1

2
3 NADINE K. WETTSTEIN, Pro Hoc Vice J. TRACI HONG, Pro Hoc Vice
4 American Immigration Law Foundation 5 1300 Eye Street, N.W., Suite 490E
Washington, DC 20005 6 Phone: (202) 371-6450
Fax: (202) 371-6459
7
8 LINTON JOAQUIN, California Bar # 73547 National Immigration Law Center
9 3435 Wilshire Boulevard, Suite 2850 Los Angeles, California 90010
10 Phone: (213) 639-3900 11 Fax: (213) 639-3911

12 Attorneys for Plaintiffs (For additional counsel see next page)
13

14

15

UNITED STATES DISTRICT COURT

16

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

17

18 GUSTAVO ESCUTIA, GRACIELA

)

19 REBECA GARCIA DE ESPINOZA,

)

EDITH HERNANDEZ, WENDY

)

20 HERNANDEZ, RITA LORENA

)

VALENZUELA LOPEZ, GUILLERMO )

21

OCAMPO, JESUS ESPINOZA and

)

22 JOSE ESPINOZA, on behalf of themselves )

and all others similarly situated,

)

23

)

24

Plaintiffs,

)

)

25

vs.

)

) 26 JANET RENO, Attorney General, DORIS )

27 MEISSNER, Commissioner of the Im-

)

migration and Naturalization Service, and )

28 the IMMIGRATION AND NATURALI- )

ZATION SERVICE,

)

)

Defendants.

)

____________________________________)

No. __________
COMPLAINT FOR DECLARATORY, MANDAMUS, AND INJUNCTIVE RELIEF
CLASS ACTION

1 2
3 MARK SILVERMAN Immigrant Legal Resource Center
4 1663 Mission Street, Suite 602 5 San Francisco, California 94103
Phone: (415) 255-9499 6 Fax: (415) 255-9792 7 Of Counsel for Plaintiffs
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1

INTRODUCTION

2

3

Plaintiffs, by and through their undersigned counsel, sue the Defendants and allege as

4 follows:

5

1. Plaintiffs Gustavo Escutia, Graciela Rebeca Garcia de Espinoza, Edith

6
Hernandez, Wendy Hernandez, Rita Lorena Valenzuela Lopez, Guillermo Ocampo, Jesus
7
Espinoza, and Jose Espinoza seek declaratory, mandamus, and injunctive relief against the
8

9 Defendants for the Defendants’ failure to comply with their statutorily mandated duties under §

10 301 of the Immigration Act of 1990 (IMMACT 90), known as the Family Unity program.

11 Plaintiffs sue as individuals and as representatives of two classes of similarly situated persons.
12
2. The Family Unity program was enacted in § 301 of the IMMACT 90, Pub.L. No.
13
101-649, § 301, 104 Stat. 5029, as amended Pub.L. 101-649, Title VI, § 603(a)(23), Nov. 29,
14
15 1990, 104 Stat. 5084; Pub. L. 103-416, Title II, § 206(a), Oct. 25, 1994, 108 Stat. 4311. Section

16 301 imposed a mandatory duty on Defendants to process Family Unity applications and grant

17 eligible people employment authorization and protection against deportation.
18
3. Defendants are not complying with this mandatory duty. Defendants have failed
19
to act and have unreasonably delayed processing Plaintiffs’ applications for Family Unity status.
20
21 As a direct consequence, Plaintiffs are facing the risk of being deported from the United States,

22 may be accruing “unlawful presence” in the United States, do not have employment
23
authorization, and are suffering other substantial harms and injuries.
24
4. Defendants have been unwilling or unable to remedy their failures or to
25
26 ameliorate the harms done to Plaintiffs.

27

JURISDICTION

28

5. This court has subject matter jurisdiction of this action under 28 U.S.C. §1331

(federal question jurisdiction) because Plaintiffs’ claims arise under the laws of the United

1

1 States, specifically §301 of IMMACT 90 and the Immigration and Nationality Act (INA), 8
2
U.S.C. 1101 et seq. This court may grant relief in this action under 28 U.S.C. §1361 (Mandamus
3
Act); 28 U.S.C. §1651 (All Writs Act); 28 U.S.C. §2201 (Declaratory Judgment Act); and under
4
5 5 U.S.C. §701 et seq. (Administrative Procedure Act or APA).

6

VENUE

7

6. Venue is proper in this court under 28 U.S.C. § 1391(e) because this is a civil

8
action in which Defendants Janet Reno and Doris Meissner are officers of the United States
9
acting in their official capacities and the Immigration and Naturalization Service (INS) is an
10

11 agency of the United States; because some of the Plaintiffs and many class members reside in

12 this judicial district; because Defendants’ California Service Center is located in this district; and

13 because a substantial part of the events or omissions giving rise to the claim occurred in this
14
judicial district.
15
HISTORY AND DESCRIPTION OF THE FAMILY UNITY PROGRAM
16

17

7. The Family Unity program was an outgrowth of the Immigration Reform and

18
Control Act of 1986 (IRCA). Among other things, IRCA permitted certain previously
19

undocumented immigrants to obtain first temporary, and then permanent residence status (also
20

21 known colloquially as a “green card”). This part of IRCA is known as “legalization” or

22 “amnesty.” See INA, § 245A, 8 U.S.C. § 1255a, and INA § 210, 8 U.S.C. § 1160.
23
8. However, IRCA did not address the situation of the immediate family members of
24
the legalized temporary or permanent residents. Typically, these immediate family members
25
26 came to the United States after the IRCA applicant did, arriving after the legalization

27 qualification deadlines.

28

9. In 1989 and 1990, the INS instituted a discretionary, administrative “family

fairness” policy. This policy permitted immediate family members to remain in the United

2

1 States with the legalized temporary or permanent resident until the family members could obtain
2
permanent residence through the normal immigration process.
3
10. At the time, the “Family Fairness” program was estimated to benefit
4
5 approximately 100,000 immediate family members of IRCA temporary or permanent residents.

6 Under the program, the INS provided a lengthy period of “voluntary departure” (i.e., INS

7 forbearance to deport) and employment authorization to eligible family members.
8
11. Subsequently, Congress enacted a similar but mandatory “Family Unity” program
9
in § 301 of IMMACT 90. The purpose of the Family Unity program was and is to enable
10
11 immediate family members to remain in the United States with the legalized temporary or

12 permanent resident until the family member can obtain lawful permanent resident status.

13

12. Congress directed that Defendants not deport -- or otherwise require to depart

14
from the United States – spouses and children of IRCA permanent and temporary residents,
15

providing those spouses and children met the eligibility requirements. Congress also mandated
16

17 that Defendants provide employment authorization to these spouses and children. Under

18 Defendants’ own implementing regulations, Defendants were and are obligated to grant

19
voluntary departure and employment authorization to Family Unity beneficiaries. The

20
Defendants are failing to fulfill this mandatory duty.
21

22

13. Congress also directed that the INS not consider Family Unity beneficiaries to be

23 in “unlawful presence” in the United States. That is, in the terms of the INA, their “period of

24 stay” in the United States is to be “authorized by the Attorney General.” On information and
25
belief, the Defendants are violating this congressional directive as well.
26

27

28

3

1

RELEVANT STATUTORY AND REGULATORY PROVISIONS

2

3

Statute and Regulations,

Family Unity Status and Employment Authorization

4

5

14. Section 301 of IMMACT 90 mandates the Attorney General to ensure that an

6 “eligible immigrant” is not deported or otherwise required to depart from the United States under
7
designated provisions of the INA. IMMACT 90, § 301(a)(1). It also mandates the Attorney
8
General to grant employment authorization to each “eligible immigrant,” and also to provide
9
10 each with an appropriate work permit. IMMACT 90, § 301(a)(2).

11

15. Specifically, the statute says, in relevant part (emphasis added):

12

§ 301 (a). The Attorney General shall provide that in the case of an alien who is

13
an eligible immigrant .... who is not lawfully admitted for permanent residence,
14
the alien –
15

16

(1) may not be deported or otherwise required to depart from the United States

17

.... and

18

(2) shall be granted authorization to engage in employment .... and be provided

19
an “employment authorized” endorsement or other appropriate work permit.
20

21

22

16. An “eligible immigrant” is defined as an immigrant who is the spouse or

23 unmarried child of a person who received temporary or permanent residence status under §210

24 (SAW) or §245A of the INA (legalization), or permanent residence under §202 of IRCA
25
(Cubans or Haitians). IMMACT 90, § 301(b).
26
17. Some people are ineligible for Family Unity status even if they have the
27
28 qualifying family relationship. These include people who entered the United States after

specified dates in 1988; who have been convicted of a felony or three or more misdemeanors in

4

1 the United States; who persecuted others; or who are a danger to national security. IMMACT
2
90, § 301(e).
3
18. Defendants revised the regulations implementing the Family Unity provisions of
4
5 IMMACT 90 on April 1, 1997. These regulations are found at 8 CFR Parts 236.10-236.18. The

6 regulations prescribe eligibility requirements, the application procedures, and the entitlements

7 under the Family Unity program.
8
19. “Voluntary departure” under these regulations “implements the provisions of §
9
301 of IMMACT 90....” 8 C.F.R. §§ 236.15(a), 236.10. That is, voluntary departure (including
10
11 extensions) is the mechanism the INS has chosen to implement the prohibition on deportation

12 mandated by IMMACT 90. A Family Unity applicant whose application is approved “will”

13 receive a grant of voluntary departure, beginning with the date of approval of the application. 8
14
C.F.R.§ 236.15(c). A grant of voluntary departure technically means that the applicant has the
15
INS’s permission to depart the United States voluntarily, avoiding formal deportation. In reality,
16
17 it is permission for the applicant to remain in the United States until he or she becomes a lawful

18 permanent resident.
19
20. Each applicant for Family Unity status must file Form I-817 with the proper fee
20
(currently $120) at the INS Service Center having jurisdiction over the applicant’s place of
21
22 residence. The Form I-817 must be filed with documentation that evidences the applicant’s

23 eligibility for Family Unity. 8 C.F.R. § 236.14.

24

21. Although Congress did not prescribe any time limitations on Family Unity status,

25
Defendants’ implementing regulations authorize voluntary departure in two-year increments.
26
Therefore, under the regulations, Family Unity beneficiaries must apply for an extension of their
27

28 voluntary departure every two years. 8 C.F.R. § 236.15(c), (e). A separate application and fee

(currently $120) are required for each extension. 8 C.F.R. §§ 236.15(e), 103.7(b)(1).

