Case 2:11-cv-00728-GW-SH Document 43 Filed 08/09/12 Page 1 of 6 Page ID #:449
MADEJS-6
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

.Case~~~
.Title ·

CIVIL MINUTES - GENERAL CV 11-728-GW(SHx) Althea Pobre Dayo, et a/. v. Janet Napolitano, et al.

;':~~t~,)~ August 9, 2012

Prese~t:~eHo~cirable ·. GEORGE H. WU, UNITED STATES DISTRICT JUDGE

Javier Gonzalez Deputy Clerk

Anne Kielwasser Court Reporter I Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

David M. Sturman

Regan Hildebrand, USDOJ

PROCEEDINGS: APPLICATION FOR SETTLEMENT APPROVAL

Based on the Tentative circulated and attached hereto, and for reasons stated on the record, the aboveentitled action is dismissed pursuant to the settlement as oftoday's date.

CV-90 (06/04)

04

Initials ofPreparer -J-G---------------

CIVIL MINUTES- GENERAL

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Case 2:11-cv-00728-GW-SH Document 43 Filed 08/09/12 Page 2 of 6 Page ID #:450
Davo, et al. v. Napolitano, et al., Case No. CV-11-0728 Tentative Ruling on Application for Settlement Approval
I. Background Plaintiffs are individuals who sought 1-765 employment authorization from the United
States Citizenship and Immigration Services ("USCIS") under 8 C.P.R.§ 274a.12(c)(9) ("Section 274a.12(c)(9)") but were denied such authorization. At the time Plaintiffs' employment authorizations were denied, they all allegedly had 1-485 applications for adjustment of status to lawful permanent resident ("adjustment applications") pending before the immigration court. Plaintiffs assert that USCIS found Plaintiffs ineligible for employment authorization under Section 274a.12(c)(9)1 based on an erroneous determination that their adjustment applications were no longer pending at the time employment authorization was sought. See, e.g., First Amended Compl., Docket No. 23, ~ 1.
In particular, each named plaintiff was a beneficiary of an 1-140 immigrant visa petition based on his or her employment (or status as a spouse) and filed an adjustment application with Defendant USCIS. USCIS proceeded to deny the adjustment application, and each plaintiff was consequently placed in removal proceedings before the immigration court. In those removal proceedings, each plaintiff then renewed his or her adjustment application before the immigration court. Upon renewing .his or her adjustment application in removal proceedings, the plaintiff then sought to renew his or her employment authorization with USCIS under Section 274a.12(c)(9) by filing an 1-765 form. However, USCIS erroneously determined that the plaintiffs adjustment application was no longer pending despite the renewal of said application in the removal proceedings before the immigration court, and thereafter denied employment authorization. See FAC ~~ 7-26, 36-65.
As a result, Plaintiffs sought injunctive, declaratory and mandamus relief to compel Defendant: (1) to properly interpret Section 274a.12(c)(9) and thereby find that Plaintiffs are entitled to employment authorization while their adjustment applications are pending before the immigration court; and (2) to compel the Executive Office for Immigration Review ("EOIR") to issue some type of confirmatory receipts to individuals who have renewed adjustment applications before the immigration court, so that individuals like Plaintiffs can prove they have renewed their adjustment applications when seeking employment authorization under Section 274a.12(c)(9) with USCIS. FAC ~ 1.
Plaintiffs moved for class certification on October 4, 2011, which Defendants opposed. Docket No. 24. However, ongoing settlement discussions led the parties to stipulate to continue the hearing date on the class certification motion numerous times, and the case has now settled without the class certification motion having been heard by this Court. See Docket No. 41 (notice of settlement).
1 Under the relevant language of Section 274a.12(c)(9) effective through November 28, 2011, an alien should apply for work authorization and will not be deemed an "unauthorized alien" if"his or her properly filed Form 1-485 application is pending final adjudication" at the time he or she seeks employment authorization.
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The parties now seek this Court's approval of the settlement. See Docket No. 42 ("the Settlement").
II. Analysis The parties do not seek certification of a settlement class. Indeed, there is no memoran-
dum of law and authorities, or any briefing, submitted in support of the "application" for settlement approval; the parties have simply filed with the Court a copy of the settlement agreement. See Docket No. 42. Nevertheless, before approving the settlement, the Court would consider two matters: (1) the substance of the settlement; and (2) the extent to which the Court must review the terms of the settlement pursuant to Fed. R. Civ. P. 23(e) ("Rule 23(e)") or any other applicable standard, given that the class claims were settled and voluntarily dismissed with prejudice prior to class certification without a request for certification of a settlement class.
1. Settlement Terms The pertinent terms of the Settlement are as follows. While Defendant denies all liability (Settlement ~ 47), the settlement appears to provide to Plaintiffs all of the injunctive relief sought in the FAC, most importantly the provision that "USCIS recognizes that an I-485 properly renewed with the Immigration Court by an alien in removal proceedings constitutes a 'pending' application for purposes of 8 C.F.R. § 274a.l2(c)(9)." Settlement~ 25. As for the individual named Plaintiffs, their claims are settled and dismissed with prejudice. Settlement at 4. Plaintiffs' counsel declares that the conditions of the settlement are "fair, reasonable, and in the best interests of the Plaintiffs, the putative Class, and the putative class members." Id Thus, it appears that Plaintiffs, at least as to their individual claims, have for the most part garnered all that they could wish for from this settlement agreement. However, there is one exception: the Court would note that the FAC, while in general challenging the above-described policies of the USCIS and the immigration court, also sought the Court to issue various orders implementing a change in that policy. For instance, Plaintiffs sought an order that would require Defendants "to reopen, sua sponte, reconsider and approve applications for employment authorization filed by Plaintiffs and members of the Class and wrongfully denied ..." FAC, Prayer~ 7. The Settlement does not include this request for what appears to be retroactive application of the changed policies. The Court would ask the parties as to how this request played into the negotiations; without the benefit of briefing from either party, the Court cannot assess the reasonableness of a Settlement that provides only prospective relief for absent class members. For instance, the Notice of Settlement (discussed in detail below) appears to provide relief to absent class members only for "future applications." Settlement, Exh. 1. The Court would ask the parties what the outcome would be if an absent putative class member's application was denied prior to the Settlement; is any relief available to such an applicant? Plaintiffs did not seek any monetary relief in the FAC, though they did seek attorneys' fees and costs. FAC, Prayer for Relief. The Settlement provides that Defendants will pay attorneys' fees in the amount of $70,000, and will pay costs in the amount of $350. Settlement~ 48. What is slightly unclear is how the Settlement impacts the absent putative class members.
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Case 2:11-cv-00728-GW-SH Document 43 Filed 08/09/12 Page 4 of 6 Page ID #:452
The Settlement does not envision the certification of a settlement class, and provides that Plaintiffs will withdraw with prejudice the motion for class certification. Settlement~ 41. However, the Settlement includes absent class members to a certain extent:
