INS contends that the distinction is rational given the language of § 1255a(a)(2)(B). Using again the example of a student with a d/s F visa, when the student enters the United States to study, the INS authorizes the student to stay lawfully in the United States for a definite period. This is the duration of the students lawful status. If the student stays beyond this period, the student's status becomes unlawful solely by the passage of time.
On the other hand, if the student fails to meet a condition of the visa, taking the required amount of course hours, the period of authorized stay has not expired 0907 that period would end sometime after graduation. Instead, the student has created unlawful status before the duration of lawful status was scheduled to end. The INS contends that its discrimination between these two types of unlawful status merely follows the distinction drawn by Congress in IRCA.
Second, the INS argues that in practice, the standard of proof between the two categories does not differ, and only case-by-case adjudication within the agency will define the ultimate standards. The INS argues again that contrary to plaintiffs' allegations, it does not have a concrete policy to deny legalization to plaintiffs' sub-class of applicants.
INS regulations clearly create two classes of applicants. In 8 CFR § 245a.2(b)(11)-(12), the INS singles out as eligible for legalization, nonimmigrants with duration of status visas in one of three classes: A (foreign government employees and family), G (representatives of international organizations and family), and F (students who have completed a full course of study). Nonimmigrants with H (temporary employees), L (intracompany transfers), and F visas who do not graduate are eligible for legalization under 8 CFR § 245a.2(b)(3), the "known to the government" standard. Congress in IRCA made no similar distinctions among types of visas.

The court finds that this distinction between applicants is not, as the INS contends, purely a matter of definition, but rather adds an additional element of proof for H, L and non-graduating F visa applicants. These applicants must prove not only that they violated the conditions of their visa, but also that the government had constructive or actual notice of their unlawful status. A non-graduating F visa applicant, for example, must document that,
the said school forwarded to the [INS] a report that clearly indicated the applicant had violated his or her nonimmigrant student status prior to January 1, 1982. A school may submit an affirmation that the school did forward to the Service the aforementioned report and that the school no longer has copies of the actual documentation sent.
8 CFR § 245a.1(d)(4) (amended June 22, 1988).
1003 *1003 In contrast, a graduated F visa applicant must prove that his or her authorized admission expired through the passage of time, not that the government had actual or constructive notice of the unlawful status. See 52 Fed.Reg. 43843, exhibit 2 to Plaintiffs' Memorandum in Reply; Legalization Wire # 26, supra. Moreover, A and G aliens,
will be considered eligible ... if the qualifying employment terminated prior to January 1, 1982 or the Department of State acknowledges that the alien's A or G status recognition ceased prior to January 1, 1982 and the alien is otherwise eligible for legalization.
52 Fed.Reg. 43843.
The court finds that the INS has created an irrational distinction among legalization applicants. Prior to 1982, a d/ s F visa had no specific expiration date 0907 the visa was valid "for the duration of status in the United States as a student." 8 CFR § 214.2(f)(5) (1981). Graduation, like failing to attend school, ended the student's lawful status. Furthermore, the distinction between A, G, and graduated F visa applicants on the one hand, and H, L, and nongraduating F visa applicants makes no sense. The court finds no rational difference between a student who drops out of school and an embassy employee who quits work. Both have presumably violated a term of their visas, yet for the embassy employee, the INS considers the unlawful status to occur through the passage of time.
The court finds, accordingly, that the INS's irrational classification violates the equal protection guarantee. See Sudomir v. McMahon, 767 F.2d 1456, 1464 (9th Cir. 1985) (federal classifications valid unless wholly irrational). Since the court also finds no genuine issues of material fact concerning INS regulations, it grants summary judgment to plaintiffs on this issue. Furthermore, the court grants plaintiffs' request to create a rebuttable presumption that an applicant's violation of his or her visa, regardless of type, was known to the government if at the time of the violation, INS regulations or policy required the applicant's school or employer to report the violation. With this presumption, the evidentiary burdens on all nonimmigrants, as well as the INS's ability to challenge an application, are equivalent.
E. Category 3 Applicants
The dispute over this final category of applicants centers on a recent decision by the Legalization Appeals Unit ("LAU"), the final level of administrative appeals for legalization applicants, in Matter of N. See Exhibit A to Defendants' Memorandum in Opposition. Plaintiffs have alleged that the INS denies legalization to aliens who, by misrepresentation or mistake, are incorrectly reinstated to lawful status sometime after January 1, 1982. In Matter of N, the LAU ruled in favor of an applicant in plaintiffs' third category.
[A]n alien who obtains reinstatement as a nonimmigrant subsequent to January 1, 1982, and who otherwise meets the continuous unlawful residence requirement, is eligible for temporary resident status if the reinstatement was obtained by the misrepresentation of material facts.
Id. The INS represents that this ruling[3] serves as precedent for future decisions by the LAU and therefore, the INS has no policy to deny legalization to applicants who were incorrectly reinstated to lawful status.

Plaintiffs assail the INS's position on two grounds: first, contrary to the INS's representations, the LAU and Regional Processing Facilities have not followed Matter of N as the law. Plaintiffs submit portions of eight INS denials which plaintiffs allege show the LAU's non-compliance. See Exhibit 5 to Plaintiffs' Supplemental Authorities. Second, Matter of N does nothing for those applicants previously denied.
1004 *1004 In its briefs, the INS appears to agree that Matter of N and Matter of S are correct and will serve as precedents. However, plaintiffs point to INS decisions which do not conform to these rulings as well as noncommittal language in the INS's briefs. To resolve any ambiguity in the issue, this court rules as follows: Matter of N is the correct legal ruling. If an applicant, in unlawful status prior to January 1, 1982 obtains reinstatement to lawful status through fraud, misrepresentation, or mistake, the applicant nonetheless remained in an unlawful status. As the LAU stated in Matter of S, "admission is not lawful if it is regular only in form. The term `lawfully' denotes compliance with substantive legal requirements, not merely procedural regularity." Matter of S, attachment A to Defendants' Supplemental Authorities.
The court also finds justification for requiring the INS to reopen category 3 cases denied prior to Matter of N. As with previous federal courts addressing the INS's legal errors, this court has both the jurisdiction and authority to order the reopening of erroneous denials. See Ayuda v. Meese, 687 F.Supp. 650, 668 (D.D.C.1988). Furthermore, the INS's proposed remedy for erroneous denials 0907 sua sponte reopening 0907 fails to guarantee adequate review. See 8 CFR § 103.5. Under INS regulations, an applicant or attorney cannot move for reconsideration, nor does the applicant have any right to review. Section 103.5 makes review purely discretionary and informal. This procedure is likely to prove incomprehensible to most denied applicants, many of whom do not have legal counsel.
Therefore, the court orders the INS to reopen all cases decided prior to and contrary to Matter of N. To expedite reopening, plaintiffs shall search their files for cases eligible for review and notify the INS of all cases which may comply.
F. Ripeness and Standing[4]
The INS renews its arguments that the plaintiff organizations do not have standing to sue and that plaintiffs' claims are not ripe. As to standing, the court finds that even though the deadline for applications has passed, the plaintiff organizations must still expend time and money to guide applicants through the administrative process. Moreover, the failure of the INS to decide entire categories of cases (like section 265 violations) or to adopt a uniform policy perceptibly impairs the plaintiff organizations' goals and drains their resources. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 1124, 71 L.Ed.2d 214 (1982). The court finds no grounds to reconsider its earlier finding that plaintiffs have standing to sue.
The court also rejects the INS's contention that plaintiffs' claims are not ripe. As the court discusses above, INS policy is sufficiently concrete to permit ruling on the legality of INS policy and regulations. The court's ruling today only establishes legal standards which the INS must follow if it does not already do so. The court expresses no opinion on the ultimate eligibility of a particular applicant, but rather leaves case-by-case review of eligibility to the INS. Therefore, the INS's concern that this court's jurisdiction over plaintiffs' claims will interfere with the agency's statutory right to decide eligibility is unwarranted.
THEREFORE, plaintiffs' motion for summary judgment is GRANTED as to declaratory relief for applicants in categories 1-3. The INS is ordered to reopen all category 3 applications denied on grounds contrary to the legal ruling in Matter of N. The plaintiff organizations American G.I. Forum, United California Mexican American Association, African Community and Information Center, Chinese American Citizens Alliance, and the Coalition 1005 for Humane *1005 Immigration Reform of Los Angeles are DISMISSED from this matter. Defendants' second motion to dismiss or in the alternative for summary judgment is DENIED.
[1] However, questions of fact concerning the INS's records of section 265 violations precluded summary judgment.

[2] Plaintiffs in their Memorandum in Support of Summary Judgment explain in detail the INS's records and procedures. The INS does not dispute plaintiffs' description, and as a result, the questions of fact which prevented summary judgment on this claim no longer exist. Instead, the controversy has shifted to whether the court may appropriately enter judgment and if so, what form that judgment should take.
[3] The INS also submits Matter of S as a precedent decision. In Matter of S, the LAU concluded that since the applicant obtained an entry visa by fraud, her status subsequent to that entry has been unlawful. See Matter of S, Attachment A to Defendants' Supplemental Authorities.
[4] Defendants also seek dismissal for plaintiffs' failure to produce all discovery that defendants request. The court finds dismissal too harsh a sanction and denies defendants' motion. However, plaintiffs do not contest the dismissal of five plaintiff organizations: American G.I. Forum, United California Mexican American Association, African Community and Information Center, Chinese American Citizens Alliance, and the Coalition for Humane Immigration Reform of Los Angeles. Accordingly, the court DISMISSES these five plaintiff organizations.
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 717 F.Supp. 1444 (1989)
IMMIGRATION ASSISTANCE PROJECT OF THE LOS ANGELES COUNTY FEDERATION OF LABOR (AFL-CIO), et al., Plaintiffs, v.
IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants.
No. C88-379R.
United States District Court, W.D. Washington, at Seattle.
June 3, 1989.
1445 *1445 Robert H. Gibbs, Seattle, Wash., for plaintiffs.
Donald Keener, U.S. Dept. of Justice, Office of Immigration Litigation, Civ., Washington, D.C., for defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO AMEND JUDGMENT
ROTHSTEIN, Chief Judge.
THIS MATTER comes before the court on plaintiffs' motion to amend judgment. Having reviewed the motion, together with all documents filed in support and in opposition, and being fully advised, the court finds and rules as follows:
I. BACKGROUND
For the third time, this court reviews various challenges to the Immigration and Naturalization Service's ("INS") implementation of the Immigration Reform and Control Act of 1986 ("IRCA"), 8 U.S.C. § 1255a et seq. Plaintiffs, a group of organizations which assist documented and undocumented aliens, seek both declaratory and injunctive relief against the INS's administration of the legalization provisions of IRCA. On November 4, 1988, this court granted in part and denied in part the INS's motion to dismiss. See Order Granting In Part and Denying In Part Defendants' Motion to Dismiss ("first order"). The court dismissed plaintiffs' claim for an extension of the deadline for legalization applications under IRCA, as well as those claims decided in Ayuda, et al. v. Meese et al., 687 F.Supp. 650 (D.D.C.1988) that the INS did not appeal.
In addition, since plaintiffs' amended complaint failed to allege that the individual named plaintiffs submitted timely applications for legalization, the court ruled that these individual plaintiffs lacked standing. In a companion order, the court denied plaintiffs' motion for class certification. See Order Denying Plaintiffs' Motion for Provisional Class Certification ("certification order").
The court did not dismiss the suit, however, ruling instead that the various organizational plaintiffs had standing in their own right to seek relief from the INS's regulations and practices. On March 8, 1989, this court granted in part plaintiffs' motion for summary judgment and denied defendants' motion to dismiss. 709 F.Supp. 998 (W.D.Wash.1989). See Order Granting In Part Plaintiffs' Motion For Summary Judgment and Denying Defendants' Motion to Dismiss ("second order"). The court granted relief on three categories of legalization applications.
First, the court entered a declaratory judgment that a non-immigrant's violation of the address reporting requirement ("section 265 applicants") created unlawful status and therefore qualified the non-immigrant for legalization under IRCA's "known to the government" standard. See 1255a(a)(2)(B). The court refused, however, to order the INS to rule on section 265 applications. Currently, the INS is holding these applications in abeyance.

Second, the court held as irrational the INS's distinction between applicants with duration of status visa who qualified under the INS's "passage of time" standard and those who qualified under the "known to the government" standard. The court found that this distinction placed an addition element of proof on certain 1446 applicants without a rational basis for doing so. Finally, *1446 third, the court ordered the INS to reopen all cases decided contrary to the Legalization Appeals Unit's ("LAU") decision in Matter of N. See Exhibit A to Defendants' Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment. On March 17, 1989, the parties in a telephone conference with the court decided that a trial was unnecessary in this matter.[1] Instead, plaintiffs obtained leave from the court to file a motion to clarify the court's judgment in its second order.[2] Plaintiffs now move for such an order clarifying this court's prior judgments.
II. DISCUSSION
A. ISSUES PREVIOUSLY DECIDED
Plaintiffs seek reconsideration of two prior rulings by the court. First, plaintiffs contend that the court should certify this case as a class action in order to avoid confusion over the scope of the court's orders and insure that those who should benefit from the court's rulings actually do so. In response, the INS argues that plaintiffs request for class certification was, and is, untimely, and furthermore, that certifying the class would require plaintiffs to amend their complaint and substantially change the character of this suit.
The court finds no grounds to reconsider its refusal to certify the class. The court denied plaintiffs' motion for two reasons: it was late under the local rules and plaintiffs failed to allege that the individual class representatives had filed timely applications for legalization. For this second reason, the court concluded that named plaintiffs' claims were not typical of those of the entire class.
Plaintiffs argue that their failure to move for class certification within 90 days was harmless error, far outweighed by the need to certify the class in order to grant nationwide relief. Plaintiffs note correctly that in most cases, violation of the local rule's 90-day time limit does not warrant dismissal of all class claims. See Slanina v. William Penn Parking Corp., 106 F.R.D. 419 (W.D.Pa.1984). However, plaintiffs also failed to satisfy the requirement of typicality under Fed.R.Civ.P. 23, and absent yet another amended complaint and subsequent discovery by defendants, plaintiffs cannot remedy this defect. The court finds that certifying a class, with the necessary prerequisite of discovery and subsequent motions, would unduly complicate this action with no appreciable benefits.
The court concludes further that the injunctive relief discussed below is sufficiently clear both in scope and application to make class certification unnecessary. The Ninth Circuit, in Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir.1987), recently approved an injunction against a federal agency, there the Department of Labor, that affected enforcement of a federal program nationwide.
Where relief can be structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown. On the other hand, an injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit 0907 even if it is not a class action0907if such breadth is necessary to give prevailing parties the relief to which they are entitled.
1447 *1447 Bresgal v. Brock, 843 F.2d at 1170 (emphasis original). So long as the agency is a party to the suit, as the INS is here, a district court may enjoin a federal agency and in effect order nationwide compliance if such injunctive relief is both appropriate and necessary. Bresgal, 843 F.2d at 1171 (district court has power to order nationwide relief when it is required). Thus, this court need not certify plaintiffs' class to accomplish the same end.
Next, plaintiffs seek reconsideration of this court's decision not to extend the deadline for legalization applications and request the court to retain jurisdiction to consider relief for potential applicants deterred by the INS. See First Order at 15-16. In its first order, the court concluded that it had no authority either at law or in equity to extend the

limit for filing applications, citing the United States Supreme Court's opinion in INS v. Pangilinan, 486 U.S. 875, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988). Plaintiffs contend that a recent decision from the D.C.Circuit as well as pending appeals in the Ninth Circuit, justify this court retaining jurisdiction over claims that the INS denied applicants a reasonable opportunity to file for legalization or that an applicant "constructively filed" an application. See In re Thornburgh, 869 F.2d 1503, 1516 (D.C.Cir.1989).
Plaintiffs' argument has two strands: first, plaintiffs directly challenge the court's earlier ruling that Pangilinan curbs any consideration of late applications. On this point the court shall not alter its prior decision. Although In re Thornburgh supports plaintiffs' assertions, the D.C.Circuit issued that opinion on a writ of mandamus, concluding that Judge Sporkin's appointment of a Special Master in Ayuda was not illegal. See In re Thornburgh, 869 F.2d at 1505.
Thus, the case has limited bearing here, where the issue has always been whether potential applicants have a legal right to relief. Given that IRCA expressly prohibits review of late filings and that the Supreme Court in Pangilinan prohibited the use of estoppel or equitable powers to extend application deadlines, the court finds no grounds to reconsider its earlier ruling. See 8 U.S.C. § 1255a(f)(2); Agcaoili v. Gustafson, 870 F.2d 462, 464 (9th Cir.1989) (Pangilinan foreclosed all claims for naturalization). This court has no authority to extend the period for applications under IRCA.
The court also rejects the second strand to plaintiffs' argument. Plaintiffs contend that relief other than acceptance of late applications may be available and that the court should retain jurisdiction to consider these alternate forms of relief. See In re Thornburgh, 869 F.2d at 1517 (Special Masters in Ayuda appointed to study lesser forms of relief). Yet plaintiffs do not make specific requests, but rather ask the court to retain jurisdiction in case alternate forms of relief appear in the future. The court is unwilling to retain jurisdiction on such speculative grounds and therefore denies plaintiffs' request.

B. CATEGORY 1 APPLICANTS0907SECTION 265

Plaintiffs seek relief for section 265 applicants additional to the court's declaratory judgment in their favor. First, plaintiffs request that the court require the INS to adjudicate these applications within three months. Second, if it is unable to process an application within three months, the INS, according to plaintiffs, should notify the applicant of this court's ruling as well as grant extended work authorization, broader travel permits, and deferred deportation of spouses and children under the family fairness policy. Finally, plaintiffs seek to define more clearly the burden of proof for this category of applicants.

The court once again refuses to order the INS to adjudicate these applications within three months. See Second Order at 5. The court is reluctant to interfere with the INS's timing of agency review. Instead, the court has attempted to structure its orders to clarify the legal standards for legalization, while leaving case-by-case adjudication to the INS. As the Ninth Circuit held in similar circumstances,

1448

an injunction against a government agency must be structured to take account *1448 the wellestablished rule that the government has traditionally been granted the widest latitude in the dispatch of its own internal affairs ... The manner in which the Secretary implements the court's order to enforce the Act is, in the first instance, a matter of agency discretion.

Bresgal, 843 F.2d at 1171. Therefore, the court affirms its earlier decision not to order the INS to process these applications.

The court agrees, however, that some form of notice is necessary for this category of applicants, if the INS is unable to adjudicate these cases. If the INS holds an application in abeyance for more than 90 days from the entry of this order, it must notify the applicant of: (1) this court's ruling that section 265 violations may qualify the applicant for legalization, (2) the change of address procedure and its importance, along with a change of address card, (3) the existence of and application procedures for both the family fairness policy and the provisions for travel abroad, and (4) the nearest INS office that renews work authorization forms.

Although plaintiffs request more liberal treatment for section 265 applicants, particularly for travel, work authorization, and family fairness benefits, the court concurs with the INS that this additional relief goes beyond the scope of this suit. Furthermore, plaintiffs raise these issues for the first time and the court shall not grant such special treatment solely on the record as it stands0907incomplete and inconclusive.
Finally, plaintiffs request the court to clarify the burdens of proof for section 265 applicants. As discussed in the first and second orders, an applicant must prove that "documentation existed in one or more government agencies so that ... such documentation taken as a whole would warrant the finding that the nonimmigrant alien's status in the United States was unlawful." Ayuda, 687 F.Supp. at 666; First Order at 4; Second Order at 6. IRCA requires the applicant to prove eligibility for legalization, and therefore, the burden of persuasion on this point always rests with the section 265 applicant.
However, given the nature of a section 265 violation0907the nonimmigrant failed to report his or her address to the INS0907an applicant could rarely if ever provide conclusive evidence that the INS "knew" of the violation. That information is with the INS. Thus, the burden of proof at some point should shift to the INS, namely that the INS had no knowledge of the alleged violation. The burden of proof shifts as follows: an applicant must make a prima facie showing that he or she violated the address reporting requirements either by failing to report the address or submitting a false address.
Once the applicant makes such a showing, the INS then has the burden of coming forward with proof that the alleged violation and subsequent unlawful status was not known to the government.[3] If the INS does come forward with such evidence, the applicant must then show by a preponderance of the evidence that he or she was in unlawful status and that this unlawful status was known to the government. At all times, the applicant carries the burden of persuasion to prove eligibility for legalization.
C. CATEGORY 20907VIOLATIONS OF DURATION OF STATUS VISAS
Plaintiffs request the court to apply retroactively its declaratory judgment on this category of applications, specifically to require the INS to reopen all denials of F, H, and L-visa applications within 90 days. In its second order, the court invalidated the INS's policy of treating these applicants differently, but did not discuss the scope of its ruling. See Second Order at 6. After considering the merits of retroactive relief, the court concludes that its ruling shall not apply retroactively to this category of applicants. The INS's former policy did not preclude legalization, but rather created a presumption in favor of applicants holding certain types of visas. The court finds 1449 that prospective relief0907invalidating the distinction between types of visas 0907redresses *1449 the harm that plaintiffs have proven.[4]
Plaintiffs also ask that the court to refine the burden of proof for category 2 applicants. The court will do so in the same manner as it did for applicants in category 1. Applicants in category 2 must make a prima facie showing that they violated the terms of their duration of status visa. Once this is shown, the INS then has the burden to come forward with evidence either that unlawful status did not occur through the passage of time or that the unlawful status was not known to the government. If the INS comes forward with this evidence, the applicants must show by a preponderance of the evidence that they are eligible for legalization under either the "passage of time" or "known to the government" standards. The applicants always have the burden of persuasion on this point.
D. CATEGORY 30907REOPENED CASES
Plaintiffs request special consideration for category 3 applicants as for those in category 1: more liberal travel provisions, work authorization, and family fairness benefits as well as notice of the court's orders and available benefits. The court rules that if the INS fails to reopen category 3 denials within 90 days, it shall provide to applicants the notice set forth supra.

E. RETAINING JURISDICTION
To ensure compliance with its orders, the court shall retain jurisdiction over this matter for six months. After that, the court will entertain a motion for entry of final judgment on plaintiffs' claims if the parties satisfy the terms of the court's orders.
THEREFORE, plaintiffs' motion to amend judgment is GRANTED IN PART and DENIED IN PART.
[1] The INS, for reasons that are unclear to the court, object to the use of "admitted facts" contained in the parties' pretrial order. The INS argues that it agreed to these facts only for the purposes of trial, not summary judgment. Plaintiffs, on the other hand, seek to have the admitted facts made part of the record. The court finds that the admitted facts are just that0907facts that both parties agree are true. Had the INS intended not to contest these facts at trial, it should have entered them in the pretrial order as facts not admitted but not contested. The court sees no reason, however, to allow either party to contest facts which they have previously admitted to the court as true.
[2] The INS characterizes plaintiffs' motion as a motion to amend judgment under Fed.R.Civ.P. 59, and argues that it is untimely under the 10-day time limit. The court is unpersuaded. Rule 59 applies after the court enters final judgment on particular claims, something which has not yet happened here. See Fed.R.Civ.P. 54(b). Furthermore, plaintiffs did obtain leave within 10 days of entry of the court's second order to file the present motion to amend judgment.
[3] In effect, credible evidence of a violation of section 265 prior to 1982 creates a rebuttable presumption that the INS knew of the violation.
[4] As a result, the court does not reach the issue of paroling denied applicants back into the United States for rehearings.
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 Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 1 of 34
CLOSED
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:88−cv−00379−JLR

Legalization Assista, et al v. INS Assigned to: Judge James L. Robart Demand: $0 Case in other court: 93−35898
95−36295 99−35472 Cause: 28:1331 Fed. Question Plaintiff Legalization Assist Proj of LA Cnty AFL−CIO
Plaintiff United CA Mexican−American Assoc TERMINATED: 03/07/1989
Plaintiff African Community &Info Center Inc TERMINATED: 03/07/1989

Date Filed: 03/24/1988 Date Terminated: 08/10/2000 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question
represented by Peter Schey NATIONAL CENTER FOR IMMIGRANTS RIGHTS 256 S OCCIDENTAL LOS ANGELES, WA 90057 213−388−8693 Fax: 213−388−8693 Email: pschey@centerforhumanrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert H. Gibbs GIBBS HOUSTON PAUW 1000 SECOND AVE STE 1600 SEATTLE, WA 98104 206−682−1080 Fax: FAX 689−2270 Email: rgibbs@ghp−law.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Pauw GIBBS HOUSTON PAUW 1000 SECOND AVE STE 1600 SEATTLE, WA 98104 206−682−1080 Fax: FAX 689−2270 Email: rpauw@ghp−law.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Peter Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert H. Gibbs (See above for address) TERMINATED: 03/07/1989 LEAD ATTORNEY
represented by Peter Schey (See above for address)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 2 of 34

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H. Gibbs (See above for address) TERMINATED: 03/07/1989 LEAD ATTORNEY

Plaintiff WA Assoc of Churches

represented by Robert H. Gibbs (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
American G I Forum TERMINATED: 03/07/1989

represented by Peter Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H. Gibbs (See above for address) TERMINATED: 03/07/1989 LEAD ATTORNEY

Plaintiff
Coalition for Fair Immigration Reform TERMINATED: 03/07/1989

represented by Peter Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H. Gibbs (See above for address) TERMINATED: 03/07/1989 LEAD ATTORNEY

Plaintiff International Institute San Francisco

represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff International Institute East Bay

represented by Peter Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Chinese American Citizens Alliance TERMINATED: 03/07/1989

represented by Peter Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H. Gibbs (See above for address) TERMINATED: 03/07/1989

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 3 of 34

LEAD ATTORNEY

Plaintiff John Doe

represented by Robert H. Gibbs (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jane Doe

represented by Robert H. Gibbs (See above for address) ATTORNEY TO BE NOTICED

Robert Pauw (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Travelers and Immigrants Aid of Chicago

represented by Peter Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Hermandad Mexicana Nacional

represented by Peter Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff One Stop Immigration

represented by Peter Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Northwest Immigrant Rights Project

represented by Robert H. Gibbs (See above for address) ATTORNEY TO BE NOTICED

Robert Pauw (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 4 of 34

Immigration and Naturalization Service US

represented by Anthony W Norwood US DEPARTMENT OF JUSTICE (CIVIL − 1331 PENN) 1331 PENNSYLVANIA AVE NW WASHINGTON, DC 20004 202−616−4883 Email: anthony.norwood@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Lee Pickrell US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101−1271 206−553−4088 Email: ECF−Civ.USAWAW@usdoj.gov TERMINATED: 11/08/2007 LEAD ATTORNEY

David E Dauenheimer US DEPARTMENT OF JUSTICE (BOX 878) PO BOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202−616−9777 Email: david.dauenheimer@usdoj.gov TERMINATED: 05/06/2008 LEAD ATTORNEY

Donald Keener US DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LIT 1331 PENNSYLVANIA AVE NW WASHINGTON, DC 20530−0878 202−616−9095 Fax: 202−616−4878 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Shapiro Cohen US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101−1271 206−553−6526 Fax: 206−553−4073 Email: rebecca.cohen@usdoj.gov ATTORNEY TO BE NOTICED

Defendant Alan Nelson

represented by Anthony W Norwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Lee Pickrell (See above for address) TERMINATED: 11/08/2007 LEAD ATTORNEY

David E Dauenheimer (See above for address)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 5 of 34

TERMINATED: 05/06/2008 LEAD ATTORNEY

Donald Keener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Shapiro Cohen (See above for address) ATTORNEY TO BE NOTICED

Defendant INS Commissioner

represented by Anthony W Norwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Lee Pickrell (See above for address) TERMINATED: 11/08/2007 LEAD ATTORNEY

David E Dauenheimer (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY

Rebecca Shapiro Cohen (See above for address) ATTORNEY TO BE NOTICED

Defendant Edwin Meese

represented by Anthony W Norwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Lee Pickrell (See above for address) TERMINATED: 11/08/2007 LEAD ATTORNEY

David E Dauenheimer (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY

Donald Keener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Shapiro Cohen (See above for address) ATTORNEY TO BE NOTICED

Defendant Attorney General of the United States

represented by Anthony W Norwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 6 of 34

Christopher Lee Pickrell (See above for address) TERMINATED: 11/08/2007 LEAD ATTORNEY

David E Dauenheimer (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY

Rebecca Shapiro Cohen (See above for address) ATTORNEY TO BE NOTICED

Defendant Department of State, US

represented by Anthony W Norwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David E Dauenheimer (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY

Rebecca Shapiro Cohen (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/01/1988
10/21/1988 11/23/1988 01/13/1989 01/21/1989
01/23/1989 01/27/1989
01/30/1989 01/30/1989 01/30/1989

# Docket Text
PRE−TRIAL SCHEDULING ORDER/NOTICE Trial set for 9:30 3/27/89 ;discovery cutoff set for 11/14/88 Motion filing deadline 11/24/88 Pretrial order to be submitted by 2/27/89 Trial briefs to be submitted by 3/20/89 39.1 designation effective 11/14/88 (cc: all counsel) (dktclk) (Entered: 01/30/1989)
PROTECTIVE ORDER by Judge Barbara J. Rothstein : (cc: all counsel) (dktclk) (Entered: 01/30/1989)
MOTION by plaintiff for summary judgment noted for 1/6/89 (dktclk) (Entered: 01/30/1989)
94 SUPPLEMENTAL MEMORANDUM by defendant in supp of defts' reply to pltfs' memo in opp to defts' 2nd mot to dismiss (dktclk) (Entered: 01/18/1989)
95 MEMORANDUM (second supplemental) of points and authorities by defendants in suppor of motion for summary judgment [0−2], in support of motion to dismiss [0−1] (dktclk) (Entered: 01/30/1989)
MOTION by defendant to dismiss , or, in the alternative, for summary judgment noted for 1/6/89 (dktclk) (Entered: 01/30/1989)
96 MINUTE ORDER: On 1/13/89 and on 1/21/89 defts submitted supplemental authorities w/out leave of court. The court will accept said materials. However, in the future, the parties must obtain leave of court before filing supplemental materials. (cc: all counsel) (dktclk) (Entered: 01/30/1989)
97 MOTION by plaintiff for leave to file response to defts' first and second supplemental authorities (dktclk) (Entered: 01/31/1989)
PROPOSED third supplemental authorities of defendants (dktclk) (Entered: 01/31/1989)
98 PRETRIAL STATEMENT by plaintiffs (dktclk) (Entered: 01/31/1989)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 7 of 34

01/30/1989 02/03/1989
02/03/1989 02/27/1989 03/01/1989 03/03/1989 03/07/1989
03/10/1989 03/17/1989
03/30/1989 04/03/1989 04/03/1989 04/03/1989 04/04/1989 04/06/1989 04/07/1989 04/12/1989 04/12/1989 04/12/1989 04/14/1989

99 Return of service by plaintiff of pretrial statement upon cnsl of record (dktclk) (Entered: 01/31/1989)
100 MINUTE ORDER: granting motion for leave to file response to defts' first and second supplemental authorities [97−1] and striking defts' 3rd supplemental authorities. Clerk to return said supplemental authorities to counsel (cc: all counsel) (dktclk) (Entered: 02/08/1989)
101 REPLY by plaintiff to defts' first &second supplemental authorities (dktclk) (Entered: 02/08/1989)
102 MINUTE ORDER: ; pretrial conf scheduled for 11:00 3/17/89 , (cc: all counsel) (dktclk) (Entered: 03/02/1989)
LODGED PRE−TRIAL ORDER submitted by all parties (dktclk) (Entered: 03/02/1989)
106 MOTION by plaintiffs to amend judgment (court's 3/6/89 order) noted for 4/14/89 (dktclk) (Entered: 04/06/1989)
103 ORDER by Judge Barbara J. Rothstein pltfs' motion for summary judgment is granted as to declaratory relief for applicants in categories 1−3. The following pltf organizations are dismissed from this matter: United CA Mexican−Am, Coalition for Fair Immigration, Chinese American Cit, American G I Forum, African Community. Defts' 2nd motion to dismiss or in the alternative for sj is denied. (cc: all counsel) (dktclk) (Entered: 03/08/1989)
104 MINUTE ORDER: ; teleconf rescheduled for 10:30 3/17/89 , (cc: all counsel) (dktclk) (Entered: 03/13/1989)
105 MINUTES OF TELEPHONE CONFERENCE had w/ cnsl trial schedule vacated after parties notified court that no trial would be necessary. Pltfs' motion for clarification will be due 3/29/89 and defts' response will be due 4/10/89 cc: all counsel (dktclk) (Entered: 03/21/1989)
109 LETTER from Robert Gibbs confirming conversation w/ P. Buri re due date for brief seeking modification of court's 3/6/89 order (dktclk) (Entered: 04/07/1989)
PROPOSED memo in supp of mot to amend judgment (overlength) (dktclk) Modified on 04/06/1989 (Entered: 04/06/1989)
107 MOTION by plaintiff to exceed page limitation noted for 4/7/89 (dktclk) (Entered: 04/06/1989)
108 MOTION by plaintiff to shorten time motion to exceed page limitation [107−1] noted for 4/5/89 (dktclk) (Entered: 04/06/1989)
110 RETURN of SERVICE by plaintiffs of motion for amendment of judgment, mot to shorten time, and mot to file overlength brief upon cnsl of record (dktclk) (Entered: 04/07/1989)
111 RESPONSE by defendants to motion to exceed page limitation [107−1] (dktclk) (Entered: 04/07/1989)
112 SUPPLEMENTAL MEMORANDUM by plaintiffs to motion to amend judgment (court's 3/6/89 order) [106−1] (dktclk) (Entered: 04/10/1989)
113 REPLY by plaintiffs TO RESPONSE to motion to exceed page limitation [107−1] (dktclk) (Entered: 04/13/1989)
114 AFFIDAVIT (declaration) of Robert Pauw regarding motion to exceed page limitation [107−1] (dktclk) (Entered: 04/13/1989)
115 RETURN of SERVICE by plaintiffs of reply to opposition to motion to exceed page limitation and decl. of Robert Pauw upon counsel of record (dktclk) (Entered: 04/13/1989)
116 MINUTE ORDER: pltfs' motion to file overlength brief &motion to shorten time are granted. (cc: all counsel) (dktclk) (Entered: 04/17/1989)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 8 of 34

04/14/1989 04/14/1989 04/17/1989 04/17/1989 04/17/1989 04/21/1989 04/21/1989 04/24/1989 04/25/1989 04/27/1989 05/02/1989
05/04/1989 05/04/1989 06/01/1989 06/01/1989 06/08/1989
06/28/1989 06/28/1989 06/28/1989 06/28/1989
07/06/1989 07/20/1989 07/20/1989

117 MEMORANDUM by plaintiff in support of motion to amend judgment (court's 3/6/89 order) [106−1] (dktclk) (Entered: 04/17/1989)
118 PRAECIPE: by defendants to substitute original service affdavit (dktclk) (Entered: 04/21/1989)
119 MOTION by defendants to exceed page limitation (dktclk) (Entered: 04/21/1989)
PROPOSED memo in opp to pltfs' mot for amendment of judgment (dktclk) (Entered: 04/21/1989)
120 MOTION by defendant to shorten time motion to exceed page limitation [119−1] noted for 4/17/89 (dktclk) (Entered: 04/21/1989)
121 NOTICE that the following is renoted for 4/28/89: motion to amend judgment (court's 3/6/89 order) (dktclk) (Entered: 04/25/1989)
122 PRAECIPE: by defendants to substitute declaration (dktclk) (Entered: 04/25/1989)
123 MINUTE ORDER: granting defts' motion to exceed page limitation [119−1] (cc: all counsel) (dktclk) (Entered: 04/26/1989)
124 MEMORANDUM by defendants in opposition to motion to amend judgment (court's 3/6/89 order) [106−1] (dktclk) (Entered: 04/26/1989)
125 REPLY by plaintiff TO RESPONSE to motion to amend judgment (court's 3/6/89 order) [106−1] (dktclk) (Entered: 05/01/1989)
126 NOTICE OF APPEAL (89−35345) by defendant Alan Nelson, defendant Edwin Meese, defendant Immigration &Natura, defendant Department of State, from Dist. Court order granting in part pltfs' mtn for S/J and denying defts' mtn. to dismiss filed 3/7/89,ent 3/8/89. (dktclk) Modified on 05/30/2000 (Entered: 05/02/1989)
ENT− mld appeal packet to CCA. cc: cnsl. (dktclk) (Entered: 05/04/1989)
CERTIFICATE OF RECORD Transmitted to USCA cc: cnsl. (dktclk) (Entered: 05/04/1989)
NOTIFICATION by Circuit Court of Appellate Docket Number 89−35345 (RS) (Entered: 06/02/1989)
127 ORDER (CCA) re time schedule: opening brief due 7/5/89; appellee brief due 8/3/89; reply due w/in 14 days. (RS) (Entered: 06/02/1989)
128 ORDER by Judge Barbara J. Rothstein granting in part and denying in part pltf's motion to amend judgment (court's 3/6/89 order) [106−1] (cc: all counsel) (dktclk) (Entered: 06/08/1989)
129 EMERGENCY MOTION by plaintiff to compel compliance not noted. (dktclk) (Entered: 06/29/1989)
130 MEMORANDUM by plaintiff in support of motion to compel compliance [129−1] (dktclk) (Entered: 06/29/1989)
131 MOTION by plaintiff to shorten time motion to compel compliance [129−1] (dktclk) (Entered: 06/29/1989)
133 ORDER(CCA) that appellant's mtn to vacate briefing schedule is granted; proceedings stayed until 8/8/89; w/in 7 days of expiration of stay appellants shall file a status report. (dktclk) (Entered: 07/07/1989)
132 MINUTE ORDER: [131−1] motion to compel compliance [129−1] noted for 8/4/89 (cc: all counsel) (dktclk) (Entered: 07/07/1989)
134 MEMORANDUM in support of motion to compel compliance (supplemental order) [129−1] (dktclk) (Entered: 07/24/1989)
LODGED ORDER: re: motion to compel compliance (supplemental order) (dktclk) (Entered: 07/24/1989)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 9 of 34

07/22/1989 07/24/1989 07/28/1989 07/28/1989 07/28/1989 07/28/1989 07/31/1989 07/31/1989 08/01/1989
08/01/1989
08/03/1989
08/04/1989 08/05/1989
08/05/1989 08/14/1989 08/15/1989 08/16/1989 08/16/1989
08/17/1989 08/17/1989 08/18/1989
08/18/1989

135 RESPONSE by defendant to motion to compel compliance [129−1] (dktclk) (Entered: 07/24/1989)
136 NOTICE OF SUPPLEMENTAL AUTHORITY by defendant (dktclk) (Entered: 07/27/1989)
137 MOTION by defendants for stay pending appeal noted for 8/18/89 (dktclk) (Entered: 08/01/1989)
138 MEMORANDUM by defendant in support of motion for stay pending appeal [137−1] (dktclk) (Entered: 08/01/1989)
139 MOTION by defendant to shorten time motion for stay pending appeal [137−1] noted for 8/1/89 (dktclk) (Entered: 08/01/1989)
140 AFFIDAVIT (declaration) of Donald Keener regarding motion to shorten time motion for stay pending appeal [137−1] [139−1] (dktclk) (Entered: 08/01/1989)
141 MEMORANDUM by plaintiffs in opposition to motion to shorten time motion for stay pending appeal [137−1] [139−1] (dktclk) (Entered: 08/01/1989)
142 MEMORANDUM by defendant in opposition to motion for stay pending appeal [137−1] (dktclk) (Entered: 08/01/1989)
143 MINUTE ORDER: denying motion to shorten time motion for stay pending appeal [137−1] [139−1] noted for 8/18/89 motion to shorten time motion for stay pending appeal [137−1] [139−1] (cc: all counsel) (dktclk) (Entered: 08/04/1989)
144 PRAECIPE: by defendant requesting that decl. filed in the 9th CCA be attached to deft. opp to motion for supplemental order filed 7/31/89. (dktclk) (Entered: 08/04/1989)
145 PRAECIPE: by defendant requesting that clerk substitute originally signed Declaration for the declaration submitted with defts. motion to shorten time. (dktclk) (Entered: 08/04/1989)
146 REPLY by plaintiff TO RESPONSE to motion for supplemental order. (dktclk) (Entered: 08/04/1989)
158 NOTICE OF APPEAL (89−35593) by defendants Immigration &Naturalization, et al from Dist Court order ent 6/8/89, except defs do not appeal from portions denying pltfs mot to amend. cc to cnsl (RS) Modified on 05/30/2000 (Entered: 08/25/1989)
159 AFFIDAVIT of service re notice of appeal. (RS) (Entered: 08/25/1989)
147 SUPPLEMENTAL MEMORANDUM &REQUEST TO SUBMIT SAME by defendant re motion to compel compliance [129−1] (dktclk) (Entered: 08/15/1989)
151 RESPONSE IN OPPOSITION by plaintiff to motion for stay pending appeal [137−1] (dktclk) Modified on 08/28/1989 (Entered: 08/17/1989)
Case terminated per instructions from chambers. (dktclk) (Entered: 08/16/1989)
148 RETURN of SERVICE (certif. of svc) by plaintiff of pltf's opposition to motion for stay; serv. by UPS sent 8/15/89 for delivery on 8/16/89. (dktclk) (Entered: 08/17/1989)
149 EX−PARTE MOTION by plaintiff to exceed page limitation (dktclk) (Entered: 08/21/1989)
150 REPLY by defendant TO RESPONSE to motion for stay pending appeal [137−1] (dktclk) (Entered: 08/21/1989)
162 NOTICE OF APPEAL (89−35613) by plaintiffs Immigrant Assistance, et al from Dist Court order ent 6/8/89; order ent 3/7/89; order ent 11/3/88; and order ent 11/3/88. Cert of service attached. (RS) Modified on 05/30/2000 (Entered: 08/30/1989)
RECEIVED fee in amount of $ 105.00 ( Receipt # 163141) (RS) (Entered: 08/30/1989)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 10 of 34

08/18/1989 08/21/1989 08/22/1989 08/22/1989 08/22/1989 08/23/1989 08/23/1989 08/24/1989
08/24/1989 08/25/1989 08/25/1989 08/25/1989 08/28/1989 08/31/1989 09/02/1989
09/05/1989 09/05/1989
09/13/1989
09/20/1989
09/26/1989 09/26/1989

CERTIFICATE OF RECORD Transmitted to USCA. cc to cnsl (RS) (Entered: 08/30/1989)
153 PRAECIPE: by defendant INS requesting clerk to file attached decl. of T. O'Reilly with the defts. reply to plts resp to motion for stay. (dktclk) (Entered: 08/22/1989)
MEMORANDUM by plaintiff in opposition to motion reply to motion for stay pending appeal [150−1] (dktclk) (Entered: 08/23/1989)
154 EXPARTE MOTION by plaintiff for leave to file supplemental opposition to deft motion for stay pending appeal. (dktclk) (Entered: 08/23/1989)
PROPOSED Suppl. Opp to Motion for Stay (dktclk) (Entered: 08/23/1989)
155 RESPONSE by defendant to motion for leave to file supplemental opposition to deft motion for stay pending appeal. [154−1] (dktclk) (Entered: 08/23/1989)
156 ORDER by Judge Barbara J. Rothstein granting permission to participate in case to Peter Schey. (cc: all counsel) (dktclk) (Entered: 08/25/1989)
157 ORDER by Judge Barbara J. Rothstein granting motion for leave to file supplemental opposition to deft motion for stay pending appeal on the issue of new evidence of hardship to INS if stay not granted. [154−1] granting motion for stay pending appeal [137−1] striking motion to compel compliance [129−1] (cc: all counsel) (dktclk) (Entered: 08/25/1989)
160 MINUTE ORDER: granting motion to exceed page limitation [149−1] (cc: all counsel) (dktclk) (Entered: 08/28/1989)
152 REMARK: there is no document #152 (dktclk) (Entered: 08/25/1989)
CERTIFICATE OF RECORD Transmitted to USCA. cc to cnsl (RS) (Entered: 08/25/1989)
ENT−MLD appeal packet to CCA. cc to cnsl (RS) (Entered: 08/25/1989)
161 RESPONSE IN OPPOSITION by defendant to ex parte motion for leave to file supplemental opposition to deft motion for stay. (dktclk) (Entered: 08/29/1989)
ENT−MLD appeal packet to CCA. cc to cnsl (RS) (Entered: 08/31/1989)
165 ORDER (CCA) Proceedings in this appeal are further stayed for 30 days from entry of this order. At or prior to the expiration of the stay, appellants shall file a report providing the appellate docket numbers of any new appeals and informing the court as to the status of pending district court litigation. (dktclk) (Entered: 09/15/1989)
NOTIFICATION by Circuit Court of Appellate Docket Number 89−35593 (RS) (Entered: 09/07/1989)
163 ORDER (CCA) re time schedule: appellant's opening brief and excerpts due 10/11/89; appellee's brief due 11/13/89; reply brief due w/in 14 days. (RS) (Entered: 09/07/1989)
164 ORDER (CCA) re time schedule: appellant's opening brief and excerpts due 10/23/89; appellee's brief due 11/22/89; reply brief due w/in 14 days. (RS) (Entered: 09/13/1989)
166 NOTICE OF APPEAL (89−35706) by plaintiff One Stop Immigration, plaintiff Hermandad Mexicana N, plaintiff Travelers Aid of Chi, plaintiff WA Assoc of Churches, plaintiff Legalization Assist, plaintiff International Instit, plaintiff International Instit, plaintiff Jane Doe Number 1, plaintiff John Doe Numbers 1,2,3, and 4 from Dist. Court decision of 8/24/89. [157−2] (cc: all counsel) (dktclk) Modified on 05/30/2000 (Entered: 09/26/1989)
ENT− appeal packet sent to CCA (cc:cnsl) (dktclk) (Entered: 09/26/1989)
CERTIFICATE OF RECORD Transmitted to USCA (dktclk) (Entered: 09/26/1989)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 11 of 34

10/10/1989 10/10/1989
12/01/1989 12/07/1989
12/19/1990 07/15/1992 07/17/1992 09/25/1992 10/13/1992 10/27/1992 02/20/1993 04/02/1993 04/08/1993 04/08/1993 04/19/1993 04/19/1993 04/20/1993 04/22/1993 04/29/1993
05/07/1993

NOTIFICATION by Circuit Court of Appellate Docket Number 89−35706 (dktclk) (Entered: 10/10/1989)
167 TIME SCHEDULE ORDER (CCA): Appellant/petioner shall file the civil appeals docketing statement by 10/20/89; app/pet.'s opening brief &excerpts of rec. shall be served &filed by 11/15/89; brief of appellee/respondent shall be filed &served by 12/15/89; optional reply brief of app/pet. shall be filed &served within 14 days of svc of app/resp.'s brief. (dktclk) (Entered: 10/10/1989)
169 NOTICE by plaintiffs re: Washington Immigration Project of change of address (dktclk) (Entered: 12/12/1989)
168 ORDER (CCA): Pltf's emergency motion for modification of the USDC's stay pending appeal has been taken under advisement. Pltf's motion for an extension of time to file their brief is GRANTED. Pltf's brief due 12/22/89; deft's answering brief due 1/22/90; optional reply brief due w/in 14 days. (dktclk) (Entered: 12/07/1989)
170 NOTICE of change of address by NW Immigrant Legal Services (dktclk) (Entered: 01/03/1991)
NOTIFICATION by Circuit Court of Appellate Docket Number 89−35613 (dktclk) (Entered: 07/17/1992)
CLERK'S RECORD ON APPEAL transmitted to Circuit (8 vols orig) (dktclk) (Entered: 07/17/1992)
171 MINUTE ORDER: by Judge Barbara J. Rothstein directing cnsl to meet and confer to determine what action will be required by court as a result of the remand. Cnsl to file report within 10 days of this date. (cc: all counsel) (RS) (Entered: 09/25/1992)
172 MINUTE ORDER: by Judge Barbara J. Rothstein ; status report ddl extended to 10/27/92 (cc: all counsel) (RS) (Entered: 10/15/1992)
173 STATUS MEMORANDUM filed by parties (RS) (Entered: 10/28/1992)
174 MANDATE (89−35345, 89−35593, 89−35613, 89−35706): AFFIRMED IN PART, REVERSED IN PART, REMANDED FOR FURTHER PROCEEDINGS. Attached Opinion. (cc: BJR, all cnsl) (dktclk) (Entered: 02/24/1993)
175 ORDER (CCA) 92−35345, 89−35593, 89−35613, 89−35706: Appellees' motion to remand attorneys' fees matters to District Court GRANTED. (cc: BJR, cnsl) (dktclk) (Entered: 04/06/1993)
176 MOTION by plaintiffs for protective order noted for 4/23/93 (RS) (Entered: 04/13/1993)
177 MEMORANDUM by plaintiffs in support of motion for protective order [176−1] (RS) (Entered: 04/13/1993)
178 MOTION by defendant to maintain status quo noted for 5/7/93 (JK) (Entered: 04/21/1993)
179 MEMORANDUM by defendant in support of motion to maintain status quo [178−1] and in opposition to plaintiffs' motion for protective order [176−1] (JK) (Entered: 04/21/1993)
RECORD ON APPEAL returned from U.S. Court of Appeals (dktclk) (Entered: 04/20/1993)
180 MINUTE ORDER: by Judge Barbara J. Rothstein renoted for 5/7/93: pltfs' motion for protective order [176−1] (cc: all counsel, BJR) (dktclk) (Entered: 04/22/1993)
181 MINUTE ORDER: by Judge Barbara J. Rothstein dfts' motion to maintain status quo [178−1] is RENOTED for 5/14/93. Plaintiffs' response due 5/10/93; and defendants' reply due 5/13/93. Plaintiffs' motion for protective order remains noted for 5/7/93 (cc: all counsel) (RS) (Entered: 04/29/1993)
182 REPLY by plaintiffs to Dfts' RESPONSE (Memo Opposition) to motion for protective order [176−1] (dktclk) (Entered: 05/11/1993)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 12 of 34