5

1

22. A Family Unity beneficiary also is entitled to employment authorization.

2
IMMACT 90, § 301(a)(2); 8 C.F.R. § 236.15(d). The regulations provide that the employment
3
authorization period “will” coincide with the voluntary departure period. 8 C.F.R. § 236.15(d).
4
5 Therefore, under the regulations, employment authorization expires every two years, along with

6 the period of voluntary departure.

7

23. Originally, Defendants obligated Family Unity applicants to separately file an

8
application for employment authorization, INS Form I-765, to receive authorization to work
9
pursuant to the Family Unity program. However, as a result of prior litigation and a settlement
10

11 agreement in Hernandez v. Reno, C.A. No. 9:93 CV 63 (E.D. Tex., filed Dec. 30, 1997), the INS

12 recently issued a revised Form I-817. Use of that form means that Family Unity applicants will

13 not have to file a separate Form I-765 to obtain an employment authorization document. 65 Fed.
14
Reg. 43677, July 14, 2000.
15
24. In addition, a separate regulation authorizes Family Unity applicants to be
16
17 employed, and mandates that Defendants provide documentation of that employment

18 authorization: 8 C.F.R. § 274a.12(a)(13). Another regulation requires Defendants to issue

19
interim employment authorization if the agency fails to adjudicate an application for employment

20
authorization within 90 days of the date the INS receives the application. 8 C.F.R. § 274a.13(d).
21

22

25. Although IMMACT and the regulations do not require this, Defendants have

23 delegated their responsibilities under the Family Unity program to the INS’s four “Service

24 Centers:” California (CSC), Texas (TSC), Nebraska, and Vermont. These four Service Centers

25
process all the Family Unity applications.

26

Statute and Regulations,

27

Inadmissibility and Accrual of “Unlawful Presence” Under the INA

28
26. In 1996, Congress amended the INA in the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009. Among many

6

1 other things, this amendment added the concept of “unlawful presence” to the INA. People who
2
are “unlawfully present” in the United States for a continuous period of more than 180 days and
3
thereafter depart the country are inadmissible, that is, ineligible for readmission, for three years
4
5 from their date of departure. INA § 212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B). People who are

6 “unlawfully present” for one year or more are inadmissible for ten years from their date of

7 departure. INA § 212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B). These provisions are known as the
8
“three and ten-year bars.”
9
27. A person is deemed to be “unlawfully present” if he or she is present in the United
10
11 States “after the expiration of the period of stay authorized by the Attorney General or is present

12 in the United States without being admitted or paroled.” INA § 212(a)(9)(B)(ii); 8 U.S.C. §

13 1182(a)(9)(B)(ii).
14
28. Congress expressly provided that Family Unity beneficiaries would not accrue
15
“unlawful presence” time, that is, they were authorized to remain in the United States:
16

17

No period of time in which the alien is a beneficiary of family unity protection pursuant

18

to § 301 of [IMMACT 90] shall be taken into account in determining the period of

19
unlawful presence in the United States under clause (i).
20

21 INA § 212(a)(9)(B)(iii)(III), 8 U.S.C. § 1182(a)(9)(B)(iii)(III).
22
29. The Family Unity implementing regulations also provide that voluntary departure
23
“shall be considered effective from the date on which the application was properly filed.” 8
24
25 C.F.R. § 236.15(c).

26

Administrative Procedure Act

27

30. Section 702 of the APA, 5 U.S.C., states that “[a] person suffering legal wrong

28
because of agency action, or adversely affected by agency action within the meaning of a

relevant statute, is entitled to judicial review thereof.” Section 551(13) of 5 U.S.C., defines

7

1 “agency action” to include “failure to act.” Furthermore, §706 of the APA directs the reviewing
2
court to “compel action unlawfully withheld or unreasonably delayed.”
3
CLASS ACTION ALLEGATIONS
4

5

31. The named individual Plaintiffs bring this action pursuant to Rule 23 of the

6
Federal Rules of Civil Procedure on behalf of themselves and all other persons similarly situated
7
in the following classes:
8

9

1) All present and future applicants for Family Unity benefits under § 301 of IMMACT

10

90 whose properly-filed I-817 applications have been pending with the INS for more than

11

90 days from the date of filing.

12

2) All past, present and future applicants for Family Unity benefits under §301 of

13

IMMACT 90 whose applications have been, or will be, approved, but not before they

14

have accrued or will accrue time in “unlawful presence” and who may thereby become

15
inadmissible to the United States under INA §212(a)(9)(B)(i), 8 U.S.C.
16
§1182(a)(9)(B)(i).
17

18
32. The members of the Plaintiff classes warrant class action treatment because they
19
fulfill the certifying requirements under Rule 23(a) of the Federal Rules of Civil Procedure.
20

21

33. The proposed classes meet the commonality requirement of Fed. R. Civ. P.

22 23(a)(2) because there are questions of law and fact common to the class. The same unlawful
23
conduct by the Defendants, i.e. their failure to perform their statutory duty under §301 of
24
IMMACT 90 to adjudicate Family Unity applications, have injured the named Plaintiffs and
25
26 class members alike. The questions of law and fact that arise from the Defendants’ actions, or

27 the lack thereof, are common to all members of the class.

28

34. The proposed classes meet the numerosity requirement of Fed. R. Civ. P. 23(a)(1)

because the classes are so numerous that joinder of all members is impracticable. The Plaintiffs

8

1 allege, on information and belief, that there are several thousand applicants whose Family Unity
2
applications are currently pending with the INS. In its July 9, 1999 information collection
3
request regarding Form I-817 Application for Voluntary Departure under the Family Unity
4
5 program, INS estimated that 23,944 people would use the I-817 form. 64 Fed. Reg. 37167 (July

6 9, 1999). Further, a September 1998 General Accounting Office report related that the INS

7 processed 26,806 Forms I-817 in 1995 (INS User Fee Revisions, GAO/GGD-98-197 at p. 22).
8
35. The proposed classes meet the typicality requirement of Fed. R. Civ. P. 23(a)(3)
9
because the claims of the named Plaintiffs are typical of the claims of each of the class members.
10
11 The named Plaintiffs complain of the Defendants’ failure to perform their statutory duty of

12 providing Family Unity benefits to those who are statutorily eligible under §301 of IMMACT 90

13 and INA § 212(a)(9)(B)(iii)(III), 8 U.S.C. § 1182(a)(9)(B)(iii)(III). Such claims are typical of,
14
and common to, all members of the class.
15
36. The named Plaintiffs will fairly and adequately protect the interests of the classes
16
17 as required by Fed. R. Civ. P. 23(a)(4) because their interests are identical to those of the other

18 members of the classes . Both the named Plaintiffs and the class members will benefit by
19
compelling the Defendants to adjudicate these applications. The named Plaintiffs will therefore
20
zealously protect the interests of the class. In addition, the fair and adequate protection of the
21
22 interests of the class will be further ensured because the named Plaintiffs are represented by

23 competent legal counsel.

24

37. The instant action should be maintained as a class action under Fed. R. Civ. P.

25
23(b)(2) because the Defendants have acted on grounds generally applicable to each member of
26
the classes by failing to carry out their mandated duty owed to each member of the classes to
27

28 grant voluntary departure and employment authorization and to protect them from accruing time

in unlawful presence.

9

1

38. Furthermore, as contemplated by Fed. R. Civ. P. 23(b)(1), if the individual

2
members of the classes were to bring separate suits to address the Defendants’ delay in
3
adjudicating their individual Family Unity applications, the Defendants may adjudicate only
4
5 those applications and ignore the applications of the remaining class members, thereby creating a

6 risk of inconsistent or varying adjudications with respect to individual members of the classes

7 and establishing incompatible standards of conduct for the Defendants in adjudicating Family

8
Unity applications. Resolving this matter as a class action would also serve judicial economy as
9
the courts would not be burdened with lawsuits by many individual Family Unity applicants.
10

11

PLAINTIFFS

12

39. Gustavo Escutia is a resident of Anaheim, California. Mr. Escutia’s mother, Ms.

13 Isabel Steiner-Magdaleno, is a legalized permanent resident. Mr. Escutia is eligible for the
14
Family Unity program as an unmarried child of a legalized permanent resident. Mr. Escutia’s
15
initial application for Family Unity benefits was approved and was valid from May 9, 1997 to
16
17 May 8, 1999.

18

40. On April 28, 1999, Mr. Escutia’s attorney submitted to the CSC an I-817

19
application for an extension of Family Unity voluntary departure, and an I-765 application for
20
employment authorization with necessary accompanying documents. Mr. Escutia’s employment
21
22 authorization document expired while he was waiting for the CSC to process his application.

23 Mr. Escutia’s initial I-817 application was filed on December 3, 1996 and was granted on May 9,

24 1997. It has now been more than a year since Mr. Escutia submitted his extension applications

25
to the CSC. Mr. Escutia no longer has work authorization and is still waiting for his applications
26
to be processed.
27

28

41. Graciela Rebeca Garcia de Espinoza is a resident of Phoenix, Arizona. Mrs.

Espinoza has resided in the United States since 1988. She is eligible for Family Unity status

10

1 because she is the spouse of David Espinoza, a legalized permanent resident. The Espinozas
2
have one son and one daughter, both United States citizens.
3
42. Mrs. Espinoza was initially granted Family Unity benefits from February 6, 1997
4
5 to February 5, 1999. On November 13, 1998, a certified immigration representative filed at the

6 CSC the Forms I-817 and I-765 to extend voluntary departure and employment authorization

7 under the Family Unity program for Mrs. Espinoza. Mrs. Espinoza’s status and eligibility have
8
not changed since her initial application was granted.
9
43. Defendants failed to extend Mrs. Espinoza’s work authorization before it expired.
10
11 Accordingly, her employer fired her in April 1999. She has not been able to work since then.