Applicants who currently are pursuing federal court actions related to USCIS' s denial of an I-765 employment authorization claim arising under, but not limited to, the Administrative Procedure Act, 5 U.S.C. § 701 et seq., the Mandamus Act at 28 U.S.C. § 1361 and the Declaratory Judgment Act at 28 U.S.C. § 2201, may benefitfrom the provisions ofthe settlement only ifthey agree to voluntary dismissal of their federal court claims within sixty (60) days after the Approval Date. Settlement ~ 19 (emphasis added). In other words, if there are other federal cases filed by putative class members raising claims identical to those settled here, those absent putative class members can effectively "opt in" to the Settlement, so long as they dismiss their own actions. The release language of the settlement applies only to the named Plaintiffs, however, in that only Plaintiffs are barred from bringing any of the settled claims against the Defendants. Settlement ~~ 41-42. The Settlement envisions that notice be provided to the putative class members in the following manner. First, the seven named Plaintiffs will receive notice of the settlement within ten business days following this Court's approval thereof. Settlement~ 18. As for the absent putative class members, the "UCIS will provide public notice of settlement to potential class members by posting the Notice of Settlement [setting forth its terms] ... on USCIS's website . and by disseminating" it through the Office of Communication and Office of Public Engagement. ld In addition, the notice of settlement will be posted at the Los Angeles Immigration Court in public areas for one year. Jd These provisions seem acceptable in terms of providing notice to absent putative class members, but the Court would enquire at the hearing as to whether the "dissemination" to be conducted by the Office of Communications would include affirmative mailings to persons likely to fall under the purview of the Settlement, or whether it simply means a different variety of public posting. The Notice of Settlement, in tum, provides the following proviso as to who is eligible to "opt in" to the Settlement by defining "Which Applicants are Included" as, essentially, those applicants in the same position as Plaintiffs, which gave rise to the lawsuit in the first place. Settlement, Exh. 1. Thus, the Notice of Settlement implies that the Settlement includes all applicants who had an I-485 Application pending for renewal, and then had an I-765 application for employment denied for lack of evidence of an I-485. ld This seems reasonable, because the injunctive relief obtained by Plaintiff, namely the revision of certain USCIS and immigration court policies, applies equally to everyone, not just Plaintiffs. But that, of course, begs the question of whether any certification motion is required here. Moreover, the Notice of Settlement provides: If you fit all of the above requirements, and have filed an individual action in federal court seeking review over USCIS's denial of your employment authorization claim, please note that USCIS cannot adjudicate your application under the settlement agreement. To benefit from the settlement adjudication benchmarks, you must voluntarily dismiss your action. The
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Case 2:11-cv-00728-GW-SH Document 43 Filed 08/09/12 Page 5 of 6 Page ID #:453
effective result of the agreement is that the Los Angeles Immigration Court will be able to provide you with proof of renewed filing of an adjustment application in order to support any I-765 application that is properly filed with USCIS in the future. Should your future application filed under the settlement agreement be denied, you would be able to refile your individual action against USCIS. In addition, should your application be denied, you are not barred from bringing a case against USCIS after exhaustion of any administrative remedies. Settlement, Exh. 1. All in all, it is clear that (1) there is no monetary relief provided by this Settlement, (2) Plaintiffs have obtained all of the injunctive reliefthey sought; and (3) the Settlement does in some way impact the rights of the absent class members (albeit indisputably positively).
2. Rule 23(e) Generally Does Not Apply to Pre-Certification Settlements, but the Court must Still Evaluate the Fairness of the Settlement In the current incarnation of Rule 23, if no class has been certified, the requirements of Rule 23(e) do not apply. See Fed. R. Civ. P. 23(e), adv. comm. notes, 2003 amdts. ("The new rule requires approval only if the claims, issues, or defenses of a certified class are resolved by a settlement") (emphasis added); Mahan v. Trex, No. 5:09-cv-00670 JF/PVT, 2010 U.S. Dist. LEXIS 130160, at *8-11 (N.D. Cal. Nov. 22, 2012). However, even if the Court is not mandated to apply the procedures of Rule 23(e), the Court may in its discretion "require ... giving appropriate notice to some or all class members," Fed. R. Civ. P. 23(d)(l)(B), and may consider "whether the proposed settlement and dismissal are tainted by collusion or will prejudice absent putative members with a reasonable 'reliance' expectation of the maintenance of the action for the protection of their interests." See Diaz v. Trust Territory ofPac. Islands, 876 F.2d 1401, 1407 n.3 (9th Cir.1989); Lewis v. Vision Value, LLC, No. 1:11-cv-01055-LJO-BAM, 2012 U.S. Dist. LEXIS 99854, at *8-12 (E.D. Cal. Jul18, 2012). The Court also may "inquire into possible prejudice from ... lack of adequate time for class members to file other actions, because of a rapidly approaching statute of limitations." Diaz, 876 F.2d at 1408 (citation omitted). However, regardless of whether Rule 23 applies in a formal sense, the Court must still conduct an inquiry into the fairness of the settlement agreement. In fact, the Ninth Circuit recently specified that even in cases of pre-certification settlements, a review of the eight Churchill factors is required. In re Bluetooth Headset Products Liability Litig., 654 F.3d 935, 946 (9th Cir. 2011) (quoting Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004)). The Ninth Circuit went on to specify: [p]rior to formal class certification, there is an even greater potential for a breach of fiduciary duty owed the class during settlement. Accordingly, such agreements must withstand an even higher level of scrutiny for evidence of collusion or other conflicts of interest than is ordinarily required under Rule 23(e) before securing the court's approval as fair. In re Bluetooth Headset Products Liability Litig., 654 F.3d at 946 (citations omitted). However, crucially, in Bluetooth Headset, the parties sought certification of a settlement class at the same time as the application for settlement approval. !d. at 939-940. Moreover, in Bluetooth Headset,
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Case 2:11-cv-00728-GW-SH Document 43 Filed 08/09/12 Page 6 of 6 Page ID #:454
the class members were to receive monetary compensation, thus increasing the possibility of collusion between Plaintiffs counsel and Defendants as to fees, or unfairness to the absent class members as to payment structures. Thus it is possible, despite Bluetooth Headset, that no review of the Churchill factors is necessary here, as Plaintiffs have obtained all of the injunctive relief they sought, Plaintiffs did not seek monetary relief, and the attorney's fees awarded are to be paid by Defendants and are somewhat modest ($70,000).
In fact, without the benefit of any briefing from the parties, it is difficult, if not impossible, for the Court to run through the Churchill factors in an informed manner. Those factors are:
(1) the strength of the plaintiffs case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members of the proposed settlement. Churchill, 361 F.3d at 947; see also Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). That said, the presence of a governmental participant is self-evident, and thus militates in
favor of approval. See Touhey v. United States, No. EDCV 08-01418-VAP (RCx), 2011 U.S.
Dist. LEXIS 81308, at *20-21 (C. D. Cal. July 21, 2011) (presence of a governmental participant weighs in favor of class action settlement approval). The fact that Plaintiffs appear to have obtained all of the injunctive relief they sought in the FAC also reassures the Court that the settlement is fair and reasonable to them; the burden on the government, as discussed infra, is not so high as to be inherently unfair. Thus, based on the terms and context of the settlement, it appears that none of the Churchill factors raise red flags. However, the Court would inquire of the parties at the hearing as to what level of review it is necessary for this Court to undertake before approving the Settlement; if it was substantive, the Court would inquire as to why no briefing whatsoever was provided to the Court in support of the application for approval of the Settlement.
As for collusion or prejudice to absent class members, as discussed, no plaintiff in this action, named or absent, is receiving any monetary relief. Thus the possibility of collusion or prejudice is very low. See Staton v. Boeing Co., 327 F.3d 938, 960 (9th Cir. 2003) ("Our inquiry [in reviewing settlement approval] ... focuses primarily upon ... the particular aspects of the decree that directly lend themselves to pursuit of self-interest by class counsel and certain members of the class-namely, attorneys' fees and the distribution of any relief, particularly monetary relief, among class members") (emphasis added). It appears that so long as notice is provided adequately, which it appears it will be, absent class members are not prejudiced because they will benefit from the new USCIS/immigration court policies to the same extent as the named plaintiffs.
III. Conclusion The Court would APPROVE the settlement.
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 Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 1 of 31 Page ID #:418