05/10/1993 05/13/1993 06/01/1993
06/21/1993
06/28/1993 06/28/1993 06/29/1993 06/29/1993 07/07/1993 07/07/1993 07/12/1993 07/15/1993 07/21/1993
07/26/1993 07/28/1993 07/28/1993 07/28/1993 07/28/1993 07/28/1993
07/28/1993 07/29/1993 08/02/1993

183 RESPONSE by plaintiffs to motion to maintain status quo [178−1] (RS) (Entered: 05/13/1993)
184 REPLY by defendants TO RESPONSE to motion to maintain status quo [178−1] (dktclk) (Entered: 05/14/1993)
185 MEMORANDUM DECISION AND ORDER by Judge Barbara J. Rothstein denying defendants' motion to maintain status quo [178−1] and granting plaintiffs' motion for protective order [176−1] (cc: all counsel) (RS) (Entered: 06/01/1993)
186 MINUTE ORDER: by Judge Barbara J. Rothstein extending deadline 7 days for parties to confer and reach agreement on text of an instruction to INS employees implementing the court's order (cc: all counsel) (RS) (Entered: 06/22/1993)
187 STATUS MEMORANDUM by defendants on implementation of Order of 6/1/93 (RS) (Entered: 06/29/1993)
188 STATUS MEMORANDUM by plaintiffs re disagreement re implementation of protective order (RS) (Entered: 06/29/1993)
189 MOTION by defendants Immigration &Naturalization et al. to vacate Order of 6/1/93 in light of Reno v. CSS noted for 7/16/93 (dktclk) (Entered: 07/01/1993)
190 MEMORANDUM by defendants in support of motion to vacate Order of 6/1/93 in light of Reno v. CSS [189−1] (dktclk) (Entered: 07/01/1993)
191 MOTION by defendants to dismiss complaint in light of Reno v. CSS noted for 7/23/93 (RS) (Entered: 07/09/1993)
192 MEMORANDUM by defendants in support of motion to dismiss complaint in light of Reno v. CSS [191−1] (RS) (Entered: 07/09/1993)
193 RESPONSE (REPLY) by plaintiffs to motion to vacate Order of 6/1/93 in light of Reno v. CSS [189−1] (RS) (Entered: 07/19/1993)
194 REPLY by defendants in support of dfts' motion to vacate Order of 6/1/93 in light of Reno v. CSS [189−1] (dktclk) (Entered: 07/19/1993)
195 MINUTE ORDER: by Judge Barbara J. Rothstein RENOTING dfts' motion to vacate Order of 6/1/93 in light of Reno v. CSS [189−1] to 7/30/93 (cc: all counsel) (RS) (Entered: 07/22/1993)
196 RESPONSE (REPLY) by plaintiffs to motion to dismiss complaint in light of Reno v. CSS [191−1] (RS) (Entered: 07/28/1993)
197 MOTION by defendants to extend time for filing notice of appeal noted for 8/13/93 (RS) (Entered: 07/29/1993)
198 MEMORANDUM by defendants in support of motion to extend time for filing notice of appeal [197−1] (RS) (Entered: 07/29/1993)
LODGED ORDER: re: motion to extend time for filing notice of appeal (RS) (Entered: 07/29/1993)
199 MOTION by defendant to shorten time on [199−1], motion to extend time for filing notice of appeal [197−1] noted for 7/30/93 (RS) (Entered: 07/29/1993)
200 MEMORANDUM by defendant in support of motion to shorten time on [199−1], motion to extend time for filing notice of appeal [197−1] [199−1] (RS) (Entered: 07/29/1993)
LODGED ORDER: re: motion to shorten time on [199−1], motion to extend time for filing notice of appeal [197−1] (RS) (Entered: 07/29/1993)
201 REPLY by defendants TO RESPONSE to motion to vacate Order of 6/1/93 in light of Reno v. CSS [189−1] (RS) (Entered: 08/02/1993)
202 MINUTE ORDER: by Judge Barbara J. Rothstein GRANTING dfts' mtn to shorten time for consideration of mtn to extend time for filing notice of appeal; dfts' underlying motion to extend time for filing notice of appeal [197−1] is RENOTED for 8/2/93; pltfs' response due 8/2/93 (cc: all counsel) (RS) (Entered: 08/02/1993)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 13 of 34

08/02/1993
08/10/1993 08/10/1993 08/10/1993 08/11/1993 08/16/1993 08/16/1993 08/25/1993
09/03/1993 09/03/1993 09/03/1993 09/03/1993 09/08/1993 09/08/1993 09/09/1993 09/09/1993
09/15/1993
09/16/1993 09/17/1993 09/17/1993 09/20/1993 09/23/1993 09/24/1993

203 MINUTE ORDER: by Judge Barbara J. Rothstein finding the dfts' motion to extend time for filing notice of appeal [197−1] moot. (cc: all counsel) (RS) (Entered: 08/04/1993)
204 MOTION by plaintiffs for leave to file suppl. brief noted for 8/27/93 (PM) (Entered: 08/12/1993)
205 MOTION by plaintiffs to shorten time on motion for leave to file suppl. brief [204−1] noted for 8/12/93 (PM) (Entered: 08/12/1993)
206 MEMORANDUM by plaintiffs in support of motion to shorten time on motion for leave to file suppl. brief [204−1] [205−1] (PM) (Entered: 08/12/1993)
207 SUPPL. RESPONSE (OPPOSITION) by plaintiffs to Defts' motion to dismiss complaint in light of Reno v. CSS [191−1] (PM) (Entered: 08/12/1993)
208 MINUTE ORDER: by Judge Barbara J. Rothstein GRANTING pltfs' motion for leave to file suppl. brief [204−1] (cc: all counsel) (RS) (Entered: 08/16/1993)
209 RESPONSE by defendant to Plas' mtn for leave to file supplemental brief etc (dktclk) (Entered: 08/19/1993)
210 ORDER by Judge Barbara J. Rothstein DENYING dfts' motion to dismiss complaint in light of Reno v. CSS [191−1], and DENYING dfts' motion to vacate Order of 6/1/93 in light of Reno v. CSS [189−1] (cc: all counsel) (RS) (Entered: 08/25/1993)
211 MOTION by defendants to stay pending appeal noted for 9/24/93 (RS) (Entered: 09/07/1993)
212 MEMORANDUM by defendant in support of motion to stay pending appeal [211−1] (RS) (Entered: 09/07/1993)
213 MOTION by defendants to shorten time on [213−1], motion to stay pending appeal [211−1] noted for 9/8/93 (RS) (Entered: 09/07/1993)
214 MEMORANDUM by defendant in support of motion to shorten time on [213−1], motion to stay pending appeal [211−1] [213−1] (RS) (Entered: 09/07/1993)
215 RESPONSE by plaintiffs to dfts' mtn to shorten time (RS) (Entered: 09/14/1993)
216 PRAECIPE: by dft to substitute originals for copies re mtn to stay pending appeal (RS) (Entered: 09/14/1993)
217 REPLY by defendants TO RESPONSE to motion to stay pending appeal [211−1] (RS) (Entered: 09/14/1993)
218 MINUTE ORDER: by Judge Barbara J. Rothstein DENYING dfts' mtn to shorten time for consideration of its mtn for stay pending appeal (cc: all counsel) (RS) (Entered: 09/14/1993)
219 NOTICE OF APPEAL by INS, Chris Sale Acting Commisioner of INS, Janet Reno Attorney General of the US, and Department of State, from Dist. Court decisions [210, 185]. (cc: CCA, BJR, all counsel) (dktclk) (Entered: 09/17/1993)
NO APPEAL FEE RECEIVED: appellant USA (dktclk) (Entered: 09/17/1993)
APPEAL NOTIFICATION packet sent to CCA (cc: cnsl) (dktclk) (Entered: 09/17/1993)
CERTIFICATE OF RECORD Transmitted to USCA (cc: all counsel) (dktclk) (Entered: 09/17/1993)
220 REPLY by plaintiffs to dfts' motion for stay pending appeal [211−1] (dktclk) (Entered: 09/22/1993)
221 REPLY by defendants in support of motion to stay pending appeal [211−1] (dktclk) (Entered: 09/24/1993)
222 PRAECIPE: by defendant INS w/original declaration of Weinig to replace faxed copy (RS) (Entered: 09/28/1993)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 14 of 34

09/28/1993 09/29/1993 10/02/1993 10/02/1993 10/25/1993 11/26/1993 12/02/1993 12/27/1993 02/14/1994 12/05/1994 04/26/1995
04/27/1995 04/27/1995 04/27/1995 05/12/1995 05/12/1995 05/12/1995 05/18/1995 05/22/1995 05/25/1995

223 ORDER by Judge Barbara J. Rothstein DENYING dfts' motion to stay pending appeal [211−1] (cc: all counsel) (RS) (Entered: 09/29/1993)
224 NOTICE of filing of substitute declaration of Peter Schey by plaintiff (RS) (Entered: 10/01/1993)
NOTIFICATION by Circuit Court of Appellate Docket Number 93−35898 (dktclk) (Entered: 10/06/1993)
225 TIME SCHEDULE ORDER (CCA) 93−35898: open.br. and excerpts due 11/8/93; resp.br. due 12/8/93; optional reply br. due within 14 days of svc. of resp.br. (dktclk) (Entered: 10/06/1993)
226 TRANSCRIPT DESIGNATION and Ordering Form for dates: none (dktclk) (Entered: 10/28/1993)
227 ORDER (CCA) 93−35898: Appellants' mtn. for stay pending appeal DENIED. D.C. order denying dft.'s mtn. for stay pending appeal AFFIRMED. (dktclk) (Entered: 11/30/1993)
Copy of US Supreme Court opinion (Justice O'Connor) GRANTING stay of D.C. order pending disposition of 9th Circuit appeal. (Application # A−426) (dktclk) (Entered: 12/03/1993)
228 ORDER (CCA) 93−35898: Appellees' motion for ext. of time to file resp.br. GRANTED IN PART, brief due 1/7/94. Optional reply br. due within 14 days of svc. of resp.br. (dktclk) (Entered: 12/29/1993)
229 ORDER (CCA) 93−35898: Appellants' mtn. for leave to file supplemental excerpts GRANTED IN PART. Excerpts previously submitted shall be filed with exception of (see text). (dktclk) (Entered: 02/23/1994)
230 ORDER (CCA) 93−35898: Matter continued for oral arg. to 2/16/95. (dktclk) (Entered: 12/08/1994)
231 MINUTE ENTRY: NOTICE This matter having been remanded for further consideration, court directs counsel to confer and agree to briefing schedule, and notify court of proposed time frame. (cc: all counsel) (dktclk) (Entered: 04/27/1995)
232 MOTION by defendants to vacate the orders, dismiss the complaint, and close the case noted for 5/19/95 (dktclk) Modified on 04/28/1995 (Entered: 04/28/1995)
233 MEMORANDUM by defendants in support of motion to vacate the orders, dismiss the complaint, and close the case [232−1] (dktclk) (Entered: 04/28/1995)
LODGED ORDER: re: motion to vacate the orders, dismiss the complaint, and close the case [232−1] (dktclk) (Entered: 04/28/1995)
234 MOTION by defendants to vacate rulings granting relief under categories 1 and 2 to dismiss categories 1 and 1 on the merits noted for 6/2/95 (dktclk) (Entered: 05/17/1995)
235 MEMORANDUM by defendant in support of motion to vacate rulings granting relief under categories 1 and 2 to dismiss categories 1 and 1 on the merits [234−1] (dktclk) (Entered: 05/17/1995)
LODGED ORDER: re: motion to vacate rulings granting relief under categories 1 and 2 to dismiss categories 1 and 1 on the merits [234−1] (dktclk) (Entered: 05/17/1995)
236 STIPULATION regarding briefing schedule (dktclk) (Entered: 05/19/1995)
237 RESPONSE (REPLY) by plaintiffs to motion to vacate the orders, dismiss the complaint, and close the case [232−1] (dktclk) (Entered: 05/23/1995)
239 REPLY by defendants in support of motion to vacate rulings granting relief under categories 1 and 2 to dismiss categories 1 and 1 on the merits [234−1], motion to vacate the orders, dismiss the complaint, and close the case [232−1] (dktclk) (Entered: 05/30/1995)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 15 of 34

05/26/1995
05/26/1995 05/30/1995 05/30/1995 05/30/1995 05/30/1995 06/01/1995 06/02/1995
06/16/1995 06/16/1995 06/20/1995
06/23/1995 06/23/1995 06/23/1995 06/23/1995 06/23/1995 06/23/1995 06/26/1995

238 MANDATE [89−35345, 89−35593, 89−35613, 89−35706] from Circuit Court of Appeals REMANDING the Decision of the District Court [Appeal [166−1], REMANDING the Decision of the District Court [Appeal [162−1], REMANDING the Decision of the District Court [Appeal [158−1], REMANDING the Decision of the District Court [Appeal [126−1] Order on Remand from the US Supreme Court attached. (cc: all counsel) (dktclk) (Entered: 05/31/1995)
245 MANDATE from Circuit Court of Appeals DISMISSING the appeal [219−1] Order attached (cc: all counsel) (dktclk) Modified on 06/12/1995 (Entered: 06/01/1995)
242 RESPONSE (REPLY) by plaintiffs to motion to vacate rulings granting relief under categories 1 and 2 to dismiss categories 1 and 1 on the merits [234−1] (dktclk) Modified on 06/12/1995 (Entered: 06/01/1995)
240 MOTION by plaintiffs for leave to file second amended complaint noted for 6/2/95 (dktclk) (Entered: 06/01/1995)
241 MEMORANDUM (BRIEF) by plaintiffs in support of motion for leave to file second amended complaint [240−1] (dktclk) (Entered: 06/01/1995)
PROPOSED 2nd amended complaint re: motion for leave to file second amended complaint [240−1] (dktclk) (Entered: 06/01/1995)
243 REPLY by defendants in support of motion to vacate rulings granting relief under categories 1 and 2 to dismiss categories 1 and 1 on the merits [234−1] (dktclk) (Entered: 06/05/1995)
244 STIPULATION AMENDING BRIEFING SCHEDULE. Plaintiffs' mtn. for class certif. and mtn. to reinstate temp. protective order noted for 7/14/95; plaintiff's brief in support of mtn. due 6/14/95; dfts' opposition due 6/30/95; reply due 7/12/95; plaintiffs' mtn. for leave to amend complaint was incorrectly noted for 6/2/95, now noted for 6/30/95. (dktclk) (Entered: 06/08/1995)
247 RESPONSE (OPPOSITION) by defendants to motion for leave to file second amended complaint [240−1] (dktclk) (Entered: 06/21/1995)
248 DECLARATION of Louis D. Crocetti (dktclk) (Entered: 06/21/1995)
246 STIPULATION AMENDING BRIEFING SCHEDULE by plaintiffs and defendants to note motion for class cert. and motion to reinstate temp. protective order for 7/14/95; to set deadlines for briefs in support, opposition and reply. (dktclk) (Entered: 06/21/1995)
249 MOTION by plaintiffs to reinstate with appropriate modifications temporary restraining order; for class certification , and memorandum. Noted for 7/14/95 (dktclk) Modified on 06/26/1995 (Entered: 06/26/1995)
250 MEMORANDUM by plaintiffs in support of motion for class certification. (dktclk) (Entered: 06/26/1995)
LODGED ORDER with attachments re: motion to reinstate with appropriate modifications temporary restraining order; for class certification [249−1] (dktclk) (Entered: 06/26/1995)
LODGED ORDER without attachments re: motion to reinstate with appropriate modifications temporary restraining order; for class certification [249−1] (dktclk) (Entered: 06/26/1995)
251 CERTIFICATE OF SERVICE by plaintiffs of lodged orders, memorandum [250−1], motion to reinstate with appropriate modifications temporary restraining order; for class certification [249−1] (dktclk) (Entered: 06/26/1995)
252 EXHIBITS re: plaintiffs' motions for leave to file amended complaint; for class certification; to reinstate temporary protective order. (dktclk) (Entered: 06/26/1995)
253 PRAECIPE: by plaintiffs to substitute attached proposed order re: motion to reinstate with appropriate modifications temporary restraining order [249−1] for the proposed order filed 6/23/95. (dktclk) (Entered: 06/28/1995)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 16 of 34

06/26/1995 07/07/1995 07/18/1995
07/20/1995 07/20/1995 07/20/1995 07/20/1995 07/20/1995 07/20/1995 07/28/1995
07/28/1995 08/03/1995
08/04/1995
08/04/1995 08/08/1995
08/14/1995 08/14/1995 08/14/1995

254 REPLY by plaintiffs to defendants' opposition to motion for leave to file second amended complaint [240−1] (dktclk) (Entered: 06/28/1995)
255 STIPULATION AMENDING BRIEFING SCHEDULE by plaintiffs and defendants re motion for class certification and motion to reinstate temporary protective order. (dktclk) (Entered: 07/10/1995)
256 ORDER DIRECTING COUNSEL TO FILE A JOINT STATUS REPORT AND REQUIRING NOTIFICATION OF DECISION RE CONSENT TO PROCEEDING BEFORE A US MAGISTRATE JUDGE by Judge Barbara J. Rothstein (cc: counsel, Judge) (dktclk) (Entered: 07/20/1995)
257 MOTION by defendants for leave to submit supplemental memorandum addressing page 6 of plaintiffs' reply to defendants' opposition to motion to amend complaint noted for 8/4/95 (dktclk) (Entered: 07/27/1995)
PROPOSED supplemental memorandum re: motion for leave to submit supplemental memorandum [257−1] (dktclk) (Entered: 07/27/1995)
LODGED ORDER: re: motion for leave to submit supplemental memorandum addressing page 6 of plaintiffs' reply to defendants' opposition to motion to amend complaint [257−1] (dktclk) (Entered: 07/27/1995)
258 RESPONSE by defendants to motion to reinstate with appropriate modifications temporary restraining order [249−1] (dktclk) (Entered: 07/27/1995)
259 RESPONSE (OPPOSITION) by defendants to motion for class certification [249−1] (dktclk) (Entered: 07/27/1995)
260 EXHIBITS to defendants' opposition to plaintiffs' motion to reinstate temporary protective order [258−1] (dktclk) (Entered: 07/27/1995)
261 PRAECIPE: by defendant to file original declarations of Richard Berryman, Bruce Chadbourne, Randall E. Nash, John J. Byrnes; Mary Frances Holmes; Scott Lucian, Kathleen Ferriaolo as part of exhibit 7 of exhibits to defts opposition to pltfs motion to reinstate TRO submitted to the court on 7/20/95 [258−1] (MD) (Entered: 07/31/1995)
262 AFFIDAVIT OF SERVICE by defendant of documents [261−1] (MD) (Entered: 07/31/1995)
263 LETTER from Robert H. Gibbs to advise or parties' agreement that plaintiffs' reply briefs on class certification and reinstatement of the interim relief order due 8/14/95 instead of 8/4/95, and noting date to be 8/18/95. (dktclk) (Entered: 08/07/1995)
264 SECOND PRAECIPE: by defendants with attached original declarations of Sharon Devine and Jeannette Nieves as part of Exhibit 7 to dfts' opposition [258−1] to plaintiffs' motion to reinstate temporary protective order (dktclk) Modified on 08/08/1995 (Entered: 08/08/1995)
265 AFFIDAVIT OF SERVICE by defendants of second praecipe [264−1] (dktclk) (Entered: 08/08/1995)
266 NOTICE OF FILING MASTER LIST OF DECLARATIONS CONTAINED WITHIN EXHIBIT 7 TO DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION TO REINSTATE TEMPORARY PROTECTIVE ORDER by defendants (dktclk) (Entered: 08/10/1995)
267 PRAECIPE: by plaintiffs to substitute attached second amended complaint for the one filed earlier re: lodged second amended complaint [0−0] (dktclk) (Entered: 08/15/1995)
268 MOTION by plaintiffs for permission to file overlength briefs : reply to dfts' opposition to mtn. for temp protective order; reply to dfts' opposition to mtn. for class cert.. noted for 9/1/95 (dktclk) (Entered: 08/15/1995)
PROPOSED reply re: motion to reinstate with appropriate modifications temporary restraining order; for class certification [249−1] (dktclk) (Entered: 08/15/1995)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 17 of 34

08/14/1995 08/14/1995 08/14/1995 08/14/1995 08/16/1995 08/18/1995 08/28/1995 08/28/1995 08/28/1995
09/05/1995 09/05/1995 09/08/1995
09/20/1995 09/25/1995 09/25/1995 09/26/1995 09/26/1995 10/05/1995 10/16/1995 10/23/1995

PROPOSED reply re: motion to reinstate with appropriate modifications temporary restraining order; for class certification [249−1] (dktclk) (Entered: 08/15/1995)
269 REPLY by plaintiffs to defendants' supplemental memo (dktclk) (Entered: 08/15/1995)
270 PLAINTIFFS' SUPPLEMENTAL EXHIBITS re: lodged replies [0−0] [0−0], motion to reinstate with appropriate modifications temporary restraining order; for class certification [249−1] (dktclk) (Entered: 08/15/1995)
271 MOTION by plaintiffs to shorten time on motion for permission to file overlength briefs [268−1] noted for 8/16/95 (dktclk) (Entered: 08/15/1995)
272 RESPONSE (OPPOSITION) by defendants to motion for permission to file overlength briefs [268−1] (dktclk) (Entered: 08/22/1995)
273 LETTER from Robert Pauw to confirm joint status report due date now 9/18/95 (dktclk) (Entered: 08/24/1995)
279 REPLY by plaintiffs to defendants' opposition to motion for temporary protective order (dktclk) (Entered: 09/21/1995)
280 REPLY by plaintiffs to defendants' opposition to motion for class certification (dktclk) (Entered: 09/21/1995)
274 MINUTE ORDER: by Judge Barbara J. Rothstein GRANTING pltfs' motion for permission to file overlength briefs in support of their mtns for class certification and for reinstatement of temporary protective order [268−1]. Dfts to file surreply of no more than 6 pages by 9/1/95 (cc: counsel, Judge) (RS) (Entered: 08/29/1995)
275 DEFENDANTS' SURREPLY IN SUPPORT OF OPPOSITION TO MOTION FOR CLASS CERTIFICATION re motion [249−1] (dktclk) (Entered: 09/07/1995)
276 DEFENDANTS' SURREPLY IN SUPPORT OF OPPOSITION TO PLAINTIFFS' MOTION TO REINSTATE TEMPORARY PROTECTIVE ORDER re motion [249−1] (dktclk) (Entered: 09/07/1995)
277 ORDER by Judge Barbara J. Rothstein: DENYING INS's motions to dismiss the case and to vacate prior rulings; GRANTING IN PART plaintiff's motions for leave to file a second amended complaint, to certify a class, and for reinstatement of a temporary protective order. Plaintiffs shall submit a proposed amended order regarding interim relief within 15 days of thie Order, and a proposed amended complaint conforming to the rulings in this Order. (cc: BJR, counsel) (dktclk) (Entered: 09/08/1995)
278 LETTER from Robert Pauw to confirm due date for joint status report continued to 10/16/95. (dktclk) (Entered: 09/20/1995)
AMENDED PROPOSED ORDER (re motion to reinstate temporary protective order with appropriate modifications (dktclk) (Entered: 09/28/1995)
PROPOSED second amended complaint (dktclk) (Entered: 11/09/1995)
282 PRAECIPE: by plaintiffs attaches Exhibits for amended complaint filed 9/25/95 281 (dktclk) (Entered: 09/28/1995)
283 AFFIDAVIT OF SERVICE by plaintiffs of amended proposed order [0−0], second amended complaint [281−1] (dktclk) (Entered: 09/28/1995)
284 DEFENDANTS' COMMENTS REGARDING PLAINTIFFS' PROPOSED SECOND AMENDED COMPLAINT AND AMENDED PROPOSED ORDER [281−1] (dktclk) (Entered: 10/10/1995)
285 EXTENSION CONFIRMATION by Donald Keener ; joint status report ddl continued to 11/15/95 (RS) (Entered: 10/18/1995)
286 RESPONSE by plaintiffs to dfts' comments (reply [284−1]) re: second amended complaint and amended proposed order (dktclk) (Entered: 10/24/1995)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 18 of 34

11/07/1995 11/07/1995
11/07/1995 11/08/1995
11/08/1995 11/15/1995 11/15/1995 11/17/1995 11/22/1995 11/22/1995 11/22/1995 11/25/1995 11/27/1995 12/04/1995
12/06/1995 12/11/1995 12/11/1995 12/11/1995 12/11/1995

287 NOTICE OF ADDITIONAL AUTHORITIES by plaintiffs w/copy of order entered on 11/3/95 in Catholic Social Svcs. v. Reno (RS) (Entered: 11/08/1995)
289 NOTICE OF APPEAL (89−36174) by defendants Attorney General USA, INS Commissioner, Department of State, International Instit, Edwin Meese, all Defendants from Dist. Court decision 277 (cc: CCA, Judge, counsel) (dktclk) Modified on 05/30/2000 (Entered: 11/15/1995)
NO APPEAL FEE REQUIRED: USA parties appealling (dktclk) (Entered: 11/15/1995)
288 ORDER by Judge Barbara J. Rothstein: plaintiffs GRANTED leave to file second amended complaint lodged 9/25/95; John Doe #7 and Jane Doe #2 dismissed from case re lack of standing; regarding interim relief order, court grants defendant's request for extension of time for granting employment authorizations to 90 days; other time periods remain as stated in plaintiffs' proposed relief order; court adopts plaintiffs' suggestion that parties meet and confer within 30 days on the interim relief procedures. (cc: counsel, Judge) (dktclk) (Entered: 11/09/1995)
281 SECOND AMENDED COMPLAINT by plaintiffs (dktclk) (Entered: 11/09/1995)
CERTIFICATE OF RECORD Transmitted to USCA (cc: all counsel) (dktclk) (Entered: 11/15/1995)
APPEAL NOTIFICATION packet sent to CCA (cc: cnsl) (dktclk) (Entered: 11/15/1995)
290 LETTER from Donald E. Keener to confirm parties' stipulation to another 30−day extension of due date for joint status report, now due 12/15/95. (dktclk) (Entered: 11/21/1995)
292 LETTER by plaintiffs submitting proposed order re: order re: filing of 2nd amended complaint [288−1] (dktclk) (Entered: 11/28/1995)
LODGED ORDER: re: complaint [281−1], re: order [288−1] (dktclk) (Entered: 11/28/1995)
293 AFFIDAVIT OF SERVICE by plaintiffs of letter [292−1] and proposed order (dktclk) (Entered: 11/28/1995)
291 TIME SCHEDULE ORDER (CCA) [95−36174] Opening brf due 1/2/96; Appellee's brf due 2/2/96; Optional reply brf due w/ in 14 days of service of the appellee's brf (dktclk) (Entered: 11/27/1995)
294 ANSWER to second amended complaint [281−1] by defendants (dktclk) (Entered: 11/30/1995)
295 ORDER by Judge Barbara J. Rothstein: Court's Order denying dfts' motion to dismiss and vacate rulings and granting in part plas' mtns. to amend complaint/for class certification/and for reinstatement of temporary protective order, is incorporated by reference. Court orders: (see Order for details) GRANTING plaintiffs' motion to reinstate temporary protective order with appropriate modifications. (cc: counsel, Judge) (dktclk) (Entered: 12/06/1995)
296 LETTER from Donald E. Keener regarding 11/20/95 letter from Robert Gibbs and proposed interim relief order. (dktclk) (Entered: 12/08/1995)
297 ATTORNEY APPEARANCE (PRAECIPE) for defendant Attorney General USA, defendant INS Commissioner, defendant INS, defendant Edwin Meese, defendant Alan Nelson by Christopher Lee Pickrell (dktclk) (Entered: 12/18/1995)
298 AFFIDAVIT OF SERVICE by defendants of attorney appearance [297−1] (dktclk) (Entered: 12/18/1995)
299 MOTION by defendants to stay pending appeal noted for 12/15/95 (dktclk) (Entered: 12/18/1995)
300 MEMORANDUM by defendants in support of motion to stay pending appeal [299−1] (dktclk) (Entered: 12/18/1995)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 19 of 34

12/11/1995 12/11/1995 12/12/1995 12/13/1995 12/14/1995 12/14/1995 12/15/1995 12/20/1995
12/21/1995
12/21/1995 12/26/1995
12/27/1995 12/27/1995 01/02/1996 01/08/1996 01/08/1996 01/12/1996 01/16/1996
01/18/1996

301 MOTION by defendants to shorten time on motion to stay pending appeal [299−1] noted for 12/13/95 (dktclk) (Entered: 12/18/1995)
302 MEMORANDUM by defendants in support of motion to shorten time on motion to stay pending appeal [299−1] [301−1] (dktclk) (Entered: 12/18/1995)
303 RESPONSE by plaintiffs to defendants' motion to shorten briefing schedule 301 (dktclk) (Entered: 12/18/1995)
304 PRAECIPE: by defendants attaches original, signed declaration of William S. Slattery as exhibit D to memorandum in support [300−1] (dktclk) (Entered: 12/18/1995)
LODGED STIPULATED ORDER regarding briefing schedule on motion to stay pending appeal (dktclk) (Entered: 12/18/1995)
306 LETTER from Lisa M. Arnold to confirm another 30−day extension to 1/15/96 for joint status report. (dktclk) (Entered: 12/19/1995)
305 NOTICE OF WITHDRAWAL OF MOTION TO SHORTEN BRIEFING SCHEDULE by defendants (dktclk) (Entered: 12/18/1995)
307 STIPULATION and ORDER by Judge Barbara J. Rothstein : noted for 1/5/96, dfts' motion to stay pending appeal [299−1]. Dfts will not have to implement the Notice provisions of the Order granting interim protective relief until 5 working days after court's denial of dfts' mtn. to stay, if court makes such ruling. (cc: counsel, Judge) (dktclk) (Entered: 12/20/1995)
308 NOTICE OF APPEAL (95−36295) by Attorney General USA, INS Commissioner, Department of State, INS, Edwin Meese and Alan Nelson defendants from Dist. Court decisions [277, 288 and 295] (cc: CCA, Judge, counsel) (dktclk) Modified on 05/30/2000 (Entered: 12/27/1995)
NO APPEAL FEE RECEIVED: No appeal fee required; INS is appellant (dktclk) (Entered: 12/27/1995)
309 ORDER (CCA) #95−36174: The court is in receipt of appellants' motion to stay this appeal pending the USDC's issuance of a final injunctive order. The motion is DENIED. W/in 14 days of this order, the appellants shall move for voluntary dismissal of this appeal. It appears that this court lacks jurisdiction over this appeal as a final decision has not yet been issued by the USDC. Failure to respond to this order will cause this appeal to be dismissed under 9th CCA Rule 42−1. (NS) (Entered: 12/27/1995)
CERTIFICATE OF RECORD Transmitted to USCA (cc: all counsel) (dktclk) (Entered: 12/27/1995)
APPEAL NOTIFICATION packet sent to CCA (cc: cnsl) (dktclk) (Entered: 12/27/1995)
310 STIPULATION AMENDING BRIEFING SCHEDULE re: motion to stay [299−1] (dktclk) Modified on 01/08/1996 (Entered: 01/04/1996)
NOTIFICATION by Circuit Court of Appellate Docket Number 95−36295 (dktclk) (Entered: 01/08/1996)
311 RESPONSE (REPLY) by plaintiffs to defendants' motion to stay pending appeal [299−1] (dktclk) (Entered: 01/09/1996)
312 LETTER from Lisa M. Arnold regarding parties' stipulation to renote motion to stay pending appeal [299−1] to 1/19/96. (dktclk) (Entered: 01/16/1996)
314 MANDATE [95−36174] from Circuit Court of Appeals DISMISSING the appeal [289−1] It appears that this appeal is premature. Unless objection is filed w/ in 7 days of the date of this order, appeal no. 95−36174 shall be deemed dismissed voluntarily. The appeal no. 95−36295 is still active. (cc: all counsel) (dktclk) (Entered: 01/22/1996)
313 REPLY by defendants in suupport of motion to stay pending appeal [299−1] (dktclk) (Entered: 01/19/1996)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 20 of 34

01/22/1996 01/22/1996 01/22/1996 01/22/1996 01/22/1996 01/22/1996 01/22/1996 01/22/1996 01/23/1996 01/24/1996
01/27/1996 01/29/1996 01/29/1996 02/23/1996 02/23/1996 03/01/1996 03/18/1996
04/01/1996 04/08/1996

315 LETTER from Robert H. Gibbs for plaintiffs regarding status report, stay of implementation of interim relief order pending appeal. (dktclk) (Entered: 01/24/1996)
316 NOTICE OF FILING DECLARATION OF PETER A. SCHEY; PLAINTIFFS' EXHIBIT 38 by plaintiffs (dktclk) (Entered: 01/24/1996)
317 NOTICE OF FILING DEPOSITION OF KENNETH W. RATH; PLAINTIFFS' EXHIBIT 39 by plaintiffs (dktclk) (Entered: 01/24/1996)
318 NOTICE OF FILING DEPOSITION OF E.B. DUARTE; PLAINTIFFS' EXHIBIT 40 by plaintiffs (dktclk) (Entered: 01/24/1996)
319 NOTICE OF FILING DEPOSITION OF LOUIS D. CROCETTI JR; PLAINTIFFS' EXHIBIT 41 by plaintiffs (dktclk) (Entered: 01/24/1996)
320 NOTICE OF FILING DEPOSITION OF T. ALEXANDER ALEINIKOFF; PLAINTIFFS' EXHIBIT 42 by plaintiffs (dktclk) (Entered: 01/24/1996)
321 NOTICE OF FILING DEPOSITION OF WILLIAM S. SLATTERY; PLAINTIFFS' EXHIBIT 43 by plaintiffs (dktclk) (Entered: 01/24/1996)
322 NOTICE OF FILING DEFENDANTS RESPONSES TO CSS PLAINTIFFS; DISCOVERY; PLAINTIFFS' EXHIBIT 44 by plaintiffs (dktclk) (Entered: 01/24/1996)
323 MOTION by defendants to strike plaintiffs' untimely submission noted for 2/9/96 (dktclk) (Entered: 01/26/1996)
324 MINUTE ORDER: by Judge Barbara J. Rothstein DENYING dfts' motion to strike plaintiffs' untimely submission [323−1]; GRANTING alternative request for time to respond to plaintiffs' additional exhibits; dfts' response due 1/29/96. (cc: counsel, Judge) (dktclk) (Entered: 01/26/1996)
327 ORDER (CCA) [95−36295] Transcript order due 1/22/96; transcripts due 2/20/96; opening brf due 4/8/96; appellee's brf due 5/7/96; optional reply brf due w/ in 14 days of service of the appellee's brf. (dktclk) (Entered: 02/02/1996)
325 MANDATE [95−36174] from Circuit Court of Appeals DISMISSING the appeal voluntarily (cc: all counsel) (dktclk) (Entered: 01/29/1996)
326 RESPONSE by defendants to plaintiffs' submission of untimely supplemental exhibits in opposition to dfts' motion for stay pending appeal (dktclk) (Entered: 01/30/1996)
328 LETTER by all parties to jointly suggest extension of time for status report due 2/22/96. (dktclk) (Entered: 02/26/1996)
330 LETTER from Robert H. Gibbs to inform court of INS stipulation to 30 day extension of implementation date of interim relief order. (dktclk) (Entered: 03/04/1996)
329 ORDER by Judge Barbara J. Rothstein: DENYING motion to stay pending appeal [299−1], and MODIFYING the court's prior order of 12/4/95 as follows: (see Order). (cc: counsel, Judge) (dktclk) (Entered: 03/01/1996)
331 ORDER (CCA) #95−36295: Appellees' oral req. for an ext. of time to file their opposition to appellants' emergency motion for stay is GRANTED. Appellees' opposition shall be file 3/27/96. Appellants' optional reply due w/in 7 days of svc. of appellee opposition. The USDC's 12/4/95 order is temporarily STAYED pending further order of this court. (NS) (Entered: 03/28/1996)
332 LETTER from Lisa M. Arnold regarding agreement by counsel to extend deadline for joint status report to 4/24/96. (dktclk) (Entered: 04/03/1996)
333 ORDER (CCA) #95−36295: Appellee's oral req. for an ext. of time to file their opposition to appellant's emergency motion for stay is GRANTED. Appellee's opposition shall be filed by 4/10/96. Appellant's optional reply shall be filed w/in 7 days of svc. of appellee's opposition. (NS) (Entered: 04/08/1996)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 21 of 34

04/29/1996
05/06/1996
06/13/1996 09/16/1996 09/20/1996 12/23/1996
02/04/1998
02/26/1998 02/26/1998 02/26/1998 02/27/1998 03/02/1998 03/02/1998 03/02/1998 03/04/1998 03/04/1998 03/04/1998 03/04/1998 03/04/1998
03/06/1998

334 ORDER (CCA) i#95−36295: Appellant's 4/12/96 motion to correc the brief is GRANTED. The clerk shall file the corrected briefs and exc. of record rec'd 4/12/96. (NS) (Entered: 04/29/1996)
335 ORDER (CCA) [95−36295] Appellant's motion for stay pending appeal is granted. The briefing schedule established previously shall remain in effect. (dktclk) (Entered: 05/07/1996)
336 LETTER from Lisa M. Arnold regarding agreement among parties to extend deadline for joint status report. (dktclk) (Entered: 06/17/1996)
337 LETTER by plaintiffs: re order to submit joint status report; anticipate being able to submit the required joint report by 9/20/96 (dktclk) (Entered: 09/16/1996)
338 JOINT STATUS REPORT filed by all parties. Est. Trial Days: 4 weeks (dktclk) (Entered: 09/23/1996)
339 ORDER (CCA) #95−36295: Plaintiff−Appellees' request for an ext. of time to file a reply br. to the supplemental br. of deft−appellants is GRANTED. Said br. due 1/6/97; Pltf−Appellees' joint motion to consolidate appeals is DENIED. (NS) (Entered: 01/07/1997)
340 MINUTE ENTRY by the Court: in light of 9th Circuit memorandum, Court to receive within 14 days an updated status report from counsel addressing whether the Does will pursue this litigation. (cc: counsel) (dktclk) (Entered: 02/05/1998)
341 MOTION and MEMORANDUM by plaintiffs to reinstate TRO NOTED FOR 3/13/98 (dktclk) (Entered: 02/27/1998)
LODGED ORDER: re: motion to reinstate TRO [341−1] (dktclk) (Entered: 02/27/1998)
342 AFFIDAVIT OF SERVICE by plaintiffs of motion to reinstate TRO [341−1] (dktclk) (Entered: 02/27/1998)
343 STATUS REPORT filed by the parties (dktclk) (Entered: 03/03/1998)
344 MOTION by defendants to dismiss re: lack of jurisdiction NOTED FOR 3/27/98 (dktclk) (Entered: 03/04/1998)
345 MEMORANDUM by defendants in support of motion to dismiss re: lack of jurisdiction [344−1] (dktclk) (Entered: 03/04/1998)
LODGED ORDER: re: dfts' motion to dismiss re: lack of jurisdiction [344−1] (dktclk) (Entered: 03/04/1998)
346 STIPULATION TO RE−NOTE PENDING MOTIONS, ETC filed by the parties. (dktclk) (Entered: 03/05/1998)
347 MOTION by defendants to suspend briefing of plaintiffs' motion to reinstate protective order NOTED FOR 3/20/98 (dktclk) (Entered: 03/05/1998)
LODGED ORDER: re: motion to suspend briefing of plaintiffs' motion to reinstate protective order [347−1] (dktclk) (Entered: 03/05/1998)
348 MOTION by defendants to shorten time on motion to suspend briefing of plaintiffs' motion to reinstate protective order [347−1] (dktclk) (Entered: 03/05/1998)
LODGED ORDER: re: motion to shorten time on motion to suspend briefing of plaintiffs' motion to reinstate protective order [347−1] [348−1] (dktclk) (Entered: 03/05/1998)
349 ORDER by Judge Barbara J. Rothstein GRANTING dfts' motion to shorten time on motion to suspend briefing of plaintiffs' motion to reinstate protective order [347−1] [348−1]. The underlying motion to suspend briefing of plaintiffs' motion reinstate protective order [347−1] will be considered on 3/10/98 at 4:30 pm. Pltfs' brief in response due 3/10/98 at 4:30 pm (Cnsl called) (cc: counsel, Judge) (KERR) (Entered: 03/09/1998)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 22 of 34

03/10/1998 03/10/1998 03/10/1998 03/11/1998 03/13/1998 03/13/1998
03/16/1998 03/16/1998 03/19/1998 03/26/1998 03/26/1998 03/26/1998 03/26/1998 03/26/1998 03/26/1998 03/30/1998 03/30/1998 04/02/1998 04/02/1998 04/02/1998

350 MOTION for emergency stay of deportation and release from custody by Kingsley Ugwu, class member, John Doe #2 of 2nd amended complaint. (dktclk) (Entered: 03/11/1998)
351 RESPONSE (OPPOSITION) by plaintiffs to INS motion to suspend briefing schedule (dktclk) (Entered: 03/11/1998)
LODGED ORDER: re: Kingsley Ugwu's motion for emergency stay of deportation and release from custody [350−1] (dktclk) (Entered: 03/11/1998)
352 PRELIMINARY RESPONSE by defendants to motion for emergency stay of deportation and release from custody [350−1] (dktclk) (Entered: 03/12/1998)
353 SUPPLEMENTAL AUTHORITY IN SUPPORT OF MOTION TO SUSPEND BRIEFING by defendants (dktclk) (Entered: 03/16/1998)
354 MINUTE ENTRY by the Court DENYING motion for emergency stay of deportation and release from custody [350−1], DENYING dfts' motion to to suspend briefing of plaintiffs' motion to reinstate protective order (cc: counsel, Judge) (dktclk) (Entered: 03/16/1998)
355 REPLY BRIEF by plaintiffs re: motion for emergency stay of deportation and release from custody of Kingsley Ugwu, and request for immediate release. (dktclk) (Entered: 03/16/1998)
356 PRAECIPE by defendants encloses an attachment for the supplemental citation [353−1] filed 3/13/98. (Deputy Clerk placed attachment at end of [353−1].) (dktclk) (Entered: 03/18/1998)
357 MOTION by plaintiffs for order releasing class member from INS custody NOTED FOR 4/3/98 (dktclk) (Entered: 03/23/1998)
358 MANDATE (95−36295) from Circuit Court of Appeals REMANDING the matter back to District Court [Appeal [308−1] (cc: BJR,all counsel) Memorandum attached. (dktclk) (Entered: 03/27/1998)
359 RESPONSE (REPLY) by plaintiffs to INS motion to dismiss (dktclk) (Entered: 03/27/1998)
360 MOTION by defendants to file overlength brief [Response to Mtn to Reinstate Interim Protective Relief] NOTED FOR 4/10/98 (dktclk) Modified on 03/27/1998 (Entered: 03/27/1998)
PROPOSED Response to Motion to Reinstate Protective Relief re: motion to file overlength brief [Response to Mtn to Reinstate Interim Protective Relief] [360−1] (dktclk) (Entered: 03/27/1998)
LODGED ORDER: re: motion to file overlength brief [Response to Mtn to Reinstate Interim Protective Relief] [360−1] (dktclk) (Entered: 03/27/1998)
361 AFFIDAVIT OF SERVICE by defendants of motion to file overlength brief [Response to Mtn to Reinstate Interim Protective Relief] [360−1] (dktclk) (Entered: 03/27/1998)
362 NOTICE OF FINAL ORDER OF REMOVAL OF KINGSLEY UGWU filed by defendants (dktclk) (Entered: 04/02/1998)
362 RESPONSE (MEMORANDUM IN OPPOSITION) by defendants to motion for order releasing class member from INS custody [357−1] (dktclk) (Entered: 04/02/1998)
363 REPLY BRIEF by defendants in support of their motion to dismiss for lack of subject matter jurisdiction (dktclk) (Entered: 04/03/1998)
364 SUPPLEMENTAL DECLARATION of Edward H. Skerrett by defendants in opposition to motion to reinstate TRO [341−1] (dktclk) (Entered: 04/03/1998)
365 MOTION by plaintiffs to file overlength briefs in response re: mtn to reinstate and mtn for release NOTED FOR 4/17/98 (dktclk) (Entered: 04/03/1998)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 23 of 34

04/02/1998 04/02/1998 04/02/1998 04/06/1998 04/08/1998 04/08/1998
04/09/1998 04/16/1998 04/16/1998 04/16/1998 05/13/1998 05/19/1998 05/26/1998 05/27/1998 05/29/1998 06/19/1998
07/16/1998 07/29/1998