12

44. Mrs. Espinoza had made many inquiries about her extension application to the

13 INS and members of Congress. Finally, she received the following response from the INS on
14
June 10, 1999:
15
THE ABOVE REFERENCED APPLICATION IS DEPENDENT UPON AN
16
APPROVED I-817 PETITION. THE I-817 PETITION HAS BEEN FILED AND
17
THE RECEIPT NUMBER IS WAC 99-033-51783. THE RECEIPTED [sic]
18
DATE OF THAT PETITION IS 11/16/98. CURRENTLY THE SERVICE IS
19
ADJUDICATING PETITONS [sic] THAT WERE RECEPTED [sic] ON 9/21/98.
20
AS THESE ARE NOT A COMMISSIONERS [sic] PRIORITY, THEY ARE
21
BEING PROCESSED AS RESOURCES ARE AVAILABLE.
22

23
45. Mrs. Espinoza also received a letter dated June 5, 2000, from William R. Yates,
24
25 Deputy Executive Associate Commissioner of the INS. Mr. Yates said he was responding to

26 Mrs. Espinoza’s letter dated March 30, 1999 regarding her employment authorization and Family
27
Unity extension applications. Mr. Yates’ letter said, in pertinent part:
28
Favorable adjudication of requests for employment authorization may not be

considered unless the Family Unity application has been granted and the applicant has

11

1

been placed under voluntary departure. Therefore, when we have adjudicated the Family

2

Unity application, we will consider the request for employment authorization.

3

4

46. Twenty-two months after Mrs. Espinoza filed for an extension of her Family

5
Unity status, Defendants still have not processed the applications.
6
47. Edith Hernandez is a resident of Menlo Park, California. Ms. Hernandez is
7
8 eligible for Family Unity status because she is the unmarried child of Elena Larios, a legalized

9 permanent resident. Ms. Hernandez entered the U.S. in 1979. She has attended school in the

10 U.S. and has a gift for working with children. Ms. Hernandez’s initial I-817 and I-765
11
applications were approved and were valid from May 9, 1997 to February 5, 1999.
12
48. On December 12, 1998, a certified immigration representative submitted to the
13
14 CSC an I-817 extension application and an I-765 application on Ms. Hernandez’s behalf. Ms.

15 Hernandez has taken classes at Canada College, and wants to complete an undergraduate degree

16 focusing on education and child development. However, because the CSC has failed to process
17
her Family Unity application, Ms. Hernandez has encountered difficulties every time she tries to
18
enroll at Canada College.
19

20

49. Wendy Hernandez resides in Redwood City, California. Ms. Hernandez qualifies

21 to receive benefits under the Family Unity Program because she is the unmarried daughter of Ms.

22
Roselia Cisneros de Hernandez, a legalized permanent resident. Ms. Hernandez entered the

23
United States in February 1985 and attended elementary, junior high, and high school here.
24

25

50. On May 27, 1998, a certified immigration representative submitted to the CSC an

26 initial Form I-817 Family Unity application and a Form I-765, Employment Authorization

27 application, with the proper fees and supporting documents on Ms. Hernandez’s behalf. In a
28
letter dated June 18, 1998, the INS notified Ms. Hernandez that she needed to submit a $25

fingerprinting fee. Accordingly, Ms. Hernandez paid the fingerprinting fee, had her fingerprints

12

1 taken, and submitted the results to the CSC. It has been more than two years since Ms.
2
Hernandez submitted her I-817, but the CSC still has not processed it.
3
51. Rita Lorena Valenzuela Lopez is a resident of Phoenix, Arizona. She is qualified
4
5 to receive benefits under the Family Unity program because she is an unmarried daughter of

6 Loreto Valenzuela Romero, a legalized permanent resident. Ms. Valenzuela came to the United

7 States in 1982 when she was seven years old and has lived here ever since. She has two United
8
States citizen daughters who are nine and five years old, respectively.
9
52. On February 10, 1999, a certified immigration representative submitted to the
10
11 CSC an initial I-817 application for voluntary departure and I-765 application for work

12 authorization under the Family Unity program, with the proper fees, on Ms. Valenzuela's behalf.

13 After one year and numerous inquiries to the INS and members of Congress, the office of the
14
United States Representative Ed Pastor informed Ms. Valenzuela that she could receive interim
15
work authorization at the local INS office. On April 11, 2000, Ms. Valenzuela went to the
16
17 Phoenix District Office of the INS with Rep. Pastor's letter and proof that her I-765 had been

18 pending for more than one year. Nevertheless, the Phoenix District Office refused to issue her

19
interim work authorization. More than a year and a half later, the Defendants still have not

20
processed her applications for Family Unity and employment authorization.
21

22

53. Guillermo Ocampo resides in Anaheim, California. Mr. Ocampo has been

23 continuously present in the United States since March 1985. He attended high school for four

24 years and college for two years in the United States. Mr. Ocampo is eligible for Family Unity as
25
the unmarried son of Mr. Aurelio Ocampo-Rodriguez. Aurelio Ocampo-Rodriguez became a
26
lawful permanent resident under IRCA and is now a naturalized United States Citizen. On
27
28 August 20, 1998, Mr. Ocampo’s attorney submitted to the CSC an I-817 application for

voluntary departure under the Family Unity program and an I-765 application for employment

13

1 authorization with the necessary accompanying documents and fees.
2
54. It has been two years since Mr. Ocampo submitted his Family Unity application,
3
but the CSC still has not processed it. The CSC sent Mr. Ocampo’s attorney a form “response to
4
5 your inquiry,” dated July 11, 2000. That response said that Mr. Ocampo’s application was still

6 pending, and then added:

7

The application/petition is not outside current processing time. Cases are adjudicated in

8

the order received. We are adjudicating cases with receipt date of: 12/11/97.

9

55. Jesus Espinoza lives in Sacramento, California. Mr. Espinoza is eligible for

10 Family Unity status because he is the unmarried child of Margarita Espinoza, a legalized
11
permanent resident. Jesus Espinoza entered the United States in September 1987 and attended
12
grade and the high schools in Sacramento. An attorney submitted to the CSC a Form I-817
13
14 application for the Family Unity program for him in June 1999, with proper fee, and

15 documentation of his eligibility for Family Unity status. In August 1999, the CSC sent the

16 attorney a notice requesting a $25.00 fee for fingerprinting. The attorney submitted the
17
fingerprinting fee in August 1999. Jesus Espinoza’s I-817 application is still pending.
18
56. Jose Espinoza resides in Sacramento, California. Jose is Jesus Espinoza’s brother.
19
20 Jose entered the United States in 1987 and attended elementary, middle and high schools here.

21 Jose is eligible for Family Unity status because he is the unmarried son of Margarita Espinoza, a
22
legalized permanent resident. An attorney submitted to the CSC a Form I-817 application for the
23
Family Unity Program for him in June 1999, with the proper fee and documentation of his
24
25 eligibility for Family Unity status. In August 1999, the CSC sent the attorney a notice

26 requesting a $25.00 fee for fingerprinting. The attorney submitted the fingerprinting fee in

27 August 1999. Jose Espinoza’s I-817 application is still pending.
28
DEFENDANTS

57. Janet Reno is the Attorney General of the United States. She is charged with the
14

1 administration and enforcement of the immigration laws. 8 U.S.C. § 1103(a). She is sued in her
2
official capacity.
3
58. Doris Meissner is the Commissioner of the INS. She is charged with any and all
4
5 responsibilities and authority in the administration of the INS as have been delegated or

6 prescribed by the Attorney General. She is sued in her official capacity.

7

59. The INS is an agency of the United States government. It has primary

8
responsibility for implementation of the immigration laws, and in particular the Family Unity
9
program.
10

11

DEFENDANTS’ FAILURES TO FULFILL THEIR

MANDATORY DUTIES

12

60. The Defendants have delegated all responsibility for processing Family Unity
13

14 initial and renewal applications to the four Service Centers. The CSC and the TSC have not been

15 processing initial or renewal I-817 applications or have been processing them sporadically or
16 extremely slowly. None of the Plaintiffs’ I-817 applications has been adjudicated, and some of
17
the Plaintiffs’ I-817 applications have been languishing for more than two years.
18
61. The INS's "Just in Time Report" from the CSC, dated July 21, 2000, claimed that
19
20 the CSC is processing initial I-817 applications that were filed on December 11, 1997. This is a

21 two and a half-year delay. The July 21 report also says that the CSC is processing extension I-
22
817 applications that were filed on May 13, 1998, more than a two-year delay. A CSC report
23
issued two weeks prior, on July 7, 2000, and the report issued in June 2000 showed the same
24
25 dates.

26

62. The May 12, 2000 report said that the CSC was processing initial I-817

27 applications filed on December 5, 1997 (six days earlier than the June and July Reports) and
28
extensions filed on May 13, 1998 (the same date as the June and July Reports). However, a CSC

report dated May 26, 2000, showed that initial I-817s that had been filed on December 11, 1997

15

1 and I-817 extensions that had been filed on May 13, 1998 were being processed.
2
63. The TSC backlogs are not quite as severe but also are very long. The March 31,
3
2000 Processing Time Report said that initial I-817 applications filed on September 30, 1998 and
4
5 extension applications filed on September 22, 1999 were being processed. There was thus an

6 18-month delay for processing of initial applications and a six-month delay for extension

7 applications. The April 30, 2000 TSC Processing Time Report said that the TSC was then

8
processing initial I-817 applications filed on June 1, 1998 (almost a two-year delay) and
9
extension I-817 applications filed on December 4, 1999 (a four-month delay).
10

11

64. The TSC report for the period ending on May 31, 2000, did not report initial and

12 extension I-817 applications separately. The report said only that I-817 applications were

13 “current.” The TSC did not explain what that term meant or whether both initial and extension
14
applications were “current.” As the April 2000 report showed an almost two-year backlog of
15
initial applications, the May “current” report may be inaccurate or overly optimistic.
16

17

65. By contrast, the Vermont Service Center Processing Time Report for the period

18 ending July 31, 2000 shows that all I-817 applications are current. The Nebraska Service Center

19
Processing Time Report dated July 31, 2000 shows that I-817 applications filed on March 10,

20
2000 were being processed.
21

22

66. Despite the statutorily mandated prohibition against them being deported, because

23 of Defendants’ failures to act, Plaintiffs live under fear of deportation from the United States.

24 Deportation would mean long-term separation from home, family, and jobs. Other harms
25
Plaintiffs are suffering include the inability to work, to change jobs, or to enroll in school.
26
67. Congress has mandated that Defendants provide protections for the Plaintiffs and
27
28 the classes they represent, but Defendants are failing to comply. Some of the Plaintiffs and the

class they represent have been without voluntary departure and employment authorization for

16

1 more than two years. This is in spite of the fact that Defendants’ Family Unity regulations
2
provide that Family Unity voluntary departure and employment authorization are granted in two-
3
year increments. Congress created a mandatory, permanent program and did not intend that
4
5 there be any gaps in the protection against deportation. Yet Defendants’ refusals to act and

6 failures to act are creating gaps of more than two years in Plaintiffs’ lives.