1 STUART F. DELERY Acting Assistant Attorney General, Civil Division
2 ELIZABETH J. STEVENS
3 Assistant Director Office of Immigration Litigation, District Court Section
4 REGAN HILDEBRAND
5 Trial Attorney, District Court Section
Missouri Bar No. 57438
6
P.O. Box 868, Ben Franklin Station
7 Washington, D.C. 20044
8 Telephone: (202) 305-3797 Facsimile: (202) 616-8962
9 Email: Regan.Hildebrand@usdoj.gov
10 Attorneys for Defendants

11

12

UNITED STATES DISTRICT COURT FOR

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THE CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION—LOS ANGELES

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ALTHEA POBRE DAYO, DON ) 16 CAJUCOM, JANE BULLECER, )

17 RUBY CONDA, ET AL.,

)

18

)

Plaintiffs,

)

19 v.

)

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)

JANET NAPOLITANO,

)

21 SECRETARY OF THE

)

22 DEPARTMENT OF HOMELAND )

SECURITY; ET AL.,

)

23

)

24

Defendants.

)

25 _______________________________

Case No. 2:11-cv-00728-GW-SH

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Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 2 of 31 Page ID #:419

1 STIPULATION AND AGREEMENT OF SETTLEMENT AND RELEASE

2

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Plaintiffs in the above-captioned matter, by and through their attorney, and

4 Defendants, by and through their attorneys, hereby enter into this Stipulation and
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Agreement of Settlement and Release (the Stipulation or Settlement), as of the
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7 Approval Date as defined in paragraph 4.

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WHEREAS:
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A.
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Plaintiffs Althea Pobre Dayo, Don Cajucom, Jane Bullecer and Ruby Conda filed suit on behalf of themselves and all other similarly-situated persons

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against Defendants in the United States District Court for the Central District

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of California on January 25, 2011 (Docket Number 11-cv-00728), seeking
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review over United States Citizenship and Immigration Services’ (USCIS)

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denial of their I-765, Applications for Employment Authorization. On
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August 19, 2011, they filed an amended complaint, naming Francis

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Raymond P. Dayo, Wblespher Espinoza and Amada Espinoza as named-

21

plaintiffs and adding the Executive Office for Immigration Review as a
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23 24 25
26 B.

Defendant. On October 4, 2011, Plaintiffs moved for class certification, designation of class counsel and declaratory and injunctive relief. To date, the Court has not granted class certification, designation of class

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counsel, or declaratory or injunctive relief. Instead, on December 15, 2011, the Court continued Plaintiffs’ motion for class certification pending possible settlement of the instant matter. Defendants deny all liability with respect to the action, deny that they have engaged in any wrongdoing, deny the material allegations in the complaint and amended complaint, deny that they committed any violation of law, deny that they acted improperly in any way, and deny liability of any kind to Plaintiffs, the putative Class, or the putative Class Members, but agree to the settlement and dismissal of the Action with prejudice in order to: (i) avoid the substantial expense, inconvenience, and distraction of protracted litigation; and (ii) finally put to rest and terminate the Action and any and all Settled Claims. Plaintiffs’ counsel has conducted discussions and arm’s length negotiations with Defendants’ counsel with respect to a compromise and settlement of the action with a view to settling the issues in dispute and achieving the best relief possible consistent with the interests of the named Plaintiffs, the putative Class and all putative Class Members. After considering the benefits that Plaintiffs, the putative Class and the putative Class Members will receive from settlement of the action and the risks of litigation, Plaintiffs’ counsel has concluded that the terms and

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Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 4 of 31 Page ID #:421

1

conditions of this Settlement are fair, reasonable, and in the best interests of

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the Plaintiffs, the putative Class, and the putative Class Members; has

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agreed that the Released Parties should be released from the Settled
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Claims pursuant to the terms and provisions of this Settlement; and has

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agreed to the dismissal with prejudice of all Settled Claims.
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NOW, THEREFORE, it is hereby STIPULATED AND AGREED, by and

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among the parties to this Stipulation, through their respective attorneys, in
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12 consideration of the benefits flowing to the parties hereto from the Settlement, that

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the Settled Claims of Plaintiffs as against the Released Parties shall be
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15 compromised, settled, forever released, barred, and dismissed with prejudice, upon

16 and subject to the following terms and conditions:
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18 I. DEFINITIONS

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Wherever used in this Settlement, the following terms have the meanings set
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21 forth below:

22 1.
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“Action” means the above-captioned Action pending in the United States District Court for the Central District of California (Docket Number 11-cv-

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00728).

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2.
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“USCIS” means United States Citizenship and Immigration Services. “EOIR” means Executive Office for Immigration Review.