PROPOSED PLAINTIFFS' REPLY TO INS OPPOSITION TO TEMPORARY PROTECTIVE ORDER re: motion to file overlength briefs in response re: mtn to reinstate and mtn for release [365−1] (dktclk) (Entered: 04/03/1998)
PROPOSED PLAINTIFFS' REPLY TO INS OPPOSITION RE KINGSLEY UGWU re: motion to file overlength briefs in response re: mtn to reinstate and mtn for release [365−1] (dktclk) (Entered: 04/03/1998)
366 MOTION by plaintiffs to shorten time on motion to file overlength briefs in response re: mtn to reinstate and mtn for release [365−1] (dktclk) (Entered: 04/03/1998)
367 RESPONSE by defendants to motion to file overlength briefs [365−1], motion to file overlength brief [360−1], and request to file surreplies (dktclk) (Entered: 04/08/1998)
368 REPLY by plaintiffs re INS request for additional time (dktclk) (Entered: 04/09/1998)
369 ORDER by Judge Barbara J. Rothstein DENYING plaintiffs' motion to file overlength briefs in response re: mtn to reinstate and mtn for release [365−1]; STRIKING plaintiffs' reply briefs to dfts' opposition to plaintiffs' motion to reinstate temporary protective order, and to dfts' opposition to plaintiffs' motion for release from custody; STRIKING plaintiffs' motion for order releasing class member from INS custody [357−1], and plaintiffs' motion to reinstate TRO [341−1], with leave to renote for the 1st Friday after they file reply briefs conforming to Local Rule 7(c); dfts shall not file surreplies without leave of court. (cc: counsel, Judge) (dktclk) (Entered: 04/09/1998)
370 SUPPLEMENTAL EXHIBIT by INS re Kingsley Ugwu's request for release from custody (RS) (Entered: 04/10/1998)
371 NOTICE OF RENOTE OF MOTIONS by plaintiffs re: plaintiffs' motion for reinstatement of TRO 341 , and plaintiffs' motion for release from custody 357 , FOR 4/17/98, pursuant to 4/8/98 Order. (dktclk) (Entered: 04/17/1998)
372 REPLY by plaintiffs to INS opposition to temporary protective order (dktclk) (Entered: 04/17/1998)
373 REPLY by plaintiffs to INS opposition re: Kingsley Ugwu (dktclk) (Entered: 04/17/1998)
374 NOTICE OF SIGNIFICANT DECISIONS filed by defendants re: 9th Circuit decision Zambrano v. INS (dktclk) (Entered: 05/14/1998)
375 NOTICE OF SUPPLEMENTAL AUTHORITY filed by plaintiffs (dktclk) (Entered: 05/20/1998)
376 RESPONSE by defendants to plaintiffs' notice regarding Walters v. Reno [375−1] (dktclk) (Entered: 05/27/1998)
377 REPLY by plaintiffs to dfts' memorandum/notice [374−1] (dktclk) (Entered: 05/29/1998)
378 ORDER by Judge Barbara J. Rothstein DENYING plaintiffs' motion for emergency stay of deportation and release from custody re: Kingsley Ugwu [350−1] (cc: counsel, Judge) (dktclk) (Entered: 05/29/1998)
379 ORDER by Judge Barbara J. Rothstein GRANTING dfts' motion to dismiss [344−1] and DISMISSING action and STRIKING as moot pltfs' motion to reinstate protective order [347−1] (cc: counsel, Judge) (KERR) (Entered: 06/22/1998)
380 MOTION by plaintiffs for reconsideration of 5/29/98 Order NOTED FOR 7/17/98 (KERR) (Entered: 07/16/1998)
381 MOTION by plaintiffs for reconsideration of 6/19/98 order NOTED FOR 7/31/98 (Attachments A−D) (KERR) (Entered: 07/29/1998)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 24 of 34

08/05/1998 08/07/1998 08/11/1998 08/19/1998
08/21/1998
08/27/1998
08/31/1998 09/03/1998 11/06/1998
11/16/1998 11/19/1998 11/19/1998 11/19/1998 11/23/1998 11/25/1998 12/07/1998 12/10/1998 12/14/1998 12/17/1998

382 MINUTE ORDER: by Judge Barbara J. Rothstein RENOTED FOR 8/28/98 pltfs' motion for reconsideration of 6/19/98 order [381−1]. Dfts' response due by 8/24/98; pltfs' reply by 8/27/98 (cc: counsel, Judge) (KERR) (Entered: 08/05/1998)
LODGED ORDER: renoting mtn for reconsideration (KERR) (Entered: 08/10/1998)
383 STIPULATION and ORDER by Judge Barbara J. Rothstein : RE NOTED FOR 9/4/98 pltf's motion for reconsideration of 6/19/98 order [381−1] (cc: counsel, Judge) (KERR) (Entered: 08/11/1998)
384 MINUTE ORDER: by Judge Barbara J. Rothstein ; order to show cause hearing set for 10:00 9/2/98 Dfts to show cause why the court should not order a bond hearing for Kingsley Ugwu. Dfts' brief in support of their position due 8/28/98, pltfs' responsive brief due 8/31/98 and dfts' reply brief due 9/1/98 (cc: counsel, Judge) (KERR) (Entered: 08/19/1998)
385 MINUTE ORDER: by Judge Barbara J. Rothstein − The court RENOTES pltfs' motion for reconsideration of its 5/29/98 Order [380−1] and petitioner's mtn for TRO in Ugwu v. Reno, C98−746R to 9/4/98 (cc: counsel, Judge) (KERR) (Entered: 08/21/1998)
386 MINUTE ORDER: by Judge Barbara J. Rothstein ; order to show cause ddl STRICKEN 10:00 9/2/98 . STRIKING AS MOOT the petitioner's mtn for TRO in C98−746R and pltf's motion for reconsideration of 5/29/98 Order [380−1] in C98−379R (cc: counsel, Judge) (KERR) (Entered: 08/27/1998)
387 RESPONSE by defendants to motion for reconsideration of 6/19/98 order [381−1] (KERR) (Entered: 09/01/1998)
388 REPLY by plaintiffs TO RESPONSE to motion for reconsideration of 6/19/98 order [381−1] (KERR) (Entered: 09/04/1998)
389 ORDER by Judge Barbara J. Rothstein GRANTING pltfs' motion for reconsideration of 6/19/98 order [381−1] VACATING [379−2] order Case reopened REINSTATING pltfs' motion to reinstate TRO [341−1] RENOTED FOR 11/20/98 pltfs' motion to reinstate TRO [341−1]. Dfts' response due 11/16/98. Pltfs' reply by 11/19/98 (cc: counsel, Judge) (KERR) (Entered: 11/06/1998)
390 RESPONSE by defendants to motion to reinstate TRO [341−1] (KERR) (Entered: 11/17/1998)
391 RENEWED MOTION by defendants to dismiss; OA REQ'D NOTED FOR 12/11/98 (KERR) (Entered: 11/20/1998)
392 MEMORANDUM by defendants in support of motion to dismiss; OA REQ'D [391−1] (KERR) (Entered: 11/20/1998)
LODGED ORDER: re: motion to dismiss; OA REQ'D [391−1] (KERR) (Entered: 11/20/1998)
393 NOTICE by plaintiffs that the following is RENOTED FOR 11/27/98 motion to reinstate TRO (KERR) (Entered: 11/23/1998)
394 SUPPLEMENTAL REPLY by plaintiffs TO RESPONSE to motion to reinstate TRO [341−1] (KERR) (Entered: 11/30/1998)
395 REPLY by plaintiff TO RESPONSE to motion to dismiss; OA REQ'D [391−1] (KERR) (Entered: 12/07/1998)
LODGED ORDER: re: stipulation to renote dfts' mtn to dismiss (KERR) (Entered: 12/11/1998)
396 STIPULATION and ORDER by Judge Barbara J. Rothstein : RE NOTED FOR 12/18/98 dfts' motion to dismiss; OA REQ'D [391−1]. Dfts' final reply due by 12/17/98 (cc: counsel, Judge) (KERR) (Entered: 12/14/1998)
397 REPLY by defendants TO RESPONSE to motion to dismiss; [391−1] (SL) (Entered: 12/22/1998)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 25 of 34

12/23/1998
01/19/1999 01/21/1999 02/11/1999 03/03/1999
03/11/1999 03/11/1999 03/11/1999 03/11/1999 03/11/1999 03/12/1999 03/15/1999 03/17/1999
03/22/1999 03/25/1999 03/31/1999 05/03/1999 05/03/1999 05/03/1999 05/03/1999

398 MINUTE ORDER: by Judge Barbara J. Rothstein. Ct will hear ORAL ARGUMENT on the Plas' mtn to reinstate the temporary protective order &on the Dft's mtn to dismiss on 1/12/99 at 9:00 a.m. The mtns shall be renoted to 1/15/99. (cc: counsel, Judge, L.T.) (dktclk) (Entered: 12/23/1998)
399 MINUTE ORDER: by Judge Barbara J. Rothstein RENOTED FOR 2/12/99 pltfs' motion to reinstate TRO [341−1] and dfts' renewed motion to dismiss [391−1] (cc: counsel, Judge) (KERR) (Entered: 01/19/1999)
400 TRANSCRIPT of proceedings for the following date(s): 1/12/99 (Re: Hearing on Motions) CR initials: S. Palmerton (dktclk) (Entered: 01/22/1999)
401 JOINT STATUS REPORT filed by all parties. (KERR) (Entered: 02/12/1999)
402 ORDER by Judge Barbara J. Rothstein DENYING dfts' motion to dismiss [391−1] and GRANTING IN PART pltfs' motion to reinstate temporary protective relief [341−1]. The court reinstates its class certification order and reinstates its order granting temporary relief with the modifications as noted (See Order for Details) (cc: counsel, Judge) (KERR) (Entered: 03/03/1999)
403 MOTION by defendant for stay pending appeal NOTED FOR 3/26/99 (KERR) (Entered: 03/12/1999)
404 MEMORANDUM by defendants in support of motion for stay pending appeal [403−1] (KERR) (Entered: 03/12/1999)
LODGED ORDER: re: motion for stay pending appeal [403−1] (KERR) (Entered: 03/12/1999)
405 MOTION by defendants to shorten time on motion for stay pending appeal [403−1] NOTED FOR 3/15/99 (KERR) (Entered: 03/12/1999)
LODGED ORDER: re: motion to shorten time on motion for stay pending appeal [403−1] [405−1] (KERR) (Entered: 03/12/1999)
406 PRAECIPE: by defendant INS re: attached is the original decl of Michael Pearson filed in support of motion for stay pending appeal [403−1] (KERR) (Entered: 03/16/1999)
407 REPLY by plaintiffs TO RESPONSE to motion to shorten time on motion for stay pending appeal [403−1] [405−1] (KERR) (Entered: 03/16/1999)
408 MINUTE ORDER: by Judge Barbara J. Rothstein DENYING dfts' motion to shorten time on motion for stay pending appeal [403−1] [405−1]. Regarding dfts' motion for stay pending appeal [403−1] the court EXTENDS the 4/2/99 ddl to 4/11/99 (cc: counsel, Judge) (KERR) (Entered: 03/17/1999)
409 REPLY by plaintiffs to response to motion for stay pending appeal [403−1] (KERR) (Entered: 03/23/1999)
410 REPLY by defendants in support of motion for a stay pending appeal [403−1] (KERR) (Entered: 03/25/1999)
411 ORDER by Judge Barbara J. Rothstein GRANTING dft's motion for stay pending appeal [403−1] (cc: counsel, Judge) (KERR) (Entered: 03/31/1999)
412 NOTICE OF APPEAL (99−35472) by defendants INS Commissioner from Dist. Court decision [402−1 (cc: CCA, BJR, counsel) (dktclk) Modified on 05/30/2000 (Entered: 05/03/1999)
NO APPEAL FEE RECEIVED: Government appeal; fee waived. (dktclk) (Entered: 05/03/1999)
CERTIFICATE OF RECORD Transmitted to USCA (cc: all counsel) (dktclk) (Entered: 05/03/1999)
APPEAL NOTIFICATION packet sent to CCA (cc: cnsl) (dktclk) (Entered: 05/03/1999)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 26 of 34

05/03/1999 05/21/1999 05/22/1999 05/22/1999 05/22/1999
06/01/1999
07/19/1999 04/28/2003 10/15/2003 10/20/2003 11/10/2003 11/12/2003 12/09/2003
12/11/2003 12/11/2003

ENT−Civil Appeals Docketing Statement forwarded to Mediator's Office in Seattle. (dktclk) (Entered: 05/03/1999)
414 TRANSCRIPT DESIGNATION and Ordering Form for dates: 1/12/99 (dktclk) (Entered: 05/24/1999)
NOTIFICATION by Circuit Court of Appellate Docket Number 99−35472 (INS) (KN) (Entered: 05/24/1999)
413 TIME SCHEDULE ORDER (CCA 99−35472) Appellant shall immediately file the civil appeals docketing statement (CADS) (KN) (Entered: 05/24/1999)
415 ORDER (CCA 99−35472) The appeal filed 5/3/99 is a preliminary injuction appeal. Accordingly, 9th CCA Rule 3−3 shall apply. If they have not already done so, w/in 7 days after entry of this order, the parties shall make arrangements to obtain from the court reporter an official transcript of proceedings in the district court which will be included in the record on appeal. The briefing schedule is set as follows: the opening brf is due 6/1/99; the aswering brf is due 6/29/99; and the optional reply brf is due w/in 14 days of service of the answering brf. The appeal and any motions pending at the time of briefing is referred to the next available motions panel for disposition. (dktclk) (Entered: 05/24/1999)
416 ORDER (CCA 99−35472) This is a preliminary injunction appeal. Appellant's unopposed oral motion for an extension of time to file the opening brf is granted. Appellant's opening brf and excerpts or record are due 6/15/99; appellee's answering brf is due 7/13/99; and the optional reply brf is due w/in 14 days after service of appellee's brf. The appeal and any motions pending when briefing is completed shall be referred to the next available motions panel for disposition. (dktclk) (Entered: 06/02/1999)
417 ORDER (CCA 99−35472) Appellee's unopposed motion for an extension of time to file their answering brf is granted. The answering brf is due 7/27/99. (dktclk) (Entered: 07/21/1999)
418 MANDATE (99−35472) from Circuit Court of Appeals REMANDING IN PART and AFFIRMED IN PART the matter back to District Court [Appeal [412−1] (cc: all counsel, BJR) (SA) (Entered: 04/29/2003)
Case reassigned to Judge Marsha J. Pechman. Judge Barbara J. Rothstein no longer assigned to the case. All future filings shall bear cause number C88−379MJP (RS, ) (Entered: 10/15/2003)
419 ORDER REGARDING JOINT STATUS REPORT. Joint Status Report due by 11/10/2003. by Judge Marsha J. Pechman. (JS) (Entered: 10/20/2003)
421 MINUTE ORDER Joint Status Report deadline extended to 12/10/2003; signed by Docket Clerk Mary Duett at the direction of Judge Marsha J. Pechman. (SC, ) (Entered: 11/10/2003)
422 AMENDED DOCUMENT by Defendant Immigration and Naturalization Service US. Amended Notice of Appearance. (Pickrell, Christopher) (Entered: 11/12/2003)
423 Joint MOTION for Extension of Time to file joint status report by Plaintiffs African Community &Info Center, Inc, American G I Forum, Chinese American Citizens Alliance, Coalition for Fair Immigration Reform, Jane Doe, John Doe, Hermandad Mexicana Nacional, International Institute East Bay, International Institute San Francisco, Legalization Assist Proj of LA Cnty AFL−CIO, One Stop Immigration, Travelers and Immigrants Aid of Chicago, United CA Mexican−American Assoc, WA Assoc of Churches. (Attachments: # 1 Text of Proposed Order extending time for status report)(Gibbs, Robert) (Entered: 12/09/2003)
424 MINUTE ORDER denying request for extension on submission of joint status report. by Judge Marsha J. Pechman. (JS) (Entered: 12/11/2003)
425 ORDER regarding use of CM/ECF system by Judge Marsha J. Pechman. (JS) (Entered: 12/11/2003)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 27 of 34

12/11/2003 12/17/2003 01/14/2004
01/26/2004 02/06/2004 02/06/2004 02/12/2004
02/12/2004 02/20/2004 02/20/2004 02/25/2004
03/01/2004 03/01/2004 03/02/2004
03/09/2004 03/09/2004 04/12/2004

426 ORDER re 423 Stipulation for Extension of Time to file joint status report by 45 days; Joint Status Report due by 1/26/2004; by Judge Marsha J. Pechman. (AF, ) (Entered: 12/12/2003)
427 MINUTE ORDER vacating minute order at Dkt. No. 424. by Judge Marsha J. Pechman. (JS) (Entered: 12/17/2003)
428 MOTION to Amend Complaint by Plaintiffs Jane Doe, John Doe, International Institute San Francisco, Travelers and Immigrants Aid of Chicago. Noting Date 1/27/2004. (Attachments: # 1 Proposed Order granting leave to amend# 2 Exhibit Third amended complaint)(Gibbs, Robert) (Entered: 01/14/2004)
429 JOINT STATUS REPORT filed by all parties. Est. Trial Days: 3. (Gibbs, Robert) (Entered: 01/26/2004)
430 ORDER granting 428 Motion for leave to Amend Complaint by Judge Marsha J. Pechman.(JS) (Entered: 02/06/2004)
431 Third AMENDED COMPLAINT against defendant Department of State, US, filed by Northwest Immigrant Rights Project.(Gibbs, Robert) (Entered: 02/06/2004)
432 MOTION for Order reinstating temporary protective order by Plaintiff Northwest Immigrant Rights Project. Noting Date 2/27/2004. (Attachments: # 1 Exhibit Ex. 1# 2 Exhibit Ex. 2# 3 Exhibit Ex. 3# 4 Proposed Order Proposed order)(Pauw, Robert) (Entered: 02/12/2004)
433 MOTION to Amend class definition by Plaintiff Northwest Immigrant Rights Project. Noting Date 2/27/2004. (Attachments: # 1 Supplement Supporting brief# 2 Proposed Order proposed order)(Gibbs, Robert) (Entered: 02/12/2004)
434 STIPULATION of parties continuance of 2/27/04 noting date to 3/10/04. (Dauenheimer, David) (Entered: 02/20/2004)
435 ANSWER to Complaint (Third Amended) by Defendant Attorney General of the United States.(Dauenheimer, David) (Entered: 02/20/2004)
436 ORDER re 432 MOTION for Order reinstating temporary protective order filed by Northwest Immigrant Rights Project: pursuant to stipulation of the parties, this motion is renoted for 3/10/2004, opposition due on 3/1/04, reply due on 3/9/04. Signed by Judge Marsha J. Pechman. (SC, ) (Entered: 02/25/2004)
437 RESPONSE filed by Defendant Attorney General of the United States re 433 MOTION to Amend class definition (Dauenheimer, David) (Entered: 03/01/2004)
438 RESPONSE filed by Defendant Attorney General of the United States re 432 MOTION for Order reinstating temporary protective order (Dauenheimer, David) (Entered: 03/01/2004)
439 ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: 3. Bench Trial set for/will resume 12/13/2004 09:00 AM before Hon. Marsha J. Pechman. Joinder of Parties due by 3/30/2004; Expert Witness Disclosure due by 6/16/2004; Motions due by 7/16/2004; Discovery due by 8/1/2004; Dispositive motions due by 9/14/2004; Settlement conference to be held by 10/14/2004; 39.1 Settlement Report due by 11/12/2004. Motions in Limine due by 11/15/2004; Pretrial Order due by 11/29/2004; Pretrial Conference set for 11/30/2004 04:00 PM before Hon. Marsha J. Pechman. Trial briefs to be submitted by 12/8/2004; Proposed Findings of Fact and Conclusions of Law to be submitted by 12/8/2004; by Judge Marsha J. Pechman. (MD, ) (Entered: 03/03/2004)
440 REPLY to Response to Motion filed by Plaintiff Northwest Immigrant Rights Project re 433 MOTION to Amend class definition (Pauw, Robert) (Entered: 03/09/2004)
441 REPLY to Response to Motion filed by Plaintiff Northwest Immigrant Rights Project re 432 MOTION for Order reinstating temporary protective order (Pauw, Robert) (Entered: 03/09/2004)
442 MINUTE ORDER by Judge Marsha J. Pechman. (JS) (Entered: 04/12/2004)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 28 of 34

04/30/2004 06/08/2004
07/07/2004 07/15/2004 08/09/2004
08/19/2004 08/20/2004 09/20/2004 09/24/2004 10/01/2004 10/04/2004
10/06/2004 10/15/2004 10/18/2004 12/15/2004

443 MINUTE ORDER rescheduling oral argument on pending motions for 9:00 am May 13, 2004. by docket clerk Mary Duett at the direction of Judge Marsha J. Pechman. (JS) (Entered: 04/30/2004)
444 MINUTE ORDER Motions terminated: 432 MOTION for Order reinstating temporary protective order filed by Northwest Immigrant Rights Project, 433 MOTION to Amend class definition filed by Northwest Immigrant Rights Project. Motions have been removed from the Court's calendar pending futher notice by Judge Marsha J. Pechman. (JS, ) (Entered: 06/08/2004)
445 STIPULATION of parties re 439 Order Setting Trial Date and Related Dates,,. (Pauw, Robert) (Entered: 07/07/2004)
446 STIPULATION AND ORDER TO EXTEND DEADLINES re 445 Stipulation and Joint Request; Motions related to discovery due by 8/19/2004; Discovery to be completed by 9/7/2004; by Judge Marsha J. Pechman. (AF, ) (Entered: 07/19/2004)
ORDER REASSIGNING CASE. Case reassigned to Judge James L Robart for all further proceedings. Judge Marsha J. Pechman no longer assigned to case. All future pleadings should bear the caption C88−0379JLR. All case scheduling dates currently in place will remain in effect unless otherwise notifed by Judge Robart; as ordered by Judge Marsha J. Pechman. (JS, ) (Entered: 08/09/2004)
447 Joint MOTION and Proposed Order for Extension of Time for Discover and Dispositive Motions by Plaintiff Northwest Immigrant Rights Project. Noting Date 9/3/2004. (Gibbs, Robert) Modified on 8/20/2004 (CL, ). (Entered: 08/19/2004)
448 STIPULATION AND ORDER re 447 Joint MOTION for Extension of Time for Discover and Dispositive Motions filed by Northwest Immigrant Rights Project Discovery due by 10/28/2004; Dispositive motions due by 11/4/2004; Motions due by 10/7/2004; by Judge James L Robart. (MD, ) (Entered: 08/23/2004)
449 MOTION and brief of Jane Doe No. 2 for immediate injunction pendente lite for herself due to her special circumstances by Plaintiff Jane Doe. (not noted) (MD, ) Modified on 9/22/2004 to correct typo(ECS, ). (Entered: 09/21/2004)
450 ORDER RE−NOTING 449 MOTION and brief of Jane Do No. 2 for immediate injunction pendente lite for herself due to her special circumstances; Noting Date 10/8/2004. Any opposition is due Monday, October 4, 2004 and any reply by October 7, 2004 by Judge James L. Robart. (MD, ) (Entered: 09/27/2004)
451 STIPULATION AND PROPOSED ORDERfor Withdrawal of Motion by parties re 449 MOTION and brief of Jane Do No. 2 for immediate injunction pendente lite for herself due to her special circumstances. (Pauw, Robert) Modified text on 10/4/2004 (MD, ). (Entered: 10/01/2004)
452 STIPULATION AND ORDER to withdraw motion without prejudice re 451 Stipulation filed by Jane Doe, Northwest Immigrant Rights Project, 449 MOTION and brief of Jane Do No. 2 for immediate injunction pendente lite for herself due to her special circumstances filed by Jane Doe, Motions terminated: by Judge James L. Robart. (MD, ) Additional attachment(s)(correct image) added on 10/6/2004 (MD, ). (Entered: 10/05/2004)
Image corrected for Document No. 452 − Stipulation and order to withdraw motion without prejudice (MD, ) (Entered: 10/06/2004)
453 Joint Stipulated MOTION AND PROPOSED ORDER to strike trial and pretrial deadlines pending settlement negotiations by Plaintiff Northwest Immigrant Rights Project. Noting Date 10/15/2004. (Pauw, Robert) Modified text on 10/18/2004 (MD, ). (Entered: 10/15/2004)
454 STIPULATION AND ORDER re 453 Joint Stipulated MOTION to strike trial and pretrial deadlines pending settlement negotiations filed by Northwest Immigrant Rights Project and US Citizenship and Immigration Services et al by Judge James L. Robart. (MD, ) (Entered: 10/18/2004)
455 JOINT STATUS REPORT &LODGED ORDER filed by all parties. Est. Trial Days: 5. (Dauenheimer, David) Modified text on 12/16/2004 (MD, ). (Entered: 12/15/2004)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 29 of 34

12/20/2004
02/14/2005 02/24/2005
04/15/2005 05/02/2005 05/05/2005
05/06/2005 05/13/2005 05/16/2005
05/20/2005 05/23/2005

456 STIPULATION AND ORDER re 455 Joint Status Report filed by Immigration and Naturalization Service US,, African Community &Info Center, Inc,, American G I Forum,, Chinese American Citizens Alliance,, Coalition for Fair Immigration Reform,, INS Commissioner,, Department of State, US,, Jane Doe,, International Institute San Francisco,, Legalization Assist Proj of LA Cnty AFL−CIO,, Edwin Meese,, Alan Nelson,, United CA Mexican−American Assoc,, WA Assoc of Churches,, International Institute East Bay,, One Stop Immigration,, Travelers and Immigrants Aid of Chicago,, Hermandad Mexicana Nacional,, Attorney General of the United States,, Northwest Immigrant Rights Project,, John Doe, Joint Status Report due by 2/14/2005 re: settlement agreement; by Judge James L. Robart. (MD, ) (Entered: 12/20/2004)
457 JOINT STATUS REPORT AND PROPOSED ORDER filed by all parties. Est. Trial Days: 1. (Dauenheimer, David) Modified text on 2/15/2005 (MD, ). (Entered: 02/14/2005)
458 MINUTE ENTRY for proceedings held before Judge James L. Robart − Dep Clerk: KC; Pla Counsel: Robert Pauw; Def Counsel: David Dauenheimer; Telephone Conference held on 2/24/2005.The court sets the following deadlines. The plaintiff shall send documents to class members by March 4, 2005. The plaintiff shall submit fee information to the defense by March 4, 2005. The defense shall file a response by April 1, 2005. The parties shall send notice to the class by April 15, 2005. (CC, ) (Entered: 03/02/2005)
459 JOINT STATUS REPORT filed by all parties.. (Pauw, Robert) (Entered: 04/15/2005)
460 JOINT STATUS REPORT and proposed order filed by all parties. Est. Trial Days: N/A. (Pauw, Robert) Modified text on 5/3/2005 (MD, ). (Entered: 05/02/2005)
461 ORDER re 460 Joint Status Report filed by Immigration and Naturalization Service US, African Community &Info Center, Inc, American G I Forum, Chinese American Citizens Alliance, Coalition for Fair Immigration Reform, INS Commissioner, Department of State, US, Jane Doe, International Institute San Francisco, Legalization Assist Proj of LA Cnty AFL−CIO, Edwin Meese, Alan Nelson, United CA Mexican−American Assoc, WA Assoc of Churches, International Institute East Bay, One Stop Immigration, Travelers and Immigrants Aid of Chicago, Hermandad Mexicana Nacional, Attorney General of the United States, Northwest Immigrant Rights Project, John Doe, by Judge James L. Robart. (MD, ) (Entered: 05/05/2005)
462 JOINT STATUS REPORT AND PROPOSED ORDER filed by all parties. by Plaintiffs Northwest Immigrant Rights Project, Northwest Immigrant Rights Project.(Gibbs, Robert) Modified text on 5/9/2005 (MD, ). (Entered: 05/06/2005)
463 JOINT STATUS REPORT AND PROPOSED ORDER filed by all parties. Est. Trial Days: n/a. (Pauw, Robert) Modified text on 5/16/2005 (MD, ). (Entered: 05/13/2005)
464 ORDER/JOINT STATUS REPORT re 463 Joint Status Report filed by Immigration and Naturalization Service US, African Community &Info Center, Inc, American G I Forum, Chinese American Citizens Alliance, Coalition for Fair Immigration Reform, INS Commissioner, Department of State, US, Jane Doe, International Institute San Francisco, Legalization Assist Proj of LA Cnty AFL−CIO, Edwin Meese, Alan Nelson, United CA Mexican−American Assoc, WA Assoc of Churches, International Institute East Bay, One Stop Immigration, Travelers and Immigrants Aid of Chicago, Hermandad Mexicana Nacional, Attorney General of the United States, Northwest Immigrant Rights Project, John Doe, by Judge James L. Robart. (MD, ) (Entered: 05/16/2005)
465 JOINT STATUS REPORT AND PROPOSED ORDER filed by all parties. Est. Trial Days: n/a. (Pauw, Robert) Modified text on 5/23/2005 (MD, ). (Entered: 05/20/2005)
466 ORDER/JOINT STATUS REPORT re 465 Joint Status Report filed by Immigration and Naturalization Service US, African Community &Info Center, Inc, American G I Forum, Chinese American Citizens Alliance, Coalition for Fair Immigration Reform, INS Commissioner, Department of State, US, Jane Doe,

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 30 of 34

06/03/2005 06/07/2005 06/09/2005 09/15/2005 09/15/2005 09/20/2005 10/03/2005
10/07/2005 10/19/2005 10/19/2005
11/21/2005 11/21/2005 03/30/2006 03/30/2006 06/23/2006 08/28/2006 10/10/2006

International Institute San Francisco, Legalization Assist Proj of LA Cnty AFL−CIO,Edwin Meese, Alan Nelson, United CA Mexican−American Assoc, WA Assoc of Churches, International Institute East Bay, One Stop Immigration, Travelers and Immigrants Aid of Chicago, Hermandad Mexicana Nacional, Attorney General of the United States, Northwest Immigrant Rights Project,John Doe; Joint Status Report due by 6/3/2005; by Judge James L. Robart. (MD ) (Entered: 05/24/2005)
467 JOINT STATUS REPORT AND PROPOSED ORDER filed by all parties. Est. Trial Days: n/a. (Pauw, Robert) Modified text on 6/6/2005 (MD ). (Entered: 06/03/2005)
468 ORDER re 467 Joint Status Report re: settlement negotiations; Joint Status Report due by 6/10/2005; by Judge James L. Robart. (MD ) (Entered: 06/07/2005)
469 ORDER appointing Judge John F Moulds as settlement judge by Judge James L. Robart. (MD ) (Entered: 06/10/2005)
470 MOTION for Permanent Injunction by Plaintiff Northwest Immigrant Rights Project. Noting Date 10/7/2005.Oral Argument Requested. (Attachments: # 1 Proposed Order Permanent Injunction)(Gibbs, Robert) (Entered: 09/15/2005)
471 MOTION AND PR0POSED ORDER for Leave to File Excess Pages by Plaintiff Northwest Immigrant Rights Project. Noting Date 9/15/2005. (Gibbs, Robert) Modified text on 9/16/2005 (MD, ). (Entered: 09/15/2005)
472 MINUTE ORDER GRANTING 471 MOTION for Leave to File Excess Pages filed by Northwest Immigrant Rights Project, by Judge James L. Robart. (TG, ) (Entered: 09/20/2005)
473 RESPONSE AND PROPOSED ORDER, by Defendant Attorney General of the United States, to 470 MOTION for Permanent Injunction. (Attachments: # 1Declaration of cnsl)(Dauenheimer, David) Modified text to include proposed and name attachment on 10/4/2005 (MD, ). (Entered: 10/03/2005)
474 REPLY, filed by Plaintiff Northwest Immigrant Rights Project, TO RESPONSE to 470 MOTION for Permanent Injunction (Gibbs, Robert) (Entered: 10/07/2005)
475 MINUTE ORDER GRANTING 473 Defendants' motion for discovery, and STRIKING 470 MOTION for Permanent Injunction filed by Northwest Immigrant Rights Project, by Judge James L. Robart. (TG, ) (Entered: 10/19/2005)
476 MINUTE ENTRY for proceedings held before Judge James L. Robart − Dep Clerk: Gail Glass; Pla Counsel: Robert Gibbs and Robert Pauw; Def Counsel: Anthony Norwood; CR: Susan Zielie; Status Conference held on 10/19/2005. The court held a status conference with Plaintiffs counsel Robert Gibbs and Robert Pauw in attendance and Plaintiffs? counsel Peter Shey and Defendants counsel Anthony Norwood participating via telephone. A minute order by Judge James L. Robart to follow. (GG, ) (Entered: 10/20/2005)
477 MINUTE ORDER striking all content relating to Defendants' motion for discovery re 475 Minute Order by Judge James L. Robart. (LT, ) (Entered: 11/21/2005)
Set/Reset Deadlines &Hearings: Conference (telephonic conference) of Attorneys completed by 3/10/2006. (LT, ) (Entered: 11/22/2005)
478 MINUTE ORDER by Judge James L. Robart. (TG, ) (Entered: 03/30/2006)
Set/Reset Deadlines: Status Report due by 6/20/2006. (MD, ) (Entered: 03/31/2006)
479 JOINT STATUS REPORT filed by all parties.. (Gibbs, Robert) (Entered: 06/23/2006)
480 JOINT STATUS REPORT filed by all parties.. (Gibbs, Robert) (Entered: 08/28/2006)
481 MINUTE ORDER − The court hereby instructs the parties to submit a joint status report by October 16, 2006 updating the court on the status of finalizing the

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 31 of 34

10/16/2006 10/17/2006 11/16/2006 11/30/2006 12/01/2006 02/13/2007 02/23/2007
03/08/2007
07/03/2007
07/06/2007 07/31/2007 07/31/2007 08/24/2007 09/05/2007 10/22/2007

settlement paperwork in this matter re: 480 Joint Status Report by Judge James L. Robart. (MD, ) (Entered: 10/11/2006)
482 JOINT STATUS REPORT AND PROPOSED ORDER filed by all parties.. (Pauw, Robert) Modified text on 10/17/2006 (MD, ). (Entered: 10/16/2006)
483 ORDER re 482 Joint Status Report and proposed order filed by parties. Joint Status Report due by 11/15/2006; by Judge James L. Robart. (MD, ) (Entered: 10/17/2006)
484 JOINT STATUS REPORT filed by all parties.. (Gibbs, Robert) (Entered: 11/16/2006)
485 JOINT STATUS REPORT filed by all parties. Est. Trial Days: n/a. (Pauw, Robert) (Entered: 11/30/2006)
486 ORDER re 485 Joint Status Report filed by all parties. Joint Status Report due by 12/31/2006; by Judge James L. Robart. (MD, ) (Entered: 12/04/2006)
487 JOINT STATUS REPORT filed by all parties.. (Gibbs, Robert) (Entered: 02/13/2007)
488 MINUTE ORDER − the court directs the parties to participate in a telephone conference re: 487 Joint Status Report filed by the parties. Telephone Conference set for 3/8/2007 at 11:00 AM before James L. Robart, by Judge James L. Robart. (MD, ) Modified on 2/23/2007 − copy of order mailed to attorney Donald Keener(MD, ). (Entered: 02/23/2007)
489 MINUTE ENTRY for proceedings held before Judge James L. Robart − Dep Clerk: Casey Condon; Pla Counsel: Robert Gibbs; Def Counsel: AnthonyNorwood; CR: Joe Roth; Telephone Conference held on 3/8/2007.Counsel advised the court that they are closer to settlement. The court will allow the parties to continue pursuing resolution of the case. In the event the case is not settled by July 1, 2007, the court will set the case for trial to occur no later than September 1, 2007.(CC) (Entered: 03/13/2007)
490 NOTICE that the following is RE−NOTED: Filed by Plaintiffs International Institute San Francisco, International Institute East Bay, Chinese American Citizens Alliance, John Doe, Jane Doe, Legalization Assist Proj of LA Cnty AFL−CIO, Northwest Immigrant Rights Project, United CA Mexican−American Assoc, Travelers and Immigrants Aid of Chicago, Hermandad Mexicana Nacional, One Stop Immigration, African Community &Info Center, Inc, WA Assoc of Churches, American G I Forum, Coalition for Fair Immigration Reform. Noting Date 8/3/2007.,Noting Date 8/3/2007.(Gibbs, Robert) (Entered: 07/03/2007)
491 MOTION for Discovery by Defendant Attorney General of the United States. (Attachments: # 1 Exhibit Prior Order)Noting Date 8/3/2007.(Norwood, Anthony) (Entered: 07/06/2007)
492 JOINT STATUS REPORT signed by all parties;. (Gibbs, Robert) (Entered: 07/31/2007)
493 JOINT STATUS REPORT AND STIPULATED ORDER RE−NOTING PENDING MOTIONS, 491 Motion for Discovery RE−NOTED for 8/31/2007, by Judge James L. Robart. (TS, ) Modified on 8/1/2007−mailed copy order to Atty Donald Keener (TS, ). (Entered: 08/01/2007)
494 NOTICE of Settlement ; filed by Plaintiff Northwest Immigrant Rights Project. (Attachments: # 1 Proposed Order Stipulation and Protection Order# 2 Exhibit Final Settlement, pending approvals)(Gibbs, Robert) (Entered: 08/24/2007)
495 MINUTE ORDER per 494 Notice of settlement filed by Northwest Immigrant Rights Project; Court Strikes All Pending Motions re: 491 MOTION for Discovery filed by Attorney General of the United States.by Judge James L. Robart. (MD, ) (Entered: 09/05/2007)
496 NOTICE Of Status of Settlement Approvals ; filed by Plaintiff Northwest Immigrant Rights Project. (Gibbs, Robert) (Entered: 10/22/2007)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 32 of 34

11/08/2007
12/21/2007 04/18/2008 05/06/2008 05/06/2008 05/13/2008 05/27/2008 05/28/2008 05/29/2008
06/02/2008 06/24/2008 06/27/2008 07/01/2008 07/15/2008 07/15/2008 07/15/2008

497 NOTICE OF WITHDRAWAL AND SUBSTITUTION OF COUNSEL on behalf of Defendants Immigration and Naturalization Service US, Alan Nelson, INS Commissioner, Edwin Meese, Attorney General of the United States, Department of State, US. Rebecca Shapiro Cohen is substituted as counsel for Defendants. Attorney Christopher Lee Pickrell terminated. (Cohen, Rebecca) (Entered: 11/08/2007)
498 JOINT STATUS REPORT signed by all parties;. (Gibbs, Robert) (Entered: 12/21/2007)
499 STATUS MEMORANDUM by Plaintiff Legalization Assist Proj of LA Cnty AFL−CIO. (Gibbs, Robert) (Entered: 04/18/2008)
Set/Reset Hearings: Status Conference scheduled Thursday, MAY 29, 2008 at 10:00 a.m. before Hon. James L. Robart. (CC) (Entered: 05/06/2008)
500 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney David E Dauenheimer for Defendants Immigration and Naturalization Service US, Alan Nelson, INS Commissioner, Edwin Meese, Attorney General of the United States, Department of State, US. (Dauenheimer, David) (Entered: 05/06/2008)
Set/Reset Hearings: The court directs counsel be present for the status conference scheduled May 29, 2008. The court reschedules the time from 10:00 a.m. to 9:30 a.m. (CC) (Entered: 05/13/2008)
501 STIPULATION AND PROPOSED ORDER to Cancel Status Conference by parties re Set/Reset Hearings. (Pauw, Robert) (Entered: 05/27/2008)
502 STIPULATION AND ORDER TO CANCEL STATUS CONFERENCE SCHEDULED FOR THRUSDAY, MAY 29, 2008 by Judge James L. Robart. (MD, ) (Entered: 05/28/2008)
503 Agreed Stipulated MOTION for Preliminary Approval of Class Action Settlement by Plaintiffs International Institute San Francisco, International Institute East Bay, John Doe, Jane Doe, Legalization Assist Proj of LA Cnty AFL−CIO, Northwest Immigrant Rights Project, Travelers and Immigrants Aid of Chicago, Hermandad Mexicana Nacional, One Stop Immigration, WA Assoc of Churches, Defendants Immigration and Naturalization Service US, Alan Nelson, INS Commissioner, Edwin Meese, Attorney General of the United States, Department of State, US. (Attachments: # 1 Exhibit Stipulated Settlement, # 2 Exhibit Exh 1, Class Notice, # 3 Errata Exh 2, Instructions and Class member Worksheet, # 4 Exhibit Exh 3, Appeal to Special Master, # 5 Exhibit Exh 4, Preliminary Approval Order, # 6 Exhibit Proposed Final Judgment Order, # 7 Errata Stipulated Order re Privacy Act, # 8 Exhibit Stipulation re Attorneys Fees) Noting Date 5/30/2008; (Gibbs, Robert) (Entered: 05/29/2008)
504 ORDER re 503 Agreed Stipulated MOTION for Preliminary Approval of Class Action Settlement by Judge James L. Robart.(MD) Modified on 6/2/2008 − mailed copy of order to attorney Donald Keener(MD). (Entered: 06/02/2008)
505 Agreed MOTION AND PROPOSED ORDER Modify Class Notice re 504 Order on Stipulated Motion to modify notice to class of settlement by Plaintiff Northwest Immigrant Rights Project. Noting Date 6/25/2008; (Gibbs, Robert) Modified text on 6/25/2008 (MD). (Entered: 06/24/2008)
506 STIPULATION AND ORDER granting 505 Motion as to notice of preliminary approval of settlement by Judge James L. Robart.(MD) (Entered: 06/30/2008)
535 NOTICE from class member Jasbir Singh Rai(TS, ) (Entered: 08/01/2008)
507 NOTICE/PARTIAL OBJECTION, MOTION AND BRIEF filed by Plaintiff Jane Doe No. 2 for herself due to her special circumstances. (MD) (Entered: 07/15/2008)
508 NOTICE by class member − Tarsem Singh (MD) (Entered: 07/16/2008)
509 NOTICE by class member Sohan Lal (MD) (Entered: 07/16/2008)

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07/15/2008 07/15/2008
07/15/2008 07/15/2008 07/15/2008 07/15/2008 07/15/2008 07/15/2008
07/15/2008 07/15/2008 07/15/2008 07/15/2008 07/16/2008 07/16/2008
07/17/2008 07/18/2008 07/21/2008 07/21/2008 07/21/2008 07/24/2008 07/28/2008 07/28/2008 07/28/2008 07/28/2008 07/28/2008 08/01/2008 08/04/2008 08/04/2008 08/06/2008 08/12/2008 08/14/2008
08/14/2008
08/22/2008

510 NOTICE by class member Nirmal Singh (MD) (Entered: 07/16/2008) 511 NOTICE/subject −objections and comments to the settlement agreement by class
member Nirmal Singh (MD) (Entered: 07/16/2008) 512 NOTICE from class member Gurdev Singh Pattan Pal (MD) (Entered: 07/16/2008) 513 NOTICE from Class member Barjinder S. Kaloya (MD) (Entered: 07/16/2008) 514 NOTICE from class member Singh(MD) (Entered: 07/16/2008) 515 NOTICE by class member Surinder Kaur(MD) (Entered: 07/16/2008) 516 NOTICE by class member Inderpal Pal(MD) (Entered: 07/16/2008) 517 NOTICE from class member Balbir K Basi and Gurmail S. Basi(MD) (Entered:
07/16/2008) 518 NOTICE from class member Gurdev Bains (MD) (Entered: 07/16/2008) 519 NOTICE from class member Surinder Pgoreual (MD) (Entered: 07/16/2008) 520 NOTICE from class member Narinder Kaur(MD) (Entered: 07/16/2008) 521 NOTICE from class member Shamsher Singh (MD) (Entered: 07/16/2008) 522 NOTICE from class member Gursharan K. Gulati (MD) (Entered: 07/17/2008) 523 NOTICE from class member Amarjit S. Gulati re: subject−objections and
comments to the settlement agreement case. (MD) (Entered: 07/17/2008) 524 Letter from Mohinder Singh re residency. (TS, ) (Entered: 07/18/2008) 525 NOTICE from Class Member Inderpal Singh (MD) (Entered: 07/21/2008) 526 NOTICE by class member Gurdev Bains(MD) (Entered: 07/22/2008) 527 NOTICE by class member Satnam Singh Gill (MD) (Entered: 07/22/2008) 528 NOTICE by class member Gurdev Bains(MD) (Entered: 07/22/2008) 529 NOTICE from class member Ajmer Dhillon(MD) (Entered: 07/25/2008) 530 NOTICE by class member Jaswinder Singh Doad(MD) (Entered: 07/29/2008) 531 NOTICE by class member Khushpal Singh(MD) (Entered: 07/29/2008) 532 NOTICE from class member Surind Singh(MD) (Entered: 07/29/2008) 533 NOTICE from class member Swarn Bmangu (MD) (Entered: 07/29/2008) 534 NOTICE from class member Darshan Singh(MD) (Entered: 07/29/2008) 536 NOTICE from Class Member Amrik Roopra(MD) (Entered: 08/04/2008) 537 NOTICE from class member Sohansingh (MD) (Entered: 08/05/2008) 538 NOTICE from class member Dalvir Singh Bhogal(MD) (Entered: 08/05/2008) 539 NOTICE from class member Sher Shah (MD) (Entered: 08/07/2008) 540 NOTICE from Class member Singh G (MD) (Entered: 08/12/2008) 541 RESPONSE by Plaintiff Northwest Immigrant Rights Project and all parties to
settlement objections of certain individuals. (Gibbs, Robert) (Entered: 08/14/2008) 542 Joint MOTION AND PROPOSED ORDER to Approve Consent Judgment
approving class action settlement by Plaintiff Northwest Immigrant Rights Project. Noting Date 8/15/2008 (Gibbs, Robert) Modified on 8/15/2008 (CL). (Entered: 08/14/2008) Set/Reset Hearings: A hearing re the joint motion to approve class action settlement is scheduled Tuesday, SEPTEMBER 9, 2008 at 10:00 a.m. before Hon. James L. Robart. (CC) (Entered: 08/22/2008)

Case: 2:88-cv-00379-JLR As of: 06/18/2012 01:14 PM PDT 34 of 34

09/08/2008 09/08/2008 09/08/2008 09/09/2008
09/09/2008 09/09/2008
09/09/2008 09/09/2008
09/09/2008

543 STIPULATION AND PROPOSED ORDER Correcting mailing addresses for settlement by parties re 542 Joint MOTION to Approve Consent Judgment approving class action settlement. (Gibbs, Robert) (Entered: 09/08/2008)
544 NOTICE from Class member Ramesh Chander (MD) (Entered: 09/09/2008)
545 NOTICE from class member Mohinder Singh (MD) (Entered: 09/09/2008)
546 MINUTE ENTRY for proceedings held before Judge James L. Robart− Dep Clerk: Casey Condon; Pla Counsel: Robert Gibbs, Robert Pauw; Def Counsel: Anthony Norwood; CR: Susan Zielie; In Court Hearing held on 9/9/2008. The court signs the order to address changes under settlement agreement. The court hears from counsel. Court hears from class members Inderpal Singh and Gurvinder Bains. The court makes findings and accepts the settlement. The court signs the order of final judgment. The court finds the stipulated attorneys fees are fair and reasonable. The court signs the joint stipulation of settlement re: attorneys fees and costs. The court signs the stipulation and order of protection regarding privacy act. (CC) (Entered: 09/09/2008)
547 STIPULATION Correcting Settlement documents per Dkt 543 order by parties re 543 Stipulation. (Gibbs, Robert) (Entered: 09/09/2008)
548 STIPULATION AND ORDER re 503 Agreed Stipulated MOTION for Preliminary Approval of Class Action Settlement filed by John Doe, Jane Doe, International Institute East Bay, Edwin Meese, Travelers and Immigrants Aid of Chicago, One Stop Immigration, Attorney General of the United States, INS Commissioner, Immigration and Naturalization Service US, Northwest Immigrant Rights Project, Department of State, US, WA Assoc of Churches, Hermandad Mexicana Nacional, International Institute San Francisco, Legalization Assist Proj of LA Cnty AFL−CIO, Alan Nelson by Judge James L. Robart. (MD) (Entered: 09/09/2008)
549 STIPULATION AND ORDER as to address changes under settlement agreement re 543 Stipulation filed by Northwest Immigrant Rights Project by Judge James L. Robart. (MD) (Entered: 09/09/2008)
550 STIPULATION AND ORDER RE: ATTORNEY'S FEES AND COSTS re 503 Agreed Stipulated MOTION for Preliminary Approval of Class Action Settlement filed by John Doe, Jane Doe, International Institute East Bay, Edwin Meese, Travelers and Immigrants Aid of Chicago, One Stop Immigration, Attorney General of the United States, INS Commissioner, Immigration and Naturalization Service US, Northwest Immigrant Rights Project, Department of State, US, WA Assoc of Churches, Hermandad Mexicana Nacional, International Institute San Francisco, Legalization Assist Proj of LA Cnty AFL−CIO, Alan Nelson by Judge James L. Robart. (MD) (Entered: 09/09/2008)
551 FINAL JUDGMENT− IT IS HEREBY ORDERED that the proposed settlement is approved as amended by DKT 543 and each and every claim of the Complaint, as amended, is dismissed with prejudice, and any injunctive orders and decisions of this Court are dissolved by Judge James L. Robart. (MD) (Entered: 09/09/2008)

 
 1

1
The Honorable James L. Robart
2

3

4

5

6

7

8

9

10

11

UNITED STATES DISTRICT COURT

12
WESTERN DISTRICT OF WASHINGTON
13

14

AT SEATTLE

15

16 NORTHWEST IMMIGRANT RIGHTS

) Case No. 88‐379R

PROJECT, ET AL.

)

17
PLAINTIFFS,

) STIPULATION OF SETTLEMENT

18

)

vs.

)

19

)

20

U.S. CITIZENSHIP AND IMMIGRATION )

SERVICES, ET AL.