7

68. As a result of the Defendants’ failures, rather than being protected, the Plaintiffs

8
and the class they represent are being subject to deportation (now known as removal), which
9
would mean separation or possibly banishment from home, family, and work. Plaintiffs and the
10

11 class they represent constantly live under the threat of deportation.

12

69. In addition, Plaintiffs and the class they represent have been fired from jobs and

13 are unable to obtain new employment. They are unable to enroll in some schools, or are charged
14
higher tuition.
15
70. Thus, the Plaintiffs and the class they represent -- the very people Congress
16
17 intended to protect -- must suffer needless economic harm as a result of the inability to work, as

18 well as emotional, mental, or physical harm that may arise from the constant threat of
19
deportation.
20
71. Congress expressly provided in IIRIRA that Family Unity beneficiaries were in a
21
22 “period of stay authorized by the Attorney General.” That is, Congress specified that Family

23 Unity beneficiaries are, by operation of law, authorized to remain in the United States, and thus,

24 not accruing time in unlawful presence. INA 212(a)(9)(B)(iii)(III), 8 U.S.C. §
25
1182(a)(9)(B)(iii)(III).
26
72. Defendants’ own regulations state that voluntary departure “shall be considered
27
28 effective from the date on which the applications was properly filed.” 8 C.F.R. § 236.15(c). On

information and belief, however, Defendants improperly consider that the time during which an

17

1 application – initial or renewal -- for Family Unity benefits is pending is time accrued in

2
“unlawful presence.” At the same time, the Defendants have sole control over the length of time

3
during which a Family Unity application is pending.
4

5

73. Therefore, rather than acknowledging that Family Unity Beneficiaries are

6 authorized to remain in the United States and rather than assuring that Family Unity applicants

7 do not accrue unlawful presence, on information and belief, Defendants are improperly causing
8
Plaintiffs and the represented class to accrue unlawful presence. On information and belief,
9
Defendants are disregarding the plain statutory language exempting Plaintiffs from accrual of
10
11 “unlawful presence.” Defendants also are refusing to process Plaintiffs applications and are

12 unreasonably delaying the processing of their applications. In these ways, Defendants are

13 causing Plaintiffs to become inadmissible to the United States. If Plaintiffs depart the United
14
States, on information and belief Defendants will bar them from reentering for at least three
15
years.
16

17

74. Defendants have unlawfully withheld and/or unreasonably delayed performing a

18 mandatory, statutory duty to the Plaintiffs and the class they represent. Plaintiffs will continue to
19
suffer economic, emotional, and other harm and injuries until the Defendants perform their
20
mandated duty by processing Plaintiffs’ Family Unity applications and processing class
21
22 members’ applications in a timely manner.

23

75. On May 31, 2000, Plaintiffs’ counsel sent a letter to the INS Deputy Executive

24 Associate Commissioner William R. Yates, with a copy to INS General Counsel Bo Cooper. The
25
letter informed Mr. Yates and Mr. Cooper in detail of the CSC and TSC’s long backlogs of
26
Family Unity applications. The letter also told the INS officials’ that counsel were prepared to
27
28 litigate the issue of INS’s failures to process these applications if the INS did not: 1) by July 1,

2000, substantially eliminate the backlog of I-817 initial and extension applications in California

18

1 and Texas, that is, process all applications filed on or before April 1, 2000; and 2) reduce the I-
2
817 initial and extension application processing time to 90 days in all four Service Centers; and
3
3) put and keep measures in place to assure that all I-817 initial and renewal applications
4
5 continue to be processed within 90 days of filing; and 4) notify us by June 19, 2000 of the

6 specific and concrete measures the INS was taking to accomplish these goals. There was no

7 response to the letter and the processing times and backlogs have not substantially changed.

8
CAUSES OF ACTION
9
I.
10

11

(Violation of § 301 of IMMACT 90

12

and 8 C.F.R. § 236.10 – 8 C.F.R. § 235.15)

13

14

76. Plaintiffs incorporate paragraphs 1 through 75 as if set forth in full herein.

15

77. Section 301(a) of IMMACT 90 and 8 C.F.R. § 236.10 et seq. charge the

16 Defendants to provide voluntary departure and employment authorization to eligible Family
17
Unity Applicants.
18
78. Defendants have failed to perform their mandatory duties under the law and
19
20 regulations. They have violated § 301 of IMMACT 90 and 8 C.F.R. §§ 236.10 et seq.

21

79. Plaintiffs and the class they represent have properly submitted their Family Unity

22
applications. All applications would have been processed but for Defendants’ failures and
23
refusals to act. Defendants’ failures and refusals to process Plaintiffs’ applications is a clear
24
25 dereliction of their mandatory duties under §301 of IMMACT 90 and under their own

26 regulations and has injured the Plaintiffs and the class they represent.

27

80. Plaintiffs will continue to suffer economic, emotional and physical harms and

28
injuries until Defendants perform their mandated duties as described herein.

19

1

II.

2
Violation of INA § 212(a)(9)(B)(iii)(III), 8 U.S.C. § 1182(a)(9)(B)(iii)(III) (Unlawful

3
presence)
4

5

81. Plaintiffs incorporate paragraphs 1 through 80 as if set forth in full herein.

6

82. Defendants are disregarding and disobeying INA § 212(a)(9)(B)(iii)(III), 8 U.S.C.

7 § 1182(a)(9)(B)(iii)(III) and their own regulation, and have not acknowledged that Family Unity
8
beneficiaries are maintaining lawful status upon applying for Family Unity. By adopting the
9
position that Plaintiffs are accruing “unlawful presence,” and by failing and refusing to process
10
11 Family Unity applications, Defendants have caused the Plaintiffs and the class they represent to

12 become inadmissible. Defendants have violated the INA, the intent of Congress, and their own

13 regulation.
14

15

16

17

83.

III. Violation of the APA Plaintiffs incorporate paragraphs 1 through 82 as if set forth in full herein.

18

84. By failing and refusing to process Plaintiffs’ Family Unity applications, and/or

19
failing to process their applications within a reasonable time, Defendants have unlawfully
20
withheld and/or unreasonably delayed performing a statutory duty owed to the named Plaintiffs
21
22 and the represented classes. The Plaintiffs are suffering and will continue to suffer economic,

23 emotional and other harms and injuries as a direct result of Defendants’ failures. Defendants’

24 failures and refusals are a violation of the APA and cognizable under 5 U.S.C., §§ 551(13) and
25
706(1).
26

27

28

20

1

2
IV.

3
Due Process
4

5

85. Plaintiffs incorporate paragraphs 1 through 84 as if set forth in full herein.

6

86. Defendants’ failures to process Plaintiffs’ Family Unity Applications and those of

7 the represented classes violate Plaintiffs’ and class members’ Fifth Amendment rights to Due
8
Process. Because Plaintiffs and class members were required to and did file their Family Unity
9
applications in the CSC and the TSC rather than in the Vermont Service Center or the Nebraska
10
11 Service Center, they remain without Family Unity protections and benefits. Plaintiffs, the

12 represented classes, and Family Unity applicants in the jurisdiction of other Service Centers all

13 are equally eligible for Family Unity status, and the application process in the CSC and the TSC
14
is the same as it is in the other two Service Centers. Defendants’ conduct with respect to
15
Plaintiffs and the represented classes violates due process.
16

17

PRAYER FOR RELIEF

18
WHEREFORE, Plaintiffs respectfully request this Court to:
19
1. Declare that Defendants have violated §301 of the Immigration Act of 1990 and
20
21 applicable regulations by failing to perform their mandatory duties of granting work

22 authorization and voluntary departure to Plaintiffs;

23
2. Declare that Defendants have unreasonably delayed processing Family Unity and
24
employment authorization applications;
25

26

3. Declare that Defendant’s policies and practices violate Plaintiffs’ rights to due

27 process;

28

4. Order Defendants to reduce the processing time for I-817 initial and extension

application, including employment authorization, to 90 days in all four Service Centers;

21

1

5. Order Defendants to immediately process all named Plaintiffs’ Family Unity and

2
employment authorization applications.
3
6. Order Defendants to put and keep measures in place to assure that all I-817 initial
4
5 and renewal applications, including employment authorization, continue to be processed within

6 90 days of filing;

7

7. Order Defendants to file a report to the Court detailing the specific measures they

8
are taking to accomplish these goals within 30 days from the date of the Court’s order;
9
8. Declare that Family Unity applicants do not accrue unlawful presence under INA
10

11 § 212(a)(9)(B)(iii)(III), 8 U.S.C. § 1182(a)(9)(B)(iii)(III) and that Defendants have unlawfully

12 applied the INA and unlawfully caused Plaintiffs and the classes they represent to accrue

13 unlawful presence.
14
9. Award the Plaintiffs their attorney’s fees and costs under the Equal Access for
15
Justice Act, and
16

17

10. Grant such other relief as the Court deems just, equitable and proper.

18 RESPECTFULLY SUBMITTED this 24th day of August, 2000.
19

20
______________________________

21

Nadine K. Wettstein

American Immigration Law Foundation

22

1300 Eye Street, N.W. Suite 490E

23

Washington, D.C. 20005

Attorneys for Plaintiffs

24

25
_____________________________

26
Linton Joaquin

27

National Immigration Law Center

3435 Wilshire Blvd., Suite 2850

28

Los Angeles CA 90010

Attorneys For Plaintiffs

22

 
 Case 8:00-cv-00841-AHS-AN Document 38 Filed 10/28/2002 Page 1 of 2

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA ~~NiAA~OruIS<iT:;;AI;;::CT~O~F:'";C:-:-A""lIF-OJ""

GUSTAVO ESCUTIA, et al.,

NO.~ )

CV 00-841 AHS

OF

)

Plaintiffs

)

)
v. )
)

ORDER APPROVING JOINT MOTION FOR CLASS CERTIFICATION

)

)

JOHN ASHCROFT, et al.,

)

Defendants. )

)

----------------------)

Pursuant to Rule 23(c) (1) of the Federal Rules of Civil Procedure, the parties jointly moved for class certification of the following class based upon paragraph 25 of the Settlement Agreement in this case, which was preliminarily approved by this Court on August 26, 2002:
All applicants for Family Unity Benefits under section 301 of the Immigration Act of 1990, whose applications are pending at the California Service Center on the date of the Court's final approval of this agreement or are filed with or transferred to the California Service Center during the 15 months in which the settlement agreement will be in effect.
Having carefully examined the settlement agreement, the record in this action, the opinion of class counsel, any comments or objections concerning the settlement agreement, and following the Settlement Fairness Hearing, the

Case 8:00-cv-00841-AHS-AN Document 38 Filed 10/28/2002 Page 2 of 2

hereby GRANTS the parties' joint motion for class certification. Therefore, it is hereby
ORDERED that the foregoing class is hereby APPROVED.