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“Defendants” means Alejandro Mayorkas, Director, United States Citizenship and Immigration Services (USCIS), in his official capacity; Donald Neufeld, Associate Director, USCIS Center Operations Directorate, in his official capacity; Mark J. Hazuda, Director, USCIS Nebraska Service Center, in his official capacity; Robert M. Cowan, Director, USCIS National Benefits Center, in his official capacity; Gregory A. Richardson, Director, USCIS Texas Service Center, in his official capacity; Juan P. Osuna, Director, Executive Office for Immigration Review, in his official capacity; and the Executive Office for Immigration Review. “Applicants” means, for purposes of this settlement only, all individuals residing within the jurisdiction of the United States District Court for the Central District of California who, as of January 25, 2011, through the Approval Date (as defined in paragraph 45 below): A. Filed an I-485, Application to Register Permanent Residence or
Adjust Status, with USCIS; B. Had their I-485, Application to Register Permanent Residence or
Adjust Status, denied by USCIS; C. Were issued a Notice to Appear by the U.S. Department of Homeland
Security; D. Are in removal proceedings before the Immigration Court, Los

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Angeles, California; E. Have renewed, or will renew by the next scheduled hearing falling
after the Approval Date or within thirty (30) days of the Approval Date, whichever comes later, their I-485, Application to Register Permanent Residence or Adjust Status, in removal proceedings before the Immigration Court, Los Angeles, California as detailed in Paragraph 20 below; F. Filed an I-765, Application for Employment Authorization, with USCIS, in order to seek employment authorization during the pendency of their removal proceedings. G. Had their I-765, Application for Employment Authorization, denied by USCIS on the basis that they did not have a pending, renewed I485, Application to Register Permanent Residence or Adjust Status, before the Immigration Court, Los Angeles, California. “Approval Date” means the date upon which the Settlement provided for in this Stipulation shall become effective, as set forth in paragraph 45 below. “Plaintiff(s)” or “Named Plaintiffs” means Althea Pobre Dayo, Don Cajucom, Jane Bullecer, Ruby Conda, Francis Raymond P. Dayo, Wblespher Espinoza and Amada Espinoza. “Plaintiffs’ counsel” means David M. Sturman. Should Plaintiffs’ counsel

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change his name or merge with other entities, those new entities shall also qualify as Plaintiffs’ counsel. “Released Parties” means any and all of the Defendants, their predecessors and successors, their departments and agencies, and their past or present agents, employees, and contractors. “Settled Claims” means any and all claims, in law or equity, that were asserted or that could have been asserted by Plaintiffs in this Action, based upon the facts alleged or that could have been alleged in the Amended Complaint relating to the subject of this Action. “Settlement” means the settlement provided for in this Stipulation. “I-485” means Application to Register Permanent Residence or Adjust Status. “I-765” means Application for Employment Authorization. “Immigration Court” means the Immigration Court in Los Angeles, California. “DHS” means the Department of Homeland Security. “Immigration Court Practice Manual” refers to the manual maintained by the Office of the Chief Immigration Judge, Executive Office for Immigration Review. “His” means both male and female aliens.

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RELIEF AND REPORTING REGARDING THE PUTATIVE CLASS AND PUTATIVE CLASS MEMBERS.
Within ten (10) business days after the Approval Date, USCIS will provide notice of the settlement to all named-Plaintiffs and their attorney(s) of record by U.S. mail to their last address provided to USCIS. Within ten (10) business days after the Approval Date, USCIS will provide public notice of settlement to potential class members by posting the Notice of Settlement attached as Exhibit 1 on USCIS’s website and by disseminating the Notice of Settlement through USCIS’s Office of Communication and Office of Public Engagement. USCIS will maintain public notice of settlement on its website for one year from the date of its initial posting. Within ten (10) business days after the Approval Date, the Los Angeles Immigration Court will provide public notice of settlement to potential class members by posting the Notice of Settlement attached as Exhibit 1 for public viewing in the Court’s public areas. The Los Angeles Immigration Court will maintain public notice of settlement in its public areas for one year from the date of its initial posting. Applicants who currently are pursuing federal court actions related to USCIS’s denial of an I-765 employment authorization claim arising under, but not limited to, the Administrative Procedure Act, 5 U.S.C. § 701 et seq.,

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the Mandamus Act at 28 U.S.C. § 1361 and the Declaratory Judgment Act at 28 U.S.C. § 2201, may benefit from the provisions of the settlement only if they agree to voluntary dismissal of their federal court claims within sixty (60) days after the Approval Date. A. Immigration Court Responsibilities. An alien in removal proceedings who intends to renew his I-485 with the Immigration Court will present two copies of the I-485 application he originally filed with USCIS, or two copies of an I-485 application clearly marked as an updated version of the application originally filed by the alien with USCIS, including proof of proper fee payment, at the time of renewal as follows: either before the Immigration Judge in the courtroom or, if directed by the Immigration Judge, to be filed at the clerk’s window; or, should there be no hearing scheduled, by filing at the clerk’s window along with a motion by the alien that concedes removability as charged and conveys his intent to renew his I-485. The Immigration Judge or court clerk will stamp the first page of each copy of the alien’s I-485 to confirm that the alien’s I-485 was received in the Immigration Court using one of the attached examples in Exhibit 2. One copy of the stamped I-485 will be provided to the alien’s counsel (or the alien should he be unrepresented) and shall serve as the alien’s conformed copy. The other copy of the stamped I-

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485 will be placed in the alien’s record of proceedings before the Immigration Court. The alien or his attorney may obtain a second “conformed copy” of the I-485 application from the Immigration Court or clerk’s window, for purposes of serving the second conformed copy on DHS/ICE, by presenting three (3) copies of the I-485 application as previously described in this paragraph along with proof of service on DHS. The Immigration Court has the discretion to provide the parties or their legal representatives with copies of up to twenty-five (25) pages of documents within the alien’s Record of Proceedings subject to the availability of court resources. See Chapter 1.6(c) of the Immigration Court Practice Manual. The documents must be clearly identified to the Immigration Court. Defendants note that an alien or his attorney can submit a Freedom of Information Act request in order to request his Record of Proceedings with the Immigration Court. See Chapter 12.2 of the Immigration Court Practice Manual. Within the terms and conditions of this agreement the Immigration Court can implement additional measures beyond those in Paragraph 20 as deemed appropriate in Defendants’ sole and absolute discretion, including: A. Additional training to supplement training already given to all