)

21
DEFENDANTS.
22

) )

)

23

)

24

25 / / /

26

27

28

1

1

Plaintiffs in the above captioned matter, on behalf of themselves, the Class and all

2 Class Members (as defined below), and Defendants Alberto R. Gonzales, the Attorney

3 General of the United States, the United States Department of State, the Department of

4 Homeland Security, by and through their undersigned counsel, hereby enter into this

5 Stipulation and Agreement of Settlement, subject to the approval of the Court pursuant to

6 Rule 23 of the Federal Rules of Civil Procedure.

7

WHEREAS:

8 1. Wherever used in this Stipulation, the following terms have the meanings set forth

9 below:

10

a. “Action” means the above‐captioned action pending in the United States

11 District Court for the Western District of Washington (docket No.88‐379R).

12

b. “Class member” means any Person included in the Class.

13

c. “Effective Date of Settlement” or “Effective Date” means the date upon

14 which the Settlement contemplated by this Stipulation shall become effective, as set forth

15 in paragraph 20 below.

16

d. “Plaintiff” or “Named Plaintiff” means the plaintiffs identified in the

17 amended complaint filed February 6, 2004, in this Action and “Defendant” or

18 “Defendants” means the defendants identified in the same complaint.

19

e. “Plaintiffs’ Counsel” or “Class Counsel” means Peter Schey and Carlos

20 Holguin, Center for Human Rights and Constitutional Law, 256 S. Occidental Blvd., Los

21 Angeles, CA 90057, and Robert Gibbs and Robert Pauw, Gibbs, Houston Pauw, 1000

22 Second Ave, Suite 1600. Seattle, WA 98104.

23

f. “Released Parties” means any and all of the Defendants, their predecessors

24 and successors, their departments or agencies, and their past or present agents,

25 employees, and contractors.

26

g. “Settled Claims” means any and all actions, suits, claims, demands, rights,

27 liabilities, and causes of action, of every nature and description, whether known or

28 unknown, accrued or unaccrued, whether based on federal, state, local, statutory or
2
Settlement

1 common law or any other law, rule or regulation, that were asserted or that could have

2 been asserted or could be asserted in any forum, that the Plaintiffs, the Class, the Class

3 Members or any of them, or any of their heirs, representatives, attorneys, successors,

4 assigns, and any person they represent, in the past had, now have, or might in the future

5 have against the Defendants or any of them, which regard, concern, relate to, refer to,

6 arise out of, or are based upon, in any way: (a) the allegations, transactions, facts, matters,

7 occurrences, representations, omissions, disclosures, statements, failure to disclose or

8 action involved, set forth, referred to or that were, could be, or could have been asserted

9 in the Action, whether known or unknown, including without limitation Unknown

10 Claims as herein defined, and whether or not concealed or hidden; or (b) the Defendants’

11 defense of or settlement of the Action. Provided, however, that the definition of Settled

12 Claims shall not in any way impair or restrict the rights of the settling parties to enforce

13 the settlement via the dispute resolution provisions of this Stipulation at paragraphs 7 and

14 16. As used herein, “Unknown Claims” shall mean any and all actions, suits, claims,

15 demands, rights, liabilities, and causes of action that the Plaintiffs, the Class, or any of the

16 Class Members do not know of or suspect to exist in their favor at the time of the release

17 of the Released Parties, including but not limited to those that, if known by them, might

18 have affected their agreement to the Settlement. Any plaintiff or class member whose

19 application for legalization pursuant to Immigration and Nationality Act (ʺINAʺ) section

20 245A is timely made under this settlement stipulation and is denied, may seek judicial

21 review of such denial only under INA section 245A(f)(4)(A) in the appropriate court of

22 appeals, upon review of a final order of removal (including a final order of deportation or

23 exclusion).

24

h. “Settlement” means the settlement contemplated by this Stipulation.

25 2. Defendants deny all liability with respect to the Action, deny that they have

26 engaged in any wrongdoing, deny the allegations in the Complaint filed in the Action,

27 deny that they committed any violation of law, deny that they acted improperly in any

28 way, and deny liability of any kind to the plaintiffs, the Class, or the Class Members, but
3
Settlement

1 have agreed to the settlement and dismissal of the Action with prejudice in order to: (i)

2 avoid the substantial expense, inconvenience, and distraction of continued protracted

3 litigation; and (ii) finally put to rest and terminate the Action and any and all Settled

4 Claims.

5 3. Class Counsel has conducted discussions and arms’ length negotiations with

6 Defendants’ Counsel with respect to a compromise and settlement of the Action with a

7 view to settling the issues in dispute and achieving the best relief possible consistent with

8 the interests of the Plaintiffs, the Class, and all Class Members.

9 4. Class Counsel have concluded that the terms and conditions of this Stipulation are

10 fair, reasonable, and in the best interests of the Plaintiffs, the Class, and all Class

11 Members; have agreed that the Released Parties should be released from the Settled

12 Claims pursuant to the terms and provisions of this Stipulation; and have agreed to the

13 dismissal of the Action with prejudice, after considering the substantial benefits that the

14 Plaintiffs, the Class, and all Class Members will receive from settlement of the Action, the

15 risks of litigation, and the desirability of permitting the Settlement to be consummated as

16 provided by the terms of this Stipulation.

17

NOW, THEREFORE, it is hereby STIPULATED AND AGREED, by and among the

18 parties to this Stipulation, through their respective attorneys, subject to the approval of

19 the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, in consideration

20 of the benefits flowing to the parties hereto from the Settlement, that the Settled Claims as

21 against the Released Parties shall be compromised, settled, forever released, barred, and

22 dismissed with prejudice, upon and subject to the following terms and conditions:

23

Release; Scope and Effect of Release

24

The obligations incurred pursuant to this Stipulation shall be in full and final

25 disposition of the Action with prejudice and of any and all Settled Claims as against all

26 Released Parties.

27

On the Effective Date, the Plaintiffs, the Class, and the Class Members, on behalf of

28 themselves, their heirs, executors, administrators, representatives, attorneys, successors,
4
Settlement

1 assigns, agents, affiliates and partners, and any Persons they represent (“Releasing

2 Parties”), shall be deemed to have, and by operation of the Final Judgment shall have

3 fully, finally, and forever released, relinquished, and discharged the Released Parties of

4 and from any and all of the Settled Claims, and the Releasing Parties shall be forever

5 barred and enjoined from bringing or prosecuting any Settled Claims against any of the

6 Released Parties. The terms of this paragraph do not limit the operation of paragraphs 7

7 and 16.

8

1. Class Definition

9

Members of the following class pursuant to Rule 23 of the Federal Rules of Civil

10 Procedure are entitled to relief pursuant to this Settlement Agreement:

11

All persons who entered the United States in a non‐immigrant status prior to

12

January 1, 1982, who are otherwise prima facie eligible for legalization under § 245A

13

of the INA, 8 U.S.C. § 1255a, who are within one or more of the Enumerated

14

Categories described below in paragraph 2, and who —

15

A) between May 5, 1987 and May 4, 1988, attempted to file a complete

16

application for legalization under § 245A of the INA and fees to an INS

17

officer or agent acting on behalf of the INS, including a Qualified

18

Designated Agency (“QDE”), and whose applications were rejected for

19

filing (hereinafter referred to as “Sub‐class A members”); or

20

B) between May 5, 1987 and May 4, 1988, attempted to apply for legalization

21

with an INS officer, or agent acting on behalf of the INS, including a QDE,

22

under § 245A of the INA, but were advised that they were ineligible for

23

legalization, or were refused legalization application forms, and for whom

24

such information, or inability to obtain the required application forms, was a

25

substantial cause of their failure to file or complete a timely written

26

application (hereinafter referred to as “Sub‐class B” members); or

27

28
5
Settlement

1

C) filed a legalization application under INA § 245A and fees with an INS

2

officer or agent acting on behalf of the INS, including a QDE, and whose

3

application

4

i.

has not been finally adjudicated or whose temporary resident status

5

has been proposed for termination (hereinafter referred to as “Sub‐

6

class C.i. members”),

7

ii.

was denied or whose temporary resident status was terminated,

8

where the INS or CIS action or inaction was because INS or CIS

9

believed the applicant had failed to meet the “known to the

10

government” requirement, or the requirement that s/he demonstrate

11

that his/her unlawful residence was continuous (hereinafter referred

12

to as “Sub‐class C.ii. members”).

13 2. Enumerated Categories

14

(1) Persons who violated the terms of their nonimmigrant status prior to

15

January 1, 1982 in a manner known to the government because

16

documentation or the absence thereof (including, but not limited to, the

17

absence of quarterly or annual address reports required on or before

18

December 31, 1981) existed in the records of one or more government

19

agencies which, taken as a whole, warrants a finding that the applicant was

20

in an unlawful status prior to January 1, 1982, in a manner known to the

21

government.

22

(2) Persons who violated the terms of their nonimmigrant visas before January

23

1, 1982, for whom INS/DHS records for the relevant period (including

24

required school and employer reports of status violations) are not contained

25

in the alien’s A‐file, and who are unable to meet the requirements of 8 C.F.R.

26

§§ 245a.1(d) and 245a.2(d) without such records.

27

(3) Persons whose facially valid “lawful status” on or after January 1, 1982 was

28
Settlement

obtained by fraud or mistake, whether such “lawful status” was the result of 6

1

(a) reinstatement to nonimmigrant status;

2

(b) change of nonimmigrant status pursuant to INA § 248;

3

(c) adjustment of status pursuant to INA § 245; or

4

(d) grant of some other immigration benefit deemed to interrupt the

5

continuous unlawful residence or continuous physical presence

6

requirements of INA § 245A.

7 3. Notice to Class Members

8

A. General notice provisions

9

Defendants shall, within sixty (60) days from the date of the Courtʹs final approval

10 of this Settlement Agreement pursuant to Paragraph 18 below, issue a press release and a

11 Class Notice in English and Spanish (the texts of which are attached as Exhibit 1)

12 announcing this Settlement Agreement. The press release, Class Notice, Class Member

13 Worksheet (attached as Exhibit 2), and all necessary application forms shall be distributed

14 to the media and community‐based organizations according to CIS’s normal procedure

15 for doing so, with a copy of these lists provided to Class Counsel. The final Settlement,

16 press release, Class Notice, Class Member Worksheet and Form I‐687 shall at that time be

17 posted on Defendants’ web site in accordance with the regular practice for posting Forms

18 and Settlement information on the site.

19

B. Individual notice to Sub‐class C class members

20

Within 15 days of the district Court’s final approval of this Settlement Agreement

21 pursuant to Paragraph 18 below, Defendants shall forward an instruction to all District

22 Offices, Regional Offices, and Service Centers to use reasonable efforts to identify Sub‐

23 class C members whose legalization applications were pending at any level of USCIS as of

24 January 1, 2006. Within one week of issuing such instruction, Defendants shall provide a

25 copy of the instruction to Plaintiffs’ counsel. Within forty‐five (45) days of the notice sent

26 to District Offices, Regional Offices , and Service Centers, such offices shall use reasonable

27 efforts to identify Sub‐class C members whose legalization applications were pending at

28 any level of USCIS. Defendants shall, within 90 days of the Court’s final approval of this
7
Settlement

1 Settlement Agreement pursuant to Paragraph 18 below, forward to Plaintiffs’ counsel a

2 list (in Excel format) containing the name, A Number, SSN (if available) and last known

3 address of applicants in Sub‐class C pursuant to the instruction mentioned above. This

4 list will be provided pursuant to an agreed Protective Order, attached hereto.

5

In the event that defendants identify further potential Sub‐class C members within

6 one (1) year after providing the initial list to class counsel, defendants shall within 30 days

7 of so identifying additional class members provide plaintiffs’ counsel with the same

8 categories of information as in the initial list of Sub‐class C members.

9 4. Application procedures

10

A. Distribution of application materials

11

Within sixty (60) days of the Court’s final approval of this Settlement Agreement

12 pursuant to Paragraph 18 below and during the remainder of the application period

13 specified in ¶ 4, Defendants shall make available at their district offices the final

14 Settlement, press release, Class Notice and Class Member Worksheet, and Form I‐687.

15 Within sixty (60) days of the Court’s final approval of this Settlement Agreement

16 pursuant to Paragraph 18 below and during the remainder of the application period

17 specified in ¶ 4, Defendants shall make available to all persons upon oral or written

18 request, including a request submitted through its forms webpage, a copy of Form I‐687,

19 Class Member Worksheet and instructions, and Form I‐765. All forms and instructions

20 shall be as agreed herein.

21

B. Application Period for Sub‐class A and Sub‐class B Members

22

Defendants shall, within sixty (60) to ninety (90) days after the issuance of Notices

23 required in ¶ 3A above, commence accepting NWIRP/IAP Class Membership Worksheets

24 and Forms I‐687, Application for Status as a Temporary Resident, with fee and supporting

25 documentation, from individuals who assert they are Sub‐class A or Sub‐class B class

26 members as defined above. Defendants shall thereafter continue to accept such

27 worksheets and applications for twelve (12) months.

28
8
Settlement

1

Applications shall be deemed filed on the date postmarked in accordance with the

2 provisions at 8 C.F.R. § 245a.12(a). All I‐687 applications and motions to reopen showing

3 prima facie eligibility under INA § 245A submitted pursuant to this Settlement

4 Agreement shall be deemed timely filed applications under Immigration and Nationality

5 Act § 245A.

6

C. Application Period for Sub‐class C Members

7

1. Applicants Who Filed Initially During the Regular Application

8

Period (May 1987‐May 1988) and Are Still Pending a Final Decision

or whose Lawful Temporary Residence has been Proposed for

9

Termination.

10

Defendants shall, after the issuance of Notices required in ¶ 3A above, commence

11 adjudicating all pending subclass C.i. applications in accordance with the terms of this

12 Settlement Agreement. The Defendants shall, within a reasonable time, either approve

13 the application, or send notice of this settlement agreement in the form of Exhibit 1 (either

14 with or without a notice of intent to deny or request for evidence).

15

Class members whose timely filed applications are still pending or who have

16 received a notice of proposed termination of the approval of their applications, may (but

17 are not required to) submit a NWIRP Class Member Worksheet to the USCIS. Such

18 NWIRP Class Member Worksheet, together with any available copies of their timely

19 filed applications, receipts, and any notices that the former INS or the USCIS sent them

20 regarding their applications to NWIRP Worksheet, USCIS, California Service Center,

21 24000 Avila Rd. 2nd Fl., Room 2312, Laguna Niguel, CA 92677.

22

2. Applicants Who Initially Filed During the Regular Application

23

Period (May 1987‐May 1988) and Have Received a Final Denial of

24

Their Application or whose Lawful Temporary Residence has been

Terminated.

25

Applicants who initially filed during the regular application period and have

26

received a final denial of their applications or whose Lawful Temporary Residence has

27

been terminated (Subclass C.ii.) may file a class member worksheet and motion to reopen

28

on Form I‐290B (Notice of Appeal to the Administrative Appeals Office) with fee, at any 9

Settlement

1 time, but no later than one year after receiving the notice under Paragraph 3B. of this

2 agreement. If a class member worksheet and motion to reopen are to be denied as

3 untimely under this paragraph, the Defendants shall have the burden of proving that the

4 class member actually received the notice under Paragraph 3B of this agreement,

5 provided that the class member files or filed the class member worksheet and motion to

6 reopen while physically present in the United States and not from abroad. A completed

7 NWIRP Class Member Worksheet and motion to reopen on Form I‐290B shall be filed

8 with fee at USCIS, PO Box 805876, Chicago, Illinois, 60680‐4120.

9

All I‐687 applications and motions to reopen showing prima facie eligibility under

10 INA § 245A submitted pursuant to this Settlement Agreement shall be deemed timely

11 filed applications under Immigration and Nationality Act § 245A.

12 5. Application fees

13

There shall be no fee for filing a Class Member Worksheet. When under this

14 Settlement Agreement a filing fee may be charged, the fee shall be the fee applicable by

15 regulation or Federal Register Notice at the time of filing the application(s). Class

16 members who previously filed an I‐687 with fee during the period May 5, 1987 to May 4,

17 1988 are not required under this Settlement Agreement to pay a new I‐687 fee. However,

18 a Subclass C member whose I‐687 application was previously denied, will be required to

19 pay the current motion to reopen filing fee to reopen the application

20

All class member applicants must file a Form I‐765 with fee if they wish to receive

21 employment authorization. All applicants must pay the standard biometrics fee.

22

Applications timely filed and pending as of the date of this Settlement Agreement

23 under the settlements in Catholic Social Services, Inc. v. Reno, CIV No. S‐86‐1343 LKK (E.D.

24 Cal.), or Newman; et al. v. Bureau of Citizenship and Immigration Services, et al., Civ. No. 87‐

25 4757‐WDK (C.D. Cal.), shall be adjudicated in accordance with the adjudications

26 standards described below in Paragraph 8B. No further fee is required of such applicants

27 in order for these provisions to apply.

28
10
Settlement

1

Applications timely filed and pending as of the date of this Settlement Agreement

2 under § 1104 of the Legal Immigration Family Equity Act (LIFE Act), Title XI of H.R. 5548,

3 enacted by reference in Public Law 106‐553 (Dec. 21, 2000), and the LIFE Act

4 Amendments, Title XV of H.R. 5666, enacted by reference in Public Law 106‐554 (Dec. 21,

5 2000), shall be adjudicated in accordance with the adjudications standards described

6 below in ¶ 8B. No further fee is required of such applicants in order for these provisions

7 to apply.

8

CSS, Newman, and LIFE Act § 1104 applicants whose applications have been denied

9 but are approvable under the standards established in this settlement may file motions to

10 reopen in accordance with ¶ 4C2 above.

11 6. Adjudication of Class Member Worksheets

12

A Adjudicatory standard

13

NWIRP Class Membership Worksheets shall be approved if, based on responses to

14 questions asked on the Worksheet, it appears more probable than not that the applicant

15 meets the class definition. A determination that an applicant is a class member is not

16 binding on Defendants for the purposes of an adjudication on the merits of the

17 application for temporary residence, which shall be conducted de novo. Class Member

18 Worksheets and any accompanying evidence of entry on a non‐immigrant visa prior to

19 January 1, 1982, shall not be disapproved solely because applicants do not possess

20 Government‐issued records establishing class membership. Applicants, other than

21 Subclass C members, shall attach to the Class Member Worksheet any available evidence

22 regarding their non‐immigrant entry into the United States before January 1, 1982,

23 including, for example, copies of passports, entry stamps, visa applications, I‐94’s, I‐20’s,

24 airline travel records, documents showing that they were present in the United States in

25 non‐immigrant status prior to or shortly after January 1, 1982, or credible declarations

26 regarding entry prior to January 1, 1982 with a non‐immigrant visa. If an applicant does

27 not possess or is unable to obtain this type of evidence, the applicant may submit a sworn

28 statement including the U.S. Consulate where the pre‐1982 non‐immigrant visa was
11
Settlement

1 applied for, the approximate date that it was obtained, the type of visa obtained, the

2 approximate date when the visa was used to enter the United States, where the applicant

3 entered the United States using the non‐immigrant visa, and a brief description of any

4 activities that the class member engaged in consistent with the terms of the visa

5 immediately after entering the United States. Applicants may also request that the USCIS

6 check its records, prior to an adjudication of the Worksheet, to determine if any evidence

7 exists of the alien’s nonimmigrant entry prior to January 1, 1982. If the applicant has (1)

8 failed to sign a Class Member Worksheet or I‐687, or (2) failed to attach an appropriate

9 fee, or (3) on the Class Member Worksheet or I‐687 failed to state that he commenced

10 unlawful residence prior to January 1, 1982, or (4) is clearly statutorily ineligible based on

11 documents submitted with the application, then the application can be rejected as

12 improperly filed, and returned to the applicant. If the application is rejected as

13 improperly filed, then the application will be returned to the applicant with an

14 explanation for the rejection. The applicant may resubmit the application in proper form

15 within the filing period.

16

In order for a person to be eligible for benefits under this lawsuit, he or she must be

17 prima facie eligible for legalization, as that term is defined in 8 C.F.R. § 245a.1(n). A person

18 who claims eligibility as a derivative beneficiary (the spouse or child of a person who was

19 turned away by INS or a QDE during the legalization application period) must establish

20 that (1) the qualifying family relationship existed at the time the primary applicant was

21 turned away by INS or a QDE; and (2) he or she is otherwise eligible for legalization in his

22 or her own right.

23

B Notice of intent to deny

24

Before denying an application for class membership, Defendants shall forward the

25 applicant or his or her representative a notice of intended denial explaining the perceived

26 deficiency in the applicantʹs Class Member Worksheet and providing the applicant thirty

27 (30) days to submit additional written evidence or information to remedy the perceived

28 deficiency.
12
Settlement

1

C Written notice of reasons for denying class member worksheet

2

Defendants shall send a written notice of any decision to deny a Class Member

3 Worksheet to the applicant and to his or her attorney of record, with a copy to Class

4 Counsel. The notice shall explain the reason for the denial of the Worksheet, and notify

5 the applicant of his or her right to seek review of such denial by a Special Master, on the

6 document attached as Exhibit 3. On review, neither Defendants nor the applicant shall be

7 permitted to submit new evidence to the Special Master.

8

D. Approval of Class Member Worksheet of Applicants under Subclass C.ii.

9

Upon approval of the Class Member Worksheet for Applicants under Subclass

10 C.ii., the Defendants shall reopen the denied I‐687 or termination proceedings under 8

11 C.F.R. § 245a.2(u). Defendants shall adjudicate the reopened forms I‐687 and termination

12 proceedings under the terms of paragraph 8 of this Agreement.

13 7. Review by Special Master

14

A. Selection of the Special Master.

15

Each party shall select one person, from a list of three names recommended by the

16 other party, to serve as a Special Master. Appeals from denial of applications for class

17 membership shall be assigned randomly to a Special Master. The two Special Masters

18 shall jointly designate the mailing address for appeals and determine procedures for

19 random assignment.

20

B. Review of Decisions Involving Determination of Class Membership.

21

Any decision by the Defendants denying an application for class membership may

22 be appealed to a Special Master. Any such appeal must be post‐marked within thirty (30)

23 days of the date of mailing of the notice denying the application for class membership.

24 The Special Masterʹs review shall be a record review, based on the documents and other

25 evidence submitted by the applicant, and any documentary evidence relied upon by the

26 Defendants in reaching the decision to deny the application for class membership.

27

The Special Master shall be paid a fee of $125 for adjudicating each appeal under

28 this subparagraph. Payment of this fee shall be borne by the applicant. If the applicant
13
Settlement

1 prevails, and it is determined to be a class member, the fee of $125 shall be refunded to the

2 Applicant by defendants as court costs per order of the Special Master.

3

C.

Review of Other Decisions.

4

An applicant who believes that Defendants have violated his or her individual

5 rights pursuant to ¶¶, 3, 4, 5, 6, 10B, or 11, of this Settlement Agreement may file a claim

6 with the Special Master. However, prior to filing any such claim, the applicant must

7 advise Defendants by certified mail, or other documented delivery service to an address

8 specified by Defendants, within 90 days of the discovery of the alleged violation that he or

9 she believes that Defendants have violated his or her rights under such paragraphs.

10 Defendants shall have forty‐five (45) days from the date they are notified of the

11 applicantʹs intent to file a claim under this paragraph in which to investigate and, if

12 appropriate, rectify any deficiency. If within fifty (50) days after notifying Defendants of

13 his or her intent to file a claim, the applicant does not receive notice that Defendants have

14 sustained the applicantʹs challenge, then the applicant may file his or her appeal to the

15 Special Master. Any such appeal must be post‐marked within eighty (80) days of the date

16 the applicant advised Defendants of the alleged violation.

17

The Special Master shall be paid a fee of $65 for adjudicating each appeal under

18 this subparagraph C. The applicant must pay the entire fee at the time he or she files the

19 notice of appeal. If the applicant prevails on the merits of his or her appeal, the fee of $65

20 shall be refunded to the Applicant by defendants as court costs per order of the Special

21 Master.

22 8. Adjudication of Applications for Temporary and Permanent Residence

23

A. General adjudicatory standards

24

Defendants shall utilize the standards set forth in 8 C.F.R § 245a.18(d), or 8 C.F.R. §

25 245a.2(k)(4), which ever is more favorable to the applicant. Failure to provide evidence

26 other than affidavits shall not be the sole basis for finding that an alien failed to meet the

27 continuous residence and physical presence requirements. For purposes of establishing

28 residence and presence of subclass A and subclass B members within the meaning of 8
14
Settlement

1 C.F.R. § 245a.2(b), the term “until the date of filing” shall mean until the date the alien

2 visited an INS or QDE office consistent with the Class Definition. In evaluating the

3 sufficiency of applicant’s proof of residence, Defendants shall take into account the

4 passage of time and attendant difficulties in obtaining corroborative documentation of

5 unlawful residence.

6

Where a Request for Evidence or Notice of Intent to Deny has been issued, an

7 application shall not be denied as abandoned pursuant to 8 CFR § 103.2(b)(13) unless the

8 applicant is notified in writing of the consequences of failure to respond, including the

9 absence of a right to appeal, and informed of his/her right to a decision on the existing

10 record that may be appealed if the applicant notifies the CIS that he or she does not have

11 additional evidence to present.

12

An applicant’s appearance at an interview shall constitute a “request for a

13 decision” based on the evidence submitted for purposes of 8 CFR § 103.2(b)(14).

14
B. Standard for determining whether unlawful status “known to the

15

Government” or “continuity” of unlawful residence.

16

With respect to the “known to the government” requirement in INA §

17 245A(a)(2)(b), Defendants shall adjudicate or readjudicate class members’ eligibility for

18 temporary residence in accordance with the following procedures:

19

1. With respect to individuals within Enumerated Category 1 and the “known to

20 the government” requirement of 8 U.S.C. § 1255a(a)(2)(B), the burden of proof shall shift

21 as follows: an applicant must make a prima facie showing that prior to January 1, 1982, the

22 applicant violated the terms of his or her non‐immigrant status in a manner known to the

23 government because documentation or the absence thereof (including, but not limited to,

24 the absence of quarterly or annual address reports required on or before December 31,

25 1981) existed in the records of one or more government agencies which, taken as a whole,

26 warrants a finding that the applicant was in an unlawful status prior to January 1, 1982, in

27 a manner known to the government. Once the applicant makes such a showing, USCIS

28 then has the burden of coming forward with proof to rebut the evidence that the
15
Settlement

1 applicant violated his or her status. If the USCIS fails to carry this burden, then it will be

2 found that the alien’s unlawful status was known to the government as of January 1, 1982.

3 If USCIS does rebut the evidence that the applicant violated his status, the applicant must

4 then show by a preponderance of the evidence that he or she was in unlawful status for

5 some other reason and that this unlawful status was known to the government. At all

6 times, the applicant carries the burden of persuasion to prove eligibility for legalization.

7 Unrebutted evidence of the lack of required § 265 address reports from agency files shall

8 establish that the applicant’s unlawful status was known to the government within the

9 meaning of 8 U.S.C. § 1255a(a)(2)(B).

10

2. With respect to individuals within Enumerated Category 2 and the “known to

11 the government” requirement of 8 U.S.C. § 1255a(a)(2)(B), the burden of proof shall shift

12 as follows: an applicant must make a prima facie showing that he or she violated the

13 terms of his or her duration of status visa prior to January 1, 1982. It is presumed that the

14 school or employer complied with the law and reported violations of status to the INS.

15 Upon an applicant’s presenting prima facie evidence that he or she violated the terms of

16 his or her non‐immigrant status, USCIS then has the burden to come forward with

17 evidence either that unlawful status did not occur through the passage of time or to rebut

18 the presumption that the unlawful status was reported to the government. The absence of

19 the school or employer report in government records is not alone sufficient to rebut this

20 presumption. If USCIS fails to carry this burden, then it will be found that the alien’s

21 unlawful status was known to the government as of January 1, 1982. If USCIS comes

22 forward with this evidence, the applicant must show by a preponderance of the evidence

23 that he or she is eligible for legalization under either the “passage of time” or “known to

24 the government” standards. The applicant always has the burden of persuasion on this

25 point.

26

3. With respect to individuals within Enumerated Category 3, defendants shall

27 adhere to Matter of N, 19 I. & N. 760 (BIA 1988) (status obtained by fraud or mistake), in

28 adjudicating or re‐adjudicating their applications for legalization or adjustment to lawful
16
Settlement

1 permanent resident status. The alien bears the burden of establishing that he or she

2 obtained “lawful” status by fraud or mistake.

3

C. Administrative appeals

4

The Administrative Appeals Office shall adjudicate such appeals in accordance

5 with the standards set forth in this Settlement Agreement. Applicants are entitled to work

6 authorization during the pendency of such appeals as provided in INA § 245A. Appeals

7 and motions to reopen properly presented to the Administrative Appeals Office showing

8 prima facie eligibility under INA § 245A shall be deemed timely filed applications under

9 Immigration and Nationality Act § 245A.

10

11 9. 12 13 14

Issuance or Renewal of Employment Authorization and Travel Authorization A. Employment Authorization.
Defendants shall issue employment authorization to class members

15 pursuant to 8 C.F.R. § 245a.2(n) and 8 C.F.R. § 274a.12(c)(22). Class member applications

16
for employment authorization and renewal of employment authorization shall be
17
18 accepted and adjudicated in accordance with 8 C.F.R. § 274a.13.

19

B. Advance Parole

20
Defendants shall adjudicate advance parole requests made by class members
21

22 pursuant to 8 C.F.R. § 212.5(f) and 8 C.F.R. § 245a.2(m), & (n).

23
10.
24

Time for Determining Class Membership and Legalization Applications

25

A. Class member worksheets

26

Defendants shall use good faith and reasonable efforts either to approve Class

27 Membership Worksheets or to issue notices of intended denials of same within one

28 hundred and twenty (120) days of the date such applications are received by CIS. If a

17

Settlement

1 notice of intended denial is issued, defendants shall endeavor to issue a final decision on

2 the application for class membership within ninety (90) days after receipt of an applicantʹs

3 supplemental evidence or explanation, if any.

4

B. Legalization applications

5

Defendants shall use good faith and reasonable efforts to adjudicate I‐687 or I‐698

6 forms filed by class members within one hundred and eighty (180) days of the approval

7 of their Class Membership Worksheet. “Adjudication” as used in this paragraph includes

8 the mailing of a request for additional evidence or issuance of a notice of intent to deny.

9 The time it takes an applicant to respond to a request for additional evidence or a notice of

10 intent to deny shall not be included in the period of adjudication.

11
C. Adjustment for high volume
12
If the aggregate volume of Form I‐687 applications received under this Settlement
13
Agreement and the Settlement Agreements reached in CSS v. Ridge, S86‐1343‐LKK (E.D.
14
Cal); Newman v. DHS, Civ 87‐4757‐WDK (C.D. Cal), exceeds two hundred forty thousand,
15
it is anticipated that the approximate processing times referenced in subparagraphs A and
16
B above will double. In the event Defendants believe good cause exists to extend the time
17
periods set forth above, such as in the case of excessive fraud, unexpected geographic
18
distribution of applications and skeletal applications, Defendants shall provide Class
19
Counsel with a written explanation of such cause and proposed alternative target periods.
20
The parties shall meet and confer in a good faith effort to resolve any disagreements over
21
proposed new target periods prior to petitioning this District Court pursuant to ¶ 16
22
below.
23
11. Confidentiality of Applications
24
Defendants shall treat all applications, Class member worksheets, and materials
25
filed pursuant to this Settlement Agreement, including applications for employment
26
authorization and advance parole as confidential in accordance with 8 U.S.C. §
27
1255a(c)(5). The confidentiality provisions in existence at the time of the access, use or
28
18
Settlement

1 disclosure of information in applications determines the whether the access, use or

2 disclosure is permissible.

3 12. Reporting on Implementation of This Agreement

4

Defendants shall file with Plaintiffs’ counsel reports of their compliance with the

5 provisions described in ¶¶ 3‐4. In addition, commencing four months after the beginning

6 of the filing period referenced in ¶ 4, Defendants shall prepare quarterly reports setting

7 forth the cumulative number of Class Membership applications, Forms I‐687, motions to

8 reopen, that were received, reopened, approved, denied and pending. Copies of such

9 reports shall be provided to Class Counsel, within 30 days of the close of each quarter.

10 13. Costs and Attorneys Fees

11

Defendants will pay plaintiffs attorneys fees and costs, as determined by a separate

12 agreement, hereby incorporated into this Settlement Agreement. Plaintiffs shall bear any

13 costs incurred by plaintiffs in connection with notifying the class of the terms and

14 conditions of this Stipulation.

15 14. Duration of Agreement

16

The parties agree that this Settlement Agreement will become effective on the date

17 it is approved by the Court. This Settlement Agreement will remain in effect for one year

18 after the Defendants adjudicate the last I‐687 application filed by a class member, except

19 insofar as provided in ¶ 4C2, with respect to which it will remain in effect indefinitely.

20 Defendants agree to promptly notify Class Counsel of the date it adjudicates the last such

21 application.

22 15. Dismissal of Complaint, Dissolution of Injunctive Orders and Other Decisions

23

In the event the district court approves this Settlement Agreement, the parties will

24 seek dismissal of this action pursuant to Paragraph 19 below. If the district court does not

25 approve settlement, this Settlement Agreement is null and void.

26 16. Continuing Jurisdiction

27

The parties agree that notwithstanding the filing and granting of any motion

28 pursuant to ¶ 15, the district court will retain jurisdiction in this action over only the
19
Settlement

1 matters described immediately below. Defendants reserve and do not waive any defenses

2 that they may have to a claim brought under this paragraph, including defenses without

3 limitation already raised in the Litigation and defenses that may arise under new laws or

4 regulations.

5

A. Claims by Plaintiffs or Defendants that either party has engaged in a pattern

6 and practice of refusing to implement any of the relief set forth in this Agreement.

7

B. Claims by Plaintiffs that Defendants have expressly repudiated this Agreement.

8

C. At least sixty (60) days prior to bringing any action pursuant to this provision,

9 the parties shall meet and confer in a good faith effort to resolve any of their differences.

10

D. Any action under this provision must be brought within one year after

11 Defendants adjudicate the last I‐687 legalization application filed by a class member.

12 17. Class Counsel

13

Class Counsel for the purposes of this Settlement Agreement are Robert H. Gibbs

14 and Robert Pauw, Gibbs, Houston and Pauw, 1000 Second Ave, Suite 1600, Seattle, WA

15 98104 (206) 682‐1080, and Peter Schey and Carlos Holguín, Center for Human Rights and

16 Constitutional Law, 256 S. Occidental Blvd., Los Angeles, CA 90057 (213) 388‐8693. Each

17 document required to be served on Class Counsel under this Agreement will be served on

18 the Class Counsel designated to receive such document by Class Counsel pursuant to this

19 paragraph within 20 days of the Court’s approving this Settlement Agreement.

20 18. Approval of Agreement

21

This Agreement has been approved by authorized representatives of the Secretary

22 of the U.S. Department of Homeland Security, and the Assistant Attorney General, United

23 States Department of Justice.

24

This Agreement is subject to approval by the United States District Court pursuant

25 to Federal Rule of Civil Procedure 23. Concurrently with their filing of this Stipulation,

26 Class Counsel and Defendants’ Counsel shall jointly apply to the Court for preliminary

27 Court approval of the Settlement contemplated by this Stipulation and entry of a

28 Preliminary Approval Order, substantially in the form appended hereto as Exhibit 4.
20
Settlement

1 Such Preliminary Approval Order will seek approval of a Notice to the Class, as well as a

2 finding that the following satisfies the publication requirements of Fed. R. Civ. P. 23: (1)

3 Defendants shall post the Settlement agreement and the Exhibits attached to the

4 Settlement agreement in appropriate places on the USCIS website. www.uscis.gov; (2)

5 Plaintiffs shall post the Settlement agreement and the Exhibits attached to the Settlement

6 agreement in appropriate places on plaintiffs’ counsels’ websites.

7 www.centerforhumanrights.org and www.ghp‐law.net; (3) Defendants shall distribute

8 the Settlement agreement and the Exhibits attached to the Settlement agreement to all

9 immigration assistance providers listed, as of the Effective Date of this Settlement, on the

10 Roster of Recognized Organizations and Accredited Representatives maintained by the

11 Executive Office for Immigration Review pursuant to 8 C.F.R. § 292 and § 1292, and the

12 Pro Bono Program section of the EOIR website.

13 19. Terms of Order and Final Judgment

14

If the Settlement contemplated by this Stipulation is approved by the Court,

15 counsel for the parties shall request that the Court enter Final Judgment and dismissal of

16 this action substantially in the form appended hereto as Exhibit 5.

17 20. Effective Date of Settlement, Waiver or Termination

18

The Effective Date of this Stipulation shall be the date when all the following shall

19 have occurred:

20

(A) entry of the Preliminary Approval Order in all material respects in

21 the form appended hereto as Exhibit 4;

22

(B) approval by the Court of the Settlement, following notice to the Class

23 and a hearing, as prescribed by Rule 23 of the Federal Rules of Civil Procedure; and

24

(C) entry by the Court of Final Judgment, in all material respects in the

25 form appended hereto as Exhibit 5, and the expiration of any time for appeal or review of

26 such Final Judgment, or, if any appeal is filed and not dismissed, after such Final

27 Judgment is upheld on appeal in all material respects and is no longer subject to review

28 upon appeal or review by writ of certiorari, or, in the event that the Court enters an order
21
Settlement

1 and final judgment in a form other than that provided above (“Alternative Judgment”)

2 and none of the parties hereto elects to terminate this Settlement, the date that such

3 Alternative Judgment becomes final and no longer subject to appeal or review by writ of

4 certiorari.

5 21. Termination of Settlement and Stipulation

6

Defendants’ Counsel or Class Counsel shall have the right to terminate the

7 Settlement and this Stipulation by providing written notice of their election to do so

8 (“Termination Notice”) to all other parties hereto within thirty (30) days of (a) the Court’s

9 declining to enter the Preliminary Approval Order or modification of that Preliminary

10 Approval Order in any material respect; (b) the Court’s declining to approve the

11 Settlement embodied in this Stipulation, or any material part of it; (c) the Court’s

12 declining to enter the Final Judgment or modification of the Final Judgment in any

13 material respect; (d) the date upon which the Final Judgment is modified, reversed, or

14 vacated in any material respect by the Court, the Court of Appeals or the United States

15 Supreme Court; or (e) the date upon which an Alternative Judgment is modified,

16 reversed, or vacated in any material respect by the Court, the Court of Appeals or by the

17 United States Supreme Court.

18

Except as otherwise provided herein, in the event the Settlement is terminated or

19 modified in any material respect or fails to become effective for any reason, then the

20 Settlement shall be without prejudice and none of its terms shall be effective or

21 enforceable; the parties to this Stipulation shall be deemed to have reverted to their

22 respective status in the Action as of the date and time immediately prior to the execution

23 of this Stipulation; and except as otherwise expressly provided, the parties shall proceed

24 in all respects as if this Stipulation and any related orders had not been entered. In the

25 event the Settlement is terminated or modified in any material respect, the Defendants

26 shall be deemed not to have waived, modified, or be estopped from asserting any

27 additional defenses available to them.

28
22
Settlement

1 22. No Admission of Wrongdoing

2

This Stipulation, whether or not consummated, and any proceedings taken

3 pursuant to it:

4

(A) shall not be construed to waive, reduce or otherwise diminish the

5 authority of the Defendants to enforce the laws of the United States against class members

6 notwithstanding the terms of this Stipulation, consistent with the Constitution and laws of

7 the United States.

8

(B) shall not be offered or received against the Defendants as evidence of,

9 or construed as or deemed to be evidence of, any presumption, concession, or admission

10 by any of the Defendants of the truth of any fact alleged by the Plaintiffs or the validity of

11 any claim that had been or could have been asserted in the Action or in any litigation, or

12 the deficiency of any defense that has been or could have been asserted in the Action, or

13 of any liability, negligence, fault, or wrongdoing of the Defendants; or any admission by

14 the Defendants of any violations of, or failure to comply with, the Constitution, laws or

15 regulations.

16

(C) shall not be offered or received against the Defendants as evidence

17 that failure to provide documents within the time frame set forth herein, or within any

18 time frame, is unjustified or illegal; and

19

(D) shall not be offered or received against the Defendants as evidence of

20 a presumption, concession, or admission of any liability, negligence, fault or wrongdoing,

21 or in any way referred to for any other reason as against any of the parties to this

22 Stipulation, in any other civil, criminal, or administrative action or proceeding, other than

23 such proceedings as may be necessary to effectuate the provisions of this Stipulation;

24 provided, however, that if this Stipulation is approved by the Court, Defendants may

25 refer to it and rely upon it to effectuate the liability protection granted them hereunder.

26 23. Additional Provisions

27

A. This Stipulation, and the obligations incurred herein, shall be in full and

28 final disposition of the Action with prejudice and any and all Settled Claims against
23
Settlement

1 Defendants. On the Effective Date, Plaintiffs shall be deemed to have fully, finally, and

2 forever released, relinquished, and discharged the defendants of and from any and all

3 Settled Claims.

4

B. All of the exhibits attached hereto are hereby incorporated by reference as

5 though fully set forth herein.

6

C. This Stipulation may not be modified or amended, nor may any of its

7 provisions be waived except by a writing signed by all parties hereto or their successors‐

8 in‐interest.

9

D. The headings herein are used for the purpose of convenience only and are

10 not intended to have legal effect.

11

E. The waiver by one party of any breach of this Stipulation by any other party

12 shall not be deemed a waiver of any other prior or subsequent breach of this Stipulation.

13

F. This Stipulation and its exhibits constitute the entire agreement among the

14 parties hereto concerning the Settlement of the Action, and no representations, warranties,

15 or inducements have been made by any party hereto other than those contained and

16 memorialized in such documents.

17

G. This Stipulation may be executed in one or more counterparts. All executed

18 counterparts and each of them shall be deemed to be one and the same instrument

19 provided that counsel for the parties to this Stipulation shall exchange among themselves

20 original signed counterparts.

21

H. This Stipulation shall be binding upon, and inure to the benefit of, the

22 successors and assigns of the parties hereto.

23

I. This Stipulation shall not be construed more strictly against one party than

24 another merely by virtue of the fact that it, or any part of it, may have been prepared by

25 counsel for one of the parties, it being recognized by the parties that this Stipulation is the

26 result of arms’ length negotiations between the parties and that all parties have

27 contributed substantially and materially to the preparation of this Stipulation.

28
24
Settlement

1

J. All counsel and any other person executing this Stipulation and any of the

2 exhibits hereto, or any related settlement documents, warrant and represent that they

3 have the full authority to do so and that they have the authority to take appropriate action

4 required or permitted to be taken pursuant to the Stipulation to effectuate its terms.

5

K. Class Counsel and Defendants’ Counsel agree to cooperate fully with one

6 another in seeking Court approval of the Preliminary Order in Connection with the

7 Settlement Proceedings, the Stipulation and Agreement of Settlement, and to promptly

8 agree upon and execute all such other documentation as may be reasonably required to

9 obtain final approval by the Court of the Settlement.

10

11

12

13

14

15

16

17

18
Dated: ______________________, 2007.
19

20 GIBBS HOUSTON PAUW 21 Robert H. Gibbs, WSBA 5932
Robert Pauw
22
23
ALTSHULER, BERZON, NUSSBAUM,
24 RUBIN & DEMAIN 25 Michael Rubin
177 Post Street, Suite 300
26 San Francisco, CA 94108 27 (415) 391‐1655

CENTER FOR HUMAN RIGHTS & CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holguin

28
25
Settlement

1 _____________________________

2

Robert H. Gibbs WSBA Number 5932

3 GIBBS HOUSTON PAUW

4

1000 Second Ave, Suite 1600 Seattle, WA 98104

5 Telephone: (206) 224‐8790

6

Fax: (206) 689‐2270 E‐mail: rgibbs@ghp‐law.net

7

8 Counsel for Plaintiffs

_____________________________ Peter A. Schey Cal. Bar Number 58232 CENTER FOR HUMAN RIGHTS & CONSTITUTIONAL LAW 256 S. Occidental Blvd. Los Angeles, CA 90057 Telephone: (213) 388‐8693 Fax: (213) 386‐9484 E‐mail: pschey@centerforhumanrights.org

9

10

11 Dated: ______________________, 2007.
12 Anthony Norwood 13 David E. Dauenheimer 14 U.S. Department of Justice
Office of Immigration Litigation
15 P.O. Box 878, Ben Franklin Station 16 Washington, DC 20044
202‐353‐9777
17

Robert R. Raymond Associate General Counsel U.S. Department of Homeland Security Citizenship and Immigration Services

18
____________________________
19 David E. Dauenheimer
20

_____________________________ Anthony Norwood

21 _____________________________
Robert R. Raymond
22
Counsel for Defendants
23

24

25

26

27

28
26
Settlement

1

1

2

UNITED STATES DISTRICT COURT

3
WESTERN DISTRICT OF WASHINGTON
4

5

AT SEATTLE

6

7 NORTHWEST IMMIGRANT RIGHTS PROJECT, )

ET AL.,

)

8

)

9 Plaintiffs,

)

10 vs.

) )

11 U.S. CITIZENSHIP AND IMMIGRATION

)

12 SERVICES, ET AL.,

) )

13 Defendants.

)

14

) )

15

)

16

)

Case No. 88‐379R Exhibit 1 CLASS NOTICE

17

IMPORTANT CLASS NOTICE

18

19 This Notice contains important information that may pertain to you. Please read it
carefully.
20

21

Under the Court‐approved settlement in Northwest Immigrant Rights Project, et al., v. United States Citizenship and Immigration Services (“NWIRP”), formerly known as

22 Immigrant Assistance Project v. INS (“IAP”), certain individuals who were turned away

23

when they attempted to apply for legalization or “amnesty” under the Immigration Reform and Control Act of 1986 may now apply for legalization.

24
The settlement also allows certain individuals who filed applications and whose
25 applications were denied for certain reasons, to move to reopen the application with the

26 United States Citizenship and Immigration Services (“CIS”) to have the application
decided under specified legal standards.
27

28 The individuals entitled to benefits under the Court’s order are NWIRP class members.

1

1

WHO IS A NWIRP CLASS MEMBER?

2

3 The requirements for NWIRP class membership are quite complex, and you should

consult a qualified attorney or community‐based immigrant assistance agency if you
4 think there is any possibility that you may be a NWIRP class member.

5
In summary, you must meet three types of requirements to be a NWIRP class member:
6

(1) General legalization requirements. You must meet all of the following general

7

requirements for legalization:

8

(a) You entered the United States on a non‐immigrant visa (for example a

9

visitor’s visa, or student visa, or temporary worker visa) prior to January 1,

10

1982; and

11

(b) You lived continuously and illegally in the United States from prior to

12

January 1, 1982 until some time between May 5, 1987, and May 4, 1988, when you visited the INS or a Qualified Designated Entity (“QDE”) to apply

13

for legalization under the 1986 “amnesty” law; and

14

(c) You have not been convicted of certain criminal offenses: (1) one felony or

15

three misdemeanors in the United States, (2) any crime involving moral

turpitude, such as theft or fraud, except a single petty offense or a juvenile

16

conviction, or (3) any drug offense, except simple possession of marijuana

17

under 30 grams.

18 (2) NWIRP requirements. Next, you must fall into at least one of the following three

19

categories:

20

(a)

21

22

23

24

25

26

(b)

27

28

Settlement

You violated your nonimmigrant status prior to January 1, 1982 and the violation of status is evident based on a review of federal government files (for example, you worked without authorization before January 1, 1982 and you have Social Security records, tax records, or other federal government records to show income relating to your pre‐1982, unauthorized work in your name; or you were here with a non‐immigrant visa and before 1982, you failed to file annual or quarterly address reports with the INS, as then required by the law); or
You entered the United States prior to January 1, 1982 as a student (on “F” or “J” visa) or as a temporary workers (on “H” or “L” visa), and you failed to maintain your status through January 1, 1982 (for example, before January 1, 1982, you dropped out of school, took less than a full course of
2

1

study, transferred schools without advance INS authorization, or terminated

2

your authorized H or L employment); or

3

(c) After January 1, 1982, you obtained reinstatement to nonimmigrant status,

or entry into the United States on a nonimmigrant visa, or a change of

4

nonimmigrant status, or adjustment of status, or some other immigration

5

benefit that apparently put you in lawful immigration status, though you

did not qualify for such benefit (for example, because when you applied for

6

the benefit, you did not inform INS or the consulate that you had previously

7

worked without authorization).