Dated: OCT 2 8 2002

~~~~--
ALICEMARIE H. STOTLER, JUDGE UNITED STATES DISTRICT COURT

2

 
 CM/ECF - California Central District - Docket Report

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(ANx), CLOSED

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA (Southern Division - Santa Ana)
CIVIL DOCKET FOR CASE #: 8:00-cv-00841-AHS-AN

Gustavo Escutia, et al v. Janet Reno, et al Assigned to: Judge Alicemarie H. Stotler Referred to: Discovery Arthur Nakazato Demand: $0 Cause: 05:551 Administrative Procedure Act Plaintiff Gustavo Escutia on behalf of himself and all others similarly situated
Plaintiff

Date Filed: 08/25/2000 Date Terminated: 03/07/2002 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by J Traci Hong American Immigration Law Foundation 918 F St NW Washington, DC 20004 202-742-5600 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linton Joaquin National Immigration Law Center 3435 Wilshire Blvd Suite 2850 Los Angeles, CA 90010 213-639-3900 Email: joaquin@nilc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverman Immigrant Legal Resource Center 1663 Mission st Suite 602 San Francisco, CA 94103 415-255-9499 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nadine K Wettstein American Immigration Law Foundation 918 F St NW Washington, DC 20004 202-742-5600 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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CM/ECF - California Central District - Docket Report
Graciela Rebeca Garcia De Espinoza on behalf of herself and all others similarly situated
Plaintiff Edith Hernandez on behalf of herself and all other similarly situated
Plaintiff Rita Lorena V Lopez on behalf of herself and all others similarly situated

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?982514983490588-L_3...
represented by J Traci Hong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nadine K Wettstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by J Traci Hong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nadine K Wettstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by J Traci Hong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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CM/ECF - California Central District - Docket Report
Plaintiff Guillermo Ocampo on behalf of himself and all others similarly situated
Plaintiff Jesus Espinoza, on behalf of himself and all others similarly situated

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?982514983490588-L_3...
Mark Silverman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nadine K Wettstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by J Traci Hong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nadine K Wettstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by J Traci Hong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nadine K Wettstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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CM/ECF - California Central District - Docket Report
Plaintiff Jose Espinoza on behalf of himself and all others similarly situated
V. Defendant Janet Reno Attorney General
Defendant Doris Meissner Commissioner of the Immigration and Naturalization Service
4 of 9

https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?982514983490588-L_3...
represented by J Traci Hong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nadine K Wettstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark C Walters US Department of Justice Office of Immigration Litigation Ben Franklin Station P O Box 878 Washington, DC 20044 202-616-4900 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia M Corrales-Talleda US Department of Justice Office of Immigration Litigation 300 N Los Angeles, Rm 8108 Los Angeles, CA 90012 213-894-8627 Email: patricia.corrales@dhs.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark C Walters (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia M Corrales-Talleda
6/22/2007 11:55 AM

CM/ECF - California Central District - Docket Report

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Defendant Immigration and Naturalization Service

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark C Walters (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia M Corrales-Talleda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/25/2000 08/25/2000 08/29/2000 08/29/2000
08/29/2000
08/30/2000 09/05/2000 09/05/2000

#

Docket Text

1 COMPLAINT filed Summons(es) 60 days referred to Discovery Arthur Nakazato (mrgo) (Entered: 08/29/2000)
2 CERTIFICATION OF INTERESTED PARTIES filed by plaintiff Gustavo Escutia, plaintiff Graciela Rebeca Garcia De Espinoza, plaintiff Edith Hernandez, plaintiff Rita Lorena V Lopez, plaintiff Guillermo Ocampo, plaintiff Jesus Espinoza -, plaintiff Jose - Espinoza (mrgo) (Entered: 08/29/2000)
NOTICE of filing fee due on pro hac vice appl sent (rmi) (Entered: 09/06/2000)
6 APPLICATION AND ORDER of Non-Resident Attorney to Appear in a Specific Case filed for plaintiff Gustavo Escutia, plaintiff Graciela Rebeca Garcia De Espinoza, plaintiff Edith Hernandez, plaintiff Rita Lorena V Lopez, plaintiff Guillermo Ocampo, plaintiff Jesus Espinoza -, plaintiff Jose - Espinoza by J. Traci Hong; Designating Linton Joaquin as local counsel. Approved by Judge Alicemarie H. Stotler . (Fee pd) (rmi) (Entered: 09/06/2000)
7 APPLICATION AND ORDER of Non-Resident Attorney to Appear in a Specific Case filed for plaintiff Gustavo Escutia, plaintiff Graciela Rebeca Garcia De Espinoza, plaintiff Edith Hernandez, plaintiff Rita Lorena V Lopez, plaintiff Guillermo Ocampo, plaintiff Jesus Espinoza -, plaintiff Jose - Espinoza by Nadine K. Wettstein. Designating Linton Joaquin as local counsel. Approved by Judge Alicemarie H. Stotler . (Fee pd) (rmi) (Entered: 09/06/2000)
3 MINUTES (In Chambers): plfs have failed to comply w/L.R. 3.4.1 concerning the typeface size; accordingly, the crt ord plfs to file a corrected cmp & corrected ntc of interested ptys nlt 9/13/00; by Judge Alicemarie H. Stotler CR: not present (rmi) (Entered: 08/31/2000)
4 (CORRECTED) COMPLAINT [1-1] by plaintiff Gustavo Escutia, plaintiff Graciela Rebeca Garcia De Espinoza, plaintiff Edith Hernandez, plaintiff Rita Lorena V Lopez, plaintiff Guillermo Ocampo, plaintiff Jesus Espinoza -, plaintiff Jose - Espinoza (rmi) (Entered: 09/06/2000)
5 (CORRECTED) Certification OF INTERESTED PARTIES filed by plaintiff Gustavo Escutia, plaintiff Graciela Rebeca Garcia De Espinoza, plaintiff Edith Hernandez,

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09/22/2000 09/22/2000 09/22/2000 09/22/2000 09/22/2000 10/30/2000 11/02/2000 11/29/2000 12/11/2000 12/14/2000
12/14/2000
01/05/2001
02/05/2001 02/07/2001 02/07/2001

plaintiff Rita Lorena V Lopez, plaintiff Guillermo Ocampo, plaintiff Jesus Espinoza -, plaintiff Jose - Espinoza (rmi) (Entered: 09/06/2000)
8 RETURN RECEIPT of Certified Mail showing delivery to Doris Meisser/INS rcvd by (name illegible) of S/C on 9/6/00 (mrgo) (Entered: 09/26/2000)
9 RETURN RECEIPT of Certified Mail showing delivery to US Atty Civ Process clrk rcvd by (no 1st name) Garcia of S/C on 9/1/00 (mrgo) (Entered: 09/26/2000)
10 RETURN RECEIPT of Certified Mail showing delivery to Janet Reno, US AG rcvd by Ernest Parker of S/C on 9/6/00 (mrgo) (Entered: 09/26/2000)
11 RETURN RECEIPT of Certified Mail showing delivery to US Atty Civ Process Clrk rcvd by Steve McCarty of S/C on 9/1/00 (mrgo) (Entered: 09/26/2000)
12 Proof of service of S/C executed upon defendant Janet Reno, US Atty Gen on 8/31/00 by mail (mt) (Entered: 09/27/2000)
13 NOTICE OF CHANGE Of Address filed by atty Nadine K Wettstein for plaintiff Jose - Espinoza (mt) (Entered: 11/02/2000)
14 STIPULATION and ORDER by Judge Alicemarie H. Stotler for extendion of time to file answer complaint [1-1] or other appropriate responsive pleading to 12/6/00 (mt) (Entered: 11/06/2000)
15 STIPULATION and ORDER by Judge Alicemarie H. Stotler that plfs shall not be req to file the mot for class cert prior to the close of business on 12/14/00 (kh) (Entered: 12/09/2000)
16 2nd STIPULATION and ORDER by Judge Alicemarie H. Stotler extending time to answer complaint [1-1] to 1/5/01 as to defendant Janet Reno, defendant Doris Meissner, defendant INS (seal) (Entered: 12/20/2000)
17 NOTICE OF MOTION AND MOTION by plfs Gustavo Escutia, Graciela Rebeca Garcia De Espinoza, Edith Hernandez, Rita Lorena V Lopez, Guillermo Ocampo, Jesus Espinoza -, Jose - Espinoza for class certification ; motion hearing set for 10:00 2/12/01; Lodged Prop Ord (kh) (Entered: 12/22/2000)
18 MEMORANDUM OF P/A IN SUPPORT by plfs Gustavo Escutia, Graciela Rebeca Garcia De Espinoza, Edith Hernandez, Rita Lorena V Lopez, Guillermo Ocampo, Jesus Espinoza -, Jose - Espinoza of motion for class certification [17-1] (kh) (Entered: 12/22/2000)
19 STIPULATION and ORDER by Judge Alicemarie H. Stotler for 3rd extending time to answer complaint [4-1] to 2/5/01 as to plaintiff Gustavo Escutia, plaintiff Graciela Rebeca Garcia De Espinoza, plaintiff Edith Hernandez, plaintiff Rita Lorena V Lopez, plaintiff Guillermo Ocampo, plaintiff Jesus Espinoza -, plaintiff Jose - Espinoza, defendant Janet Reno, defendant Doris Meissner, defendant INS (rmi) (Entered: 01/19/2001)
20 NOTICE OF CHANGE Of Address filed by atty Nadine K Wettstein for plaintiff Jose Espinoza (mt) (Entered: 02/07/2001)
21 STIPULATION and ORDER by Judge Alicemarie H. Stotler cont hearing on motion for class certification [17-1] 10:00 3/26/01; dfts' resp, if any is due NLT 3/12/01; plfs' reply if any is due NLT 3/19/01 (kh) (Entered: 02/13/2001)
22 NOTICE OF DISCREPANCY AND ORDER by Judge Alicemarie H. Stotler that stip to cont rcvd 2/6/01 be filed & processed (kh) (Entered: 02/13/2001)

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03/19/2001
03/22/2001 05/18/2001 06/04/2001 07/20/2001
08/23/2001 03/07/2002
07/31/2002 07/31/2002 08/02/2002 08/06/2002 08/07/2002 08/23/2002

23 STIPULATION and ORDER by Judge Alicemarie H. Stotler that the time for dfts to file dfts ans or other resp pleading & their resp to the motn for class certification be extended until 3/19/01, & that the time for plfs to file their rply to dfts be ext until 4/2/01. Plfs motn [17-1] is ord contd to 4/30/01 at 10:00am (SEND) (mt) (Entered: 03/21/2001)
24 STIPULATION and ORDER by Judge Alicemarie H. Stotler cont hearing on motion for class certification [17-1] 10:00 6/18/01 extending time to answer complaint [1-1] to 3/29/01 as to defendant Janet Reno, defendant Doris Meissner, defendant INS ; the time for plfs to file their reply to dfts be ext until 6/11/01 (kh) (Entered: 03/28/2001)
25 ORDER by Judge Alicemarie H. Stotler setting scheduling conference on 1:30 10/15/01 ; (see doc for specifics) (rmi) (Entered: 05/21/2001)
26 STIPULATION and ORDER by Judge Alicemarie H. Stotler cont hearing on motion for class certification [17-1] 10:00 8/6/01 extending time to answer complaint [1-1] or otherwise resp to 7/16/01 as to defendant Janet Reno, defendant Doris Meissner, defendant INS (kh) (Entered: 06/11/2001)