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Supervisory Clerks/Legal Assistants and Clerks/Legal Assistants about updating entries of renewed I-485 applications filed with EOIR into the Immigration Court’s database system; B. Additional training to supplement training already given to all Immigration Judges on use of their individual date stamps to confirm filings of renewed I-485 applications that are accepted in court; and C. Additional training to supplement training already given to all Supervisory Clerks/Legal Assistants and Clerks/Legal Assistants on use of date stamps to confirm filings of renewed I-485 applications that are accepted in court. At the next, regularly scheduled local American Immigration Lawyers Association quarterly meeting in Los Angeles, California, immediately following the Approval Date, the Immigration Court will provide information about its existing and updated procedures for obtaining proof of a renewed I-485 application. B. USCIS Responsibilities. USCIS recognizes that an I-485 properly renewed with the Immigration Court by an alien in removal proceedings constitutes a “pending” application for purposes of 8 C.F.R. § 274a.12(c)(9). An alien seeking employment authorization by filing an I-765 under

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4 5 6 7 8 9 10 11
12 28.
13 14 15 16 17 18 19 20
29.
21 22 23 24 25 26 27 28

8 C.F.R. § 274a.12(c)(9) has the burden to establish that he has renewed his I-485 with the Immigration Court in removal proceedings. USCIS will accept a copy of the first page of the alien’s I-485 bearing a date stamp from the Immigration Court as evidence that the alien renewed his I-485 with the Immigration Court and as evidence that the Immigration Court accepted the alien’s I-485 in removal proceedings. The copy of the first page of the alien’s I-485 bearing the Immigration Court’s date stamp must be included with the alien’s I-765 application. USCIS’s acceptance of the I-485 described in paragraph 27 is solely for evidentiary purposes only. The fact that an alien has renewed his I-485 with the Immigration Court does not mean that an alien is per se eligible for employment authorization and does not bar USCIS from denying an alien’s I-765 application based on articulated grounds within the Immigration and Nationality Act and its attendant regulations. Cases not able to be adjudicated are those in which: (a) the Applicants failed to provide information requested by USCIS pursuant to the regulations; (b) the Applicants failed to take some other action required by USCIS pursuant to the regulations; (c) USCIS is awaiting receipt of information from the Applicants; or (d) the Applicants have pending individual federal court actions challenging the denial of an I-765

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1
2 30.
3 4 5 6
31.
7 8 9 10
32.
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

application and where those claims have not been voluntarily dismissed. Two hundred and fifty (250) days after the Approval date, the parties will meet and confer to verify, in a manner mutually agreeable, that EOIR and USCIS have met the terms identified in paragraphs 20 to 27 above. If EOIR and USCIS have met the terms identified in paragraphs 20 to 27 above, the parties will file a joint stipulation to voluntarily dismiss the action with prejudice within ten (10) days after they meet and confer. If EOIR and USCIS have not met the terms identified in paragraphs 20 to 27 above, Plaintiffs’ Counsel and Defendants’ Counsel will attempt to resolve any outstanding disputes. A. Plaintiffs’ counsel will inform Defendants’ Counsel on or before three
hundred (300) days after the Approval Date whether they will seek relief from the Court. If no further relief is sought from the Court, the parties will file a joint stipulation to voluntarily dismiss the action with prejudice 365 days after the Approval Date. B. The Court shall hear and, to the fullest extent possible, obtain the agreement of both parties to resolve any dispute. If Plaintiffs seek relief pursuant to this paragraph, the only issues to be determined by the Court will be 1) whether Defendants’ failure is reasonable and 2) what relief, if any, should be ordered. The parties

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Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 14 of 31 Page ID #:431

1 2 3 4 5 6 7
8 33.
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

will file a joint stipulation to voluntarily dismiss the action with prejudice upon Defendants’ compliance with any Order issued to enforce this paragraph or after the Court’s determination that Defendants’ failure was reasonable. The joint stipulation will also ask the Court to vacate any enforcement order. Starting from the Approval Date, upon learning of any facts that constitute the basis for asserting that Defendants, without good cause shown, have completely and materially failed to comply with the terms imposed by the Settlement in paragraphs 20 to 27, Plaintiffs shall promptly notify Defendants in writing within ten (10) days of learning of Defendants’ failure, inform Defendants of the facts that support the contention and request a written response with respect thereto. A. Both parties shall negotiate in good faith in an effort to resolve any disputes. B. If no resolution has occurred within thirty (30) days of the notice provided to Defendants per paragraph 33 above, the Court shall hear and, to the fullest extent possible, obtain the agreement of both parties to resolve the dispute. C. The parties agree that failure to comply with the terms in paragraphs 20 to 27 of this Stipulation does not constitute a violation

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Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 15 of 31 Page ID #:432

1

of this Settlement in the case of unforeseeable circumstances.

2

“Unforeseeable circumstances” include, but are not limited to, war,

3
invasion, hostilities, virulent contagious disease outbreaks requiring
4

5

quarantine, natural disasters, local fires, or other similar events that

6
impact the ability of either party to comply with the terms.

7

8

D. If Plaintiffs seek relief pursuant to this paragraph, the only issues to be

9

determined by the Court are 1) whether Defendants’ failure to meet

10
the term(s) at issue was reasonable, 2) whether Defendant’s failure to
11

12

issue work authorization was unreasonable and 3) if the Court

13
determines that Defendant’s failure to comply with Items 1 and 2
14

15

above was not reasonable, what relief should be ordered.

16 III. SETTLEMENT AS TO THE ESPINOZAS
17
34. Wblespher Espinoza and Amada Espinoza have approved I-140s: On May
18

19 20 21
22 35.

8, 2012, USCIS’s Administrative Appeals Office sustained the I-140 appeal filed on their behalf and approved their I-140s. The Immigration Court has no indication in the record of proceedings that

23
Wblespher Espinoza and Amada Espinoza renewed an I-485 in removal

24

25

proceedings.

26 36.
27
28

Correspondingly, USCIS has no record that either Wblespher Espinoza or Amada Espinoza filed an I-765 seeking employment authorization since

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Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 16 of 31 Page ID #:433

1
2 37.
3 4 5 6 7 8 9 10
38.
11 12 13 14 15 16 17
39.
18 19 20 21 22 23
40.
24 25 26 27 28

July 2009. For purposes of settling the instant matter, Wblespher Espinoza and Amada Espinoza may renew their I-485 with the Immigration Court by presenting an I-485 to the Immigration Court at their next master calendar hearing on September 25, 2012, or within sixty (60) days of the Approval Date, whichever is later. Renewal of their I-485 will be pursuant to the terms of this Settlement agreement outlined in paragraph 20 above. Wblespher Espinoza and Amada Espinoza shall provide proof of previously filed I-765 or file an I-765 with USCIS pursuant to the terms of this Settlement agreement outlined in paragraphs 25 to 28 above within thirty (30) days of renewing their I-485 with the Immigration Court as outlined in paragraph 37. Upon receipt of Wblespher Espinoza and Amada Espinoza’s I-765s, USCIS will adjudicate their I-765 applications within the regulatory prescribed time period and determine their eligibility for employment authorization pursuant to the terms of this Settlement Agreement at paragraphs 25 and 28 above. This Settlement agreement does not bar Wblespher Espinoza and Amada Espinoza from challenging in United States District Court the result of USCIS’s adjudication described in paragraph 39.