8 (3) 9 10 11 12 13

Filing/front‐desking requirements. Finally, you must have made a significant effort to apply for legalization during the 1987‐88 application year. You must have done one or more of the following:
(a) Between May 5, 1987 and May 4, 1988, you attempted to file a complete application for legalization under § 245A of the INA and fees with an INS officer or agent acting on behalf of the INS, including a QDE, 1 and had your application rejected for filing; or

14

(b) Between May 5, 1987 and May 4, 1988, you attempted to apply for

legalization with an INS officer, or agent acting on behalf of the INS,

15

including a QDE, but were advised that you were ineligible for legalization,

16

or were refused a legalization application form, and this information, or

inability to obtain an application form, was a substantial cause of your

17

failure to file or complete a timely written application; or

18

(c) You filed an application for legalization between May 5, 1987 and May 4,

19

1988; and

20

(i) no final decision has been made on your application and it remains

21

pending; or

22

(ii) your application was denied, or

23

(iii) your application was initially approved and then later terminated (or

24

proposed for termination) because your violation of status prior to

25

January 1, 1982 was not “known to the government,” or because you

26

27

28 1 QDEs were usually community‐based non‐profit organizations (such as Catholic

Charities) that were authorized to accept amnesty applications for the INS.

3

Settlement

1

were reinstated to nonimmigrant status or granted a visa or some

2

other benefit that put you in a lawful immigration status.

3

ANSWERS TO FREQUENTLY ASKED QUESTIONS

4 •

What are the benefits of class membership?

5
Certain class members who attempted to file applications (as described in the Worksheet
6 at III) during the 1986‐87 amnesty application year may apply now for legalization under

7 the 1986 amnesty law. Class members who were able to timely file an application during
the 1987‐88 application year, but had their applications denied or left undecided may now
8 have their applications decided under the specified legal standards of this settlement.

9 While their legalization applications (or requests for decision or reconsideration) are
10 pending, class members are entitled to remain in the United States and to employment 11 authorization. Class members may also be granted advance parole.

12 Class members whose legalization applications are approved will receive ʺTemporary
Resident Status,ʺ and 18 months later become eligible to apply for permanent residence.
13

14

Class members granted temporary residence may have their spouses and children apply to remain with them in the United States under “family unity” status if the family

15 member resided in the United States on May 4, 1988. Persons who have applied for and

16

been granted family unity status may receive work authorization and permission to remain in the United States lawfully.

17 •

How do I prove I am a class member?

18 `

19

Persons who filed during the 1987‐88 application year. Class members whose timely filed applications are still pending or who have received a notice of proposed termination of

20 the approval of their applications, may (but are not required to) submit a NWIRP Class

21

Member Worksheet to the USCIS. Such NWIRP Class Member Worksheet, together with any available copies of their timely filed applications, receipts, and any notices that

22 the former INS or the USCIS sent them regarding their applications to NWIRP Worksheet,

23 USCIS, California Service Center, 2400 Avila Rd. 2nd Fl., Room 2312, Laguna Niguel, CA
92677.

24
Persons who were turned away during the 1987‐88 application year. If you did not manage to
25 get a legalization application on file during the 1987‐88 application year, then you must

26 submit a ʺClass Member Worksheetʺ and application for temporary residence (Form I‐
687) to the CIS.
27

28 USCIS will generally decide within 90 days whether or not it agrees that you are a class
member. If the CIS thinks you are not a class member, you will be given an opportunity to4
Settlement

1 submit evidence that you are. You may do this by producing a copy of your original 1987‐

2 88 amnesty application or declarations from persons who know you tried to apply for
legalization between May 1987 and May 1988, but were turned away.
3

Applicants, other than Subclass C members, shall attach to the Class Member Worksheet
4 any available evidence regarding their non‐immigrant entry into the United States before

5 January 1, 1982, including, for example, copies of passports, entry stamps, visa

applications, I‐94’s, I‐20’s, airline travel records, documents showing that they were
6 present in the United States in non‐immigrant status prior to or shortly after January 1,

7 1982, or credible declarations regarding entry prior to January 1, 1982 with a non‐

immigrant visa. If an applicant does not possess or is unable to obtain this type of
8 evidence, the applicant may submit a sworn statement including the U.S. Consulate

9 where the pre‐1982 non‐immigrant visa was applied for, the approximate date that it was

10

obtained, the type of visa obtained, the approximate date when the visa was used to enter the United States, where the applicant entered the United States using the non‐immigrant

11 visa, and a brief description of any activities that the class member engaged in consistent

12 with the terms of the visa immediately after entering the United States.

13 If despite such evidence, the CIS still believes you are not a class member, then you may
appeal to a court official, called a Special Master, who will decide whether you are a class
14 member.

15 • How long do I have to apply for class member benefits?

16 If you were prevented from filing for legalization during the 1987‐88 application year, you

17 must submit a Class Member Worksheet and completed legalization application form to

18

the USCIS in the 12 month period beginning ___________, and ending ____________. [To be inserted according to Paragraph 4B of the Settlement]

19
If you filed a legalization application during the legalization application period from May
20 1987 to May 1988 but have never had that application decided, the USCIS will now decide

21 your application. You may (but are not required to) send to the USCIS a class member
worksheet and a letter requesting that the USCIS now make a decision on your
22 application, and if available to you, attach copies of your application filed in 1987‐88, your

23 receipt, and any notices that the former INS or CIS sent you regarding your application.

24 If you filed a legalization application during the legalization application period from May

25

1987 to May 1988, but the INS denied your application (and you did not file an appeal to the AAO or the AAO denied your appeal), you may file a motion to reopen (re‐decide)

26 your application within one year from the date you receive a written notice of this

27 settlement mailed to you by the CIS.

28 • What if I have already applied for legalization as a Catholic Social Services (CSS) or
Newman/LULAC class member, or have applied for residence under the LIFE Act? 5
Settlement

1 Under the terms of the settlement, CIS will apply the NWIRP adjudication standards to

2 CSS/Newman and LIFE Act applications If your application was denied without proper
consideration of the standards of Paragraph 8 of this settlement, you may ask for your
3 CSS/Newman or LIFE Act case to be reopened. You must submit a Class Member

4 Worksheet and a Form I‐290B. You should consult with an attorney or community‐based
legal services organization about your rights and remedies.

5
•

If I am denied legalization, will I be deported?

6

Under the amnesty law, applications and the information they contain are confidential
7 and generally may not be used to put you into removal (deportation) proceedings.

8 Generally, the information in your application may only be used to make a determination
on your application for amnesty, or, if you commit fraud in the application, to prosecute
9 you criminally.

10 •

Where can I obtain forms and further information?

11
For further information and forms, go to the web site of class counsel,
12 www.centerforhumanrights.org. and www.ghp‐law.net Forms and information are also

13 available on the U.S. Citizenship and Immigration Service’s web site, www.uscis.gov/

14 You may also contact the lawyers representing the class:

15

CENTER FOR HUMAN RIGHTS & CONSTITUTIONAL LAW

16

256 S. Occidental Blvd., Los Angeles, CA 90057

17

(213) 388‐8693, exts. 104 or 109

18

E‐mail: amnestycoordinator@centerforhumanrights.org

19

GIBBS HOUSTON PAUW

1000 Second Ave., Suite 1600,

20

Seattle, WA 98104

21

(800) 654‐9155

E‐mail: info @ghp‐law.net.

22

Do not contact the Court for information.

23

24

25

26

27

28
6
Settlement

1

1

2

UNITED STATES DISTRICT COURT

3

WESTERN DISTRICT OF WASHINGTON

4
AT SEATTLE
5

6

NORTHWEST IMMIGRANT RIGHTS PROJECT, ) Case No. 88‐379R

7 ET AL.,

)

8 Plaintiffs,

9
vs.
10

11

U.S. CITIZENSHIP AND IMMIGRATION SERVICES, ET AL.,

12

Defendants.

13

__

) Exhibit 2 ) ) INSTRUCTIONS AND CLASS MEMBER ) WORKSHEET ) ) ) ) )

14

)

15

INSTRUCTIONS

16

17 The attached Class Member Worksheet should be completed by persons who believe they

18

are IAP/NWIRP class members and who wish to apply to legalize their status under the 1986 Immigration Reform and Control Act.

19
Use this form if (1) the Immigration and Naturalization Service (“INS”) or a Qualified
20 Designated Entity (“QDE”) 2 rejected your application and filing fees for legalization or

21 “amnesty” between May 5, 1987 and May 4, 1988; or (2) you filed a legalization

22

application during the 1987‐88 application year, but your application was denied (or your temporary residence was revoked or proposed for revocation). You may, but are not

23 required to, use this form if you filed a legalization application during the 1987‐88

24

application year, but your application has still not been decided, or you have an appeal of a denial of your timely application that is still pending at the Administrative Appeals

25 Office (AAO). You may submit whatever additional evidence you have to support your

26

application to the United States Citizenship and Immigration Services (“USCIS”), and the your application will be adjudicated.

27

28

2 QDEs were usually community‐based non‐profit organizations (such as Catholic

Charities) that were authorized to accept amnesty applications for the INS.

1

1 You may consult with an accredited community organization, church group or lawyer to 2 help you fill out this form.

3 The benefits of class membership.

4 The primary benefit of class membership is that you will be able to apply for legalization 5 and receive a decision based upon specified legal standards.

6 The basic issue asserted by IAP/NWIRP class members is that during the 1987‐88
legalization program the INS or QDE concluded that they were ineligible for legalization
7 because their unlawful status was not “known to the government” prior to January 1,
8 1982.

9 In IAP/NWIRP, it was argued that students and other “nonimmigrants” violated their
10 status whenever they failed to report their addresses to the INS or when they failed to
take the required number of units at school. Such violations were in all likelihood known
11 to the government, precisely because the required reports were not made or because
12 schools were required to report foreign students whenever they failed to take the required
number of units. It was argued that a pre‐1982 violation of status was presumptively
13 “known to the government” if you failed to file address reports, failed to maintain full‐
14 time student status, or worked without authorization. Class members who obtained a visa
or were reinstated to lawful status after January 1, 1982, based upon a false statement may
15 also apply for consideration under the terms of this agreement.

16 Class members whose legalization applications are approved are first granted

17 ʺTemporary Resident Status.ʺ Eighteen months later, these class members may apply for

18

permanent resident status. In addition the spouses and minor, unmarried children (who arrived in the United States before 5/4/1988) of approved applicants may be eligible for

19 family unity benefits (work authorization and a stay of removal) while they wait to

20 immigrate through their newly legalized family member.

21 In addition, class member are entitled to work authorization and protection against
removal (deportation) while their applications are pending.
22
Determining whether you are an IAP/NWIRP class member.
23
24 The requirements for IAP/NWIRP class membership are quite complex, and you should
consult a qualified attorney or community‐based immigrant assistance agency if you
25 think there is any possibility that you may be a IAP/NWIRP class member.

26 In summary, you must meet three types of requirements to be an IAP/NWIRP class 27 member:

28
2
Settlement

1 (1) 2

Basic eligibility for legalization. You must appear to meet all of the following basic requirements for legalization:

3

(a) You entered the United States on a non‐immigrant visa (for example a

visitor’s visa, or student visa, or temporary worker visa) prior to January 1,

4

1982; and

5
(b) You lived continuously and illegally in the United States from prior to

6

January 1, 1982 until some time between May 5, 1987 and May 4, 1988, when

7

you visited the INS or a Qualified Designated Entity (“QDE”) to apply for

legalization under the 1986 “amnesty” law; and

8

(c) You have not been convicted of certain criminal offenses: (1) one felony or

9

three misdemeanors in the United States, (2) any crime involving moral

10

turpitude, such as theft or fraud, except a single petty offense or a juvenile

11

conviction, or (3) any drug offense, except simple possession of marijuana under 30 grams.

12

(2) IAP/NWIRP requirements. Next, you must fall into at least one of the following

13

three categories:

14

(a) You violated your nonimmigrant status prior to January 1, 1982 and the

15

violation of status is evident based on a review of federal government files

16

(for example, you worked without authorization before January 1, 1982 and you have Social Security records, tax records, or other federal government

17

records to show income relating to your pre‐1982, unauthorized work in

18

your name; or you were here with a non‐immigrant visa and before 1982, you failed to file annual or quarterly address reports with the INS, as then

19

required by the law); or

20

(b)

21

22

23

24

25

(c)

26

27

28

Settlement

You entered the United States prior to January 1, 1982 as a student (on “F” or “J” visa) or as a temporary workers (on “H” or “L” visa), and you failed to maintain your status through January 1, 1982 (for example, before January 1, 1982, you dropped out of school, took less than a full course of study, transferred schools without advance INS authorization, or terminated your authorized H or L employment); or
After January 1, 1982, you obtained reinstatement to nonimmigrant status, or entry into the United States on a nonimmigrant visa, or a change of nonimmigrant status, or adjustment of status, or some other immigration benefit that apparently put you in lawful immigration status, though you did not qualify for such benefit (for example, because when you applied for
3

1

the benefit, you did not inform INS or the consulate that you had previously

2

worked without authorization).

3 (3) 4 5 6 7

Attempt to file timely application. Finally, you must have made a significant effort to apply for legalization between May 5, 1987 and May 4, 1988.
You must have either filed an application for legalization or attempted to apply at an INS or QDE office between May 5, 1987 and May 4, 1988, and been denied an application form, told that you were ineligible for legalization, or told that your application for legalization would not be accepted.

8 Proving that you meet the three requirements of IAP/NWIRP class membership.

9 You must file an I‐687 together with your Class Member Worksheet, as described below.
10 However, if you filed an application for legalization during the application period
between May 5, 1987 and May 4, 1988 and your application remains pending or was
11 denied, you do not have to file a new I‐687 form. If your application remains pending (at
12 the District Office, Regional Office or Service Center), then you may, but are not required
to, submit a Class Member Worksheet to USCIS. If your 1987‐88 application was denied,
13 you must file a motion to reopen on Form I‐290B to USCIS.

14 Filling out and filing the Notice of Class Member Worksheet and other forms. 15
Fill in a Class Member Worksheet by checking the appropriate boxes. You can obtain this
16 form from your local USCIS (formerly called the INS) office. Local community groups and 17 immigration lawyers may also have the forms available. You can also obtain the forms
from the USCIS web site, www.uscis.gov., or class counsels’ web pages, www.ghp‐
18 law.net, or www.centerforhumanrights.org.

19 There is no separate fee for filing a Class Member Worksheet.

20
You will need to prepare and file the following forms:
21

22

(1) If you assert that the INS or a QDE rejected your application between May 5, 1987 and May 4, 1988, then you must file the Class Member Worksheet together with an

23

Application for Status as a Temporary Resident (Form I‐687).

24

(2) If you filed a legalization application between May 5, 1987 and May 4, 1988, but

25

your timely application remains pending (at a District Office, Regional Office, or

Service Center), then you may but are not required to file a Class Member

26

Worksheet.

27
(3) If you filed a legalization application between May 5, 1987 and May 4, 1988, but

28

your application has been denied (either at the District Office, Service Center or the

4

Settlement

1

Administrative Appeals Office), then you must file a Class Member Worksheet

2

together with a Form I‐290B and filing fee.

3 If you request work authorization, then you must submit an Application for Employment
Authorization (Form I‐765) together with the filing fee. Class members are entitled to
4 temporary employment and advance parole while their applications or timely filed
5 appeals from any denials of class membership or legalization are pending.

6 Subclass A and B members (those who were turned away when they attempted to file
7 legalization applications in 1987‐88) must attach to the Class Member Worksheet any
available evidence regarding their non‐immigrant entry into the United States before
8 January 1, 1982, including, for example, copies of passports, entry stamps, visa
9 applications, I‐94’s, I‐20’s, airline travel records, documents showing that they were
present in the United States in non‐immigrant status prior to or shortly after January 1,
10 1982, or credible declarations regarding entry prior to January 1, 1982 with a non‐
11 immigrant visa. If an applicant does not possess or is unable to obtain this type of
evidence, the applicant may submit a sworn statement including the U.S. Consulate
12 where the pre‐1982 non‐immigrant visa was applied for, the approximate date that it was
13 obtained, the type of visa obtained, the date when the visa was used to enter the United
States, where the applicant entered the United States using the non‐immigrant visa, and a
14 brief description of any activities that the class member engaged in consistent with the
15 terms of the visa immediately after entering the United States. Applicants may also
request that the USCIS check its records, prior to an adjudication of the Worksheet, to
16 determine if any evidence exists of the alien’s nonimmigrant entry prior to January 1,
17 1982.

18 If you are filing a Class Member Worksheet together with either an I‐687 or I‐290B form

19

(Subclass B or C(i)), then mail the completed Class Member Worksheet together with the appropriate forms and filing fees, and four passport photos, and the current biometrics

20 fee, as follows. If you are sending the Worksheet and forms via U.S. Postal Service:

21

U.S. Citizenship and Immigration Services

22

P.O. Box 805876

Chicago, IL 60680‐4120

23

24 If you are sending the Worksheet and forms via any other means:

25

US Citizenship and Immigration Services

427 S. LaSalle, 3rd Floor

26

Chicago, IL 60605‐1029

27

28
5
Settlement

1 If you are filing only a Class Member Worksheet to notify USCIS of your pending I‐687
2 application (Subclass C(ii)), mail the Class Member Worksheet (together with an
Application for Employment Authorization, if desired) to:
3

4

NWIRP Worksheet

USCIS

5

California Service Center

6

24000 Avila Road, 2nd Floor, Room 2312

Laguna Niguel, CA 92677

7

Be sure to keep a copy of everything that you submit to the USCIS, including your filing
8 fee checks or money orders. It is strongly recommended that you send your application

9 documents by a method that provides proof of delivery, such as USPS Priority Mail with

10

Confirmation, or FedEx, UPS or DHL. You may also send a copy of your application to class counsel at the address below.

11
Filing deadline
12

13

If your application was rejected between May 5, 1987 and May 4, 1988, you must submit a Class Member Worksheet and completed legalization application form to the USCIS in the

14 12 month period beginning ___________ , and ending ____________ . [Insert dates

15 pursuant to Paragraph 4B of the Settlement]

16 If you filed a legalization application during the May 5, 1987 and May 4, 1988 application
year but the INS denied your application you may file a motion to reopen (re‐decide)
17 your application at any time but no later than one year from the date you receive a 18 written notice of this settlement sent to you by the CIS.

19 Processing your Class Member Worksheet.

20 USCIS will decide within 120 days whether it agrees that you are a class member. If

21 USCIS agrees that you are a class member, it will then decide your legalization
application. Normally, this will take an additional 180 days.
22

23

If the USCIS opposes your class membership, it will issue you a Notice of Intent To Deny your class membership. You will then have 30 days to submit additional evidence that

24 you are a class member. The USCIS will then have 90 days to decide whether it still

25 opposes your class membership. If it does, you will have 30 days to ask a court officer,
known as a Special Master, to decide whether you are a class member. If the Special

26 Master decides that you are a class member, USCIS will then process your legalization

27 application in accordance with the time limits previously described.

28 Processing your I‐687 legalization application.
6
Settlement

1 The settlement requires the USCIS to adjudicate IAP/NWIRP class members’ legalization
2 applications just as though they had been filed during the original 1987‐88 application
year, except the USCIS will apply the specified “known to the government” and
3 continuous unlawful residence standard.

4 While your properly filed I‐687 application or Motion to Reopen is pending, you are
5 entitled to protection against removal (deportation) and to apply for work authorization.
You must apply for employment authorization by submitting a Form I‐765 along with
6 your I‐687 legalization application and Class Member Worksheet. An employment
7 authorization card (EAD) will be issued to you if the USCIS agrees you are a class
member.
8

9 Class members whose legalization applications the USCIS intends to deny will be sent a
notice of intended denial and will have at least 30 days to correct whatever problems the
10 USCIS identifies in the legalization application.

11 Class members whose legalization applications the USCIS denies are entitled to appeal to

12 the USCIS Administrative Appeals Office. You will have 30 days to file such an appeal. To

13

make sure that your appeal time does not run out before you get notice of a denial, be sure to keep USCIS informed of your current address.

14
Confidentiality. Unless you commit fraud, all the information you submit in connection
15 with an IAP/ NWIRP Class Member Worksheet or legalization application may [generally]

16 be used only to decide those applications and, generally, may not be used to obtain a
removal (deportation) order against you.
17

18

Travel. You may apply for advance parole while your application is pending by submitting a Form I‐131 application, together with the applicable filing fee and photos.

19 The Form I‐131 can be submitted with your initial application or later.

20 Class counsel strongly recommends, however, that you not leave the country until after 21 you have received Temporary Residence. Obtaining travel authorization (advance parole)
does not guarantee that you are admissible to the United States, and your legalization
22 application could also be denied while you are outside of the country.
23 Family members. Family members do not obtain legalization merely by being listed on 24 your legalization application. Each applicant must qualify independently for legalization.

25 However, the spouses and unmarried children of NWIRP class members who become
26 Temporary Residents are eligible to apply for “family unity” benefits if they resided in the
United States on May 5, 1988. Family members granted such benefits will be permitted to
27 stay and work lawfully in the United States until they become residents through the
28 normal family‐based immigration system.
7
Settlement

1 Further information. Do not contact the Court for information. For further information
2 and forms, go to the web site of class counsel, www.centerforhumanrights.org and
www.ghp‐law.net Forms and information are also available on the U.S. Citizenship and
3 Immigration Service’s web site, www.uscis.gov/graphics/index.htm.

4 After you have read these information sheets, and reviewed the web pages of class counsel, you 5 may also contact the lawyers representing the class:

6

CENTER FOR HUMAN RIGHTS & CONSTITUTIONAL LAW

7

256 S. Occidental Blvd.,

Los Angeles, CA 90057

8

(213) 388‐8693, exts. 104 or 109

9

E‐mail: amnestycoordinator@centerforhumanrights.org

10

GIBBS HOUSTON PAUW

11

1000 Second Ave., Suite 1600, Seattle, WA 98104

12

(800) 654‐9155

13

E‐mail: info @ghp‐law.net.

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
8
Settlement

1

1

2

UNITED STATES DISTRICT COURT

3

4

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6

7 NORTHWEST IMMIGRANT RIGHTS PROJECT, ) Case No. 88‐379R

8 ET AL., 9 Plaintiffs,

) ) CLASS MEMBER WORKSHEET
)

10 vs.

) )

11 U.S. CITIZENSHIP AND IMMIGRATION

)

12 SERVICES, ET AL.,

)

)

13 Defendants.

)

14

)

)

15

16 17 / / /

18

19

20

21

22

23

24

25

26

27

28

1

1

1

NWIRP Class Member Worksheet

2 Last Name

First Name

Middle Initial A Number

3 __________________ _______________ _______________ __________________

4 Please complete this Class Member Worksheet if you wish to apply for class member 5 benefits pursuant to the settlement in NWIRP v. U.S. Citizenship and Immigration Services
(“IAP/NWIRP”). In order to apply, answer every question on this Class Member
6 Worksheet and staple it, with any attachments, to the top of the appropriate documents.

7 I am filing this Worksheet because: 8
a) I have previously filed for legalization, and
9

10

1. Check here: /__/ I wish to notify USCIS that my application for

legalization on Form I‐687 or Form I‐485 (LIFE Act) is still pending. If this applies to you,

11 you do not need to complete the rest of this Worksheet, but merely sign the bottom of the

12 form and mail it to

13

NWIRP WORKSHEET

14

USCIS

15

24000 AVILA ROAD 2ND FLOOR ROOM 2312

16
LAGUNA NIGUEL CA 92677
17
OR
18

19

2. Check here: /__/ I wish to notify USCIS that my application for

legalization on Form I‐687 or Form I‐485 (LIFE Legalization) was denied because

20 INS/USCIS asserted that I failed to prove that my lawful nonimmigrant status expired or

21 was unlawful prior to January 1, 1982, or that my unlawful residence after January 1, 1982
was not continuous, and I request that the application be reopened. If this applies to you,
22 you do not need to complete the rest of this Worksheet, but merely sign the bottom of this

23 form and send it with a completed Form I‐290B and filing fee to

24

USCIS

25

P.O. Box 805876

26

Chicago, IL 60680‐4120

27
OR
28
b) Check here: /__/ I attempted to file during the legalization application period,

May 5, 1987 to May 4, 1988 and the application was rejected, and I now wish to file as I

1

1 qualify for class membership as described below. If this applies to you, you need to

2 complete the rest of the worksheet, and submit it with a completed Form I‐687 and filing
fee with to
3
USCIS
4

5

P.O. Box 805876

6

Chicago, IL 60680‐4120

7 Important: USCIS will accept your I‐687 application and Class Member Worksheet for 8 filing so long as the following requirements are met:

9

The boxes checked on my Parts I, II and III below establish that I am a

IAP/NWIRP class member, as explained in the instructions.
10

11

I have signed my Class Member Worksheet.

12

I have attached evidence available to me about my entry prior to January 1,

13

1982, with a non‐immigrant visa as described in the Instructions to this Worksheet.

14
I have signed my Form I‐687 legalization application
15

16

I have included a money order or personal check for the current I‐687 filing fee .

17

I have included a money order or personal check for the current biometrics

18

fee

19 If your application and Worksheet does not meet the above requirements, CIS may reject

20 it and return it to you within 30 days of receipt. If the application is rejected and

21

returned to you as incomplete, you must correct the deficiency and re‐file your application, and do so BEFORE the IAP/NWIRP class member filing period ends. Rejected

22 applications re‐submitted after the close of the filing period will not be accepted. It is very

23 important that you properly submit a complete application within the filing deadline.

24 I

General requirements

25 A 26

I entered the United States before January 1, 1982 on a nonimmigrant visa, and then resided in continuous unlawful status, except for brief absences, from before 1982

Yes No

27

until the date I (or my parent or spouse) was turned away

by the INS when I (or my parent or spouse) tried to apply

28

for legalization in 1987‐88.

2

Settlement

1

2 3 B 4 5 6

I was continuously physically present in the United States, except for brief, casual and innocent departures from November 6, 1986 until the date I (or my parent or spouse) was turned away by the INS when I (or my parent or spouse) tried to apply for legalization.

Yes No

7
C
8 9 10 11 12 13 14 15

I have not been convicted in the United States of one felony or three or more misdemeanors, nor have I ever been convicted of crimes, or committed acts which make me inadmissible pursuant to any provision of the Immigration and Nationality Act, including but not limited to: 212(a)(2)(A)(i)(I) (crime involving moral turpitude); 212(a)(2)(B) (multiple criminal convictions); 212(a)(2)(C)(controlled substance traffickers); 212(a)(2)(A)(i)(II) (controlled substances) ,[other than less than 30 gr. marijuana)]; 212(a)(3) (security and related grounds).

Yes No

16
If you answered “yes” to IA, B and C, go on to the next section. If you answered “no” to any of
17 these sections, stop. You are not eligible.

18
II IAP/NWIRP CLASS REQUIREMENTS

19

A
20

I violated my nonimmigrant status prior to January 1, 1982 and the violation of status is evident based on a

Yes No

21

review of government files.

22

This category includes individuals who worked without

23

authorization before January 1, 1982, and who have

Social Security records, tax records, or other government

24

records to show income relating to such unauthorized

25

work in their name. It also includes individuals who

failed to file annual and quarterly address reports as

26

required under § 265 of the Immigration and Nationality

27

Act before January 1, 1982.

28
3
Settlement

1
B
2 3 4 5 6 7 8

I entered the United States prior to January 1, 1982 as a student (on “F” or “J” visa) or as a temporary worker (on “H” or “L” visa), and I failed to maintain my status until January 1, 1982.
This category includes individuals who dropped out of school, took less than a full course of study, or transferred schools without advance INS authorization, or who terminated their authorized employment, before January 1, 1982.

Yes No

9 10 C 11 12 13 14

After January 1, 1982 I obtained reinstatement to nonimmigrant status, or entry into the United States on a nonimmigrant visa, or a change of nonimmigrant status, or adjustment of status, or some other immigration benefit that apparently put me in lawful immigration status, even though I did not qualify for such benefit.

Yes No

15

This category includes individuals who did not inform

the INS that they had previously worked without

16

authorization.

17
If you answered “yes” to any one of these three questions, then go to the following section. If you
18 answered “no” to all of them, stop. You are not eligible.

19

20

21

22

23

24

25

26

27

28
4
Settlement

1
III PRIOR FILING REQUIREMENT
2

3 A 4

I (or my parent or spouse) visited an INS or QDE office with a complete application for legalization (Form I‐687) and filing fee between May 5, 1987 and May 4, 1988, and

Yes No

5
6 7 B
8

the application and fee were rejected for filing by either the INS or the QDE.
I (or my parent or spouse) visited an INS or QDE office in an attempt to apply for legalization between May 5, 1987 and May 4, 1988, and was refused application

Yes No

9

forms or was turned away by either the INS or QDE officer;

10

If you answered “yes” to IIIA or III B, then go to the following section. If you answered “no” to
11 both, stop. You are not eligible.

12
IV CERTIFICATION
13
I certify under the penalty of perjury under the laws of the Unites States of America that
14 the above statements and the evidence submitted herewith are true and correct. I

15 authorize the release of any information from my records that the Department of
Homeland Security needs to verify the foregoing.
16

17 I understand that information I provide in connection with this Claim, or the related
applications I‐687, I‐765, I‐131, or G‐639 is confidential and may not be used to arrest or
18 deport me or for any purpose unrelated to the adjudication of this Claim except as

19 provided in 8 U.S.C. § 1255a(c)(5).

20

21

22 Date: _________________________ 23

____________________________________ Signature

24

25

26

27

28
5
Settlement

1

1

2
UNITED STATES DISTRICT COURT
3

4

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6

7 NORTHWEST IMMIGRANT RIGHTS PROJECT, ) Case No. 88‐379R

8 ET AL., 9 Plaintiffs,

) ) APPEAL TO SPECIAL MASTER FROM DENIAL ) OF CLASS MEMBERSHIP

10 vs. 11 U.S. CITIZENSHIP AND IMMIGRATION 12 SERVICES, ET AL.,
13 Defendants.

) Exhibit 3 ) ) ) ) )

14

)

)

15
Instructions

16
Use this form if you wish to appeal a final denial of class membership. Appeals will be

17
decided by an IAP/NWIRP Special Master.

18
Do not use this form if you have only received a Notice of Intent to Deny your class

19
membership application.

20
Mail this form, along with a copy of your Class Membership Application and the final

21
denial of your Class Member Worksheet, to IAP/NWIRP Special Master, c/o Center for

22
Human Rights and Constitutional Law, 256 S. Occidental Blvd., Los Angeles, CA 90057.

23
With this appeal form you must enclose a check or money order in the amount of $125

24
made payable to “IAP/NWIRP Special Master.”

25
If you do not have a copy of your Class Member Worksheet, mail this form, your final

26
denial, and your check or money order to the Special Master at the address listed above.

27
The Special Master will obtain a copy of your Class Membership Worksheet.

28
Copy: Be sure to keep a copy of everything that you mail to the NWIRP Special

Master. 1

1

Complete the information requested below.

2

Name ____________________________________________________________

3

4

Address __________________________________________________________

5

6

City _________________________ State _______ Zip ____________________

7

8

Telephone ( ) ___________ INS A number (if any) ___________________

9

1) Do you have and have you attached a copy of your Class Member Worksheet?

Yes /__/ No /__/

10

2) You must attach a copy of the denial of your NWIRP Class Member Worksheet.

11 Have you attached a copy? Yes /__/ No /__/
3) You must attach a check or money order payable to IAP/NWIRP Special Master in
12 the amount of $125. Have you attached a check or money order as required?
13 Yes /__/ No /__/
4) Explain why you believe your Class Member Worksheet was incorrectly denied.
14 You are not required to fill in this section, but may do so if you wish. You may attach a
15 separate sheet of paper with you explanation if it is too long to fit on this page.
_________________________________________________________________
16

17

_________________________________________________________________

18

_________________________________________________________________

19
_________________________________________________________________
20

21

_________________________________________________________________

22

_________________________________________________________________

23
(Please use additional sheets of paper if you need more space to explain your complaint)
24 Dated: ______________________

25

____________________________

26

Signature

27

28
2
Settlement

1
The Honorable James L. Robart
2

3

4

5

6

7

8

9

10

11

UNITED STATES DISTRICT COURT

12
WESTERN DISTRICT OF WASHINGTON
13

14

AT SEATTLE

15

16 NORTHWEST IMMIGRANT RIGHTS

) Case No. 88‐379R

PROJECT, ET AL.

)

17
PLAINTIFFS,

) [PROPOSED] ORDER OF

18

) PRELIMINARY APPROVAL OF

vs.
19

) CLASS ACTION SETTLEMENT )

20

U.S. CITIZENSHIP AND IMMIGRATION )

SERVICES, ET AL.

) (Exhibit 4)

21
DEFENDANTS.
22

) )

)

23

)

24

25 / / /

26

27

28
3
Settlement

1

Plaintiffs in the above captioned matter, on behalf of themselves, the Class and all

2 Class Members, and Defendants, by and through their undersigned counsel, have entered

3 into a Settlement agreement, as of August 2, 2007, subject to the approval of the Court.

4 The parties have sought provisional certification of the settlement class and preliminary

5 approval of the settlement.

6

It Is Hereby Ordered that the Settlement is preliminarily approved subject to notice

7 to the class and final approval by the Court.

8

The settlement class is provisionally approved pursuant to Rule 23 of the Federal

9 Rules of Civil Procedure as follows:

10

All persons who entered the United States in a non‐immigrant status prior to

11

January 1, 1982, who are otherwise prima facie eligible for legalization under § 245A

12

of the INA, 8 U.S.C. § 1255a, who are within one or more of the Enumerated

13

Categories described below in paragraph 2, and who —

14

A) between May 5, 1987 and May 4, 1988, attempted to file a complete

15

application for legalization under § 245A of the INA and fees to an INS

16

officer or agent acting on behalf of the INS, including a Qualified

17

Designated Agency (“QDE”), and whose applications were rejected for

18

filing (hereinafter referred to as “Sub‐class A members”); or

19

B) between May 5, 1987 and May 4, 1988, attempted to apply for legalization

20

with an INS officer, or agent acting on behalf of the INS, including a QDE,

21

under § 245A of the INA, but were advised that they were ineligible for

22

legalization, or were refused legalization application forms, and for whom

23

such information, or inability to obtain the required application forms, was a

24

substantial cause of their failure to file or complete a timely written

25

application (hereinafter referred to as “Sub‐class B” members); or

26

C) filed a legalization application under INA § 245A and fees with an INS

27

officer or agent acting on behalf of the INS, including a QDE, and whose

28

application

4

Settlement

1

iii.

has not been finally adjudicated or whose temporary resident status

2

has been proposed for termination (hereinafter referred to as “Sub‐

3

class C.i. members”),

4

iv.

was denied or whose temporary resident status was terminated,

5

where the INS or CIS action or inaction was because INS or CIS

6

believed the applicant had failed to meet the “known to the

7

government” requirement, or the requirement that s/he demonstrate

8

that his/her unlawful residence was continuous (hereinafter referred

9

to as “Sub‐class C.ii. members”).

10 2. Enumerated Categories

11

(1) Persons who violated the terms of their nonimmigrant status prior to

12

January 1, 1982 in a manner known to the government because

13

documentation or the absence thereof (including, but not limited to, the

14

absence of quarterly or annual address reports required on or before

15

December 31, 1981) existed in the records of one or more government

16

agencies which, taken as a whole, warrants a finding that the applicant was

17

in an unlawful status prior to January 1, 1982 in a manner known to the

18

government.

19

(2) Persons who violated the terms of their nonimmigrant visas before January

20

1, 1982, for whom INS/DHS records for the relevant period (including

21

required school and employer reports of status violations) are not contained

22

in the alien’s A‐file, and who are unable to meet the requirements of 8 C.F.R.

23

§§ 245a.1(d) and 245a.2(d) without such records.

24

(3) Persons whose facially valid “lawful status” on or after January 1, 1982 was

25

obtained by fraud or mistake, whether such “lawful status” was the result of

26

(a) reinstatement to nonimmigrant status;

27

(b) change of nonimmigrant status pursuant to INA § 248;

28

(c) adjustment of status pursuant to INA § 245; or

5

Settlement

1

(d) grant of some other immigration benefit deemed to interrupt the

2

continuous unlawful residence or continuous physical presence

3

requirements of INA § 245A.

4

In satisfaction of Rule 23(e)(1)(B) of the Federal Rules of Civil Procedure, the

5 parties shall provide notice to the class as follows: (1) Defendants shall post the

6 Settlement agreement and the Exhibits attached to the Settlement agreement in

7 appropriate placed on the USCIS website. uscis.gov (2) Plaintiffs shall post the

8 Settlement agreement and the Exhibits attached to the Settlement agreement in

9 appropriate places on plaintiffs’ counsels’ websites www.centerforhumanrights.org and

10 www.ghp‐law.net (3) Defendants shall distribute the Settlement agreement and the

11 Exhibits attached to the Settlement agreement to all immigration assistance providers

12 listed, as of the Effective Date of this Settlement, on the Roster of Recognized

13 Organizations and Accredited Representatives maintained by the Executive Office for

14 Immigration Review pursuant to 8 C.F.R. 292 and 1292, and the Pro Bono Program section

15 of the EOIR website.

16 / / /

17

18

19

20

21

22

23

24

25

26

27

28
6
Settlement

1

Objections or comments to the Settlement agreement shall be filed with the Court

2 no later that ____________, 2007. Within thirty days thereafter the parties may respond to

3 any objections and the Court shall proceed to consider final approval.

4

5 IT IS SO ORDERED.

6

7 Dated: _____________, 2007 8 9

________________________ Honorable James L. Robart United States District Judge

10
Presented by:
11

12

13 ________________________ 14 Peter A. Schey

15
16 ________________________
Robert Gibbs
17 Attorneys for Plaintiffs
18

19 ________________________ 20 Anthony Norwood
U.S. Department of Justice
21 Office of Immigration Litigation
22

23 ________________________ 24 David E. Dauenheimer
U.S. Department of Justice
25 Office of Immigration Litigation 26 Attorneys for Defendants

27

28
7
Settlement

1
The Honorable James L. Robart
2

3

4

5

6

7

8

9

10

11

UNITED STATES DISTRICT COURT

12
WESTERN DISTRICT OF WASHINGTON
13

14

AT SEATTLE

15

16 NORTHWEST IMMIGRANT RIGHTS

) Case No. 88‐379R

PROJECT, ET AL.

)

17
PLAINTIFFS,

) [PROPOSED] ORDER OF

18

) FINAL JUDGMENT

vs.

)

19 20

U.S. CITIZENSHIP AND IMMIGRATION

) )

(Exhibit 5)

SERVICES, ET AL.

)

21
DEFENDANTS.
22

) )

)

23

)

24

25 / / /

26

27

28
8
Settlement

1

Rule 23(e) of the Federal Rules of Civil Procedure provides:

2
A class action shall not be dismissed or compromised without the approval of the

3

court, and notice of the proposed dismissal or compromise shall be given to all

4

members of the class in such manner as the court directs.

5

With respect to the merits of the settlement, Rule 23(e) requires the Court to

6
determine whether a proposed settlement in a class action is fundamentally fair,
7
8 adequate, and reasonable. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir.

9 1992). It is the settlement taken as a whole, rather than the individual component parts,
10
that must be examined for overall fairness. Officers for Justice v. Civil Serv. Commʹn of San
11 12 Francisco, 688 F.2d 615, 628 (9th Cir. 1982). The decision to approve or reject a settlement

13 is committed to the sound discretion of the trial judge because he is ʺexposed to the

14
litigants, and their strategies, positions and proof.ʺ Officers for Justice, 688 F.2d at 626
15
16 (internal quotation omitted).

17

For the reasons set out in the parties’ Joint Statement re Final Approval of Settlement,

18
the Court finds that the settlement is fundamentally fair, adequate and reasonable.
19
20 Accordingly,

21

IT IS HEREBY ORDERED that the proposed settlement is approved, and each and

22 every claim of the Complaint, as amended, is dismissed with prejudice, and any

23
injunctive orders and decisions of this Court are dissolved.
24

25

IT IS FURTHER ORDERED that the settlement class be certified as follows pursuant

26 to Rule 23 of the Federal Rules of Civil Procedure as follows: 27

28
9
Settlement

1

All persons who entered the United States in a non‐immigrant status prior to

2

January 1, 1982, who are otherwise prima facie eligible for legalization under § 245A

3

of the INA, 8 U.S.C. § 1255a, who are within one or more of the Enumerated

4

Categories described below in paragraph 2, and who —

5

A) between May 5, 1987 and May 4, 1988, attempted to file a complete

6

application for legalization under § 245A of the INA and fees to an INS

7

officer or agent acting on behalf of the INS, including a Qualified

8

Designated Agency (“QDE”), and whose applications were rejected for

9

filing (hereinafter referred to as “Sub‐class A members”); or

10

B) between May 5, 1987 and May 4, 1988, attempted to apply for legalization

11

with an INS officer, or agent acting on behalf of the INS, including a QDE,

12

under § 245A of the INA, but were advised that they were ineligible for

13

legalization, or were refused legalization application forms, and for whom

14

such information, or inability to obtain the required application forms, was a

15

substantial cause of their failure to file or complete a timely written

16

application (hereinafter referred to as “Sub‐class B” members); or

17

C) filed a legalization application under INA § 245A and fees with an INS

18

officer or agent acting on behalf of the INS, including a QDE, and whose

19

application

20

v.

has not been finally adjudicated or whose temporary resident status

21

has been proposed for termination (hereinafter referred to as “Sub‐

22

class C.i. members”),

23

vi.

was denied or whose temporary resident status was terminated,

24

where the INS or CIS action or inaction was because INS or CIS

25

believed the applicant had failed to meet the “known to the

26

government” requirement, or the requirement that s/he demonstrate

27

that his/her unlawful residence was continuous (hereinafter referred

28

to as “Sub‐class C.ii. members”).

10

Settlement

1 2. Enumerated Categories

2

(1) Persons who violated the terms of their nonimmigrant status prior to

3

January 1, 1982 in a manner known to the government because

4

documentation or the absence thereof (including, but not limited to, the

5

absence of quarterly or annual address reports required on or before

6

December 31, 1981) existed in the records of one or more government

7

agencies which, taken as a whole, warrants a finding that the applicant was

8

in an unlawful status prior to January 1, 1982 in a manner known to the

9

government.

10

(2) Persons who violated the terms of their nonimmigrant visas before January

11

1, 1982, for whom INS/DHS records for the relevant period (including

12

required school and employer reports of status violations) are not contained

13

in the alien’s A‐file, and who are unable to meet the requirements of 8 C.F.R.

14

§§ 245a.1(d) and 245a.2(d) without such records.

15

(3) Persons whose facially valid “lawful status” on or after January 1, 1982 was

16

obtained by fraud or mistake, whether such “lawful status” was the result of

17

(a) reinstatement to nonimmigrant status;

18

(b) change of nonimmigrant status pursuant to INA § 248;

19

(c) adjustment of status pursuant to INA § 245; or

20

(d) grant of some other immigration benefit deemed to interrupt the

21

continuous unlawful residence or continuous physical presence

22

requirements of INA § 245A.

23

24

25 Dated: _____________, 2007 26
27

________________________ Honorable James L Robart United States District Judge

28

Presented by:

11

Settlement

1
2
3 ________________________ 4 Peter A. Schey
5 6 ________________________
Robert Gibbs
7 Attorneys for Plaintiffs 8
9 ________________________ 10 Anthony Norwood
U.S. Department of Justice
11 Office of Immigration Litigation 12
13 ________________________ 14 David E. Dauenheimer
U.S. Department of Justice
15 Office of Immigration Litigation 16 Attorneys for Defendants
17
18
19
20
21
22
23
24
25
26
27
28
12
Settlement

 
 976 F.2d 1198
LEGALIZATION ASSISTANCE PROJECT OF the LOS ANGELES COUNTY FEDERATION OF LABOR (AFL-CIO); United California
Mexican-American Association; Travelers and Immigrants Aid of Chicago; African Community and Information Center, Inc.;
American G.I. Forum; Coalition for Fair Immigration Reform, Los Angeles; Hermandad Mexicana Nacional; One Stop
Immigration; International Institute (San Francisco); International Institute (East Bay); Chinese American
Citizens Alliance, Plaintiffs-Appellees, v.
IMMIGRATION AND NATURALIZATION SERVICE; Alan C. Nelson, Commissioner, INS; Edwin Meese; U.S. Attorney General; U.S. Department of State, Defendants-Appellants.
LEGALIZATION ASSISTANCE PROJECT OF the LOS ANGELES COUNTY FEDERATION OF LABOR (AFL-CIO); United California
Mexican-American Association; Travelers and Immigrants Aid of Chicago; African Community and Information Center, Inc.;
American G.I. Forum; Coalition for Fair Immigration Reform, Los Angeles; Hermandad Mexicana Nacional; One Stop
Immigration; International Institute (San Francisco); International Institute (East Bay); Chinese American
Citizens Alliance, Plaintiffs-Appellees, v.
IMMIGRATION AND NATURALIZATION SERVICE; Alan C. Nelson, Commissioner, INS; Edwin Meese, U.S. Attorney General; U.S. Department of State etc. et al., Defendants-Appellants.
LEGALIZATION ASSISTANCE PROJECT OF the LOS ANGELES COUNTY FEDERATION OF LABOR (AFL-CIO); United California
Mexican-American Association; Travelers and Immigrants Aid of Chicago; African Community and Information Center, Inc.; American G.I. Forum; Coalition for Fair Immigration
Reform, Los Angeles; Hermandad Mexicana Nacional; One Stop Immigration; International Institute (San Francisco); International Institute (East Bay); Chinese American Citizens Alliance, Plaintiffs, and Coalition for Fair Immigration Reform, Los Angeles; Hermandad Mexicana Nacional; One Stop Immigration; International Institute (San Francisco), et al., Plaintiffs-Appellants, v.
IMMIGRATION AND NATURALIZATION SERVICE; Alan C. Nelson, Commissioner, INS; Edwin Meese, U.S. Attorney General; U.S. Department of State, Defendants-Appellees.
LEGALIZATION ASSISTANCE PROJECT OF the LOS ANGELES COUNTY FEDERATION OF LABOR (AFL-CIO); United California
Mexican-American Association; Travelers and Immigrants Aid of Chicago, Plaintiffs-Appellants, v.
IMMIGRATION AND NATURALIZATION SERVICE; Alan C. Nelson, Commissioner, INS; Edwin Meese, U.S. Attorney General; U.S. Department of State, Defendants-Appellees.
Nos. 89-35345, 89-35593, 89-35613 and 89-35706.
United States Court of Appeals, Ninth Circuit.
Argued May 10, 1990.
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Submission Deferred June 26, 1990. Resubmitted Sept. 1, 1992. Decided Sept. 18, 1992.
Peter A. Schey, Nat. Center for Human Rights and Constitutional Law, Los Angeles, Cal., and Robert Pauw, Washington Immigration Project, Washington Ass'n of Churches, Robert H. Gibbs, Law Office of Robert H. Gibbs, Seattle, Wash., for plaintiffs-appellees-appellants. Michael Rubin, Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, Cal., for plaintiffs-appellees. Donald E. Keener, Office of Immigration Litigation, Civil U.S. Dept. of Justice, Washington, D.C., for defendantsappellants-appellees. Appeal from the United States District Court for the Western District of Washington. Before: FARRIS, PREGERSON, and FERGUSON, Circuit Judges. PREGERSON, Circuit Judge:

OVERVIEW

1

Congress passed The Immigration Reform and Control Act of 1986 ("IRCA"), Pub.L. 99-603, to create a

comprehensive program to regulate immigration to the United States. One of IRCA's main purposes is to grant

legalization to certain groups of illegal aliens with longstanding residence in the United States.

2

To achieve that purpose, IRCA provides that persons who have lived continuously and unlawfully in the United

States since January 1, 1982 may become lawful permanent residents if they satisfy certain conditions. The

Immigration and Naturalization Service ("INS") has statutory authority to promulgate regulations establishing criteria

and procedures for the legalization process.