27 STIPULATION and ORDER by Judge Alicemarie H. Stotler continuing hearing on plfs' motion for class certification [17-1] to 10:00 9/10/01; extending time to answer complaint [1-1] to 8/16/01 as to defendant Janet Reno, defendant Doris Meissner, defendant INS & their resp to the mot for calss cert ext til 8/16/01 & that the time for plfs to file their rply ext til 8/30/01 (rmi) (Entered: 07/24/2001)
28 STIPULATION and ORDER by Judge Alicemarie H. Stotler that case is held in abeyance pend subm of sttlmt agreement (see doc for specifics) (rmi) (Entered: 08/27/2001)
29 ORDER by Judge Alicemarie H. Stotler that all prcdgs in the case stayed pend final sttlmt; fur ord that this actn is rmvd frm the crt's active caseload to the right upon good cause shown to reopen the actn if sttlmt is not consummated; the crt retain full juris over this actn & this ord shall not prej any pty in this actn; terminating case (MD JS-6) (rmi) (Entered: 03/08/2002)
30 MINUTES (In Chambers) by Judge Alicemarie H. Stotler: Notice to counsel - Local Rule 83-2.11. Returned herewith is your letter dated 7/26/02 re the above-entitled mtr. CR: Not Present (mt) (Entered: 08/02/2002)
34 JOINT NOTICE OF MOTION AND MOTION for preliminary approval of sttlmt agreement & ntc to class, & to set fairness hearing (mt) (Entered: 08/21/2002)
31 NOTICE OF DISCREPANCY AND ORDER by Judge Alicemarie H. Stotler ordering Joint Mot for Prelim Approval submitted received on 07/31/02 to be fld and processed; fld date to be the date the doc was stamped "received but not fld" w/the Clerk (ln) (Entered: 08/06/2002)
33 NOTICE OF JOINT MOTION for preliminary approval of settlement agreement and notice to class, and to set fairness hearing (mt) (Entered: 08/14/2002)
32 NOTICE OF DISCREPANCY AND ORDER by Judge Alicemarie H. Stotler ordering ntc of joint mot for prelim submitted received on 8/6/02 to be fld and processed; fld date to be the date the doc was stamped "received but not fld" w/the Clerk (mt) (Entered: 08/14/2002)
35 CORRECTED COPY OF ntc of prop settlement of lawsuit concerting immigration benefits under The family unity program (yc) (Entered: 08/27/2002)

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08/26/2002
08/26/2002 10/22/2002 10/22/2002 10/22/2002 10/28/2002 10/28/2002 10/28/2002 01/16/2004 01/21/2004
02/13/2004

36 MINUTES: by Judge Alicemarie H. Stotler; granting motion for preliminary approval of sttlmt agreement & ntc to class, & to set fairness hearing [34-1] ; IN COURT HEARING RE: Fairness Hrging set on 10/28/02 The deadline for filing and serving obj to lawyers is 10/7/02; if fild by mail. Postmark shdl be on or bef 10/7/02; Resp to obj shall be fld and served nlt 10/21/02; Order Preliminarily approving the settlement agreement and regarding ntc to the class and setting the fairness hrging is revised and fld and ordered published by the parties nlt 9/10/02. CR: William S Stephens (yc) (Entered: 08/29/2002)
37 ORDER by Judge Alicemarie H. Stotler That the Fairness hrging is set for 10/28/02 @ 11am. nlt 9/10/02 the parties shall publish this order, and nlt 10/15/02 pesons having objection to the settlement agreement shall submit same to this crt and to the parties cnsl. (yc) (Entered: 08/30/2002)
41 REPORT of the proposed settlement in this case and objections to the proposed settlement filed by defendant INS. (th) (Entered: 10/31/2002)
42 PLAINTIFFS' REPORT of The proposed settlement in this case and objections to the proposed settlement filed by defendant INS. (th) (Entered: 10/31/2002)
43 PLAINTIFF'S REPORT regarding the publication of the proposed settlement in this case and objections to the proposed settlement filed by defendant INS. (th) (Entered: 11/01/2002)
38 ORDER by Judge Alicemarie H. Stotler approving joint motion for class certification [17-1] (mt) (Entered: 10/29/2002)
39 ORDER by Judge Alicemarie H. Stotler approving the settlement agreement [34-1] (mt) (Entered: 10/29/2002)
40 MINUTES by Judge Alicemarie H Stotler: Crt grants Ord certifying class, & finds sttlmnt fair, just & reasonable; Crt retains jurisdiction for 15 months from this date to oversee provisions of sttlmnt agmt; terminating case (MD JS-6) (see doc for fur specifics) CR: Kathleen Haaland (ln) (Entered: 10/31/2002)
45 NOTICE OF MOTION AND MOTION for Dismissal of Action filed by plaintiffs Graciela Rebeca Garcia De Espinoza, Gustavo Escutia, Jesus Espinoza -, Jose Espinoza, Edith Hernandez, Rita Lorena V Lopez, Guillermo Ocampo. (ln, ) (Entered: 01/27/2004)
44 NOTICE OF DOCUMENT DISCREPANCIES AND ORDER by Judge Alicemarie H. Stotler ORDERING Motion for Dismissal of the Action; Order Dismissing the Case with Prejudice submitted by Plaintiffs Graciela Rebeca Garcia De Espinoza, Gustavo Escutia, Jesus Espinoza -, Jose Espinoza, Edith Hernandez, Rita Lorena V Lopez, Guillermo Ocampo received on 01/16/04 to be filed and processed; filed date to be the date the document was stamped Received but not Filed with the Clerk.(ln, ) (Entered: 01/27/2004)
46 NON-OPPOSITION by Defendants to Plaintiffs' Motion for Dismissal of Action[45] (kks) (Entered: 03/04/2004)

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 1

2

3

4 STUART E. SCHIFFER Acting Assistant Attorney General

5 Civil Division MARK C. WALTERS, Maryland Bar (no number issued)

6 Assistant Director LINDA WERNERY, D.C. Bar # 443771

7 GREG MACK, Maryland Bar (no number issued) Attorneys

8 Office of Immigration Litigation United States Department of Justice

9 Civil Division P.O. Box 878, Ben Franklin Station

10

Washington, D.C. 20044

Telephone: (202) 616-4857

11

Facsimile: (202) 616-9366

12 PATRICIA M. CORRALES-TALLEDA California Bar No. 183249

13 Attorney Office of Immigration Litigation

14

606 South Olive Street, 8th Floor

Los Angeles, California 90014

15

Telephone: (213) 894-2161 ext. 120

Facsimile: (213) 894-8701

16

17 UNITED STATES DISTRICT COURT
18 CENTRAL DISTRICT OF CALIFORNIA
19 SOUTHERN DIVISION
20

21 GUSTAVO ESCUTIA, et al.,

22

Plaintiffs

23

v.

24 JANET RENO, et al.
25 Defendants
26

27

) No. SA CV 00-841 AHS ) ) ) ) SETTLEMENT AGREEMENT ) ) ) ) ) ) )

28

1

WHEREAS, Plaintiffs and Defendants consider it in their best

2 interests to resolve all the issues raised in this action through

3 a stipulated settlement agreement;

4

NOW THEREFORE, plaintiffs and defendants (hereinafter “the

5 parties”) enter into and do hereby stipulate to a Settlement

6 Agreement (hereinafter “Agreement”) that imposes binding

7 obligations upon the parties and their successors to the extent

8 stated below and that constitutes a full and complete resolution

9 of the issues in this action.

10

A. DEFINITIONS

11

As used throughout this Agreement, the following definitions

12 shall apply:

13

1. The term “party” or “parties” shall apply to

14 plaintiffs, plaintiff class members, plaintiffs' counsel, and

15 defendants. As the term applies to defendants, it shall include

16 their agents, employees, contractors, and/or successors in

17 office.

18

2. The term “applicant” or “applicants” shall apply to

19 plaintiffs and plaintiff class members.

20

3. The term "Family Unity Benefits" is defined as benefits

21 provided by section 301 of the Immigration Act of 1990, 104 Stat.

22 4978, and implementing regulations.

23

4. The term "initial application" is defined as the first

24 application for Family Unity Benefits filed by an applicant.

25

5. The term "renewal" is defined as an application for an

26 extension of the original 2-year period of voluntary departure

27 which is granted to successful initial applicants under the

28

1 Family Unity Program.

2

B. DURATION AND SCOPE OF THIS AGREEMENT

3

6. This settlement agreement shall remain in full force

4 and effect for a period of fifteen (15) months following its

5 approval by the Court. It shall bind the parties only in dealing

6 with applications for Family Unity Benefits filed with or

7 transferred to the California Service Center ("CSC"). C. PROCESSING OF APPLICATIONS FOR FAMILY UNITY BENEFITS
8 1. Initial Applications
9

10

7. Beginning thirty (30) days after approval of this

11 settlement agreement by the Court, defendants will devote an

12 average of at least 16 hours per business day to the adjudication

13 of initial applications for Family Unity benefits filed with the

14 California Service Center.

15

8. Defendants will maintain this minimum commitment of

16 resources to such initial applications for the duration of this

17 agreement, except as set forth in paragraph 9.

18

9. Defendants may reduce or eliminate this average

19 resource commitment from time to time without triggering the "opt

20 out" option for plaintiffs that is described in paragraph 11,

21 provided that the period(s) of reduction or elimination total no

22 more than 70 business days in any six month period.

23

10. For the duration of the agreement, after any week when

24 the defendants cease devoting an average of at least 16 hours per

25 business day to the adjudication of initial applications, they

26 will promptly notify plaintiffs' counsel. Plaintiffs' counsel

27

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1 will also be notified when defendants resume devotion of and

2 average of 16 hours or more per business day to the adjudication

3 of initial applications.

4

11. Should defendants be unable or unwilling to maintain the

5 level of resources for initial applications described in

6 paragraphs 6-9 for a period of 71 business days or more in any

7 given six month period while this agreement is in effect, and

8 upon proof that none of the conditions described in paragraph 12

9 exist, plaintiffs may opt out of part of this agreement. They

10 may opt out of that portion of the agreement dealing with initial

11 applications only, and may renew litigation over the pace at

12 which initial applications are being adjudicated. This agreement

13 will remain in effect as to all other issues covered by it,

14 including the pace of adjudication of renewals, the issuance of

15 employment authorization documents, administrative closure of

16 removal proceedings, and any other matter raised by their

17 complaint or dealt with in this agreement.

18

12. Plaintiffs may not partially opt out of the agreement

19 to the extent described in paragraph 11 if one or more of the

20 following conditions exist at the time they are notified that

21 defendants have reduced the commitment of resources below that

22 described in paragraphs 7-9:

23

a. defendants inform plaintiffs that there are no

24 longer any initial applications ready for adjudication; or

25

b. after the date of this agreement, Congress enacts a

26 new law, or Temporary Protected Status [TPS] is offered to

27

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1 citizens of a new country, or current TPS is extended, any of