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Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 17 of 31 Page ID #:434

1 III. RELEASE; SCOPE AND EFFECT OF RELEASE

2 41.
3 4
5 42.

Plaintiffs withdraw with prejudice their motion for certification of the class in this action. Upon the approval of the Joint Stipulation to be filed pursuant to paragraph

6
31, this case will be dismissed with prejudice, and Plaintiffs, on behalf of

7

8

themselves, their heirs, executors, administrators, representatives, attorneys,

9

successors, assigns, agents, and affiliates shall be deemed to have fully,

10
finally, and forever released, relinquished and discharged Defendants of and
11

12

from any and all of the Settled Claims, and Plaintiffs shall forever be barred

13
and enjoined from bringing or prosecuting any Settled Claim against any of
14

15

the Defendants.

16 IV. CONTINUING JURISDICTION
17
43. The parties agree that this Court will retain continuing jurisdiction for the
18

19

duration of the Settlement to supervise the implementation of this Settlement

20
and to enforce its terms. The Court’s jurisdiction shall terminate pursuant to
21

22

the provisions of paragraphs 31, 32(B) and 33(D).

23
V. EFFECTIVE DATE OF SETTLEMENT, WAIVER OR TERMINATION
24
25 44. The parties shall jointly present the proposed Settlement to the Court for

26
27
45.
28

approval. The effective date of this Settlement shall be the Approval Date, which shall

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Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 18 of 31 Page ID #:435

1

be the date on which the parties are informed that the Court approves this

2
3
46.
4
5

Settlement and enters a separate Order approving the settlement. The obligations set forth in this Settlement Agreement will terminate on the date that the parties file the joint stipulation of voluntary dismissal described

6
in Paragraph 31 or two years from the Approval Date, whichever is later.
7
8 VI. NO ADMISSION OF WRONGDOING

9 47.
10
11

This Stipulation, whether or not executed, and any proceedings taken pursuant to it:

12

A. Shall not be construed to waive, reduce or otherwise diminish the

13
authority of Defendants to enforce the laws of the United States
14

15

against applicants, consistent with the Constitution, laws of the United

16

States, and applicable regulations;

17

B. Shall not be offered or received against Defendants as evidence of, or
18

19

construed as or deemed to be evidence of, any presumption,

20
concession, or admission by any of the Defendants of the truth of any
21

22

fact alleged by Plaintiffs or the validity of any claim that had been or

23
could have been asserted in the Action or in any litigation, or the

24

25

deficiency of any defense that has been or could have been asserted in

26

the Action, or of any liability, negligence, of fault, or wrongdoing

27
of Defendants; or any admission by Defendants of any violations of,
28

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Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 19 of 31 Page ID #:436

1

or failure to comply with, the Constitution, laws or regulations; and

2

C. Shall not be offered or received against Defendants as evidence of a

3
presumption, concession, or admission of any liability, negligence,
4

5

fault, or wrongdoing, or in any way referred to for any other reason as

6
against any of the parties to this Stipulation, in any other civil,

7

8

criminal, or administrative action or proceeding, other than such

9

proceedings as may be necessary to effectuate the provisions of

10
this Settlement; provided, however, that if this Settlement is approved
11

12

by the Court, the parties may refer to it and rely upon it to effectuate

13
the liability protection granted them hereunder.
14
15 VII. ATTORNEYS’ FEES

16 48.
17
18

Within one hundred and twenty (120) days of the Approval date, Defendants will deliver to Plaintiffs’ Counsel the sum of $350 in taxable costs under 28

19

U.S.C. § 1920, and $70,000 in other fees, in settlement of all claims for

20
attorneys’ fees and costs that could have been or will be claimed in this
21

22

litigation to date. Plaintiff’s counsel does not waive any claims to attorney’s

23
fees and costs should future litigation pursuant to paragraph 33(D) of this

24

25

Agreement arise in this matter prior to dismissal.

26 VIII. ADDITIONAL PROVISIONS
27
49. This Settlement, and the obligations incurred herein, shall be in full and final
28

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Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 20 of 31 Page ID #:437

1 2 3 4 5 6
50.
7 8 9 10
51.
11 12 13 14
15 52.
16 17 18 19 20
53.
21 22 23 24 25
26 54.
27 28

disposition of the Action with prejudice, including any and all Settled Claims against Defendants. On the Approval Date, Plaintiffs shall be deemed to have fully, finally, and forever released, relinquished, and discharged Defendants of and from any and all Settled Claims. This Settlement may not be modified or amended, nor may any of its provisions be waived except by a writing signed by all parties hereto or their successors-in-interest. The waiver by one party of any breach of this Settlement by any other party shall not be deemed a waiver of any other prior or subsequent breach of this Settlement. This Settlement and its exhibits constitute the entire agreement among the parties hereto concerning the Settlement of the Action, and no representations, warranties, or inducements have been made by any party hereto other than those contained and memorialized in such documents. This Settlement may be executed in one or more counterparts. All executed counterparts and each of them shall be deemed to be one and the same instrument provided that counsel for the parties to this Settlement shall exchange among themselves original signed counterparts. This Settlement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties hereto.

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Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 21 of 31 Page ID #:438

1 55.
2 3 4 5 6 7 8
9 56.
10 11 12 13 14 15
16 57.
17 18 19 20 21 22 23 24 25 26 27 28

This Settlement shall not be construed more strictly against one party than another merely by virtue of the fact that it, or any part of it, may have been prepared by counsel for one of the parties, it being recognized by the parties that this Settlement is the result of arm’s length negotiations between the parties and that all parties have contributed substantially and materially to the preparation of this Settlement. In the event that any of the terms or provisions of this Agreement are declared invalid or unenforceable by any Court of competent jurisdiction or any Federal or State Government Agency having jurisdiction over the subject matter of this Agreement, the remaining terms and provisions that are not effected thereby shall remain in full force and effect. All counsel and any other person executing this Settlement and any of the exhibits hereto, or any related settlement documents, warrant and represent that they have the full authority to do so and that they have the authority to take appropriate action required or permitted to be taken pursuant to the Settlement to effectuate its terms.