3

In 1988, several individuals and organizations filed suit in federal district court challenging INS policy and

regulations on numerous statutory and constitutional grounds. The plaintiffs to that action included five individual nonimmigrants1 and seven organizations that assist nonimmigrants throughout the legalization process.2 Their

challenge to INS policy and regulations focused on the agency's interpretation of the statutory requirement that a

nonimmigrant must have lived continuously and unlawfully in the United States since January 1, 1982 to qualify for

legalization under IRCA.

4

The district court granted both declaratory and injunctive relief, but on a narrower basis than requested by

plaintiffs. The district court also granted the government's motion for a stay of all relief pending appeal to this court.

5

We deferred our own decision in this case because important jurisdictional issues were then pending before the

United States Supreme Court and two panels of our circuit.3 Those cases have now been decided, supplemental briefs

were filed by the parties, and this case was resubmitted for decision on September 1, 1992. We have reviewed the

parties' numerous contentions and the district court's published and unpublished decisions. We affirm in part, reverse

in part, and remand to the district court for further proceedings.

DISCUSSION

6

I. Jurisdiction, Exhaustion of Remedies, and Standing

A. Subject Matter Jurisdiction

7

The INS contends that the district court lacked subject matter jurisdiction to review the plaintiffs' challenges to INS

policy and regulations. The contention is without merit.

8

This issue has been resolved by the Supreme Court's decision in McNary v. Haitian Refugee Center, Inc., 498 U.S.

499, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), and by our recent decisions in Zambrano v. INS, 972 F.2d 1122 (9th

Cir.1992), and in Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (9th Cir.1992). Both the Supreme Court in

McNary and our court in Zambrano and in Catholic Social Services concluded that the district court had jurisdiction to

review INS regulations promulgated under IRCA. See McNary, 498 U.S. at ----, 111 S.Ct. at 897 (district court had

jurisdiction to review INS procedures for evaluating applicants for amnesty under IRCA's Special Agricultural Worker

program); Zambrano, 972 F.2d at 1124 (district court had jurisdiction to review INS regulation interpreting IRCA

standard for admissible aliens); Catholic Social Services, 956 F.2d at 919-21 (district court had jurisdiction to review

INS regulations interpreting IRCA requirement for continuous physical presence in the United States). In all of these

cases, the statutory provisions for judicial review in IRCA were found to allow federal district courts to hear broadbased constitutional and statutory challenges to INS regulations.4

9

In the present case, the statutory provision for judicial review is identical to that construed in Zambrano and

Catholic Social Services. Our own case law therefore dictates the conclusion that the district court had subject matter

jurisdiction to hear plaintiffs' challenges to INS regulations.5

B. Exhaustion of Remedies

10

The INS argues on appeal that the district court should not have granted relief because the remedies available to

legalization applicants under IRCA have not been exhausted. The district court rejected the agency's arguments about

exhaustion on the ground that the organizational plaintiffs have no remedies to exhaust under IRCA. On appeal, the

INS contends that individual applicants should have to exhaust their statutory remedies and that the district court's

analysis of the exhaustion issue does not address this contention.

11

We review the district court's decision de novo, Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 (9th

Cir.1992), and conclude that requiring individual applicants to exhaust their statutory remedies would serve no useful

purpose here.

12

The purpose of exhaustion is to allow administrative agencies to complete their own decisionmaking procedures and

to discourage premature judicial intervention. The INS argues that judicial review is premature because the agency

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has not completed its process of adjudicating individual applications for legalization.

13

The agency's argument is beside the point. The organizational plaintiffs have presented broad-based statutory and

constitutional challenges to INS regulations. The organizational plaintiffs are not requesting that the court review

individual applications. As to the issues presented by the organizational plaintiffs in this case, the INS has already

completed its decisionmaking process.

14

Requiring individual applicants to exhaust administrative remedies before the organizational plaintiffs may bring

broad-based statutory and constitutional challenges makes little sense. The statutory remedies available to individual

applicants provide no real opportunity to present the complex constitutional and statutory issues involved here. It is

unreasonable to expect individual applicants who are often not represented by counsel to press such arguments.

Moreover, individuals who do raise broader challenges to agency regulations do not have remedies in the

administrative appeals process that are equivalent to those available in federal court. INS adjudicators are not empowered to invalidate agency regulations.6 Agency adjudicators reviewing statutory or constitutional challenges that might arise in an individual case must review those challenges on the basis of a limited administrative record.7

The only other opportunity for an alien to challenge INS regulations is to surrender for deportation and then appeal the deportation order in federal court. See 8 U.S.C. §§ 1105a, 1255a(f)(4) (1988). Furthermore, IRCA provides no

remedies either to the organizations who are plaintiffs to this action or to those aliens discouraged from applying for

legalization because of putatively invalid regulations. Finally, where the INS's interpretation of the statute is clear, we

need not wait for the agency to adjudicate individual applications to be able to review broad-based challenges to INS

policy and regulations such as those presented here by the organizational plaintiffs.

15

We agree with the district court that judicial review of plaintiffs' challenges to INS policy and regulations is not

premature. We also agree with the district court that waiting for the agency to adjudicate individual cases before

reviewing INS regulations could cause considerable hardship to applicants.

C. Organizational Standing

16

The INS maintains on appeal that the seven organizational plaintiffs do not meet the requirements for organizational

standing. The agency contends that INS regulations caused no injury to the plaintiff organizations and that IRCA was

not intended to protect these organizations in any event.

17

The district court rejected these arguments and denied the government's motion to dismiss. We review the district

court's decision de novo and agree that the requirements for organizational standing were met in this case. See United

Union of Roofers, Waterproofers, and Allied Trades No. 40 v. Ins. Corp. of America, 919 F.2d 1398, 1399 (9th

Cir.1990) (standing is a question of law reviewed de novo).

18

To establish standing, the organizational plaintiffs must plausibly allege that an agency's illegal action is the cause of

some threatened or actual injury to the organization and that this injury can be remedied by the court. Valley Forge

Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70

L.Ed.2d 700 (1982). The organizational plaintiffs must also show that their injury is within the zone of interests

protected or regulated by the statute. Valley Forge, 454 U.S. at 475, 102 S.Ct. at 760; McMichael v. County of Napa,

709 F.2d 1268, 1270 (9th Cir.1983).

19

The record demonstrates that INS regulations for eligibility criteria caused harm to the organizations by draining

organizational resources and impairing their ability to assist and counsel nonimmigrants. See Havens Realty Corp. v.

Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 1124, 71 L.Ed.2d 214 (1982) (standing found for organizations on the

basis of concrete and demonstrable injury caused by regulations that drained organizational resources); Action

Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 937-39 (D.C.Cir.1986) (same).

20

The plaintiff organizations fall squarely within the zone of interests protected by IRCA. The organizational plaintiffs

provide services to an identifiable group of individuals that Congress specifically intended organizations such as these to represent.8 Moreover, the zone of interests requirement for standing is not particularly stringent, and is meant only

to preclude standing for those whose interests are "so marginally related to or inconsistent with the purposes implicit

in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Clarke v. Securities

Industry Association, 479 U.S. 388, 399, 107 S.Ct. 750, 757, 93 L.Ed.2d 757 (1987).

II. Statutory and Procedural Background

21

IRCA requires nonimmigrant aliens to show that they lived continuously and unlawfully in the United States as of

January 1, 1982 to qualify for legalization. 8 U.S.C. § 1255a(a)(2) (1988).9 Under the statute, an alien can meet this

requirement by showing that his or her unlawful status was "known to the government" as of January 1, 1982. 8 U.S.C. § 1255a(a)(2)(B) (1988).

22

The INS promulgated regulations interpreting the statutory requirements of "continuous unlawful residence" and

"known to the government." See 8 C.F.R. §§ 245a.1(d), 245a.2(b) (1992). Plaintiffs challenged those regulations in

federal district court on both statutory and constitutional grounds.

23

The district court granted plaintiffs' request for declaratory relief. The court also issued injunctive relief, though

not to the full extent requested by plaintiffs.

24

On appeal, the agency maintains that its policies and regulations are valid and that the district court exceeded its

authority to grant relief in any event. The plaintiffs assert on cross-appeal that the district court erred by denying

some of the injunctive relief requested.

25

We discuss these contentions below as they affect three different categories of nonimmigrants. The category

designations group together nonimmigrants who, as a consequence of some putatively invalid INS regulation, were or

may be wrongfully denied legalization under IRCA. The category designations used here are for convenience only.

They are not statutory or regulatory classifications.

26

We review the propriety of the district court's grant of declaratory relief de novo. Fireman's Fund Ins. Co. v.

Ignacio, 860 F.2d 353, 354 (9th Cir.1988). The grant or denial of injunctive relief rests within the sound discretion of

the trial court. We will not reverse or modify an injunction in the absence of a clear abuse of discretion by the district

court. E. & G. Gallo Winery v. Gallo Cattle Co., 955 F.2d 1327, 1344 (9th Cir.1992) (citing Transgo, Inc. v. Ajac

Transmission Parts Corp., 768 F.2d 1001, 1021 (9th Cir.1985), cert. denied, 474 U.S. 1059, 106 S.Ct. 802, 88 L.Ed.2d

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778 (1986)).

III. Category One: Section 265 Nonimmigrants

27

This first category includes nonimmigrants who failed to comply with the registration requirements of section 265

of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1305 (1976) (amended 1982). Under section 265,

nonimmigrants were required to register with INS by January 30 of each year and to notify INS of their address at the

end of each three-month period.

28

Plaintiffs argued before the district court that noncompliance with section 265 should satisfy some of the statutory

requirements for legalization under IRCA. In particular, plaintiffs urged that failure to comply with section 265 was

sufficient to show that these nonimmigrants were unlawful residents of the U.S. and that their unlawful status was "known to the government" within the meaning of IRCA. Accordingly, plaintiffs argued that INS policy10 was invalid

because it did not permit this group of nonimmigrants to satisfy IRCA legalization requirements by showing that they

failed to comply with the registration and notice requirements of section 265.

29

The INS responded to plaintiffs' contentions before the district court by arguing that it had no settled policy

regarding section 265 nonimmigrants. Specifically, the INS contended that its interpretation of the statutory

requirement of "known to the government" was still too unsettled to form a basis for judicial review. Accordingly, the

INS argued that the plaintiffs' contentions regarding section 265 nonimmigrants were not ripe for judicial review. As

an alternative position, the INS argued before the district court that its interpretation of IRCA was valid in relation to

section 265 nonimmigrants.

30

The district court rejected the agency's contentions. The court found that the agency had a set policy regarding

section 265 nonimmigrants. The district court further concluded that INS policy regarding section 265

nonimmigrants was inconsistent with congressional intent and granted both declaratory and injunctive relief in favor

of plaintiffs.

31

Before our court, the INS continues to assert the positions it argued in district court.

A. Ripeness

32

The INS argues on appeal that it has no settled policy dictating how the "known to the government" requirement for

legalization under IRCA will be applied to section 265 nonimmigrants.

33

The district court concluded that agency policy regarding how the "known to the government" requirement would

apply to section 265 nonimmigrants was "sufficiently concrete" to warrant adjudication. Immigration Assistance

Project of the Los Angeles County Federation of Labor v. INS ("Immigration Assistance I "), 709 F.Supp. 998, 1004

(W.D.Wash.1989), amended by Immigration Assistance II, 717 F.Supp. 1444 (W.D.Wash.1989). We review the

district court's decision de novo. Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th

Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991). To determine ripeness, we evaluate "the

fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott

Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967).

34

We agree with the district court that the issues presented by the organizational plaintiffs regarding section 265

nonimmigrants are ripe for judicial review. Pursuant to its clear statutory duty, the INS has developed regulations and policies that apply to section 265 nonimmigrants.11 Those regulations and policies are not so unsettled as to preclude

judicial review at this stage. Moreover, our conclusion that the agency has a settled policy regarding section 265

nonimmigrants remains unchanged whether we examine the published regulations or a so-called "new standard" that the agency says it is following.12

35

The INS's argument that its policy regarding section 265 nonimmigrants is not sufficiently settled to permit judicial

review fails for several reasons.

36

First, the published regulations are clear on their face that section 265 nonimmigrants will be denied legalization. As

written, the regulations simply will not allow applicants to use their previous noncompliance with section 265 as a means of proving that their unlawful status was "known to the government." 8 C.F.R. § 245a.1(d) (1992).13 This

regulation remained in effect for at least eleven of the twelve months that nonimmigrants had to apply for legalization. Thus, the INS had a concrete policy in 8 C.F.R. § 245a.1(d) that excluded section 265 applicants during most of the

amnesty application period. Those section 265 nonimmigrants who relied on the INS regulation and did not apply for

legalization can certainly show that their claims are ripe for judicial review.

37

Second, it is clear that the "new standard," as interpreted by the INS, will preclude legalization for section 265

nonimmigrants. According to the INS's own information wire, the agency interprets its "new standard" to preclude

section 265 applicants from eligibility.14

38

Third, the district court found that INS legalization officers had informed both the organizations that process

applications and individual nonimmigrants that section 265 applicants would be denied. Immigration Assistance I, 709

F.Supp. at 1001. Indeed, this evidence was sufficiently persuasive for the district court to conclude that summary

judgment for the plaintiffs was appropriate because of the high probability that section 265 nonimmigrants would be

denied legalization. Immigration Assistance I, 709 F.Supp. at 1001.

39

Fourth, the district court pointed out that the INS's claim that it has no settled policy is belied by its own arguments

that section 265 violators do not qualify for legalization under the "known to the government" standard. Furthermore,

the agency's steadfast refusal over the past four years to adjudicate cases involving 265 applicants is hardly

convincing evidence that the INS's true position on section 265 applicants remains unsettled. While evidence that the

agency actually denied some section 265 applicants would strengthen a conclusion that the INS has a settled policy,

such proof is not a prerequisite for ripeness. This is particularly true in the present case where the agency has

purposefully refused to adjudicate individual applications.

40

We are not persuaded that ripeness is destroyed in this case by the possibility asserted by the INS that it may

promulgate additional regulations in the future. The agency was required by statute to promulgate regulations defining

eligibility criteria for legalization under IRCA before the application period would begin. If we allow the possibility

that an agency may promulgate additional regulations in the future to dictate our decisions on ripeness, then an

administrative agency's regulations could forever escape judicial review. The doctrine of ripeness is not intended to

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promote an absurd result.15

41

As a final consideration, we note that the district court was especially concerned with hardship to applicants who are

served by the organizational plaintiffs. We also recognize that the organizations who assist nonimmigrants through the

legalization process would share that hardship. Moreover, from the standpoint of those organizations, the issues

presented are ripe for judicial review.

42

The organizations allege that agency policy interpreting the statutory requirement of "known to the government"

makes it difficult for them to advise legalization applicants and to disseminate accurate information. While section 265

nonimmigrants wait for the INS to adjudicate their applications, the organizations must monitor all cases for possible

wrongful denials, further draining their limited resources. Finally, as the district court noted, denying judicial review

at this stage would as a practical matter foreclose any opportunity for the plaintiff organizations to pursue broad-

based statutory and constitutional challenges to INS policy. District Court Order, November 3, 1988 at 12.

B. Declaratory Relief

43

The INS argues in the alternative before this court as it did before the district court that its existing policy regarding

section 265 nonimmigrants is valid. The agency maintains that a nonimmigrant's failure to file an address report as

required by section 265 does not satisfy the statutory requirement for legalization that a nonimmigrant must have

lived continuously and unlawfully in the United States as of January 1, 1982. Specifically, the INS contends that a

nonimmigrant's failure to file address reports is not sufficient to meet either of two statutory criteria for proving

continuous unlawful residence: (1) proof of unlawful status, or (2) proof that the nonimmigrant's unlawful status was

"known to the government."

44

The district court ruled to the contrary on both of the INS's contentions about the validity of its policy towards

section 265 nonimmigrants. We agree with the district court.

45

First, the district court correctly noted that a nonimmigrant who violated 8 U.S.C. § 1305 (section 265 of the

Immigration and Naturalization Act) faced criminal penalties and deportation. Immigration Assistance I, 709 F.Supp. at 1001; see 8 U.S.C. § 1306(b) (1988) (defining penalties for violating section 265)); Fong v. INS, 308 F.2d 191, 193

(9th Cir.1962) (alien deportable for failing to file pursuant to section 265). Because of the drastic consequences that

aliens would suffer by violating section 265, the government's argument that noncompliance with that section may not prove unlawful status is unavailing.16

46

Second, the district court concluded that section 265 violations were "known to the government" precisely because

the INS had no periodic address report on file for the alien as required by statute and regulation. We agree with the

district court's conclusion.

47

The record shows that before January 1, 1982, the INS reviewed agency records to determine whether

nonimmigrants had complied with the reporting requirements under section 265. The absence of the required section

265 report identified those in violation.

48

As a consequence of its own practices, the INS had actual knowledge of an alien's unlawful status. The government's

argument about imputing knowledge of unlawful status from evidence of a section 265 violation is unpersuasive.

49

Finally, our reading of IRCA's legislative history supports the district court's conclusion that INS policy regarding

section 265 violators is not consistent with congressional intent. The legislative history demonstrates that the House

Judiciary Committee was concerned that "[u]nnecessarily rigid demands for proof of eligibility could seriously impede

the success of the legalization effort." H.R.Rep. No. 682, 99th Cong., 2d Sess., pt. 1, at 73 (1986), reprinted in 1986

U.S.C.C.A.N. 5649, 5677. Furthermore, Congress expected "the INS to incorporate flexibility ... permitting the use of

affidavits of credible witnesses and taking into consideration the special circumstances relating to persons previously

living clandestinely in this country." H.R.Rep. No. 682, 99th Cong., 2d Sess., pt. 1, at 73 (1986), 1986 U.S.C.C.A.N.

5677. Finally, the legislative history of IRCA shows that Congress believed that "the legalization program should be

implemented in a liberal and generous fashion...." H.R.Rep. No. 682, 99th Cong., 2d Sess., pt. 1, at 72 (1986), 1986 U.S.C.C.A.N. 5676.17 The district court properly concluded that INS policy represents an overly restrictive

interpretation of IRCA because it would preclude section 265 nonimmigrants from proving that their unlawful status

was "known to the government."

C. Injunctive Relief

50

The INS argues that the district court erred when it issued injunctive relief that required the agency to use a

particular procedure18 under which nonimmigrants could prove that their unlawful status was "known to the

government." We disagree with the agency's contention and conclude that the district court in establishing such

procedure properly exercised its discretion to structure equitable relief.

51

The district court established a procedure whereby nonimmigrants who violated section 265 by failing to file an

address report every three months could prove that their unlawful status was "known to the government." The district

court fashioned relief in this form because section 265 violators face a difficult task to prove that their unlawful status

was known to the government. Merely proving that they failed to comply with section 265 would be difficult enough

because government notices of violation are generally destroyed after two years.

52

The INS contends that only the agency may create specific proof requirements to effectuate IRCA's legalization

program. We disagree.

53

The procedure developed by the district court is consistent with the purpose of the legalization provisions in IRCA

and with Congress's intent in drafting them.19 The district court properly exercised its broad discretionary power to

fashion equitable relief that would offer a fair and workable mechanism for section 265 nonimmigrants to prove that

their unlawful status was "known to the government." See Haitian Refugee Center, Inc. v. Nelson, 694 F.Supp. 864,

881 (S.D.Fla.1988), aff'd 872 F.2d 1555 (11th Cir.1989), aff'd McNary, 498 U.S. 499, 111 S.Ct. 888, 112 L.Ed.2d 1005

(1991) (INS ordered to reconsider Special Agricultural Worker legalization denials with the proper standard of proof

"which will require the government to present evidence to negate the just and reasonable inference[s]...." ); see also

Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 558 (9th Cir.1990) (trial court is vested with broad discretionary

power to structure equitable relief); cf. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n.

44, 360 n. 45, 361 n. 47, 97 S.Ct. 1843, 1866 n. 44, 1867 n. 45, 1868 n. 47, 52 L.Ed.2d 396 (1977) (judicially crafted

shift of presumption furthers substantive command of Title VII).

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54

On cross-appeal, plaintiffs argue that the district court abused its discretion when it declined to order the INS to

adjudicate applications from section 265 nonimmigrants within 90 days of the district court's decision. The district

court decided not to set the deadline requested by plaintiffs because it was reluctant to interfere with INS procedures

for adjudicating individual cases.

55

Although plaintiffs raise valid concerns about harm to section 265 nonimmigrants which may result from any delay

in INS adjudications, we find no abuse of discretion in the district court's decision. The district court did order the INS

to notify these applicants if their case would not be resolved within 90 days of the date on which the district court enters its judgment.20 We agree with the district court that this is an adequate remedy at this time.

IV. Category Two Nonimmigrants

56

This second category of nonimmigrants consists of students and employees who violated the terms of their visas

before 1982.21 Under INS policy and regulations,22 these nonimmigrants would qualify for amnesty only if they

prove that the government knew of their unlawful status. 8 C.F.R. § 245a.2(b)(3) (1992). INS regulations did not apply this requirement to another group of students and employees.23 Instead, INS regulations allowed this other group to

satisfy IRCA's requirement of unlawful status merely by showing that their authorized stay in the United States had

expired "through the passage of time" before 1982. 8 C.F.R. § 245a.2(b)(11)-(12) (1992); see 8 U.S.C. § 1255a(a)(2)(B).

57

Plaintiffs argued before the district court that INS regulations violated equal protection because the regulations

treated similarly situated groups differently without any rational basis for doing so. The district court agreed and

ordered the INS to apply a specific procedure to category two nonimmigrants under which they could prove unlawful status.24

58

The INS maintains on appeal that its regulations and policies constitute a reasonable interpretation of the statute

and do not violate equal protection. Further, the agency argues that the procedure ordered by the district court is an

abuse of discretion.25

59

The plaintiffs argue on cross-appeal that the district court erred because it granted this injunctive relief only to

prospective category two nonimmigrants. Plaintiffs contend that relief should have been extended retroactively

because some category two nonimmigrants were wrongfully denied legalization on the basis of the INS regulations

found unconstitutional by the district court.

A. Declaratory Relief

60

The INS contends on appeal that the district court erred because it did not defer to the agency's reasonable and

constitutionally permissible interpretation of the statute. We disagree.

61

Under the equal protection clause of the Fifth Amendment, "[f]ederal classifications distinguishing among groups of

aliens ... are valid unless [they are] 'wholly irrational.' " Sudomir v. McMahon, 767 F.2d 1456, 1464 (9th Cir.1985);

Mathews v. Diaz, 426 U.S. 67, 82-83, 96 S.Ct. 1883, 1892-1893, 48 L.Ed.2d 478 (1976). The agency maintains that its

regulations are constitutionally permissible because the two groups of immigrants who are subject to different proof requirements for showing unlawful status are not similarly situated.26

62

The district court found no rational basis between the two groups to justify requiring category two nonimmigrants

to meet different proof requirements for showing unlawful status as compared to other nonimmigrant students and

employees who were similarly situated.27 Our own analysis of the regulations leads to the same conclusion.28 The

arguments advanced by the INS to the contrary are unpersuasive.29

B. Injunctive Relief

63

The district court remedied the equal protection violation by ordering the INS to follow a specific procedure under

which category two applicants could prove unlawful status.30 The INS contends that the relief granted by the district

court constitutes an abuse of discretion. We disagree.

64

Federal courts possess broad equitable powers to remedy constitutional violations. Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971) ("Once a right and a

violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth

and flexibility are inherent in equitable remedies."); Haitian Refugee Center v. Smith, 676 F.2d 1023, 1041 (5th

Cir.1982). We find in the present case that the district court acted within the scope of its authority to remedy a

constitutional violation and that it properly did so in a manner which gives meaningful effect to the statute. See Haitian

Refugee Center, Inc. v. Nelson, 694 F.Supp. at 881 (ordering INS to adopt proof procedure for implementing Special

Agricultural Workers program under IRCA); International Brotherhood of Teamsters, 431 U.S. at 359 n. 45, 97 S.Ct.

at 1867 n. 45. The procedure developed by the district court is consistent with Congress's intent that the IRCA

legalization program be applied in a "liberal and generous fashion." H.R.Rep. No. 682, 99th Cong., 2d Sess. 72 (1986), 1986 U.S.C.C.A.N. 5676.31

65

Finally, plaintiffs argue that the district court erred in affording only prospective relief to applicants in category

two. In support of this argument, plaintiffs offer evidence that the INS wrongly denied legalization to some applicants

based on the proof requirement which the district court found to violate equal protection.

66

We therefore remand to the district court so that any category two applicants who may have been denied

legalization as a consequence of invalid INS regulations may be identified, and granted appropriate relief.

V. Category Three Applicants

67

This group includes nonimmigrants who were erroneously reinstated32 to lawful status by the INS sometime after

January 1, 1982. Initially, the INS took the position that such reinstatements after January 1, 1982 precluded a

nonimmigrant from showing the requisite continuity of unlawful residence. In 1988, the agency's position changed

when an INS adjudicator decided Matter of N, 19 I. & N. Dec. 760 (1988). In Matter of N, 19 I. & N. Dec. at 762, a Legalization Appeals Unit ("LAU")33 held that a category three applicant who was reinstated to lawful status after

misrepresenting material facts is still eligible for legalization if he or she meets the other statutory requirements under

IRCA.

68

Until Matter of N was decided, the INS took the position that such reinstatements, though made erroneously, were

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enough to defeat the "continuous and unlawful residence" legalization requirement stated in 8 U.S.C. § 1255a(a)(2)(A) (1988). Before Matter of N was decided, the INS had maintained that category three applicants were ineligible for legalization under IRCA because the reinstatements precluded a showing that their residence in the United States was both continuous and unlawful.

69

The INS argued in district court that its change of position in Matter of N had the effect of mooting plaintiffs'

request for injunctive relief. Plaintiffs contended before the district court that the INS has not applied its decision in

Matter of N uniformly, leaving some category three applicants without relief. Furthermore, plaintiffs argued that some

category three applicants who, before Matter of N was decided, may have been wrongfully denied legalization, are

unaware that they may now be eligible for legalization under IRCA.

70

The district court agreed with plaintiffs. The court ordered the INS to review cases involving category three

applicants who might have been wrongly denied legalization. On appeal, the INS maintains that the district court's

injunction was unnecessary and overbroad.34

71

District courts have broad remedial powers to redress injuries caused by unlawful agency practices. Perales v.

Thornburgh, 967 F.2d 798, 815 (2nd Cir.1992) (finding INS regulations invalid under IRCA, and setting new deadline

for legalization applicants and ordering the INS to reopen files); Proyecto San Pablo v. INS, 784 F.Supp. 738, 748-49

(D.Ariz.1991) (ordering agency to reopen applications of those wrongfully denied legalization as a consequence of

agency policy found invalid under IRCA); Haitian Refugee Center, Inc. v. Nelson, 694 F.Supp. at 880-81 (ordering the

INS to vacate denials and reconsider applications). We do not find that the district court exceeded the scope of its

authority in fashioning injunctive relief for category three nonimmigrants.

72

The district court granted injunctive relief in favor of plaintiffs for several reasons. First, the district court was

persuaded that the policy change announced in Matter of N was applied unevenly. The court also noted that Matter of

N may not provide a remedy for those category three nonimmigrants already prejudiced by the old policy. Finally, the

court rejected INS arguments that court-ordered relief was unnecessary because category three nonimmigrants could

request reconsideration of their applications and because the agency could reopen cases on its own initiative.

73

The district court properly rejected these arguments. Even if we agree with the INS that its current procedure would

permit applicants to request that the agency reconsider applications if they were wrongfully denied,35 we are not

convinced that this procedure provides an adequate remedy.

74

The district court found agency procedures for reopening legalization applicants' files "incomprehensible,"

particularly for the majority of applicants who are not represented by counsel. See Immigration Assistance I, 709

F.Supp. at 1004. Plaintiffs also point out that many applicants will be unaware of the change in INS policy and

procedures resulting from Matter of N and their implications. We agree with the district court that the burden of the

agency's own invalid policies should not fall on individuals whose applications for legalization were wrongfully denied.36

75

Finally, the INS argues on appeal that category three applicants are not entitled to injunctive relief if they failed to

file administrative appeals to challenge the agency's wrongful denial of their application for legalization. The agency

relies on Pittston Coal Group v. Sebben, 488 U.S. 105, 109 S.Ct. 414, 102 L.Ed.2d 408 (1988) to support its position.

76

The agency's reliance on Sebben is misplaced. The Supreme Court's decision in Sebben is inapposite. First, the

plaintiffs in Sebben initially petitioned the district court for a writ of mandamus. The Court held that such relief was

inappropriate. The Court emphasized the extraordinary nature of mandamus and concluded that it would order such

relief only to compel performance of a "clear nondiscretionary duty." Sebben, 488 U.S. at 121, 109 S.Ct. at 424. By

contrast, plaintiffs in the present case were awarded only declaratory and injunctive relief. Second, the Court in

Sebben stressed that respondents would have been vindicated had they pursued administrative and judicial remedies.

Sebben, 488 U.S. at 123, 109 S.Ct. at 424. In the present case, category three applicants who were wrongly denied

legalization had slim prospects of winning an administrative appeal before the INS decided Matter of N.

77

Third, the Court's opinion in Sebben rested primarily on principles of res judicata. That principle is not operative in

the present case. In Sebben, petitioners' failure to pursue administrative and judicial remedies made the agency's

decision against them a final determination. In such cases, the agency's decision should bind individuals who fail to

pursue their statutory remedies. By contrast, INS rulings on individual applications are not final determinations. For

example, any applicant denied legalization may still seek review of a deportation order in federal circuit court. 8

U.S.C. §§ 1105a, 1255a(f)(4) (1988). Consequently, failure to follow prescribed administrative appeal procedures

should not have the same preclusive effect.

78

Contrary to the agency's argument, Sebben does not preclude relief for category three applicants who were wrongly

denied legalization but failed to appeal the agency's decision. The injunctive relief issued by the district court for

category three applicants should apply to all individuals in this category whether or not they appealed the agency's

decision.

79

VI. Injunctive Relief Applicable to All Categories

A. Extension of Application Deadline

80

Plaintiffs asked the district court to establish new application deadlines37 for all three categories of nonimmigrants

who did not file for legalization because they believed or were told that they were ineligible based on INS regulations

that the district court later found invalid. The district court held that the Supreme Court's decision in INS v.

Pangilinan, 486 U.S. 875, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988), precluded such relief.

81

On appeal, plaintiffs maintain that Pangilinan is distinguishable and that the district court has equitable power to

extend application deadlines for nonimmigrants who were discouraged from applying for legalization by INS

regulations.

82

We considered the question of the district court's authority to extend INS application deadlines for legalization

under IRCA in our recent decision in Catholic Social Services, Inc. v. Thornburgh, 956 F.2d at 921-23. In that case, we

held that the district court had authority to extend INS deadlines. We noted that extending the deadline was consistent with Congress's intent and distinguished the Supreme Court's decision in Pangilinan.38 Catholic Social Services, 956

F.2d at 921-23. In particular, we emphasized that the statutory scheme considered in Pangilinan differed significantly from IRCA. See Catholic Social Services, 956 F.2d at 921-22.39 Our recent decision in Zambrano v. INS, 972 F.2d at

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1124-25, followed Catholic Social Services, and affirmed the district court's authority to extend application deadlines for legalization under certain provisions of IRCA.

83

The district court's authority to extend application deadlines in the present case is controlled by our decisions in

Catholic Social Services and Zambrano. We therefore remand to the district court to reconsider plaintiffs' request for

an extension of application deadlines in light of those decisions.40

84

B. Readmittance into the United States of Wrongfully

Deported Nonimmigrants

85

Plaintiffs argue on appeal that the district court erred when it denied their request for an injunction ordering the INS

to readmit nonimmigrants whose applications were wrongfully denied, and who were consequently deported, because

of INS regulations now held to be invalid. We recognize that some courts have issued similar relief. See, e.g.,

Wiedersperg v. INS, 896 F.2d 1179, 1182 (9th Cir.1990) (alien deported following criminal conviction may re-enter

the country after the conviction was vacated); Mendez v. INS, 563 F.2d 956, 959 (9th Cir.1977) (alien deported in

proceeding which violated due process may re-enter country and reopen deportation proceeding). In the present case,

however, plaintiffs have not sufficiently identified applicants in any of the three categories who are living outside the

United States because they were wrongfully expelled. See Catholic Social Services, 956 F.2d at 923 (plaintiffs' parole

request denied when they failed to identify any class member who qualified for exception to general rule that courts

may not review deportation orders of those who have departed United States). Under these circumstances, we cannot

conclude that the district court erred in denying the injunction requested by plaintiffs.

CONCLUSION

86

For the reasons stated above, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

1
Nonimmigrants referred to in this opinion are aliens in the United States on visas for a specific purpose and for a limited time
2
The original plaintiffs included several other organizations and individuals who are not parties to this appeal
3
See McNary v. Haitian Refugee Center, Inc., 498 U.S. 499, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991); Zambrano v. INS, 972 F.2d 1122 (9th Cir.1992); Catholic Social Services v. Thornburgh, 956 F.2d 914 (9th Cir.), cert. granted, -- U.S. ----, 112 S.Ct. 2990, 120 L.Ed.2d 867 (1992)
4
In McNary, the Supreme Court construed 8 U.S.C. § 1160(e) (1988), and concluded that it did not preclude federal question jurisdiction in the district court. Zambrano and Catholic Social Services construed the same judicial review provision at issue in the present case. See 8 U.S.C. § 1255a(f) (1988); Zambrano, 972 F.2d at 1124; Catholic Social Services, 956 F.2d at 919
5
The INS argues that the district court did not have jurisdiction to issue an order in June 1989 once the government filed its notice of appeal from the district court's March 1989 order. This argument fails. The district court specifically noted that the March 1989 order was not a final judgment. See Immigration Assistance Project of Los Angeles County Fed'n of Labor v. INS ("Immigration Assistance II "), 717 F.Supp. 1444, 1446 n. 2 (W.D.Wash.1989). In a proceeding involving multiple claims and parties, district courts have authority to revise an order or other form of decision at any time before the entry of judgment adjudicating all claims, rights and liabilities of the parties. See Fed.R.Civ.P. 54(b); see also Fed.R.Civ.P. 62(c)
6
See Dastmalchi v. INS, 660 F.2d 880, 886 (3d Cir.1981); Matter of Fede, Interim Dec. 3106 (BIA May 11, 1989) at 2 (regulation promulgated by the Attorney General has the force and effect of law as to immigration judges; those judges do not have authority to consider challenges to regulations); Haitian Refugee Center, Inc. v. Civiletti, 503 F.Supp. 442, 469 (S.D.Fla.1980) (same)
7
Cf. McNary, 498 U.S. at ----, 111 S.Ct. at 898-99 (noting that constitutional and statutory challenges require development of substantial amount of evidence that is not usually available in the administrative record developed for an individual application)
8
Congress provided special status for community organizations so that they could assist the Attorney General "to encourage participation among undocumented aliens who fear coming forward...." H.R.Rep. No. 682, 99th Cong., 2d Sess., pt. 1, at 73 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5677; see also 8 U.S.C. § 1255a(c)(1)-(4) (1988)
9
To qualify for legal residency, aliens must also: (1) file a timely application; (2) maintain continuous physical presence in the United States from the effective date of IRCA, November 6, 1986, and (3) be otherwise admissible as an immigrant. 8 U.S.C. § 1255a(a)(1)-(4) (1988)
10
Throughout this section of the opinion, we refer to INS policy rather than INS regulations because the agency maintains that its published regulations are no longer a complete reflection of agency policy. Rather, the INS says that its policy regarding section 265 nonimmigrants is also governed by the standard that the district court imposed in Ayuda, Inc. v. Meese, 687 F.Supp. 650 (D.D.C.1988), vacated in part by Ayuda, Inc. v. Thornburgh, 880 F.2d 1325 (D.C.Cir.1989), vacated, --- U.S. ----, 111 S.Ct. 1068, 112 L.Ed.2d 1174 (1991). In its supplemental brief filed June 18, 1992, the INS stood by its assertion that it is still following the "new standard" it agreed to in Ayuda v. Meese even though that decision was since overturned by the D.C. Circuit on jurisdictional grounds
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We set out the INS's "new standard" in full in note 12 below.
11
IRCA provides that the Attorney General "shall broadly disseminate information respecting the benefits which aliens may receive under [IRCA] and the requirements to obtain such benefits" before the application period starts. 8 U.S.C. § 1255a(i) (1988)
12
In Ayuda v. Meese, the district court entered an order instructing the INS to follow a specific standard for interpreting the statutory requirement of "known to the government." That standard provided that:
[A] nonimmigrant alien must establish that prior to January 1, 1982, documentation existed in one or more government agencies so that ... such documentation taken as a whole would warrant the finding that the nonimmigrant alien's status in the United States was unlawful. Said documentation must be in the files of the government prior to January 1982, or such other time as may be permitted by INS regulations. The burden is on the nonimmigrant alien to meet this standard.
Ayuda v. Meese, 687 F.Supp. at 666-6 7 .
13
INS regulations provide that an alien may prove that his or her unlawful status was known to the government only if:
(1) The Service received factual information constituting a violation of the alien's nonimmigrant status from any agency, bureau or department, or subdivision thereof, of the Federal government ...
(2) An affirmative determination was made by the Service prior to January 1, 1982 that the alien was subject to deportation proceedings. Evidence that may be presented by an alien to support an assertion that such a determination was made may include, but is not limited to, official Service documents issued prior to January 1, 1982 ...
(3) A copy of a response by the Service to any other agency which advised that agency that a particular alien had no legal status in the United States or for whom no record could be found.
(4) The applicant produces documentation from a school ... which establishes that the said school forwarded to the Service a report that clearly indicated the applicant had violated his or her nonimmigrant student status prior to January 1, 1982.
8
C.F.R. § 245a.1(d)(1)-(4)
14
The Associate Commissioner of the INS sent the organizations that assist nonimmigrants in the legalization process an information wire on April 13, 1988, notifying them of the new Ayuda v. Meese standard. This wire stated: "[T]he violation must be able to be induced [sic] from evidence submitted to Federal agencies only, and prior to January 1, 1982." Ayuda I, 880 F.2d at 1362 n. 14 (Wald, C.J., dissenting) (emphasis added). This correspondence shows that the INS would not consider the absence of a 265 report in the files as constituting sufficient knowledge by the agency of the nonimmigrant's unlawful status
15
We decline to adopt the approach taken by the majority in Ayuda I, 880 F.2d 1325 (D.C.Cir.1989). In Ayuda I, a panel of the D.C. Circuit issued a split opinion which concluded that the district court lacked jurisdiction to hear the case. The majority went on to conclude, as an alternative holding, that the issues presented regarding section 265 nonimmigrants were not ripe for review. Ayuda I, 880 F.2d at 1341-46
The discussion of ripeness in Ayuda I and in Ayuda II is dicta. See Ayuda I, 880 F.2d at 1341; Ayuda II, 948 F.2d 742, 747. Our own analysis of ripeness in this case leads us to a contrary conclusion. Finally, two of our own decisions have resolved the initial question of jurisdiction differently from the majority's opinion in Ayuda I and Ayuda II. See Catholic Social Services, 956 F.2d 914; Zambrano, 972 F.2d 1122.
16
The INS makes the additional argument that a section 265 violation must be "willful," and not merely inadvertent, for it to be unlawful. The INS reasons that it could not have known, simply by looking at an alien's file, whether the alien's failure to file a section 265 report was "willful" and thus unlawful
We disagree. Willfulness is not an element of a section 265 violation; instead, an alien threatened with deportation may merely invoke the absence of willfulness as an affirmative defense. The alien would have the burden of establishing this defense.
17
Indeed, the Judiciary Committee specifically drafted IRCA to incorporate those undocumented residents who have lived in the United States for a number of years and have established valuable ties with communities all around the country. One of the major purposes of IRCA was to eliminate an illegal subclass of people residing in this country. H.R.Rep. No. 682, 99th Cong., 2d Sess., pt. 1, at 49 (1986), 1986 U.S.C.C.A.N. 5653
18
The district court's order provided that the applicant would have the burden of making a prima facie showing that he or she violated the address reporting requirements. Once the applicant made this showing, the INS then would be required to introduce proof that the alleged section 265 violation and subsequent unlawful status was not known to the government. If the INS met this burden of production, the applicant would then have to show by a preponderance of evidence that he or she was in unlawful status and that this unlawful status was known to the government. The district court emphasized that an alien carries the burden of persuasion to prove eligibility for legalization at all times. Immigration Assistance II, 717 F.Supp. at 1448
19
See note 17 and accompanying text
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20
The INS argues that the district court abused its discretion by ordering the agency to notify section 265 nonimmigrants if their applications would not be decided within 90 days after the district court's judgment. We find no abuse of discretion in the district court's decision. The notification requirement is not particularly burdensome to the agency and it mitigates the hardship of any delay in the agency's decisionmaking procedures. Moreover, the notification requirement gives section 265 applicants an opportunity to monitor agency compliance with the district court's order
21
Category two nonimmigrants consists of the following nonimmigrant aliens: (1) temporary employees admitted on "H" visas; (2) intra-company transferees admitted on "L" visas; and (3) students admitted on duration of status "F" visas who did not graduate before January 1, 1982
22
For this category of nonimmigrants, both the published regulations and the "new standard" apply. See note 12
The INS has revised its regulations since they were first promulgated in 1987. Some of those revisions affect category two nonimmigrants. See 8 C.F.R. § 245a(1)(d)(4) (as amended in 1988). These revisions were in effect at the time the district court issued its decisions, and were incorporated into the district court's analysis of the plaintiffs' contentions regarding category two nonimmigrants. Similarly, our analysis of category two incorporates both the effect of the "new standard" and of the INS's revised regulations.
23
The other group consists of three types of nonimmigrants: (1) foreign government employees admitted on duration of status "A" visas; (2) representatives of international organizations admitted on duration of status "G" visas; and (3) students admitted on duration of status "F" visas who remained in the United States after they graduated
24
The district court's order granting injunctive relief would allow category two nonimmigrants to satisfy IRCA's unlawful status requirement for legalization either by showing that the government knew of the individual's unlawful status or by showing that their legal status expired "through the passage of time" within the meaning of 8 U.S.C. § 1255a(a)(2)(B) (1988)
25
In addition, the INS reasserts that the issues presented by organizational plaintiffs regarding category two nonimmigrants are not ripe for review. We disagree. INS policy regarding category two nonimmigrants is clear on the issues presented by the organizational plaintiffs here. The concreteness of INS policy is not undermined either by the INS's previous revisions to its regulations nor by the possibility that the agency may promulgate additional revisions in the future. As to the statutory and constitutional challenges presented by the organizational plaintiffs, INS policy is both concrete and settled
26
The INS's reliance on Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977), is misplaced. Even federal regulatory classifications must have a rational basis to survive scrutiny under the equal protection clause of the Fifth Amendment. See Mathews, 426 U.S. at 83, 96 S.Ct. at 1893
27
For example, the district court concluded that no rational difference existed between a student who violates status by dropping out of school and an embassy employee who violates status by quitting work
28
For example, the two groups of students are similarly situated with respect to the very characteristic for which INS regulations distinguished them. The example is significant because students comprise the bulk of category two nonimmigrants
INS regulations required one group of students to prove that their unlawful status was "known to the government" while the other had no such proof requirement. The group required to show proof were those students who violated their status before graduation. The group not required to show proof that their unlawful status was "known to the government" were those students who violated their status when they failed to leave the country and return home after graduation.
Federal immigration regulations required schools to notify the INS if any of these individuals violated immigration laws. See 8 C.F.R. § 214.3(g) (1981) (requiring schools to report immediately to the INS those students who terminated their attendance or took too few units). Consequently, both groups of aliens are similarly situated with respect to IRCA's requirement for amnesty that their unlawful status be "known to the government." A different proof requirement for these two groups of students simply makes no sense and is unfairly burdensome.
29
For example, category two H visa and L visa employees (temporary employees and intra-company transferees, respectively) are identically situated to non-category two A and G visa employees (foreign government employees and representatives of international organizations, respectively) because both groups violate status if they remain in the United States after their term of employment. Yet only the H and L visa holders are required to prove that their unlawful status was "known to the government" before January 1, 1982. 52 Fed.Reg. 43,843 (1987) (codified at 8 C.F.R. § 245a.2(b)(11)-(12))
30
The district court's order would allow category two applicants to prove unlawful status if they first make a prima facie showing that they violated the terms of their visas. The INS would then have the burden to come forward with evidence either that unlawful status did not occur through "the passage of time" or that the individual's unlawful status was not "known to the government." See 8 C.F.R. § 245a.2(b)(2)-(3) (1992). If the INS comes forward with this evidence, then the applicants must show by a preponderance of the evidence that they are eligible for legalization under either the "passage of time" or "known to the government" standard. The district court emphasized that legalization applicants always have the burden of proving eligibility for legalization. See Immigration Assistance II, 717 F.Supp. at 1449; 8 C.F.R. § 245a.2(d)(5) (1992)
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31
Moreover, the procedure developed by the district court properly reflects practical difficulties in remedying the constitutional violation and implementing the purpose of the statute. The standard developed by the district court reflected the difficulty faced by category two applicants to prove that their unlawful status was known to the government. Except in special circumstances, the INS routinely destroyed notices of violations after two years. An applicant's chances to prove that the government knew of their unlawful status is often further confounded because an employer or school that would have notified the INS of the violation may no longer exist or may not have the proper records. The procedure ordered by the district court both remedies the constitutional violation and recognizes the practical difficulties faced by these nonimmigrants. See Orantes-Hernandez, 919 F.2d at 558
32
The reinstatements were erroneous because they resulted either from the individual's fraud or misrepresentation or from mistake
33
The LAU is the final level of administrative appeals for legalization applicants
34
In addition, the INS reasserts its jurisdictional objections while disputing the scope of the district court's authority to grant equitable relief. As we noted in Part I, both the Supreme Court and our own circuit have held that federal courts have jurisdiction to hear broad statutory and constitutional challenges to INS regulations promulgated under certain provisions of IRCA
35
It is not clear that category three nonimmigrants may request that the INS reconsider their applications for legalization. The INS argues that its decision in Matter of O, 19 I. & N. Dec. 871 (1989) sets precedent that would allow category three applicants to make such a request. But as they currently exist, INS regulations do not themselves permit applicants to move for reconsideration. Rather, INS regulations provide that sua sponte review by the agency is purely discretionary and informal. See 8 C.F.R. §§ 103.5(b), 245a.2(q) (1992)
36
Plaintiffs have also asked us on appeal to order the INS to grant stays of deportation and issue temporary work permits to category three applicants who were wrongly denied legalization. The motion was presented in district court, but the merits were not decided on. On remand, the district court will have the opportunity to deal with plaintiffs' motion
37
The original application period began on May 5, 1987 and ended on May 4, 1988. 8 C.F.R. § 245.2(a) (1988)
38
In Pangilinan, 486 U.S. at 883-85, 108 S.Ct. at 2215-17, the Supreme Court held that federal courts do not have authority to extend deadlines for naturalization applicants under sections 701-705 of the Nationality Act of 1940, 8 U.S.C. §§ 1001-05 (Supp. V 1940)
39
We noted in Catholic Social Services, 956 F.2d at 921-22, that Pangilinan involved Congress's exclusive right under the federal constitution to grant naturalization. Furthermore, we noted that a court-ordered deadline was not consistent with Congress's intent underlying the 1940 Act
40
Because we conclude that the district court has authority to set a new application deadline, we need not reach plaintiffs' contentions on the issues of individual standing and class certification. The district court dismissed the individual plaintiffs on standing grounds on the assumption that the court had no authority to set a new application deadline. Similarly, the issue of class certification turns on the question whether the individual plaintiffs have standing in the first place. Because we conclude that the district court has authority to set a new application deadline, we leave any outstanding issues regarding individual plaintiffs for the district court to resolve
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OPINIONS OF INDIVIDUAL JUSTICES IN CHAMBERS
IMMIGRATION AND NATURALIZATION SERVICE et al. v. LEGALIZATION ASSISTANCE PROJECT OF THE LOS ANGELES COUNTY FEDERATION OF LABOR et al.
on application for stay
No. A–426. Decided November 26, 1993 The application for a stay of a District Court order—which requires appli-
cant Immigration and Naturalization Service (INS) to, among other things, identify and adjudicate legalization applications ﬁled by certain categories of applicants, not arrest or deport certain immigrant classes, and temporarily grant certain immigrant classes stays of deportation and employment authorization—is granted. If presented with the question, this Court would grant certiorari and conclude that respondents, organizations providing legal help to immigrants, have no standing to seek the order granted by the District Court because they are outside the zone of interests that the Immigration Reform and Control Act of 1986 (IRCA) seeks to protect. See Lujan v. National Wildlife Federation, 497 U. S. 871, 883. IRCA was clearly meant to protect the interests of undocumented aliens, not organizations such as respondents. Although respondents were entities designated to assist legalization efforts during IRCA’s amnesty period, the fact that an INS regulation may have affected the way they allocated their resources does not give them standing. The balance of equities also tips in the INS’ favor. The order would impose a considerable administrative burden on the INS and would delay the deportation of at least those aliens who are deportable and who could not seek relief on their own behalf under Reno v. Catholic Social Services, 509 U. S. 43. If respondents lack standing, the order would also be an improper intrusion by a federal court into the workings of a coordinate branch of Government. On the other hand, those aliens whose deportation claims are ripe may still sue in their own right, as may organizations whose members’ claims are ripe, assuming those organizations meet organizational standing criteria.
1301