2 which add significantly and unexpectedly to the caseload of the

3 CSC adjudicators, and/or Congress mandates a change in the

4 priorities for adjudication of applications either directly, or

5 indirectly by setting mandatory time limits for adjudication of

6 benefits other than Family Unity; or

7

c. Plaintiffs' counsel have filed a class action

8 lawsuit challenging the pace at which the defendants are

9 adjudicating applications at the CSC for benefits other than

10 Family Unity benefits; or

11

d. A class action suit is filed by any person(s) or

12 entity(s) challenging the pace at which the defendants are

13 adjudicating applications at the CSC for benefits other than

14 Family Unity benefits, and an order is entered requiring the

15 commitment of adjudication resources to applications other than

16 Family Unity Benefits.

17

When defendants invoke any of the subparagraphs (a-d) above

18 as a reason for reducing their commitment of resources, they will

19 inform plaintiffs of that fact, and where subparagraph (b) is

20 invoked defendants will identify the new law or TPS obligation

21 upon which they rely.

22

2. Renewals

23

13. Defendants agree to issue work authorization to

24 applicants seeking to renew their Family Unity Benefits. For

25 pending applications for renewals, defendants agree to issue

26 Employment Authorization Documents (EAD) within 90 days of the

27

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1 Court's approval of this settlement agreement. For applications

2 filed on or after the date of Court approval of this settlement

3 agreement, defendants will issue the EAD's within 90 days of the

4 filing of the applications.

5

D. UNLAWFUL PRESENCE

6

14. Defendants agree to issue a policy memorandum within 90

7 days of the Court's approval of this settlement agreement,

8 memorializing the INS's position regarding family unity benefits

9 and unlawful presence. Defendants will show the memorandum to

10 plaintiffs' counsel, and provide them with a reasonable

11 opportunity to provide comments, before it is issued. It will be

12 issued to INS district offices, district and regional counsel,

13 and to the Department of State.

14

E. REMOVAL AND ADMINISTRATIVE CLOSURES

15

15. Defendants will not agree to refrain from instituting

16 or proceeding with removal proceedings simply because an alien

17 has a pending family unity application.

18

Defendants will, however, place in the policy memorandum

19 described in paragraph 14, a reminder to district offices that

20 they may, as a matter prosecutorial discretion, refrain from

21 instituting proceedings or agree to administrative closure on a

22 case by case basis when proof of filing an application for Family

23 Unity benefits is presented to them.

24

F. DISPUTE RESOLUTION AND CONTINUING JURISDICTION

16. The parties agree to the following dispute resolution 25

26 mechanism, which must be followed before a party may seek any

27

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relief from the Court: 1

2

a. Notice of Claimed Violation

3

Upon learning of any fact or facts that constitute the basis

4 for asserting that a party, without notice or good cause shown,

5 has engaged in a pattern or practice constituting substantial

6 noncompliance or a material breach of the terms of this Agreement

7 or that any party has expressly repudiated any of its terms, the

8 complaining party shall notify the other party ("responding"

9 party), in writing, of the fact or facts that form the basis of
10 the complaint and request a report on any action to be taken with
11 respect thereto prior to invoking the enforcement provisions of
12 this Agreement. The parties agree that such allegations of
13 violations of this Agreement must be substantiated with specific
14
detailed information about the violation sufficient to enable the 15
16 responding party to investigate and respond.

17

b) Response of Adverse Party

18

Within 30 days after receipt of such notice the responding

19 party shall notify the complaining party of the results of its

20 investigation of the facts and any action it has taken or intends

21 to take in connection therewith.

22

Within 30 days thereafter, the parties shall negotiate in

23 good faith in an effort to resolve any disputes remaining after

24 completing the actions set forth subparagraphs (a) and (b).
25 17. The parties agree that the provisions set forth in
26 paragraph 16 are not applicable to claims that the defendants
27

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have failed to comply with any duty or obligation described in 1 2 paragraph 7 regarding the resources committed to the processing 3 of initial applications for Family Unity Benefits. For any such 4 claim plaintiffs sole recourse is to opt out of the Agreement as

5 provided in paragraphs 11 and 12.

6

18. The parties further agree that the provisions in

7 paragraph 16 shall not be invoked for de minimus violations. For
8 purposes of paragraph 13 (requiring defendants to issue EAD to
9 new renewal applicants for Family Unity Benefits within ninety 10
(90) days of the filing of the application, and requiring 11
defendants to issue EAD to pending renewal applicants for Family 12
Unity Benefits within ninety (90) days of the effective date of 13
this agreement), a de minimus violation is defined as failure by 14 15 defendants to meet the processing time in any particular instance
16 within five or fewer business days after the expiration of the
17 processing time period.

18

19. The parties further agree that, for purposes of

19 allegations that defendants have not complied with the processing

20 times described in paragraph 13 of this Agreement, allegations of

21 noncompliance do not constitute allegations of a pattern or

22 practice violation unless, in the absence of unforeseeable
23 circumstances, it is alleged that defendants fail to meet such
24 processing times in six or more instances over a three month
25 period, and further alleged that such failures are not de minimus
26
violations as defined in paragraph 18. While meeting this 27

28

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threshhold entitles plaintiffs to take advantage of certain 1 2 provisions of this settlement agreement, it is not a concession 3 by defendants that a pattern or practice of violations exists, 4 and defendants reserve the right to raise any defense to the

5 allegations in court proceedings, including the defense that no

6 pattern and practice exists.

7

20. The parties also agree that any failure by defendants

8 to comply with the application processing times described in

9 paragraph 13 of this Agreement does not constitute a violation of
10 this Agreement in the case of unforeseeable circumstances. The
11 term "unforeseeable circumstances," as used in this paragraph and
12 paragraph 19, includes major disruptions of normal business
13 caused by computer failures, power outages, fires or other
14
15 accidental damage to records or equipment, an immigration

16 emergency that requires diversion of resources from all but the

17 most time-sensitive categories of applications, and other

18 circumstances of this nature and gravity or greater, but does not

19 include the normal fluctuation in the number of Family Unity

20 Benefit applications submitted to the California Service Center.

21

21. For inquiries or complaints by individual class members

22 about the status of their individual applications, defendants
23 will establish a point of contact. Defendants will notify
24 plaintiffs' counsel of the name of the point of contact, and
25 provide contact information, upon approval of the settlement
26
agreement. 27

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22. The Court will not retain continuing jurisdiction to 1 2 supervise the implementation of this Agreement or to enforce its 3 terms, except as follows: The Court will retain continuing 4 jurisdiction for the duration of this Agreement as set forth in

5 paragraph 6, for the purposes of resolving (a) claims by

6 plaintiffs that defendants or their successors have expressly

7 repudiated this Agreement, or (b) claims by plaintiffs that
8 defendants or their successors have engaged in a pattern or
9 practice of violations constituting substantial noncompliance or
10 a material breach of the terms of this Agreement. Upon approval
11 of this settlement agreement by the Court plaintiffs will move to
12 dismiss this case, without prejudice to reinstatement for the
13 limited purpose of dealing with any matter over which the Court
14 retains jurisdiction under this agreement. Upon expiration of
15 16 the agreement, the parties agree that the case will be dismissed
17 with prejudice. Upon expiration of the agreement, any class
18 member who has pursued the grievance procedure described in

19 paragraph 16 without success for an alleged violation of this

20 agreement, may file an individual suit challenging the underlying

21 conduct which caused him or her to use the grievance procedure,

22 but the suit must be based upon a claimed violation of law, and
23 not upon a claimed violation of any terms of this agreement.
24 Defendants do not waive any defenses they may have to such new
25 suits.
26 23. In exercising the retained jurisdiction, the Court
27

28

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shall not act on any matter until the complaining party has 1 2 initiated and completed the dispute resolution mechanism set 3 forth in paragraph 16. Nor shall the Court modify or expand in 4 any way the undertakings of the parties hereunder without consent

5 of all parties.

6

G. REPORT

7

24. Defendants agree to report the number of Family Unity

8 applications adjudicated by the CSC every quarter to plaintiffs'

9 counsel.

10 H. CERTIFICATION OF CLASS
11 25. The parties agree that the Court will certify a class
12
of plaintiffs consisting of: 13

14

All applicants for Family Unity benefits under Section

15

301 of the Immigration Act of 1990, whose applications

16

are pending at the California Service Center on the

17

date of the Court's approval of this agreement or are

18

filed with or transferred to the California Service

19

Center during the 15 months in which this agreement

20

will be in effect.

21

If approved by the Court, this settlement agreement will be

22 binding upon the class.
23 I. NOTICE TO THE CLASS
24 26. Notice of this settlement agreement shall be provided
25
26 to the class as follows:

27

28

- 11 -

a. by placement of a notice and the agreement on the 1

2 INS internet website;

3

b. by distribution of the agreement to the Community

4 Relations Office located within each INS District Office within

5 the jurisdiction of the CSC;

6

c. by distribution of the agreement to all immigration