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Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 23 of 31 Page ID #:440
EXHIBIT 1
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Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 24 of 31 Page ID #:441

(USCIS letterhead)

NOTICE

This notice is for any individual who may benefit from a settlement negotiated in an action in the United States District Court for the Central District of California in Dayo, et al. v. Napolitano, 11-cv-00728.
Purpose of This Notice
This notice is to inform you of the settlement, explain how you may ensure your inclusion in the settlement group and provide you with assistance if you need additional information.
Generally
Plaintiffs brought this lawsuit in January 2011 to challenge United States Citizenship and Immigration Services’ (USCIS) adjudication of employment authorization applications. Plaintiffs alleged that USCIS was unlawfully finding that an alien in removal proceedings who renewed his application for adjustment of status in removal proceedings did not have a pending application for employment authorization purposes. Further, Plaintiffs alleged that the Immigration Court in Los Angeles, California, was not providing them with documentary evidence that demonstrated that they had renewed their adjustment of status applications in removal proceedings.
The Parties
Plaintiffs are aliens who are in removal proceedings in the Immigration Court in Los Angeles, California, who renewed their adjustment of status application in removal proceedings and who were denied employment authorization by USCIS.
Defendants include USCIS and the Executive Office for Immigration Review.
Which Applicants Are Included?
Applicants are defined as individuals who, as of January 25, 2011:
• Filed an I-485, Application to Register Permanent Residence or Adjust Status, with USCIS;
• Had their I-485, Application to Register Permanent Residence or Adjust Status, denied by USCIS;
• Were issued a Notice to Appear by the Department of Homeland Security; • Are in removal proceedings before the Immigration Court, Los Angeles,
California; • Renewed, will renew or will file a motion to review their I-485, Application to
Register Permanent Residence or Adjust Status, in removal proceedings before the Immigration Court, Los Angeles, California; • Filed an I-765, Application for Employment Authorization, with USCIS, in order to seek employment authorization during the pendency of their removal proceedings; • Had their I-765, Application for Employment Authority, denied by USCIS on the

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Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 25 of 31 Page ID #:442
basis that they did not have evidence of a pending I-485, Application to Register Permanent Residence or Adjust Status, before the Immigration Court, Los Angeles, California. If you fit all of the above requirements, and have filed an individual action in federal court seeking review over USCIS’s denial of your employment authorization claim, please note that USCIS cannot adjudicate your application under the settlement agreement. To benefit from the settlement adjudication benchmarks, you must voluntarily dismiss your action. The effective result of the agreement is that the Los Angeles Immigration Court will be able to provide you with proof of renewed filing of an adjustment application in order to support any I-765 application that is properly filed with USCIS in the future. Should your future application filed under the settlement agreement be denied, you would be able to refile your individual action against USCIS. In addition, should your application be denied, you are not barred from bringing a case against USCIS after exhaustion of any administrative remedies. The decision to dismiss your individual case is left to you.
For More Information: The attorney of record for plaintiffs is Mr. David M. Sturman, who can be contacted at the following address:
David M. Sturman David M. Sturman APC 16530 Ventura Boulevard Suite 312 Encino, CA 91436 Phone: (818) 907-0777 Fax: (818) 907-0039 Email: david@davidsturman.com
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EXHIBIT 2
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Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 27 of 31 Page ID #:444 -27-

Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 28 of 31 Page ID #:445 -28-

Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 29 of 31 Page ID #:446 -29-

Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 30 of 31 Page ID #:447 -30-

Case 2:11-cv-00728-GW -SH Document 42 Filed 08/01/12 Page 31 of 31 Page ID #:448

1

CERTIFICATE OF SERVICE

2

3

Case No. 2:11-cv-00728-GW-SH

4
I hereby certify that on August 1, 2012, true and correct copies of the
5
6 foregoing document were served pursuant to the district court’s ECF electronic

7
filing system to the following parties:

8

9

David M. Sturman

David M. Sturman APC

10

16530 Ventura Boulevard Suite 312

11

Encino, CA 91436

Phone: (818) 907-0777

12

Fax: (818) 907-0039

13

Email: david@davidsturman.com

14

15

s/ Regan Hildebrand

16

REGAN HILDEBRAND

Missouri Bar Number 57438

17

Trial Attorney, District Court Section

18

Office of Immigration Litigation

Civil Division

19

U.S. Department of Justice

20

P.O. Box 868, Ben Franklin Station

Washington, DC 20044
21
Telephone: (202) 305-3797

22

Fax: (202) 616-8962

23

E-mail: Regan.Hildebrand@usdoj.gov

24

Attorney for Defendants

25

26

27

28

 
 Case: 2:11-cv-728 As of: 09/24/2013 06:42 PM PDT 1 of 6 (SHx),CLOSED,DISCOVERY
UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA (Western Division − Los Angeles)
CIVIL DOCKET FOR CASE #: 2:11−cv−00728−GW−SH

Althea Pobre Dayo et al v. Janet Napolitano et al Assigned to: Judge George H. Wu Referred to: Magistrate Judge Stephen J. Hillman Cause: 08:1329 Writ of Mandamus to Adjudicate Visa Petition
Plaintiff

Date Filed: 01/25/2011 Date Terminated: 08/09/2012 Jury Demand: None Nature of Suit: 465 Other Immigration Actions Jurisdiction: U.S. Government Defendant

Althea Pobre Dayo And others similarly situated

represented by David M Sturman David M. Sturman APC 16530 Ventura Boulevard Suite 306 Encino, CA 91436 818−907−0777 Fax: 818−907−0039 Email: david@davidsturman.com ATTORNEY TO BE NOTICED

Plaintiff
Don Cajucom And others similarly situated

represented by David M Sturman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jane Bullecer And others similarly situated

represented by David M Sturman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ruby Conda And others similarly situated

represented by David M Sturman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Francis Raymond P Dayo

represented by David M Sturman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Wblespher Espinoza

represented by David M Sturman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Amada Espinoza

represented by David M Sturman (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Janet Napolitano Secretary Department of Homeland

represented by Regan Hildebrand US Department of Justice

Case: 2:11-cv-728 As of: 09/24/2013 06:42 PM PDT 2 of 6

Security

Civil Division − Office of Immigration Litigation P O Box 868 Ben Franklin Station Washington, DC 20044 202−286−2531 Fax: 202−616−8962 Email: regan.hildebrand@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Alejandro Mayorkas Director, U.S. Citizenship and Immigration Services

represented by Regan Hildebrand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Donald Neufeld Associate Director, USCIS Service Center Operations Directorate

represented by Regan Hildebrand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
F. Gerald Heinauer Director, USCIS Nebraska Service Center

represented by Regan Hildebrand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Robert M. Cowan Director, USCIS National Benefits Center

represented by Regan Hildebrand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
David Roarke Director, USCIS Texas Service Center

represented by Regan Hildebrand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Juan P Osuna Executive Director Executive Office for Immigration Review

represented by Regan Hildebrand US Department of Justice Civil Division − Office of Immigration Litigation P O Box 868 Ben Franklin Station Washington, DC 20044 202−305−3797 Fax: 202−616−8962 Email: regan.hildebrand@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Executive Office of Immigration Review

represented by Regan Hildebrand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:11-cv-728 As of: 09/24/2013 06:42 PM PDT 3 of 6