510us1ic1z 04-15-96 11:01:05 PAGES IC13PGT
1302 INS v. LEGALIZATION ASSISTANCE PROJECT OF LOS ANGELES COUNTY FEDERATION OF LABOR Opinion in Chambers
Justice O’Connor, Circuit Justice. The Solicitor General, on behalf of the Immigration and Naturalization Service (INS), requests that I stay an order of the District Court for the Western District of Washington pending appeal to the Court of Appeals for the Ninth Circuit. The Court of Appeals has rejected the INS’ application for such a stay. Though “stay application[s] to a Circuit Justice on a matter before a court of appeals [are] rarely granted,” Heckler v. Lopez, 463 U. S. 1328, 1330 (1983) (Rehnquist, J., in chambers) (internal quotation marks omitted), I believe this is an exceptional case in which such a stay is proper.
I
In 1986, Congress enacted the Immigration Reform and Control Act of 1986 (IRCA), 100 Stat. 3359, which provided a limited amnesty for immigrants who had come to or stayed in the country illegally. See 8 U. S. C. § 1255a. Not all such immigrants were, however, eligible. Among other restrictions, the amnesty was available only to those who had “resided continuously in the United States in an unlawful status since [January 1, 1982],” § 1255a(a)(2)(A); also, those who came to the country legally but stayed illegally could only get amnesty if their “period of authorized stay . . . expired before [January 1, 1982,]” or their “unlawful status was known to the Government as of [January 1, 1982],” § 1255a(a)(2)(B). Respondents, organizations that provide legal help to immigrants, believe the INS interpreted these provisions too narrowly, in violation of the statute and the United States Constitution, and in 1988 brought their challenge to court.
In March 1989, the District Court ruled in respondents’ favor, and in September 1992, the Ninth Circuit afﬁrmed in part, reversed in part, and remanded to the District Court for further proceedings. On June 1, 1993, the District Court issued an order requiring the INS to, among other things, identify and adjudicate legalization applications ﬁled by

510us1ic1z 04-15-96 11:01:05 PAGES IC13PGT

Cite as: 510 U. S. 1301 (1993)

1303

Opinion in Chambers
certain categories of applicants, not arrest or deport certain classes of immigrants, and temporarily grant certain classes of immigrants stays of deportation and employment authorizations.
On June 18, 1993, this Court decided Reno v. Catholic Social Services, Inc., 509 U. S. 43 (1993) (CSS), a case involving a very similar challenge to another portion of IRCA. In CSS, we held that the claims of most of the plaintiff aliens were barred by the ripeness doctrine. A federal court, we held, generally ought not entertain a request for an injunction or declaratory judgment regarding the validity of an administrative regulation unless it is brought by someone who has actually been concretely affected by the regulation. Id., at 57–58. The mere existence of the regulation, we held, was not enough; rather, the regulation must actually have been applied to the plaintiff. Ibid. We concluded that the only people who could ask for injunctive or declaratory relief under IRCA were those who were told by the INS that they should not even bother to ﬁle their applications—a policy called “front-desking”—and perhaps also those who could show that the front-desking policy was a substantial cause of their failure to apply in the ﬁrst place. Id., at 61–67, and n. 28. Under the statute, aliens who did apply and whose applications were considered but rejected could only get judicial review of this rejection if the INS tried to deport them. 8 U. S. C. § 1255a(f)(1).
In light of our decision in CSS, the Government asked the District Court to vacate its order, on the theory that respondents’ claims here, like the claims of the CSS plaintiffs, were not ripe. The District Court, however, disagreed. The CSS plaintiffs, the District Court pointed out, were individual aliens, whereas the plaintiffs in this case are organizations. The District Court concluded that the organizations had “suffered a concrete and demonstrable injury” because “the challenged regulations drained organizational resources and impaired their ability to assist and counsel nonimmi-

510us1ic1z 04-15-96 11:01:05 PAGES IC13PGT
1304 INS v. LEGALIZATION ASSISTANCE PROJECT OF LOS ANGELES COUNTY FEDERATION OF LABOR Opinion in Chambers
grants”; therefore, the court held, the organizations’ claims were ripe. App. B to Application 6, citing Legalization Assistance Project of Los Angeles County Federation of Labor v. INS, 976 F. 2d 1198, 1204 (CA9 1992), cert. pending, No. 93–73. Therefore, “because this case has assumed the posture of a broad-based challenge to the regulations in question by organizations which the Ninth Circuit explicitly found have standing to bring these claims,” App. B to Application 6, the court declined to vacate its June 1 order.
II
As a Circuit Justice dealing with an application like this, I must try to predict whether four Justices would vote to grant certiorari should the Court of Appeals afﬁrm the District Court order without modiﬁcation; try to predict whether the Court would then set the order aside; and balance the so-called “stay equities.” Heckler v. Lopez, supra, at 1330–1331. This is always a difﬁcult and speculative inquiry, but in this case it leads me to conclude that a stay is warranted.
Respondents assert that the INS is violating the law of the land, and they ask the federal courts to order the INS to stop this. But the broad power to “take Care that the Laws be faithfully executed” is conspicuously not granted to us by the Constitution. Rather, it is given to the President of the United States, see U. S. Const., Art. II, § 3, along with the power to supervise the conduct of the Executive Branch, Art. II, §§ 1, 2, which includes the INS. The federal courts are granted a different sort of power—the power to adjudge “Cases” or “Controversies,” Art. III, § 2, cl. 1, within the jurisdiction deﬁned by Congress, Art. III, § 2, cl. 2.
Congress has in fact considered the proper scope of federal court jurisdiction to review administrative agency actions. It has explicitly limited such review to claims brought by “person[s] suffering legal wrong[s] because of agency action” (not applicable to the respondent organizations involved

510us1ic1z 04-15-96 11:01:05 PAGES IC13PGT

Cite as: 510 U. S. 1301 (1993)

1305

Opinion in Chambers
here) or by persons “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U. S. C. § 702 (emphasis added). We have consistently interpreted this latter clause to permit review only in cases brought by a person whose putative injuries are “within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan v. National Wildlife Federation, 497 U. S. 871, 883 (1990) (NWF); see also Clarke v. Securities Industry Assn., 479 U. S. 388, 396–397 (1987).
I believe that, were it presented with this question, this Court would grant certiorari and conclude that the respondents are outside the zone of interests IRCA seeks to protect, and that therefore they had no standing to seek the order entered by the District Court. The District Court’s decision and the Court of Appeals decision on which it relies, 976 F. 2d, at 1208, conﬂict with Ayuda, Inc. v. Reno, 7 F. 3d 246 (CADC 1993), and relate to an important question of federal law. See this Court’s Rule 10. Moreover, on the merits, IRCA was clearly meant to protect the interests of undocumented aliens, not the interests of organizations such as respondents. Though such organizations did play a role in the IRCA scheme—during the amnesty period, they were socalled “qualiﬁed designated entities,” which were to “assis[t] in the program of legalization provided under this section,” § 1255a(c)(2)—there is no indication that IRCA was in any way addressed to their interests. The fact that the INS regulation may affect the way an organization allocates its resources—or, for that matter, the way an employer who currently employs illegal aliens or a landlord who currently rents to illegal aliens allocates its resources—does not give standing to an entity which is not within the zone of interests the statute meant to protect. NWF, supra, at 883.
The balance of equities also tips in the INS’ favor. The order would impose a considerable administrative burden on the INS, and would delay the deportation of—and require

510us1ic1z 04-15-96 11:01:05 PAGES IC13PGT
1306 INS v. LEGALIZATION ASSISTANCE PROJECT OF LOS ANGELES COUNTY FEDERATION OF LABOR Opinion in Chambers
the granting of interim work authorizations to—at least those aliens who are deportable and who could not seek relief on their own behalf under CSS. Moreover, if the above analysis is correct, the order is not merely an erroneous adjudication of a lawsuit between private litigants, but an improper intrusion by a federal court into the workings of a coordinate branch of the Government. See Heckler v. Lopez, 463 U. S., at 1336–1337; FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 141 (1940). On the other hand, neither CSS nor this stay prevents those aliens who were ordered deported or were front-desked, and are therefore possibly eligible for relief under CSS, from suing in their own right. Likewise, neither CSS nor this stay prevents any membership organizations which have members whose claims are ripe under CSS from suing on behalf of those members, assuming the organizations meet the criteria required for organizational standing.
I therefore grant the application to stay the District Court’s order pending ﬁnal disposition of the appeal by the Court of Appeals.

 
 510ord$pt1 05-22-97 21:45:09 PGT•ORD1BV (Bound Volume)

ORDERS

1007

510 U. S.

November 29, December 6, 1993

No. 93–5648. Barker v. Collins, Director, Texas Department of Criminal Justice, Institutional Division, ante, p. 922;
No. 93–5725. Vollbrecht v. Wisconsin, ante, p. 923; No. 93–5733. In re Campbell, ante, p. 912; No. 93–5772. Cherry v. Ratelle, Warden, et al., ante, p. 924; No. 93–5773. DeRosa v. New York, ante, p. 924; No. 93–5837. Anderson v. United States, ante, p. 926; and No. 93–5987. Paul v. Commissioner of Internal Revenue, ante, p. 936. Petitions for rehearing denied.
No. 92–1947. Woods v. AT&T Information Systems et al., ante, p. 907. Petition for rehearing denied. Justice O’Connor took no part in the consideration or decision of this petition.
No. 93–222. McCoo v. District of Columbia, ante, p. 928. Petition for rehearing denied. Justice Ginsburg took no part in the consideration or decision of this petition.

December 6, 1993
Certiorari Granted—Vacated and Remanded
No. 93–73. Immigration and Naturalization Service et al. v. Legalization Assistance Project of Los Angeles County Federation of Labor et al. C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Heller v. Doe, 509 U. S. 312 (1993), and Reno v. Catholic Social Services, Inc., 509 U. S. 43 (1993). Reported below: 976 F. 2d 1198.
Miscellaneous Orders
No. ––– – –––. Rettig et al. v. Ohio et al. Motion for reconsideration of order denying leave to ﬁle bill of complaint [ante, p. 929] denied.
No. ––– – –––. Lawson v. Connecticut et al. Motion to direct the Clerk to ﬁle petition for writ of certiorari out of time denied.
No. ––– – –––. Figures v. Figures. Motion for reconsideration of order denying leave to ﬁle petition for writ of certiorari out of time [ante, p. 960] denied.

 
 50 F.3d 789
LEGALIZATION ASSISTANCE PROJECT OF the LOS ANGELES COUNTY FEDERATION OF LABOR (AFL-CIO); et al., Plaintiffs-Appellees, v.
IMMIGRATION & NATURALIZATION SERVICE; et al., Defendants-Appellants.
Nos. 89-35345, 89-35593, 89-35613 and 89-35706.
United States Court of Appeals, Ninth Circuit. March 31, 1995.
On Remand from the United States Supreme Court. Before: FARRIS, PREGERSON, and FERGUSON, Circuit Judges.

1

PRIOR REPORT: 709 F.Supp. 998.

ORDER

2

The mandate of the United States Supreme Court certified on December 6, 1993, in Immigration and Naturalization

Service, et al. v. Legalization Assistance Project of Los Angeles County Federation of Labor, et al., --- U.S. ----, 114

S.Ct. 594, 126 L.Ed.2d 560, vacated the decision of this court and remanded for further consideration in light of Heller

v. Doe, --- U.S. ----, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) and Reno v. Catholic Social Services, Inc., --- U.S. ----, 113

S.Ct. 2485, 125 L.Ed.2d 38 (1993). We remand this matter to the district court for further consideration in light of

Heller v. Doe and Reno v. Catholic Social Services, Inc.

3

Future appeals in this matter shall be assigned to this panel.

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 51 F.3d 280
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
IMMIGRANT ASSISTANCE PROJECT OF the LOS ANGELES COUNTY FEDERATION OF LABOR (AFL-CIO); Travelers and Immigrants Aid of Chicago; Washington Association of Churches; Hermandad Mexicana Nacional; One Stop Immigration; et al., Plaintiffs-Appellees, v. IMMIGRATION & NATURALIZATION SERVICE; Chris Sale, Acting Commissioner of the Ins; Janet Reno, Attorney General of the United States; United States Department of State, Defendants-Appellants.
No. 93-35898.
United States Court of Appeals, Ninth Circuit.
March 31, 1995.
Before: HUG, PREGERSON, and FERGUSON, Circuit Judges.

ORDER

1

On the court's own motion, the appeal before us on the protective order is dismissed without prejudice.

2

Future appeals in this matter shall be assigned to this panel.

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 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

IMMIGRANT ASSISTANCE



PROJECT OF THE LOS ANGELES

COUNTY FEDERATION OF LABOR

(AFL-CIO); TRAVELERS &

IMMIGRANTS AID OF CHICAGO;

HERMANDAD MEXICANA NACIONAL;

WASHINGTON ASSOCIATION OF

CHURCHES; ONE STOP IMMIGRATION;

INTERNATIONAL INSTITUTE, SAN

FRANCISCO; INTERNATIONAL

INSTITUTE (EAST BAY); JOHN DOES

 NOS. 1 THROUGH 8; J ANE DOES NOS.
1 THROUGH 4,

Plaintiffs-Appellees,

v.

IMMIGRATION AND NATURALIZATION SERVICE; JAMES ZIGLAR, COMMISSIONER OF THE INS;* DEPARTMENT OF JUSTICE; JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES;** DEPARTMENT OF STATE; COLIN L. POWELL, SECRETARY OF STATE,***
 Defendants-Appellants.

No. 99-35472
D.C. No. CV-88-00379-BJR
OPINION

*James Ziglar is substituted for his predecessor Doris Meissner. Fed. R. App. P. 43(c)(2).
**John Ashcroft is substituted for his predecessor Janet Reno. Fed. R. App. P. 43(c)(2).
***Colin L. Powell is substituted for his predecessor Madeline Albright. Fed. R. App. P. 43(c)(2).
14943

14944

IMMIGRANT ASSISTANCE PROJECT v. INS

Appeal from the United States District Court for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding

Submission Deferred January 6, 2000 Re-Submitted September 17, 2001****
Pasadena, California

Filed September 24, 2002

Before: Procter Hug, Jr., Harry Pregerson, and Warren J. Ferguson, Circuit Judges.

Opinion by Judge Pregerson

****This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

IMMIGRANT ASSISTANCE PROJECT v. INS

14947

COUNSEL
Lisa M. Arnold, Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., and Christopher Pickrell, Assistant United States Attorney, Seattle, Washington, attorneys for the defendants-appellants.
Robert Pauw, Gibbs, Houston & Pauw, Seattle, Washington; Peter Schey, Center for Human Rights and Constitutional Law, Los Angeles, California; and Michael Rubin, Altshuler, Berzon, Nussbaum, Berzon and Rubin, San Francisco, California, for the plaintiffs-appellees.

OPINION
PREGERSON, Circuit Judge:
Plaintiffs-Appellees are illegal immigrants and organizations assisting such immigrants who seek to legalize their status under a legalization program in the Immigration Reform and Control Act of 1986 ( “IRCA”), 8 U.S.C. § 1255. The legalization program was established to benefit aliens who have unlawfully resided in the United States since 1982. Plaintiffs challenge policies and practices adopted by Defendant-Appellant Immigration and Naturalization Service (“INS”) to implement IRCA’s requirement that the aliens’ unlawful status must have been “known to the government ” since 1982 to receive legalization under the statute. See 8 U.S.C. § 1255a(a)(2)(B).

14948

IMMIGRANT ASSISTANCE PROJECT v. INS

The District Court agreed with plaintiffs and issued a preliminary injunction that ordered the INS to use a specific burden-shifting mechanism for meeting the “known to the government” requirement. This Court affirmed, but the Supreme Court vacated, on jurisdictional grounds. After plaintiffs filed a Second Amended Complaint, the District Court found jurisdiction, certified a class, and granted another preliminary injunction based on the first one. This Court remanded, again on jurisdictional grounds. The District Court once more found jurisdiction and reinstated its class certification and also reinstated, in modified form, its preliminary injunction.

The INS appeals the District Court’s reinstatement of the class certification and the preliminary injunction. In addition, the INS argues that the Second Amended Complaint is untimely and that, in any event, this action should be dismissed in its entirety because jurisdiction is lacking and venue in the Western District of Washington is improper. We hold that the District Court did not err when it reinstated the class certification and the preliminary injunction. We also hold that the Second Amended Complaint is timely because it relates back to the original Complaint. We hold, moreover, that those individual plaintiffs who alleged that they filed a legalization application satisfy all jurisdictional requirements. We finally hold that those individual plaintiffs who alleged that the challenged INS policies and practices prevented them from filing an application should be allowed to amend further the complaint to satisfy certain jurisdictional requirements that Congress adopted after the Second Amended Complaint was filed.1 After such further amendment, the District Court will have to determine whether venue in the Western District of Washington is proper.

1The organizational plaintiffs should similarly be allowed to amend the complaint.

IMMIGRANT ASSISTANCE PROJECT v. INS

14949

FACTUAL AND PROCEDURAL BACKGROUND

Since this action was filed in 1988, it has gone from the District Court through the Ninth Circuit to the Supreme Court, back to the District Court, and now again to the Ninth Circuit, without ever being finally resolved. It is one of several actions filed in this and other circuits, with similar procedural histories, challenging different policies and practices used by Defendant-Appellant Immigration and Naturalization Service (“INS”) to implement a legalization program adopted by Congress as part of the Immigration Reform and Control Act of 1986 (“IRCA”). See 8 U.S.C. § 1255a. During the course of this litigation, numerous decisions addressing equally numerous questions were issued. Because of these complexities, we summarize below only the most important decisions, and we do so only with respect to questions actually at issue in this appeal.

The IRCA provides, in relevant part, that the Attorney Gen-

eral shall adjust the status of an illegal alien to that of an alien

lawfully admitted for temporary residence if the alien meets

three requirements. See 8 U.S.C. § 1255a(a).2 First, the alien

had to apply for such adjustment within the 12-month period

between May 5, 1987, and May 4, 1988.

See id. at

§ 1255a(a)(1)(A); 8 C.F.R. § 245a.2(a)(1). Second, the alien

must establish that he continuously and unlawfully resided in

the United States since January 1, 1982, until the date on

which he filed for adjustment. See 8 U.S.C. § 1255a(a)(2)(A).

Most importantly in the context of this lawsuit, as part of this

requirement, “[i]n the case of an alien who entered the United

States as a nonimmigrant before January 1, 1982, the alien

must establish that the alien’s period of authorized stay as a

nonimmigrant expired before such date through the passage of

time or the alien’s unlawful status was known to the govern-

2The IRCA further provides that such an alien is entitled to adjustment to permanent residency if he meets additional requirements. See 8 U.S.C. § 1255a(b)(1).

14950

IMMIGRANT ASSISTANCE PROJECT v. INS

ment as of such date. ” Id. at § 1255a(a)(2)(B) (emphasis added). Third, the alien must establish that he has been continuously physically present in the United States since November 6, 1986. See id. at § 1255a(a)(3)(A). “[B]rief, casual, and innocent absences from the United States ” do not prevent the alien from meeting this continuous presence requirement. Id. at § 1255a(a)(3)(B). The House Report accompanying the IRCA stated that this legalization program “should be implemented in a liberal and generous fashion. ” H.R. Rep. No. 682(I) at 72, reprinted in 1986 U.S.C.C.A.N. at 5676.

On March 24, 1988, the original Complaint in this action was filed. Some of the plaintiffs were individual aliens who alleged that they wished to qualify for legalization but were made ineligible for legalization by the INS’s interpretation of the IRCA’s “continuous unlawful residence since 1982 ” and “known to the government ” requirements. Plaintiffs argued that the INS’s interpretation of these requirements violated the IRCA as well as the due process and equal protection clauses of the Fifth Amendment. Other plaintiffs were organizations who alleged that they provided legal and other assistance to aliens seeking legalization and that the INS’s illegal interpretation of the IRCA’s “continuous unlawful residence since 1982” and “known to the government ” requirements made such assistance more difficult and less effective. The Complaint sought class certification and declaratory and injunctive relief.3

On November 4, 1988, the District Court entered an Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss. The District Court found that the organizational plaintiffs had standing to sue because they had alleged that the INS’s policies and practices impaired their organizational

3On or about August 29, 1988, plaintiffs filed an Amended Complaint in reaction to (1) orders issued by the District Court for the District of Columbia in a similar action and (2) new INS regulations.

IMMIGRANT ASSISTANCE PROJECT v. INS

14951

goals and drained their resources, causing an injury to these organizational plaintiffs. The District Court also found, however, that the individual plaintiffs did not have standing to sue because only aliens who had actually filed legalization applications could obtain “meaningful judicial relief” and because none of the individual plaintiffs alleged that they had actually filed applications. Accordingly, the District Court dismissed all individual plaintiffs from the lawsuit. On the same day, the District Court also entered an Order Denying Plaintiffs’ Motion for Provisional Class Certification. The District Court concluded that because the individual plaintiffs did not have standing and, therefore, did not have valid claims, they did not have “claims which are typical of those plaintiffs with valid claims.” As a consequence, plaintiffs could not satisfy the “prerequisite” for class certification in Fed. R. Civ. P. 23(a)(3) that “the claims . . . of the representative parties are typical of the claims . . . of the class. ”4

On March 7, 1989, the District Court entered an Order Granting in Part Plaintiff’s Motion for Summary Judgment, see Immigration Assistance Project of the Los Angeles County Fed’n of Labor v. INS (AFL-CIO) , 709 F. Supp. 998 (W.D. Wash. 1989) ( “IAP I”), which it amended on June 3, 1989, see Immigration Assistance Project of the Los Angeles County Fed’n of Labor v. INS (AFL-CIO) , 717 F. Supp. 1444 (W.D. Wash. 1989) (“IAP II”).

The District Court granted relief to three groups of applicants. The first group of applicants to which the District Court granted relief consisted of “section 265 violators,” i.e., applicants who alleged that: (1) they had failed to file quarterly address reports to the INS as required prior to January 1, 1982, by section 265 of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1305; (2) these section 265 violations

4As an independent ground for denial of plaintiffs’ Motion for Provisional Class Certification, the District Court determined that the Motion was untimely in violation of Local Rule 23(f)(3).

14952

IMMIGRANT ASSISTANCE PROJECT v. INS

made their status unlawful; and (3) the absence of the required address reports from their INS files made their unlawful status known to the government and thus entitled them to legalization under the IRCA. Under the INS’s interpretation of the “known to the government ” requirement, however, an alien who showed that he had violated section 265’s address reporting requirement did not meet his burden of proving that his unlawful status was known to the government. See 8 C.F.R. § 245a.1(d)(1),(2). The District Court held that section 265 violations do create unlawful status for purposes of legalization eligibility. See IAP I, 709 F. Supp. at 1001. The District Court ordered the INS to notify section 265 violators of this holding if the INS did not decide their application within 90 days from the entry of this order. See IAP II, 717 F. Supp. at 1448. The District Court also set up a burden-shifting mechanism for section 265 violators with respect to the “known to the government” requirement in § 1255a(a)(2)(B):

The burden of proof shifts as follows: an applicant must make a prima facie showing that he or she violated the address reporting requirements either by failing to report the address or submitting a false address. Once the applicant makes such a showing, the INS then has the burden of coming forward with proof that the alleged violation and subsequent unlawful status was not known to the government. If the INS does come forward with such evidence, the applicant must then show by a preponderance of the evidence that he or she was in unlawful status and that this unlawful status was known to the government. At all times, the applicant carries the burden of persuasion to prove eligibility for legalization.

IAP II, 717 F. Supp. at 1448 (footnote omitted).

The second group of applicants to which the District Court granted relief consisted of “student visa violators,” i.e., among others, students who had violated their visas by not fulfilling

IMMIGRANT ASSISTANCE PROJECT v. INS

14953

some condition of these visas, such as taking a required number of class hours. The INS had instructed its application examiners that these students fell under an IRCA requirement according to which they had to “establish that . . . the alien’s unlawful status was known to the government as of [January 1, 1982].” 8 U.S.C. § 1255a(a)(2)(B). To meet this requirement, these students had to “produce[ ] documentation from a school . . . which establishes that the said school forwarded to the [INS] a report that clearly indicated the applicant had violated his or her nonimmigrant student status prior to January 1, 1982. ” 8 C.F.R. § 245a.1(d)(4). By contrast, the INS had instructed its examiners that students who violated their visas by remaining in the United States after they graduated fell under an IRCA requirement according to which they merely had to “establish that the alien’s period of authorized stay as a nonimmigrant expired before [January 1, 1982]. ” Id. The District Court held that the INS’s different treatment of students who had violated their visas by not fulfilling some condition of the visa, on the one hand, and students who had violated their visas by remaining in the United States after they graduated, on the other, was “irrational” and, therefore, violated equal protection. See IAP I, 709 F. Supp. at 1003. The District Court also set up a burden-shifting mechanism for student visa violators similar to the one it set up for section 265 violators. See IAP II, 717 F. Supp. at 1449.

The third and final group of applicants to which the District Court granted relief consisted of “incorrectly reinstated violators,” i.e., applicants who, by misrepresentation or mistake, had been incorrectly reinstated to lawful status sometime after January 1, 1982. Plaintiffs alleged that the INS had unlawfully denied legalization to incorrectly reinstated violators because they failed the “continuous unlawful residence since 1982” requirement of 8 U.S.C. § 1255a(a)(2), at least until the INS’s Legalization Appeals Unit determined in Matter of N , 19 I. & N. Dec. 760 (1988), that incorrectly reinstated violators were, in fact, eligible for legalization. The District Court ruled that “Matter of N is the correct legal ruling” and ordered

14954

IMMIGRANT ASSISTANCE PROJECT v. INS

the INS to “reopen all cases decided prior to and contrary to Matter of N.” IAP I, 709 F. Supp. at 1004. The District Court also ordered the INS to provide incorrectly reinstated violators with the same notice as section 265 violators if it failed to reopen their cases within 90 days. See IAP II, 717 F. Supp. at 1448.

On September 18, 1992, this Court affirmed in part, reversed in part, and remanded to the District Court for further proceedings. See Legalization Assistance Project of the Los Angeles County Fed’n of Labor (AFL-CIO) v. INS , 976 F.2d 1198, 1202 (9th Cir. 1992) ( “IAP III”).

Regarding section 265 violators, we affirmed the declaratory and injunctive relief granted by the District Court. The following passage from our opinion is worth quoting:

[T]he district court concluded that section 265 violations were “known to the government ” precisely because the INS had no periodic address report on file for the alien as required by statute and regulation. We agree with the district court’s conclusion. The record shows that before January 1, 1982, the INS reviewed agency records to determine whether nonimmigrants had complied with the reporting requirements under section 265. The absence of the required section 265 report identified those in violation. As a consequence of its own practices, the INS had actual knowledge of an alien’s unlawful status.

IAP III, 976 F.2d at 1208-09.

Regarding student visa violators, we held that these applicants were not only entitled to the prospective relief granted by the District Court, but also to retroactive relief. Accordingly, we remanded to the District Court “so that any [such] applicants who may have been denied legalization as a conse-

IMMIGRANT ASSISTANCE PROJECT v. INS

14955

quence of invalid INS regulations may be identified, and granted appropriate relief.” Id. at 1213.

Finally, regarding all three groups of applicants, we remanded to the District Court “to reconsider plaintiffs’ request for an extension of application deadlines in light of ” this Court’s related decision in Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (9th Cir. 1992) ( “CSS I”).5 IAP III, 976 F.2d at 1215. On June 1, 1993, the District Court issued a Temporary Protective Order granting the additional relief we ordered in IAP III.

On June 18, 1993, the United States Supreme Court vacated CSS I and remanded for a new jurisdictional determination. See Reno v. Catholic Soc. Servs., Inc. v. INS , 509 U.S. 43, 46 (1993) ( “CSS II”). The Supreme Court concluded that “[o]rdinarily,” a plaintiff’s challenge to an INS regulation would become ripe only “when the INS formally denied the alien’s application on the ground that the regulation rendered him ineligible for legalization.” Id. at 60.6 The Supreme Court

5The CSS plaintiffs challenged the INS’s interpretation of the IRCA’s

requirement that the applicant has been “continuously physically present

since November, 6, 1986, ” 8 U.S.C. § 1255a(a)(3)(A), and, in particular,

the INS’s position that for an applicant’s absence from the United States

to qualify as a “brief, casual, and innocent ” absence under

§ 1255a(a)(3)(B) that does not destroy eligibility for legalization, the

applicant must have obtained INS approval, or “advance parole,” before

taking the absence. See CSS I, 956 F.2d at 916.

6Moreover, the IRCA provides that “[t]here shall be judicial review of

. . . a denial [of an application for adjustment of status] only in the judicial

review of an order of deportation under section 1105a of this title. ” 8

U.S.C. § 1255a(f)(4)(A). As a rule, such an appeal must be brought indi-

vidually before a Circuit Court of Appeals.

See 8 U.S.C. § 1105a

(repealed by Illegal Immigration Reform and Immigrant Responsibility

Act of 1996). Thus, even after a denial of an application, a class action

challenge before a District Court would normally be barred. In Naranjo-

Aguilera v. INS, 30 F.3d 1106 (9th Cir. 1994), we noted an exception to

this rule:

14956

IMMIGRANT ASSISTANCE PROJECT v. INS

recognized an exception to this ripeness rule in the case of plaintiffs who had been subjected to the INS’s policy of “prefiling rejection of applications” by individuals deemed “statutorily ineligible” for IRCA relief “at the front desk of an INS office.” Id. at 61-62. The Supreme Court concluded that the claims of such “front-desked” plaintiffs “should not fail for lack of ripeness,” even though the INS never formally denied their (un-filed) applications. Id. at 63. The Supreme Court also concluded, however, that the “mere existence of a frontdesking policy” did not make ripe the claims of plaintiffs “who were not actually front-desked, ” i.e., plaintiffs who did not apply and who, therefore, did not have any applications rejected before filing. Id. at 66. The Supreme Court left open the possibility that “further facts would allow class members who were not front-desked to demonstrate that the frontdesking policy was nevertheless a substantial cause of their failure to apply, ” making their claims ripe. Id. at 66 n.28. 7

On November 26, 1993, Justice O’Connor granted the INS’s application in the present case to stay the District Court’s 1993 Temporary Protective Order pending final disposition of the appeal by the Ninth Circuit. See INS v. Legalization Assistance Project of Los Angeles County Fed’n of

[D]istrict courts have jurisdiction over “collateral,” “procedural” challenges to INS practices in the processing of applications, such as the front-desking in CSS . . . . Where plaintiffs challenge alleged INS application-processing practices on a nationwide scale, a class action lawsuit with district court discovery mechanisms is an appropriate, and indeed the most effective, method of judicial review.
Id. at 1112-13.
7An en banc panel of this Court later held that this group of constructively front-desked plaintiffs with ripe claims “include[d], at a minimum, those who went to an INS office and told their story to an INS officer at the front desk, were told that they were ineligible to apply, and were turned away without an application.” Catholic Social Services, Inc. v. INS, 232 F.3d 1139, 1146 (9th Cir. 2000) (en banc) ( “CSS V”).

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Labor, 510 U.S. 1301, 1306 (1993) ( “IAP IV”). Justice O’Connor predicted that if presented with the question, the Supreme Court would grant certiorari and conclude that the IRCA did not give organizational plaintiffs standing to sue on their own behalf. See id. at 1305-06. Justice O’Connor cautioned, however, that the IRCA gave organizational plaintiffs standing to sue on behalf of members whose claims are ripe under CSS II. See IAP IV, 510 U.S. at 1306. Two weeks later, the Supreme Court, without further discussion, granted certiorari, vacated the judgment, and remanded the case for further consideration in light of, inter alia, CSS II. See INS v. Legalization Assistance Project of Los Angeles County Fed’n of Labor, 510 U.S. 1007, 1007 (1993) ( “IAP V”).

In response to CSS II and IAP IV, plaintiffs lodged a Second Amended Complaint on May 30, 1995. The Second Amended Complaint again sought class certification and declaratory and injunctive relief.

Most importantly, the Second Amended Complaint added the current individual plaintiffs to the lawsuit. Some individual plaintiffs alleged that they did not file applications for legalization because of the challenged INS policies and practices. Plaintiffs John Doe 1 and John Doe 2, for example, both alleged that they “attempted to file an application for legalization during the application period but w[ere] prevented from applying because of the INS’s policies and practices challenged in this lawsuit.” Plaintiff John Doe 1 alleged, in particular, that he “presented an application to the Immigration Service at a legalization office ” and that “[t]he legalization office refused to accept this application. ” Similarly, plaintiff John Doe 2 alleged that he “went to a Qualified Designated Entity (‘QDE’) to file his application ”8 and that “[t]he QDE told [him] that he was not eligible for the legalization program

8“QDEs are state, local, community, or voluntary organizations authorized by the Attorney General to accept applications under certain conditions. 8 U.S.C. § 1255a(c)(2-3).” CSS V, 232 F.3d at 1143 n.1.

14958

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and that they would not accept his application for filing.” Two individual plaintiffs, John Doe 5 and John Doe 6, alleged that they filed applications for legalization which have not yet been adjudicated because of the challenged INS practices. Another individual plaintiff, John Doe 7, alleged that he filed an application which has been denied because of the challenged INS practices.

The organizational plaintiffs in the Second Amended Complaint were a subset of the organizational plaintiffs in the original Complaint. The allegations they made in the Second Amended Complaint were similar to the allegations they had made in the original Complaint.

On September 8, 1995, the District Court entered an Order

Denying Defendants’ Motions to Dismiss and Vacate Rulings

and Granting in Part Plaintiffs’ Motions to Amend Complaint,

For Class Certification and for Reinstatement of Temporary

Protective Order ( “1995 Order”). Regarding the Second

Amended Complaint, the District Court concluded that “the

proposed organizational plaintiffs do not have standing except

insofar as they represent the interests of members whose

claims are ripe under CSS [II].” The District Court further

concluded that only individual plaintiff John Doe 1 “presents

a paradigm case of ‘front-desking,’ ” but that with regard to

all but two of the other individual plaintiffs, “development of

further facts should be allowed to establish whether they too

satisfy the same ripeness considerations exemplified by the

classic front-desking situation described in

CSS [II].”9

9Among the individual plaintiffs the District Court deemed to have claims that are possibly ripe under CSS II are plaintiffs John Doe 2, John Doe 5, and John Doe 6. Among the individual plaintiffs the District Court deemed not to have claims that are possibly ripe under CSS II is plaintiff John Doe 7. The District Court erred in reaching the latter conclusion. Plaintiffs such as John Doe 7 who have filed applications that have been denied have claims that are ripe under CSS II. See 509 U.S. at 60. Moreover, if their claims are procedural — as are, we conclude below, the

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Accordingly, the District Court granted plaintiffs’ motion for leave to file the Second Amended Complaint. The District Court also granted plaintiffs’ motion to certify

a class of individuals who entered the United States prior to January 1, 1982, who are otherwise eligible for legalization under IRCA, who were deterred from filing an application because of INS’s regulations and policies, or who filed an application which has not resulted in a decision, and who fall under one of [the] three categories [described above in connection with the District Court’s 1989 orders] involving the ‘known to the government’ requirement of IRCA.

The District Court further reaffirmed its 1989 orders. The District Court finally reinstated its 1993 Temporary Protective Order to the extent that it required the INS to

provide written notice to class members; refrain from arresting or deporting individuals who might qualify as class members unless the INS is in possession of reliable information establishing that they are deportable regardless of their eligibility for legalization pursuant to this court’s Orders; and provide temporary employment authorizations and other benefits to class members.

claims in the present case — rather than substantive, they escape the dictates of 8 U.S.C. § 1255a(f)(4)(A). As a result, such procedural claims can be brought — as in the present case — as a class action before a District Court and, unlike substantive claims, do not have to be brought individually before a Circuit Court of Appeals “in the judicial review of an order of deportation.” Id.; see also supra note 6. Because plaintiffs did not appeal the District Court’s holding that plaintiff John Doe 7 does not have a claim that is possibly ripe under CSS II, this issue is not before us.

14960

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The Ninth Circuit granted the INS’s motion to stay the District Court’s 1995 Order pending interlocutory appeal, and the 1995 Order was never implemented.

In 1996, Congress foreclosed the possibility left open by the Supreme Court in CSS II — that “class members who were not front-desked ” could “demonstrate that the frontdesking policy was nevertheless a substantial cause of their failure to apply” and thus meet the ripeness requirement, 509 U.S. at 66 n.28 — by amending the IRCA to contain the following provision:

Notwithstanding any other provision of law, no court shall have jurisdiction of any cause of action or claim by or on behalf of any person asserting an interest under this section unless such person in fact filed an application under this section within the period specified by subsection (a)(1) of this section, or attempted to file a complete application and application fee with an authorized legalization officer of the Service but had the application and fee refused by that officer.

8 U.S.C. § 1255a(f)(4)(C) (emphasis added). 10

On January 16, 1998, this Court applied 8 U.S.C. § 1255a(f)(4)(C) in the CSS litigation and held:

Because none of the class members or named plaintiffs have alleged that they actually tendered an application and fee or attempted to do so but were rebuffed by a legalization assistant, they do not have standing pursuant to the limited grant of federal

10An en banc panel of this Court has held that “aliens who filed or attempted to file a completed application and fee with a QDE fall within [this] statutory grant of jurisdiction. ” CSS V, 232 F.3d at 1151 n.4. See also supra note 8.

IMMIGRANT ASSISTANCE PROJECT v. INS
court jurisdiction set forth in [8 U.S.C. § 1255a(f)(4)(C).]

14961

Catholic Soc. Servs., Inc. v. Reno, 134 F.3d 921, 927 (9th Cir. 1998) (“CSS III”).11

Two weeks later, this Panel remanded the IAP litigation to the District Court “in light of ” CSS III. Immigration Assistance Project of the Los Angeles County Fed’n of Labor (AFL-CIO), No. 95-36295, 1998 WL 42224, *1 (9th Cir. Jan. 30, 1998) (unpublished memorandum disposition) (“IAP VI”). The Panel noted: “[P]laintiffs’ Second Amended Complaint names two individuals, John Doe 1 and John Doe 2, who may have alleged facts sufficient to grant them standing to challenge the legalization procedure of front-desking by the INS. ” Id.

On remand, the District Court initially granted the INS’s Motion to Dismiss on the grounds that none of the plaintiffs in the original Complaint had made allegations sufficient to establish standing. The District Court later reversed itself and granted plaintiffs’ Motion for Reconsideration on the basis that some of the organizational plaintiffs in the Second Amended Complaint had made allegations sufficient to establish standing as per Justice O’Connor’s instructions in IAP IV.

11In 2000, Congress passed the “LIFE Act” and thereby retroactively repealed 8 U.S.C. § 1255a(f)(4)(C) with respect to aliens who
before October 1, 2000 . . . filed with the Attorney General a written claim for class membership . . . pursuant to a court order issued in the case of . . . (1) Catholic Social Services, Inc. v. Meese . . . or (2) League of United Latin American Citizens v. INS, [both] vacated sub nom. [ CSS II], 509 U.S. 43 (1993).
Pub. L. 106-553, 1104(b),(c)(8), 114 Stat. 2762 (2000). Thus, for class members in the CSS litigation, Congress restored the status quo before 8 U.S.C. § 1255a(f)(4)(C), making CSS II, once again, the last word on individual standing and ripeness in that litigation. The LIFE Act does not apply to class members in the present litigation, for whom, therefore, 8 U.S.C. § 1255a(f)(4)(C) remains the law.

14962

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On March 3, 1999, the District Court entered an Order on Pending Motions ( “1999 Order”) that denied the INS’s renewed Motion to Dismiss and granted in part plaintiffs’ Motion to Reinstate Temporary Protective Relief. The District Court held:

The court reinstates its [1995] class certification order and reinstates its [1995] order granting temporary relief with the following modifications. The defendants are hereby ordered to: (1) provide the plaintiffs within 30 days of this order the number of applications that have been filed by class members, the number of such applications that have been adjudicated, and the number that are still pending; (2) provide the plaintiffs with quarterly reports thereafter stating the number of class members applications adjudicated during that period and the number of applications that remain pending; (3) notify all class members with pending legalization applications of the name, address and telephone number of counsel for plaintiffs within 30 days of this order. The court further instructs the INS to adjudicate such applications in accordance with the procedures established in this court’s rulings at [ IAP I,] 709 F. Supp 998 and [IAP II,] 717 F. Supp. 1444 (W.D. Wash. 1989).

A week later, the District Court granted the INS’s motion to stay its 1999 Order pending appeal, and the 1999 Order, like the 1995 Order, was never implemented.

The INS now asks this Court to find that the Second Amended Complaint is untimely and to remand this case to the District Court with specific instructions to dismiss it in its entirety because jurisdiction is lacking and venue in the Western District of Washington is improper. The INS further asks us, in the event that we do not remand with instructions to dismiss, to vacate the District Court’s 1999 Order reinstating the

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class certification and the preliminary injunction. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).

ANALYSIS

I. Timeliness of the Second Amended Complaint

A. Introduction

The INS argues that the Second Amended Complaint was untimely. A civil action against the United States is timebarred unless the complaint is filed within six years after the right of action accrues. 28 U.S.C. § 2401(a). Whether a claim is barred by a statute of limitations is a question that this Court reviews de novo. See EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 584 (9th Cir. 2000).

Plaintiffs lodged the Second Amended Complaint, which added the current individual plaintiffs and their claims, on May 30, 1995. At the latest, the six-year statute of limitations started to run when the District Court denied the class certification sought in the original Complaint on November 4, 1988. Because more than the six years allowed by § 2401(a) had elapsed between these two dates, the claims of the current individual plaintiffs would normally be time-barred.

We do not agree with the District Court that the time between the denial of class certification and the filing of the Second Amended Complaint should be tolled. We hold, however, that the Second Amended Complaint relates back to the original Complaint and is, therefore, timely. 12

B. The time between the denial of class certification and

12We may affirm the District Court’s decision on any basis the record supports, including one the District Court did not reach. See Herring v. Fed. Deposit Ins. Corp. , 82 F.3d 282, 284 (9th Cir. 1996).

14964

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the filing of the Second Amended Complaint should not be tolled.

The District Court first observed that “[t]he filing of a class action gives the benefit of the original filing date to all class members and the grant of class certification is retroactive to the date the lawsuit is filed. ” The District Court then concluded that “[a]lthough the court did not certify the class until 1995, the certification is retroactive to the date the plaintiffs filed this suit in 1988. ” This reasoning is unconvincing because it ignores that the District Court denied class certification in 1988.

The Supreme Court has held that “the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status .” Am. Pipe and Constr. Co. v. Utah , 414 U.S. 538, 553 (1974) (emphasis added). The Supreme Court later clarified this holding when it said in Crown, Cork & Seal Co. v. Parker , 462 U.S. 345 (1983), that “[o]nce the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action. ” Id. at 354 (emphasis added). See also Tosti v. City of Los Angeles , 754 F.2d 1485, 1488 (9th Cir. 1985) (stating that the commencement of a class action tolls the statute of limitations, but that “[t]he statute begins running anew from the date of notice that certification has been denied ”).

In the present case, the commencement of this class action suit on March 24, 1988 — the date of the filing of the original Complaint — tolled the statute of limitations. The statute began running anew when the District Court denied class certification on November 4, 1988. Plaintiffs lodged their Second Amended Complaint, which added the current individual plaintiffs and their claims, on May 30, 1995. Because more

IMMIGRANT ASSISTANCE PROJECT v. INS

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than the six years allowed by the statute of limitations elapsed between the denial of class certification and the lodging of the Second Amended Complaint, the claims of the current individual plaintiffs would normally be time-barred. As discussed in the next section, however, the relation back doctrine applies under the circumstances of this case and makes the claims of the current individual plaintiffs timely. 13

C. The Second Amended Complaint relates back to the original Complaint and was, therefore, timely.

Federal Rule of Civil Procedure 15(c) provides in relevant part:

An amendment of a pleading relates back to the date of the original pleading when . . . the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, . . . the amendment changes the party or the naming of the party against whom a claim is asserted . . . and, within the period provided . . . for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party,

13Plaintiffs cite two out-of-circuit decisions for the proposition that following reversal of an order denying class certification, all claims embraced in the complaint relate back to the date on which the action was originally filed. See Knable v. Wilson, 570 F.2d 957, 964 n.46 (D.C. Cir. 1977); Esplin v. Hirschi , 402 F.2d 94, 101 n.14 (10th Cir. 1968). These authorities do not help plaintiffs, because in the present case, there never was a reversal of the November 4, 1988 order denying class certification. Rather, on September 8, 1995, the District Court certified a different class represented by different individual plaintiffs. Knable and Esplin are, therefore, not relevant in the circumstances of the present case.

14966

IMMIGRANT ASSISTANCE PROJECT v. INS

the action would have been brought against the party.

Fed. R. Civ. Pro. 15(c). The Advisory Committee Note to the 1966 Amendment to Rule 15(c) observes that “[t]he relation back of amendments changing plaintiffs is not expressly treated in revised Rule 15(c) since the problem is generally easier” and goes on to comment that “the attitude taken in revised Rule 15(c) toward change of defendants extends by analogy to amendments changing plaintiffs.” Fed. R. Civ. Pro. 15(c) advisory committee’s note.

In the Ninth Circuit,

An amendment adding a party plaintiff relates back to the date of the original pleading only when: 1) the original complaint gave the defendant adequate notice of the claims of the newly proposed plaintiff; 2) the relation back does not unfairly prejudice the defendant; and 3) there is an identity of interests between the original and newly proposed plaintiff.

Rosenbaum v. Syntex Corp., 95 F.3d 922, 935 (9th Cir. 1996) (citing Besig v. Dolphin Boating & Swimming Club , 683 F.2d 1271, 1278-79 (9th Cir. 1982)).

In the present case, the original Complaint and the Second Amended Complaint were both filed “on behalf of persons who are statutorily eligible for legalization pursuant to the Immigration Reform and Control Act of 1986 (IRCA), but who have been unlawfully denied access to legalization benefits by the defendants. ” In particular, the original Complaint and the Second Amended Complaint both challenged the INS’s regulations and practices defining and interpreting the term “known to the Government ” as used in the IRCA. The original Complaint thereby placed the INS on notice that all aliens covered by the INS’s regulations and practices defining and interpreting the term “known to the Government” as used

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in the IRCA were potential plaintiffs. Thus, the notice requirement of Rule 15(c) is met in the present case. See Rosenbaum, 95 F.3d at 935.