7 assistance providers listed on the Roster of Recognized
8 Organizations and Accredited Representatives maintained by the
9 Executive Office for Immigration Review pursuant to 8 C.F.R. 292.
10 J. ATTORNEYS FEES AND COSTS
11 27. Defendants agree to pay to plaintiffs the total sum of
12 $12,000 as full settlement of any and all claims for attorneys’
13 fees, costs and expenses whether sought under the Equal Access to
14 15 Justice Act or otherwise, incurred in this litigation and to be
16 incurred in implementing this settlement agreement. Payment of
17 this amount of fees will be made within 60 days after the

18 effective date of this Agreement. Such payment shall be executed

19 in the name of the American Immigration Law Foundation, Employer

20 ID No. 52-1549711, and forwarded to the first address set forth 21 below the signature of plaintiffs' counsel. 22

23

24 THE PLAINTIFFS
25

THE DEFENDANTS

26 BY: _____________________________

27

28

- 12 -

NADINE K. WETTSTEIN

J. TRACI HONG 1 American Immigration Law Foundation

2

918 F Street, NW 6th Floor

3 Washington, DC 20004 (202) 371-6450

4 LINTON JOAQUIN
5 National Immigration Law Center 3435 Wilshire Boulevard, Suite 2850
6 Los Angeles, CA 90010
(213) 639-3900 7

MARK SILVERMAN 8 Immigrant Legal Resource Center

9

1663 Mission Street, Suite 602 San Francisco, CA 94103

10 (415) 255-9499

11 Dated:

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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BY: ______________________
MARK C. WALTERS Assistant Director LINDA S. WERNERY Senior Litigation Counsel GREG MACK Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation P.O. Box 878 Washington. D.C. 20044 (202) 616-5193
Dated:

 
 NOTICE OF PROPOSED SETTLEMENT OF LAWSUIT CONCERNING IMMIGRATION BENEFITS UNDER THE FAMILY UNITY PROGRAM
IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA Escutia v. Ashcroft, Civil Action No. SA CV 00-841 (AHS)
To: All applicants for Family Unity Benefits under section 301 of the Immigration Act of 1990, whose applications are pending at the California Service Center on the date of the Court’s final approval of this agreement or are filed with or transferred to the California Service Center during the 15 months in which this agreement will be in effect.
You are hereby notified that a hearing has been scheduled for October 28, 2002, at 11:00 a.m., before the Honorable Alicemarie H. Stotler of the United States District Court for the Central District of California, Southern Division, 411 West Fourth Street, Santa Ana, California, for consideration of a proposed settlement of the claims which have been brought on your behalf in this action.
Purpose of This Notice
This notice is to inform you of the proposed settlement, tell you how to obtain more information, and explain how you may object to the proposed settlement if you disagree with it.
Background
Plaintiff Gustavo Escutia and several other named plaintiffs brought this class action lawsuit in August, 2000, to challenge the pace of the INS’s processing of applications for benefits under the Family Unity Program, Section 301 of the Immigration Act of 1990.
The parties have reached a tentative settlement which the Court has preliminarily approved. The Court and the parties believe that the interests of the class members will be served by acceptance and implementation of the proposed settlement.
The Proposed Settlement Agreement
In summary, under the proposed settlement the Defendants will devote resources towards the adjudication of initial applications for Family Unity benefits filed with the California
1

Service Center, agree to issue work authorization to California Service Center applicants seeking to renew their Family Unity benefits, issue a policy memorandum concerning the INS’s position on Family Unity benefits and the accrual of unlawful presence, and implement a dispute resolution procedure that class members may use when applications remain unadjudicated.
The proposed settlement agreement will become effective on the 30th working day after final Court approval of the settlement and dismissal of the claims in the lawsuit, and it shall remain in full force and effect for a period of 15 months following final Court approval.
Under the proposed settlement, the Defendants agree to issue work authorization to applicants seeking to renew their Family Unity benefits as follows:
For those whose applications for renewal of Family Unity benefits are pending when the Court approves the settlement, defendants will issue Employment Authorization Documents (EADs) within 90 days of the Court’s approval of the settlement agreement. For those who file their applications for Family Unity benefits on or after the day that the Court approves the settlement agreement, defendants will issue EADs within 90 days of filing the applications.
In addition, under the agreement, the Defendants agree to devote an average of at least 16 hours per business day to the adjudication of initial applications for Family Unity benefits filed with the California Service Center. Upon notice to Plaintiffs’ counsel, Defendants may reduce or eliminate this resource commitment of 16 hours per business day for no more than 70 business days in any six month period. If the resource commitment is reduced or eliminated for a period exceeding 71 days or more in any given six month period, the Plaintiffs may opt out of that portion of the Settlement Agreement concerning initial applications only. The Plaintiffs, however, may not opt out of the Settlement Agreement under the foregoing circumstances where Defendants: inform Plaintiffs that there are no initial applications ready for adjudication; Congress enacts a new law, mandates a change in the priorities for adjudication of applications for immigration benefits, or Temporary Protected Status (TPS) is offered to citizens of a new country, or current TPS is extended adding significantly and unexpectedly to the California Service Center’s caseload; Plaintiffs’ counsel have filed a class action lawsuit challenging the timeliness of Defendants’s adjudication of applications at the California Service Center for immigration benefits other than Family Unity
2

benefits; or a class action suit is filed by person(s) or entities challenging the pace at which Defendants are adjudicating applications at the California Service Center for immigration benefits other than Family Unity Benefits, and the Defendants are ordered to commit adjudication resources to these applications. Defendants will also report the number of Family Unity applications adjudicated by the California Service Center every quarter to Plaintiffs’ counsel.
Also under the proposed agreement, regarding the accrual of unlawful presence pending adjudication of an application for Family Unity benefits, the Defendants agree to issue a policy memorandum memorializing the INS’s position regarding family unity benefits and unlawful presence. The Defendants agree that the policy memorandum also will remind district offices of the Immigration and Naturalization Service, their respective district and regional counsel, and the Department of State, that the district offices may, as a matter of prosecutorial discretion, refrain from commencing removal proceedings under section 240 of the Immigration and Nationality Act, 8 U.S.C. § 1229a, or agree to administrative closure of a case, against an alien who is awaiting adjudication of an application for Family Unity benefits, where proof of the filing of an application is presented to the INS district office.
Finally, the Defendants will establish, and the Defendants and Plaintiffs will follow, a dispute resolution procedure concerning allegations of substantial noncompliance or material breach of the terms of the Settlement Agreement. This procedure must be followed before any Defendant or Plaintiff may seek any relief from the Court. The Defendants also agree to establish a point of contact for inquiries or complaints by individual class members about the status of their individual applications, and to provide that contact information to Plaintiffs’ counsel.
For Further Information
THIS IS A SUMMARY OF THE PROPOSED AGREEMENT. TO UNDERSTAND IT FULLY, YOU SHOULD READ THE ENTIRE AGREEMENT. Copies of the proposed settlement may be obtained from: 1) the INS’s internet website (http://www.ins.usdoj.gov); 2) the Community Relations Office located within each INS District Office within the jurisdiction of the California Service Center; and 3) immigration assistance providers listed on the Roster of Recognized Organizations and Accredited Representatives maintained by the Executive Office for Immigration Review pursuant to 8 C.F.R. Part 292 (2002).
3

Procedures for Agreement or Objection
IF YOU AGREE WITH THE PROPOSED SETTLEMENT, YOU DO NOT NEED TO DO ANYTHING AT THIS TIME. You may be present at the public hearing on the proposed settlement as stated above.
IF YOU DISAGREE WITH THE PROPOSED SETTLEMENT, YOU HAVE A RIGHT TO OBJECT TO IT AND TO THE DISMISSAL WITH PREJUDICE OF THE REMAINING CLAIMS IN THE LAWSUIT. YOUR OBJECTIONS WILL BE CONSIDERED BY THE COURT AS IT REVIEWS THE SETTLEMENT. OBJECTIONS WILL BE CONSIDERED ONLY IF THE FOLLOWING PROCEDURES ARE FOLLOWED:
1. Objections must be filed in writing by mail with the Clerk of the United States District Court for the Central District of California (Southern Division), Ronald Reagan Building and United States Courthouse, 411 West Fourth Street, Room 1053, Santa Ana, California 92701-4516.
ALL OBJECTIONS MUST CONTAIN THE FOLLOWING INFORMATION:
a) Name, address and telephone number of the person filing the objection.
b) A statement of the reasons for the objection.
c) A statement that copies of the objections were sent to all lawyers listed below.
2. YOU MUST SEND COPIES OF YOUR OBJECTIONS TO ALL LAWYERS LISTED AT THE END OF THIS NOTICE.
3. The deadline for filing objections and mailing them to the lawyers listed below is October 7, 2002. If objections are filed by mail, they must be postmarked on or before October 7, 2002, to be considered timely. Objections filed or mailed on or after that date will not be considered. Class members who fail to file objections on or before October 15, 2002, will not be permitted to testify at the settlement hearing.
4. No later than October 21, 2002, counsel for plaintiffs and defendants shall file and serve responses, if any, to objections they timely received from persons opposed to the proposed settlement.
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Attorneys' names and addresses:

For the Plaintiffs:

For the Defendants:

NADINE K. WETTSTEIN American Immigration Law Foundation 918 F Street, NW 6th Floor Washington, D.C. 20004 (202) 371-6540

MARK C. WALTERS Assistant Director Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878 Ben Franklin Station Washington, DC 20044 (202) 616-4857

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