In the original Complaint, plaintiffs John Doe 1 and 2 alleged that they “accepted employment” and “did not file quarterly status reports ” and were therefore “in violation of the terms of [their] non-immigrant visa. ” In the Second Amended Complaint, new plaintiffs John Doe 1 and 2 similarly alleged that “they violated the terms of [their] nonimmigrant visa by working ” and “failing to submit required address reports.” Moreover, in the original Complaint, plaintiffs John Doe 1 and 2 stated that they “wishe[d] to qualify for legalization, but Defendant’s current regulations [made them] ineligible.” In the Second Amended Complaint, new plaintiffs John Doe 1 and 2 similarly stated that they “attempted to file an application for legalization . . . but [were] prevented from applying because of the INS’s policies and practices challenged in this lawsuit.” The addition of new plaintiffs who are similarly situated to the original plaintiffs therefore did not cause the INS any prejudice in the present case. Thus, the noprejudice requirement of Rule 15(c) is met in the present case. See Rosenbaum, 95 F.3d at 935.

Because the original individual plaintiffs and the current individual plaintiffs are “similarly situated,” the identity-ofinterest requirement of Rule 15(c) is also met in the present case. See Rosenbaum, 95 F.3d at 935. In Raynor Brothers v. American Cyanimid Co. , 695 F.2d 382 (9th Cir. 1982), we found that the identity-of-interest requirement of Rule 15(c) was met because “[t]he circumstances giving rise to the claim remained the same [under the amended complaint] as under the original complaint.” 695 F.2d at 384. By the same token, this requirement is also met in the present case because the same INS regulations and practices defining and interpreting the term “known to the Government ” as used in the IRCA gave rise to the claims asserted in the original Complaint as well as to the claims asserted in the Second Amended Com-

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plaint. Furthermore, the present case is distinguishable from cases in which we found no identity-of-interest. See, e.g., Rosenbaum, 95 F.3d at 935 (no identity-of-interest securities fraud class action where “newly proposed class members bought stock at different values and after different disclosures and statements . . . by Defendants ”); Besig, 683 F.2d at 1279 (no identity-of-interest in gender discrimination class action where “amended complaint transformed the case from one seeking equal membership access to one seeking identical nonmember access”).14 Thus, the identity-of-interest requirement of Rule 15(c) is also met in the present case. See Rosenbaum, 95 F.3d at 935.

Because all three requirements identified in Rosenbaum for adding plaintiffs and relating their claims in the Second Amended Complaint back to the original Complaint are met in the present case, we affirm the District Court’s decision that the claims of the current individual plaintiffs are timely.

14The facts at issue in the present case are similar to those at issue in In re Glacier Bay , 746 F. Supp. 1379 (D. Alaska 1990), a case in which the United States District Court for the District of Alaska allowed, under the relation back doctrine, “addition of new plaintiffs who are similarly situated to the original plaintiffs ” although there was no “legal or familial relationship” between the two sets of plaintiffs. See id. at 1391. In Glacier Bay, commercial fisherman brought a class action to recover for economic and business losses they had sustained as a result of an oil spill off the Alaska coastline. After the expiration of the statute of limitations, an amendment to the original class complaint sought to add as plaintiffs a fish spotter and a fish processor who were not members of the class and who had no “legal or familial relationship ” to the original plaintiffs. Id. The District Court stated that the original class complaint “put defendants on notice that all those involved in the fishing industry in Cook Inlet were potential plaintiffs.” Id. The District Court concluded that “[t]he addition of new plaintiffs who are similarly situated to the original plaintiffs does not cause defendants any prejudice. ” Id. Accordingly, the District Court allowed the addition of the new plaintiffs. The application of the relation back doctrine in Glacier Bay further supports the application of the relation back doctrine in the present case.

IMMIGRANT ASSISTANCE PROJECT v. INS II. Standing and Ripeness

14969

A. Introduction

[1] In urging this Court to dismiss this action for lack of jurisdiction, the INS argues that none of the plaintiffs meet the applicable standing and ripeness requirements. The standing question is “whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction. ” Warth v. Seldin, 422 U.S. 490, 498 (1975) (quoting Baker v. Carr , 369 U.S. 186, 204 (1962)). The ripeness question is “whether the harm asserted has matured sufficiently to warrant judicial intervention.” Id. at 499 n.10. Both questions “bear[ ] close affinity ” to one another. Id. See also City of Auburn v. Qwest Corp. , 260 F.3d 1160, 1172 n.6 (9th Cir. 2001) (noting that standing “overlaps substantially” with ripeness and that in that case, both were “inextricably linked”). Standing and ripeness are questions of law that we review de novo. See S.D. Meyers, Inc. v. City & County of San Francisco , 253 F.3d 461, 474 (9th Cir. 2001); Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 (9th Cir. 2001). Both this Court and the Supreme Court have repeatedly addressed standing and ripeness questions under the IRCA in the context of this litigation (IAP) and its companion litigation (CSS). In addition, Congress has also weighed in on these questions. We find it inappropriate to dismiss this case in whole or in part. Regarding those individual plaintiffs who alleged that they filed legalization applications, we hold that these plaintiffs have satisfied all jurisdictional requirements. Regarding those individual plaintiffs who alleged that the challenged INS policies and practices prevented them from filing an application, we hold that these plaintiffs have not yet satisfied certain jurisdictional requirements that Congress adopted after the Second Amended Complaint was filed. Rather than dismissing these plaintiffs and their claims from this action, we instead remand with instructions to allow these plaintiffs to further amend the Second Amended Complaint to satisfy the new jurisdictional

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requirements. The organizational plaintiffs should be allowed to similarly amend the Second Amended Complaint. In any event, these plaintiffs will have standing to challenge the constitutionality of the new requirements, provided that they can show that the INS’s front-desking policy was a substantial cause of their failure to apply.

B. Jurisdiction may be established on the basis of the Second Amended Complaint.

Initially, the INS argues that jurisdiction must be established exclusively on the basis of the allegations in the original Complaint. This argument is foreclosed by our recent en banc decision in the CSS litigation. See CSS V, 232 F.3d 1139. Following the dismissal of their action by this Court in CSS III for failure to satisfy the new jurisdictional requirements in 8 U.S.C. § 1255a(f)(4)(C), the plaintiffs in that litigation filed a new class action in the District Court attempting to satisfy these requirements. 15 A three-member panel of this Court dismissed the new class action as time-barred. See Catholic Soc. Servs., Inc. v. INS, 182 F.3d 1053, 1058-61 (9th Cir. 1999) (“CSS IV”). An en-banc panel of this Court found otherwise, holding that the plaintiffs were entitled to tolling of the statute of limitations. See CSS V, 232 F.3d at 1149. Especially important in the present context is the en banc panel’s criticism of the CSS III panel’s decision to dismiss for lack of jurisdiction the original action in that litigation:

15The jurisdictional requirements of 8 U.S.C. § 1255a(f)(4)(C) are:
Notwithstanding any other provision of law, no court shall have jurisdiction of any cause of action or claim by or on behalf of any person asserting an interest under this section unless such person in fact filed an application under this section within the period specified by subsection (a)(1) of this section, or attempted to file a complete application and application fee with an authorized legalization officer of the Service but had the application and fee refused by that officer.
8 U.S.C. § 1255a(f)(4)(C).

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We believe that it would have been by far the better course for the panel in CSS [III] to remand with instructions to allow amendment of the complaint to satisfy [jurisdictional] requirements [in 8 U.S.C. § 1255a(f)(4)(C)] imposed for the first time while the case was on appeal. If the panel in CSS [III] had allowed such amendment, there would be no tolling . . . issue[ ]. But because the panel ordered the dismissal of the action in CSS [III], plaintiffs were obliged to file a new action rather than allowed to continue their pending action.

CSS V, 232 F.3d at 1146. Accordingly, the En Banc Court in CSS V recommended accepting an amended complaint to satisfy the new jurisdictional requirements in 8 U.S.C. § 1255a(f)(4)(C). Thus, in the present case, the jurisdictional requirements in 8 U.S.C. § 1255a(f)(4)(C) did not have to be met by the original Complaint, but can be met by the Second Amended Complaint, which was in fact filed before Congress passed 8 U.S.C. § 1255a(f)(4)(C). Moreover, even though we hold later on in this opinion that the allegations by some plaintiffs in the Second Amended Complaint do not meet these new requirements, which were “imposed for the first time” after it was filed, the CSS V En Banc Court’s criticism of the CSS III panel’s decision to dismiss the original action in that litigation mandates that we allow plaintiffs to further amend the Second Amended Complaint in this litigation to meet the new requirements.

C. Individual plaintiffs John Doe 5 and John Doe 6, who alleged that they filed applications for legalization which have not yet been adjudicated because of the challenged INS practices, have ripe “procedural” claims over which the District Court has jurisdiction.

Two of the individual plaintiffs, John Doe 5 and John Doe 6, alleged in the Second Amended Complaint that they filed applications which have not yet been adjudicated because of

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the challenged INS practices. These plaintiffs have ripe “procedural” claims over which the District Court has jurisdiction.

[2] In CSS II, the Supreme Court concluded that “a [plaintiff’s] claim would ripen only once he took the affirmative steps that he could take before the INS blocked his path by applying the regulation to him.” 509 U.S. at 59. The Supreme Court further observed that “[o]rdinarily, of course, that barrier would appear when the INS formally denied the alien’s application on the ground that the regulation rendered him ineligible for legalization. ” Id. at 60 (emphasis added). Because their applications have not yet been denied, plaintiffs John Doe 5 and John Doe 6 would not “ordinarily” satisfy ripeness. The Supreme Court, however, noted two other situations in which ripeness may be satisfied: (1) in the case of plaintiffs who were “front-desked,” and (2) in the case of plaintiffs for whom “the front-desking policy was . . . a substantial cause of their failure to apply. ” Id. at 63, 66 n.28. Because plaintiffs John Doe 5 and John Doe 6 filed applications, they do not fall within either of these two exceptions to the ripeness rule.

[3] In her concurrence to the CSS II majority opinion, Justice O’Connor noted that she “would not go so far as to state that a suit challenging a benefit-conferring rule is necessarily unripe simply because the plaintiff has not yet applied for the benefit.” 509 U.S. at 69 (O’Connor, J., concurring) (emphasis added). By logical extension, a suit challenging a benefitconferring rule is also not “necessarily unripe” simply because the agency has not yet denied a filed application. Instead, if according to Justice O’Connor, “the court can make a firm prediction that the plaintiff will apply for the benefit, and that the agency will deny the application by virtue of the rule, ” id. (emphasis added), then by logical extension the controversy may be ripe although the plaintiff has not yet applied and been denied, and also does not fall within either of the two exceptions to the ripeness rule.

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The CSS II majority opinion commented that even if the “firm prediction” rule was applicable, the Court did not see “how such a ‘firm prediction’ could be made in this case. ” 509 U.S. at 59 n.19. The CSS II majority opinion pointed out:

As for the prediction that the plaintiffs “will apply for the benefit, ” we are now considering only the cases of those plaintiffs who, in fact, failed to file timely applications. As for the prediction that “the agency will deny the application by virtue of the [challenged] rule,” we reemphasize that in this case, access to the benefit in question is conditioned on several nontrivial rules other than the two challenged. This circumstance makes it much more difficult to predict firmly that the INS would deny a particular application “by virtue of the [challenged] rule,” and not by virtue of some other, unchallenged rule that it determined barred an adjustment of status.

Id.

The CSS II majority did not reject Justice O’Connor’s “firm prediction” rule, but rather concluded that the rule was not satisfied in that case: Because the CSS II plaintiffs in fact did not apply timely, it was impossible in that case to “firmly predict” that they would apply late. This is so because 8 U.S.C. § 1255a(f)(2) prohibits against all review of any “denial of adjustment of status under this section based on a late filing of an application for such adjustment. ” See CSS II, 509 U.S. at 60 n. 20.

[4] In Freedom to Travel Campaign v. Newcomb , 82 F.3d 1431 (9th Cir. 1996), we observed, in a different context, that the CSS II majority had not expressly disapproved of Justice O’Connor’s “firm prediction” rule. See Newcomb, 82 F.3d at 1436. We then adopted this more liberal rule. See id. We now

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hold that the claims of plaintiffs John Doe 5 and John Doe 6 are ripe under this “firm prediction” rule.

[5] In the present case, the first prong of Justice O’Connor’s “firm prediction” rule — that the court can firmly predict that the plaintiff will apply — is satisfied because plaintiffs John Doe 5 and John Doe 6 did, in fact, apply. The second prong of the “firm prediction” rule — that the court can firmly predict that the INS will deny the application by virtue of the challenged rule — may be more difficult to satisfy, but it is by no means impossible to satisfy in the present case. Plaintiff John Doe 5 not only alleged that he timely applied, but also that he maintained a continuous unlawful residence since before 1982. Plaintiff John Doe 5 thus allegedly met the first two requirements for adjustment of status. See 8 U.S.C. § 1255a(a)(1), (2). Plaintiff John Doe 5 did not specifically allege that he met the remaining two requirements for adjustment of status, i.e., continuous physical presence since November 6, 1986, and admissibility as an immigrant. See 8 U.S.C. § 1255a(a)(3), (4). Instead, plaintiff John Doe 5 generally alleged that his application “should have been approved” but “has not yet been approved because of the INS’s policies and practices challenged in this lawsuit. ” Similarly, plaintiff John Doe 6 alleged that he timely applied, that he has resided continuously and unlawfully in the United States since 1981, and that he “qualifies for legalization under 8 U.S.C. § 1255a.” While it is possible that the INS would hold such applications in abeyance for more than fourteen years and then deny them “by virtue of some other, unchallenged rule,” rather than the INS’s interpretation of the “known to the government” requirement, this possibility is so remote that a court can firmly predict that the INS will eventually deny these applications “by virtue of the [challenged] rule.” Thus, the claims of plaintiffs John Doe 5 and John Doe 6 are ripe under Justice O’Connor’s “firm prediction” rule.

The IRCA provides, however, that “[t]here shall be no . . . judicial review of a determination respecting an application

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for adjustment of status under this section except in accordance with this subsection ” and that “[t]here shall be judicial review of . . . a denial [of an application for adjustment of status] only in the judicial review of an order of deportation under section 1105a of this title. ” 8 U.S.C. §§ 1255a(f)(1), (4)(A) (emphasis added). As a rule, such appeals of deportation orders must be brought individually before a Circuit Court of Appeals, rather than — as here — as a class action before a District Court. See 8 U.S.C. § 1105a (repealed by Illegal Immigration Reform and Immigrant Responsibility Act of 1996). In short, if 8 U.S.C. §§ 1255a(f)(1), (4)(A) were to apply here, this class action suit could not be brought. This limit on judicial review arguably does not limit the review of pending applications, because such cases do not involve a “review of a determination respecting an application. ” 8 U.S.C. § 1255a(f)(1) (emphasis added). And even if 8 U.S.C. §§ 1255a(f)(1), (4)(A) would normally limit the review of pending applications, it does not do so where, as here, plaintiffs’ challenges are procedural rather than substantive.

In Naranjo-Aguilera, we noted an exception for procedural rather than substantive challenges to § 1255a(f)’s limited review scheme:

[D]istrict courts have jurisdiction over “collateral,” “procedural” challenges to INS practices in the processing of applications, such as the front-desking in CSS [II] . . . . Where plaintiffs challenge alleged INS application-processing practices on a nationwide scale, a class action lawsuit with district court discovery mechanisms is an appropriate, and indeed the most effective, method of judicial review.

30 F.3d at 1112-13. Thus, if the claims by plaintiffs John Doe 5 and John Doe 6 qualify as procedural challenges to INS practices in the processing of their applications, the District Court had jurisdiction over these claims.

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This Court has already concluded that the relief granted by the District Court in IAP I and IAP II was procedural:

The INS argues that the district court erred when it issued injunctive relief that required the agency to use a particular procedure under which nonimmigrants could prove that their unlawful status was “known to the government. ” We disagree with the agency’s contention and conclude that the district court in establishing such procedure properly exercised its discretion to structure equitable relief.

IAP III, 976 F.2d at 1209 (emphasis added).

There is no reason to revise this assessment now. Plaintiffs John Doe 5 and John Doe 6 challenge the INS policy and practice of not accepting the absence of the aliens’ address reports from the INS files as proof that their unlawful status was known to the government. See 8 C.F.R. § 245a.1(d)(1), (2). Plaintiffs John Doe 5 and John Doe 6 further challenge the INS policy and practice of requiring applicants like them to prove that their unlawful status was “known to the government” by “produc[ing] documentation from a school . . . which establishes that the said school forwarded to the [INS] a report that clearly indicated the applicant had violated his or her nonimmigrant student status prior to January 1, 1982. ” 8 C.F.R. § 245a.1(d)(4). Plaintiffs John Doe 5 and John Doe 6 thus challenge the procedure that the INS required them to follow in proving that their unlawful status was known to the government. The District Court agreed and set up a different burden-shifting procedure. See IAP II, 717 F. Supp. at 144849.

In McNary v. Haitian Refugee Center, Inc. , 498 U.S. 479 (1991), the Supreme Court held that the District Court did have jurisdiction over a challenge to the INS implementation of the IRCA’s Special Agricultural Workers ( “SAW”) legalization program similar to the challenges in the present case,

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and it upheld injunctive relief similar to the injunctive relief at issue here. To be eligible for legalization under the SAW, applicants had to prove that they performed seasonal agricultural services in the United States for at least ninety days during a specified period. See 8 U.S.C. § 1160(a)(1)(B). The plaintiffs in McNary contended that the INS had imposed an unlawful burden of proof by requiring applicants to produce corroborating evidence in addition to affidavits to prove performance of the requisite ninety days of seasonal agricultural services. See Haitian Refugee Ctr., Inc. v. Nelson , 694 F. Supp. 864, 866 (S.D. Fla. 1988). The District Court agreed and issued an injunction which read in part as follows:

In those cases [in] which the INS denied [legalization] based in whole or in part on the fact that the applicant failed to submit payroll records or piecework receipts, the INS shall vacate the denials and reconsider the cases in light of the proper standard of proof which will require the government to present evidence to negate the just and reasonable inference created by the affidavits and other documents submitted by the applicant.

Id. at 881. The Supreme Court held that the District Court had jurisdiction over the plaintiffs’ class action challenge and affirmed. See McNary, 498 U.S. at 494, 498. The Supreme Court did so although the SAW contains a scheme limiting judicial review that is identical to the statutory scheme at issue in the present case. Compare 8 U.S.C. §§ 1160(e)(1), (3)(A), with 8 U.S.C. §§ 1255a(f)(1), (4)(A). The Supreme Court’s decision in McNary supports the conclusion that the District Court also had jurisdiction over the similar challenges in the present case, which involve the burden of proving that the applicant’s unlawful status was known to the government, and that the injunction the District Court issued — which was similar to the one the Supreme Court upheld in McNary — was proper.

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[6] Plaintiffs John Doe 5 and John Doe 6 do not challenge “INS’s interpretations of IRCA’s substantive eligibility requirements,” i.e., whether they are eligible for adjustment of status. Instead, plaintiffs John Doe 5 and John Doe 6 challenge the procedure by which they have to prove that they are eligible for adjustment of status. 16 Because the claims of plaintiffs John Doe 5 and John Doe 6 qualify as procedural challenges to INS practices in the processing of their applications, the District Court had jurisdiction over these claims and could entertain them as class actions. See Naranjo-Aguilera, 30 F.3d at 1112-13. 17 The fact that the District Court had

16Our conclusion that plaintiffs’ challenges are procedural conflicts with

the conclusion of the Court of Appeals for the District of Columbia Circuit

in Ayuda, Inc. v. Reno , 7 F.3d 246 (D.C. Cir. 1993). There, as here, the

issue was “whether the absence of quarterly reports in an alien’s INS file

put the government on constructive notice that the alien’s illegal status

was ‘known to the government.’ ” Id. at 247. The Ayuda court took this

to be a substantive challenge and, therefore, held that it lacked jurisdiction.

See id. at 248.

17Plaintiffs John Doe 5’s and John Doe 6’s claims are different from the

claims that this Court found substantive rather than procedural in Naranjo-

Aguilera. There, the plaintiffs challenged the INS’s interpretation of the

SAW legalization program’s provision that “the Attorney General may . . .

provide for termination of the temporary resident . . . if . . . the alien . . .

is convicted of a felony or 3 or more misdemeanors committed in the

United States.” 8 U.S.C. § 1160(a)(3)(B) (emphasis added). Specifically,

the Naranjo-Aguilera plaintiffs “argued that the INS has an unlawful pol-

icy of treating th[is] rule as a per se ground for denial or termination of

temporary resident status, rather than as one factor to be weighed, in the

INS’s discretion and on a case-by-case basis, along with other positive and

negative factors.” 30 F.3d at 1109. Thus, the plaintiffs in

Naranjo-

Aguilera challenged the interpretation of the word “may” in 8 U.S.C.

§ 1160(a)(3)(B), and whether they were eligible for continuation of tempo-

rary resident status. We concluded that this was not a “ ‘procedural’ chal-

lenge[ ] to INS practices in the processing of applications, ” but rather a

“challenge [to] INS’s interpretations of IRCA’s substantive eligibility

requirements.” Id. at 1114. Accordingly, we held that the District Court

lacked jurisdiction over the plaintiffs’ challenges. See id. By contrast, in

the present case, the controversy is not about whether plaintiffs are eligible

for legalization, but about whether they have proved that they are eligible

for legalization. The latter controversy is procedural in nature.

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jurisdiction over the claims by plaintiffs John Doe 5 and John Doe 6 and the class members they represent is especially important because these plaintiffs are the only plaintiffs to which the preliminary injunction in the 1999 Order on appeal before us granted any relief. See infra section IV.

D. Individual plaintiffs John Doe 1, John Doe 2, John Doe 8, and others like them, who alleged that they did not file applications for legalization because of the challenged INS policies and practices, may have ripe claims over which the District Court has jurisdiction.

In the Second Amended Complaint, some of the individual plaintiffs alleged that they did not file applications for legalization because of the challenged INS policies. These plaintiffs may qualify as “front-desked” class members whose claims “should not fail for lack of ripeness, ” CSS II, 509 U.S. at 63, and who meet the IRCA’s jurisdictional requirement because they “attempted to file a complete application and application fee with an authorized legalization officer of the Service but had the application and fee refused by that officer.” 8 U.S.C. § 1255a(f)(4)(C). In addition, even non-frontdesked class members have standing to challenge the constitutionality of 8 U.S.C. § 1255a(f)(4)(C), provided that they can “demonstrate that the front-desking policy was a nevertheless a substantial cause of their failure to apply. ” CSS II, 509 U.S. at 66 n.28.

For example, we previously suggested that plaintiffs John Doe 1 and John Doe 2 “may have alleged facts sufficient to grant them standing. ” IAP VI, 1998 WL 42224 at *1. Both alleged in the Second Amended Complaint that they “attempted to file an application for legalization during the application period but w[ere] prevented from applying because of the INS’s policies and practices challenged in this lawsuit. ” Plaintiff John Doe 1 alleged, in particular, that he “presented an application to the Immigration Service at a legalization office” and that “[t]he legalization office refused to accept

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this application.” Similarly, plaintiff John Doe 2 alleged that he “went to a Qualified Designated Entity (‘QDE’) to file his application” and that “[t]he QDE told [him] that he was not eligible for the legalization program and that they would not accept his application for filing.” And plaintiff John Doe 8 — the only individual plaintiff who is a resident of Washington and on whom venue in the Western District of Washington could be based, see infra section III — alleged that he “sought to file a completed amnesty application at the Seattle INS ” and that “[t]he INS employee at the front counter reviewed his application and told him that he was not eligible to apply. ”18

The District Court held that these allegations in the Second Amended Complaint are sufficient because they meet the “notice pleading” requirements of Fed. R. Civ. P. 8(a)(2). Rule 8(a)(2) requires any pleading which sets forth a claim for relief to contain “a short and plain statement of the claim showing that the pleader is entitled to relief. ” This rule “require[s] that the pleading . . . give[ ] the opposing party fair notice of the nature and basis or grounds of the claim and a general indication of the type of litigation involved. ” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1215 (2d ed. 1990). The allegations by plaintiffs John Doe 1, John Doe 2, and John Doe 8 in the Second Amended Complaint indeed “give[ ] the [INS] fair notice of the nature and basis or grounds of the claim and a general indication of the type of litigation involved, ” 5 Miller & Wright, supra at § 1215, and thus meet the requirements of notice pleading.

The INS argues, however, that more than mere notice pleading is required. Specifically, the INS argues that plaintiffs had to allege — but failed to do so — each element of

18Our previous suggestion that plaintiffs John Doe 1 and John Doe 2 “may have alleged facts sufficient to grant them standing, ” IAP VI, 1998 WL 42224 at *1, does not, by its silence as to other plaintiffs, prevent plaintiffs such as John Doe 8 from establishing standing.

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the jurisdictional requirements in 8 U.S.C. § 1255a(f)(4)(C), i.e., that they “in fact filed an application ” or “attempted to file a complete application and application fee with an authorized legalization officer . . . but had the application and fee refused by that officer.” CSS III provides considerable support for this argument. There, we dismissed the plaintiffs’ action for lack of standing “[b]ecause none of the class members or named plaintiffs have alleged that they actually tendered an application and fee or attempted to do so but were rebuffed by a legalization assistant.” 134 F.3d at 927 (emphasis added). See also id. at 928 (holding that the District Court did not have jurisdiction over the action because “no facts had been alleged that any of the class members had submitted applications pursuant to [8 U.S.C. § 1255a(f)(4)(C)]’s requirements”).

CSS III thus suggests that plaintiffs had to allege that “they actually tendered an application and fee or attempted to do so” to have standing to challenge the INS’s interpretation of 8 U.S.C. § 1255a(a)(2)(B)’s requirement that an “alien’s unlawful status was known to the Government. ” None of the individual plaintiffs have made such allegations in the Second Amended Complaint or elsewhere. For example, plaintiffs John Doe 1 and John Doe 2 both alleged that they “attempted to file an application, ” but neither alleges that he “attempted to . . . tender[ ] a[ ] fee.” Similarly, John Doe 8 alleged that he “sought to file a completed amnesty application, ” but does not mention any fee. Under CSS III, these allegations are not sufficient to establish standing.

We nevertheless “remand with instructions to allow amendment of the complaint to satisfy [the jurisdictional] requirements [in 8 U.S.C. § 1255a(f)(4)(C)],” as recommended by our En Banc Court in CSS V, 232 F.3d at 1146, rather than dismiss the action, as the INS requests. As we observed en banc in CSS V, remand would be “far the better course ” than dismissal because it would allow plaintiffs “to continue their

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pending action” rather than requiring them “to file a new action.” Id.19

In addition, even some non-front-desked class members may have standing to challenge the constitutionality of this jurisdictional requirement. This group includes those individual plaintiffs who alleged that they did not file applications for legalization because of the challenged INS policies, but who do not meet the IRCA’s jurisdictional requirements because they did not “attempt[ ] to file a complete application and application fee with an authorized legalization officer of the Service but had the application and fee refused by that officer,” 8 U.S.C. § 1255a(f)(4)(C). In CSS II, the Supreme Court left open the possibility that “further facts would allow [such] class members who were not [actually] front-desked to demonstrate that the front-desking policy was nevertheless a substantial cause of their failure to apply, ” making their claims ripe. 509 U.S. at 66 n.28. In 1996, Congress foreclosed this possibility by amending the IRCA to deny the courts jurisdiction over any § 1255a case unless the plaintiff either “in fact filed an application . . . or attempted to file a complete application and application fee with an authorized legalization officer of the Service but had the application and fee refused by that officer. ” 8 U.S.C. § 1255a(f)(4)(C) (emphasis added). Non-front-desked class members should be allowed “to demonstrate that the front-desking policy was nevertheless

19If we instead decided to dismiss this action, plaintiffs would be allowed to file a new action because “a complaint is not subject to dismissal with prejudice unless it appears to a certainty that no relief can be granted under any set of facts that can be proved in support of its allegations.” Wright and Miller, supra at § 1215. Here, plaintiffs John Doe 1, John Doe 2, and John Doe 8 could presumably prove that they attempted to tender the required fee, and it does not “appear[ ] to a certainty that no relief can be granted” under that set of facts. Moreover, a new action filed by any of the named plaintiffs or class members sufficiently soon after the dismissal of the present action would be timely because the statute of limitations remains tolled during the pendency of the present action. See supra section I.B; see also CSS V, 232 F.3d at 1146-49.

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a substantial cause of their failure to apply, ” making their claims ripe under CSS II, 509 U.S. at 66 n. 28, and to challenge the constitutionality of the more stringent jurisdictional requirements in 8 U.S.C. § 1255a(f)(4)(C). See CSS V, 232 F.3d at 1152 (plaintiffs who did not meet the jurisdictional requirements of 8 U.S.C. § 1255a(f)(4)(C) had standing to challenge the constitutionality of that statute).

E. The organizational plaintiffs may have ripe claims over which the District Court has jurisdiction.

In IAP IV, Justice O’Connor held that the IRCA did not give organizational plaintiffs standing to sue on their own behalf. See 510 U.S. at 1305-06. Importantly, Justice O’Connor also held that the IRCA gave organizational plaintiffs representative standing to sue on behalf of their members whose claims are ripe. See id. at 1306. Moreover, legal aid organizations, like law firms, may have third party standing to assert the constitutional rights of their clients whose claims are ripe. See Caplin & Drysdale, Chartered v. United States , 491 U.S. 617, 623 n.3 (1989).

None of the organizational plaintiffs alleged in the Second Amended Complaint that any of their members or clients had “actually tendered an application and fee or attempted to do so but were rebuffed by a legalization assistant ” and that they had thus met the jurisdictional requirements of 8 U.S.C. § 1255a(f)(4)(C). Instead, plaintiffs Immigration Assistance Project and Hermandad Mexicana Nacional, for example, merely alleged that their members and clients had been and would continue to be injured by the challenged INS policies and practices. Under CSS III, 134 F.3d at 927, these allegations are not sufficient to establish that these members and clients of the organizational plaintiffs have ripe claims. See supra section II.D. Under IAP IV, 510 U.S. at 1305-06, in turn, these allegations are then also not sufficient to give the organizational plaintiffs standing to sue on behalf of their members and clients.

14984

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For the reasons discussed above in section II.D, we “remand with instructions to allow amendment of the complaint to satisfy [the jurisdictional] requirements [in 8 U.S.C. § 1255a(f)(4)(C)],” as we recommended en banc in CSS V, 232 F.3d at 1146, rather than dismiss the organizational plaintiffs and their claims, as the INS requests. Moreover, the organizational plaintiffs should be allowed, regarding their nonfront-desked members and clients, “to demonstrate that the front-desking policy was nevertheless a substantial cause of their failure to apply,” making their claims ripe under CSS II, 509 U.S. at 66 n. 28, and to challenge the constitutionality of the more stringent jurisdictional requirements in 8 U.S.C. § 1255a(f)(4)(C).20

III. Venue in the Western District of Washington

The INS argues that venue is improper in the Western District of Washington. A civil action, such as this one, in which a defendant is an agency of the United States and in which no real property is involved, may be brought, inter alia, in any judicial district in which a plaintiff resides. See 28 U.S.C. § 1391(e). Venue is a question that the Ninth Circuit reviews de novo. See Myers v. Bennett Law Offices , 238 F.3d 1068, 1071 (9th Cir. 2001).

20Plaintiff Washington Association of Churches states that it is “an association of churches ” and mentions no members or clients other than churches. Nor does plaintiff Washington Association of Churches mention that its member churches have members or clients who meet either the jurisdictional requirements of 8 U.S.C. § 1255a(f)(4)(C) because they “tendered an application and fee or attempted to do so ” or the ripeness requirement of CSS II, 509 U.S. at 66 n.28, because “the front-desking policy was . . . a substantial cause of their failure to apply. ” Unless plaintiff Washington Association of Churches can make the necessary allegations, it will not have standing. The issue of plaintiff Washington Association of Churches’ standing is particularly important because it is the only plaintiff, other than plaintiff John Doe 8, who is a resident of Washington and on whom, therefore, venue in the Western District of Washington could be based. See supra section II.D. and infra section III.

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Plaintiff John Doe 8 resides in Seattle and, thus, in the Western District of Washington. Plaintiff Washington Association of Churches presumably also resides in the Western District of Washington. If plaintiff John Doe 8 or plaintiff Washington Association of Churches can satisfy the jurisdictional requirements of 8 U.S.C. § 1255a(f)(4)(C) because they (or their members) have been front-desked, venue in the Western District of Washington will be proper for all purposes. If neither of these two plaintiffs can meet these jurisdictional requirements, but either of them would have standing under CSS II, 509 U.S. at 66 n.28, because the frontdesking policy was a substantial cause of their (or their members) failure to apply, venue in the Western District of Washington will be proper for the limited purpose of challenging the constitutionality of the more stringent jurisdictional requirements of 8 U.S.C. § 1255a(f)(4)(C). Finally, if neither plaintiff John Doe 8 nor plaintiff Washington Association of Churches meets either the jurisdictional requirement of 8 U.S.C. § 1255a(f)(4)(C) or the standing requirement of CSS II, 509 U.S. at 66 n.28, plaintiffs will be able to further amend the Second Amended Complaint and add plaintiffs who do meet these requirements. See supra section I.C.

IV. Class Certification

In its 1995 Order, the District Court certified “a class of individuals who . . . [1] were deterred from filing an application because of INS’s regulations and policies, or [2] who filed an application which has not resulted in a decision. ” In its 1999 Order, the District Court reinstated this class certification.

The INS argues this class certification was improper. The INS concedes that “a class certification order is not ordinarily reviewable on appeal in this posture ” but argues that in the present case, the grant of class certification “is inextricably interwoven with the . . . grant of injunctive relief and must be subject to review.”

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Our decision in Paige v. California , 102 F.3d 1035 (9th Cir. 1996), gives limited support to the INS’s view that the class certification is reviewable in the present case. In Paige, we applied the Supreme Court’s “inextricably intertwined” test for pendent appellate jurisdiction over otherwise nonappealable collateral orders. See id. at 1039 (quoting Swint v. Chambers County Comm’n, 514 U.S. 35, 51 (1995)). We concluded that “[b]ecause the injunction issued here provides class-wide relief, we could not uphold it without also upholding the certification of the class. ” Id. We further concluded that “[t]he certification of the class is therefore inextricably intertwined with the issuance of the interim injunction ” and that “[a]ccordingly, . . . we have jurisdiction to consider both.” Id. at 1039-40.

In the present case, the 1999 Order does not provide “classwide relief,” but it does provide relief for certain class members. We have jurisdiction to review the certification of the class as to these members. For example, the District Court ordered the INS to “notify all class members with pending legalization applications of the name, address and telephone number of counsel for plaintiffs within 30 days of this order. ” (Emphasis added). We, therefore, “could not uphold ” the 1999 Order “without also upholding the certification of the class” in the 1995 Order as to members with pending legalization applications. Paige, 102 F.3d at 1039. As in Paige, “[t]he certification of the class [ as to members with pending legalization applications] is therefore inextricably intertwined with the issuance of the interim injunction ” and “[a]ccordingly,” we have “jurisdiction to consider both. ” Id. at 1039-40.

We review a District Court’s decision to certify a class for an abuse of discretion. See Hawkins v. Comparet-Cassani , 251 F.3d 1230, 1237 (9th Cir. 2001). “A court abuses its discretion if its certification order is premised on legal error. ” Id. For the reason discussed below, the District Court did not abuse its discretion in the present case when it certified a class including members with pending legalization applications.

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As discussed above in section II.C, plaintiffs with pending legalization applications have claims that are ripe under Justice O’Connor’s “firm prediction” test and the District Court had jurisdiction over these claims because they are “procedural” challenges to INS practices in the processing of applications. See CSS II, 509 U.S. at 69 (O’Connor, J., concurring); Naranjo-Aguilera, 30 F.3d at 1112-13.

The INS argues that certification of a class of plaintiffs with pending legalization applications was nevertheless improper because “plaintiffs have not presented any evidence to demonstrate the class is so numerous that joinder is impracticable” as required by Fed. R. Civ. P. 23(a). 21 Plaintiffs point out, however, that “[t]here are approximately 11,000 timely applicants affected by [the District Court’s] orders. ” Courts have certified classes with far fewer members. See Jordan v. County of Los Angeles, 669 F.2d 1311, 1319 & n.10 (9th Cir. 1982) (stating inclination “to find the numerosity requirement . . . satisfied solely on the basis of the number of ascertained class members, i.e., 39, 64, and 71, ” and listing thirteen cases in which courts certified classes with fewer than 100 members), vacated on other grounds , 459 U.S. 810 (1982). The District Court, therefore, did not abuse its discretion when it decided that the numerosity requirement was met in the present case.

The INS also argues that “plaintiffs have not demonstrated that they can satisfy the commonality and typicality requirements” of Fed. R. Civ. P. 23(a). But the INS makes this argu-

21Fed. R. Civ. P. 23(a) provides:
One or more members of a class may sue . . . as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims . . . of the representative parties are typical of the claims . . . of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

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ment only with respect to front-desked class members. 22 The certification of the class as to members “who . . . were deterred from filing an application because of INS’s regulations and policies, ” i.e., as to front-desked members, 23 is not “inextricably intertwined” with the issuance of the injunction in the 1999 Order, which does not benefit front-desked class members, but instead benefits only class members with pending legalization applications. Accordingly, we do not have jurisdiction to consider the propriety of the class certification as to front-desked class members . See Paige, 102 F.3d at 1039-40. The 1999 Order states:

The defendants are hereby ordered to: (1) provide the plaintiffs within 30 days of this order the number of applications that have been filed by class members, the number of such applications that have been

22Specifically, the INS argues:
Here the claims of any member of the proposed plaintiff class will be based entirely on highly individualized testimony about what transpired when they attempted to file a complete application and application fee and had the application and application fee refused. At trial, each member of the proposed class would be required . . . to prove that they actually presented a complete application to an authorized officer of the INS, along with the required fee, and had both the application and the fee refused by that officer.
(Emphasis added).
23Strictly speaking, this sub-class includes not only front-desked members, but also non-front-desked members who meet CSS II’s ripeness requirements because they can “demonstrate that the front-desking policy was nevertheless a substantial cause of their failure to apply, ” 509 U.S. at 66 n.28, but who do not meet the IRCA’s more stringent jurisdictional requirements because they did not “attempt[ ] to file a complete application and application fee with an authorized legalization officer of the Service but had the application and fee refused by that officer. ” 8 U.S.C. § 1255a(f)(4)(C). As discussed above in section II.D, these class members have standing to challenge the constitutionality of the IRCA’s jurisdictional requirements on equal protection grounds. For simplicity’s sake, we refer to all members in this sub-class as front-desked members.

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adjudicated, and the number that are still pending; (2) provide the plaintiffs with quarterly reports thereafter stating the number of class members applications adjudicated during that period and the number of applications that remain pending; (3) notify all class members with pending legalization applications of the name, address and telephone number of counsel for plaintiffs within 30 days of this order. The court further instructs the INS to adjudicate such applications in accordance with the procedures established in this court’s rulings at [ IAP I,] 709 F. Supp 998 and [ IAP II,] 717 F. Supp. 1444 (W.D. Wash. 1989).

The INS concedes that in the 1999 Order “the district court awarded interim relief ” only to “those who claim to have timely filed legalization applications.” Because the injunction in the 1999 Order does not benefit front-desked class members, we can uphold the injunction without reaching the question whether the class certification in the 1995 Order was proper as to front-desked class members . The certification of the class as to front-desked class members is therefore not “inextricably intertwined” with the issuance of the injunction. See Paige, 102 F.3d at 1039. Under our limited grant of jurisdiction, we may not review the class certification as to frontdesked class members. See id. at 1040.

V. Propriety of Temporary Protective Relief

The INS argues that the District Court improperly granted temporary protective relief to class members with pending legalization applications. We review the grant of a preliminary injunction for abuse of discretion. See Textile Unlimited, Inc. v. A. BMH & Co. , 240 F.3d 781, 786 (9th Cir. 2001). In section III.C of this decision, we held that the District Court had jurisdiction over the claims of class members with pending legalization applications. We now hold that the preliminary injunction was properly granted to these class members.

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IMMIGRANT ASSISTANCE PROJECT v. INS

This Court already rejected most of the INS’s arguments in IAP III when it affirmed the similar temporary protective relief granted by the District Court in IAP I and IAP II. Moreover, contrary to the INS’s remaining arguments, neither the Supreme Court’s subsequent ruling in CSS II nor other subsequent rulings render the injunction improper.

In its 1999 Order, the District Court instructed the INS “to adjudicate [pending] applications in accordance with the procedures established in this court’s rulings ” in IAP I and IAP II. In IAP III, we affirmed these procedures. The INS raises three arguments that subsequent rulings have completely or partially invalidated IAP I, IAP II, and IAP III.

First, the INS argues that after CSS II, the District Court no longer has jurisdiction over claims by plaintiffs whose applications have not yet been decided. As discussed in section II.C, however, CSS II did not destroy District Court jurisdiction over procedural claims by plaintiffs with pending applications, including the claims by plaintiffs in the present case.

Second, the INS argues that the 1999 Order did not afford Chevron deference to the INS’s own interpretation of the “known to the government ” requirement. The 1999 Order instructed the INS, inter alia, to adjudicate pending applications in accordance with the burden-shifting mechanism established in IAP II for section 265 violators. Under this mechanism, knowledge of an applicant’s unlawful status can be imputed to the government from the absence of the alien’s required quarterly address reports from the INS’s files. In In re H, 20 I. & N. Dec. 693 (BIA 1993), the BIA, however, held that “[i]t is not reasonable to impute knowledge to the Government based on the absence of a document. ” 20 I. & N. Dec. at 696. And in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984), the Supreme Court held that “a court may not substitute its own construction of a statutory provision for a reasonable inter-

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pretation made by the administrator of an agency. ” 467 U.S. at 844 (emphasis added).

The BIA’s holding in In re H, that knowledge of an applicant’s unlawful status could not be imputed to the government through the absence from the INS’s files of quarterly address reports required by § 265, is not a “reasonable interpretation” of § 1255a(a)(2)(B)’s “known to the government ” requirement. In affirming the burden-shifting mechanism established in IAP II, we observed:

The record shows that before January 1, 1982, the INS reviewed agency records to determine whether nonimmigrants had complied with the reporting requirements under section 265. The absence of the required section 265 report identified those in violation. As a consequence of its own practices, the INS had actual knowledge of an alien’s unlawful status.

IAP III, 976 F.2d at 1209. Indeed, the INS’s own prior practice of identifying section 265 violators through the absence of address reports makes it unreasonable for the government to claim later that knowledge of an applicant’s unlawful status could not be imputed to the government through the absence of the same address reports. The INS’s interpretation of the “known to the government ” requirement did not become reasonable when the BIA affirmed this interpretation in In re H. Under Chevron, the District Court was not required to defer to the INS’s unreasonable interpretation of the “known to the government” requirement. It was, therefore, appropriate for the District Court to instruct the INS to abandon its interpretation of the requirement and instead to adjudicate pending applications in accordance with the burden-shifting mechanism established in IAP II.

Third, the INS argues that the 1999 Order violated rationalbasis review as defined in Heller v. Doe, 509 U.S. 312 (1993). The 1999 Order instructed the INS, inter alia, to adjudicate

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pending applications in accordance with the burden-shifting mechanism established in IAP II for student visa violators. The burden-shifting mechanism in IAP II was in turn based on the District Court’s conclusion in IAP I that the INS’s distinction between two groups of student visa violators — students who had violated their visas by not taking a required number of class hours, and who were required to prove that their unlawful status was known to the government, and students who had violated their visas by remaining in the United States after they graduated, and who were required only to prove that their lawful status had expired before January 1, 1982 — was an “irrational classification” that “violate[d] the equal protection guarantee” of the Fifth Amendment to the U.S. Constitution. IAP I, 709 F. Supp. at 1003.

In Heller, the Supreme Court reaffirmed that under rational-basis review, “a classification ‘must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’ ” 509 U.S. at 320 (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993)). The Supreme Court further held that “courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. ” Id. at 321. The Supreme Court cautioned, however, that “even the standard of rationality . . . must find some footing in the realities of the subject addressed by the legislation. ” Id.

Plaintiffs argue that Heller does not apply to the present case because Heller involved a classification by an agency rather than, as in the present case, a legislature. We reject this argument in light of the fact that the Supreme Court vacated IAP I and IAP II and remanded it specifically “for further consideration in light of Heller.” IAP V, 510 U.S. at 1007.

In IAP III, we agreed with the District Court that there was “no rational basis between the two groups to justify requiring . . . nonimmigrant[ ] [students who had violated their visas by

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not taking a required number of class hours] to meet different proof requirements for showing unlawful status as compared to other nonimmigrant students . . . who were similarly situated.” 976 F.2d at 1211. There is no reason to change this assessment after Heller. Whether a student has taken a required number of class hours can be just as easily verified as whether a student has graduated. Both types of information are, for example, readily available in the school files. See also IAP III, 976 F.2d at 1212 n.28 (noting that because “[f]ederal immigration regulations required schools to notify the INS if any of these individuals violated immigration laws, ” “both groups of aliens are similarly situated with respect to IRCA’s requirement for amnesty that their unlawful status be ‘known to the government’ ”). There is, therefore, no “reasonably conceivable state of facts that could provide a rational basis for the classification.” Heller, 509 U.S. at 320. Moreover, the fit between means and ends in the present case is not merely “imperfect.” Id. at 321. Rather, there is no discernable fit at all. Nor does there appear to be “some footing” for the classification “in the realities of the subject addressed by the legislation.” Id.24

More generally, the INS objects that plaintiffs have not met the requirements for a preliminary injunction. To receive a preliminary injunction, plaintiffs were required to show “either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor.” Sun Microsystems, Inc. v. Microsoft Corp. , 188 F.3d 1115, 1119 (9th Cir. 1999) (quoting Sega Enters. v. Accolade, Inc., 977 F.2d 1510, 1517 (9th Cir. 1992)). This

24The INS also argues that under SEC v. Chenery Corp. , 332 U.S. 194 (1947), the District Court could only set aside — but not replace — the INS’s procedure. This argument was already rejected by this Court in CSS III. See 976 F.2d at 1209-10 (rejecting the INS’s contention that “only the agency may create specific proof requirements to effectuate IRCA’s legalization program”).

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Court has explained that “[t]hese two alternatives represent ‘extremes of a single continuum,’ rather than two separate tests.” Id. (quoting Benda v. Grand Lodge of Int’l Ass’n of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1978)). Thus, “the greater the relative hardship to the moving party, the less probability of success must be shown. ” Id. (quoting National Ctr. for Immigrants Rights v. INS , 743 F.2d 1365, 1369 (9th Cir. 1984)). Conversely, “it has been held that a preliminary injunction may be granted even though the harm factor favors defendant if plaintiff demonstrates a substantial likelihood that he ultimately will prevail. ” 11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2948.3 (2d ed. 1995). See also Kaiser Trading Co. v. Associated Metals & Minerals Corp., 321 F. Supp. 923, 934 (C.D. Cal. 1970) (stating that even if a party has not made “as satisfactory a showing of irreparable injury as is generally desirable,” an injunction may still issue if it convinces the court “with reasonable certainty that it will ultimately succeed ”).

In the present case, plaintiffs have already convinced this Court that the INS’s policy towards applicants who violated their visas by not filing the required quarterly address reports “represents an overly restrictive interpretation of [the] IRCA ” and that there was “no rational basis ” for the INS’s policy towards applicants who violated their visas by, e.g., not taking a required number of class hours. IAP III, 976 F.2d at 1209, 1211. As discussed above, there is no reason to change these assessments now. Accordingly, there is an extremely high likelihood that plaintiffs will ultimately prevail. As a result, a mere possibility of irreparable harm will entitle plaintiffs to a preliminary injunction. It is certainly possible that individual plaintiffs and class members will have their applications denied due to the challenged INS policies and that this will, in turn, irreparably harm them because it, e.g., makes them deportable. The District Court, therefore, did not abuse its discretion when it granted the injunction.

IMMIGRANT ASSISTANCE PROJECT v. INS CONCLUSION

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For the foregoing reasons, we AFFIRM the District Court’s reinstatement of its class certification order and its modified reinstatement of its order granting temporary relief. We REMAND to allow plaintiffs to amend the complaint to satisfy all jurisdictional and venue requirements as outlined above.

AFFIRMED in part and REMANDED in part.

Each side to bear its own costs of suit.