Date Filed 01/25/2011
01/25/2011 01/25/2011 02/02/2011 02/11/2011 02/14/2011
03/22/2011 04/07/2011 04/11/2011 04/25/2011 04/27/2011 05/27/2011 06/06/2011

# Docket Text
1 COMPLAINT against Defendants Robert M. Cowan, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, David Roarke. Case assigned to Judge George H Wu for all further proceedings. Discovery referred to Magistrate Judge Stephen J. Hillman. (Filing fee $ 350 PAID.), filed by Plaintiffs Don Cajucom, Ruby Conda, Althea Pobre Dayo, Jane Bullecer.(et) (ds). (Entered: 01/25/2011)
60 DAY Summons Issued re Complaint − (Discovery) 1 as to Defendants Robert M. Cowan, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, David Roarke. (et) (Entered: 01/25/2011)
2 CERTIFICATION AS TO Interested Parties filed by Plaintiffs Jane Bullecer, Don Cajucom, Ruby Conda, Althea Pobre Dayo. (et) (ds). (Entered: 01/25/2011)
3 STANDING ORDER REGARDING FINAL PRE−TRIAL CONFERENCES FOR CIVIL JURY TRIALS BEFORE JUDGE GEORGE H WU (see attached order) by Judge George H Wu, (pj) (Entered: 02/02/2011)
4 NOTICE of Appearance filed by attorney Regan Hildebrand on behalf of Defendants Robert M. Cowan, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, David Roarke (Hildebrand, Regan) (Entered: 02/11/2011)
5 PROOF OF SERVICE filed by plaintiff Jane Bullecer, Don Cajucom, Ruby Conda, Althea Pobre Dayo, re Summons Issued, Certificate/Notice of Interested Parties 2 , Complaint − (Discovery), Complaint − (Discovery) 1 , Notice of Appearance 4 , Order 3 served on 02/02/2011. (Attachments: # 1 Supplement Proof of Service, # 2 Supplement Proof of Service, # 3 Supplement Proof of Service, # 4 Supplement Proof of Service, # 5 Supplement Proof of Service, # 6 Supplement Proof of Service, # 7 Supplement Proof of Service, # 8 Supplement Proof of Service)(Sturman, David) (Entered: 02/14/2011)
6 FIRST STIPULATION Extending Time to Answer the complaint as to All Defendants, filed by Defendants Donald Neufeld, Janet Napolitano, F. Gerald Heinauer, David Roarke, Robert M. Cowan, Alejandro Mayorkas.(Hildebrand, Regan) (Entered: 03/22/2011)
7 NOTICE OF MOTION AND MOTION for Extend Time to File Answer to 4/25/2011 filed by Defendant Robert M. Cowan, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, David Roarke. (Attachments: # 1 Proposed Order)(Hildebrand, Regan) (Entered: 04/07/2011)
8 ORDER GRANTING DEFENDANTS' UNOPPOSED MOTION FOR AN EXTENSION by Judge George H Wu: 7 . Defendants' unopposed motion for an extension to file an Answer by April 25, 2011 is granted. (im) (Entered: 04/12/2011)
9 NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Robert M. Cowan, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, David Roarke. (Attachments: # 1 Memorandum, # 2 Exhibit, # 3 Proposed Order)(Hildebrand, Regan) (Entered: 04/25/2011)
10 NOTICE of Hearing for June 20, 2011 at 8:30 AM filed by Defendant Robert M. Cowan, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, David Roarke. (Hildebrand, Regan) (Entered: 04/27/2011)
11 MEMORANDUM in Opposition to Defendants Motion to Dismiss filed by Plaintiffs Jane Bullecer, Don Cajucom, Ruby Conda, Althea Pobre Dayo. (Sturman, David) (Entered: 05/27/2011)
12 REPLY in support MOTION to Dismiss for Lack of Jurisdiction 9 filed by Defendants Robert M. Cowan, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, David Roarke. (Hildebrand, Regan) (Entered: 06/06/2011)

Case: 2:11-cv-728 As of: 09/24/2013 06:42 PM PDT 4 of 6

06/13/2011 06/30/2011
07/14/2011 07/14/2011 07/14/2011 07/18/2011 07/25/2011
08/01/2011 08/04/2011
08/19/2011
08/24/2011

13 MINUTE ORDER IN CHAMBERS by Judge George H Wu: The Court, on its own motion, continues Defendants Motion to Dismiss for Lack of Subject Matter Jurisdiction 9 , filed on April 25, 2011, and presently set for June 20, 2011, to June 30, 2011 at 8:30 a.m. (jag) (Entered: 06/13/2011)
14 MINUTES OF DEFENDANTS MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION (filed 04/26/11) held before Judge George H Wu: The Court's tentative ruling is circulated and attached hereto. Court hears oral argument.For reasons stated on the record, Defendants Motion to Dismiss for Lack of Subject Matter Jurisdiction, is continued to July 18,2011 at 8:30 a.m. A joint document regarding any remaining issues will be filed by noon on July 14,2011. Parties may appear telephonically provided that notice is given to the clerk by July 14, 2011. Court Reporter: Wil Wilcox. (pj) (Entered: 07/01/2011)
15 STATEMENT Regarding Remaining Issues filed by Defendants Robert M. Cowan, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, David Roarke (Hildebrand, Regan) (Entered: 07/14/2011)
16 NOTICE OF ERRATA filed by Defendants Robert M. Cowan, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, David Roarke. correcting Statement 15 (Hildebrand, Regan) (Entered: 07/14/2011)
17 STATEMENT Regarding Remaining Issues (Hildebrand, Regan) (Entered: 07/14/2011)
18 MINUTES: DEFENDANTS MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION (filed 04/26/11) 9 : Court hears oral argument. For reasons stated on the record, Defendants Motion to Dismiss for Lack of Subject Matter Jurisdiction, is continued to July 25, 2011 at 8:30 a.m. Parties may appear telephonically provided that notice is given to the clerk by July 21, 2011 by Judge George H Wu. Court Reporter: Wil Wilcox. (ir) (Entered: 07/19/2011)
19 MINUTES OF DEFENDANTS MOTION TO DISMISS FOR LACK OF SUBJECTMATTER JURISDICTION 9 Motion Hearing held before Judge George H Wu: Court hears further oral argument. For reasons stated on the record, Defendants Motion to Dismiss for Lack of Subject Matter Jurisdiction, is continued to August 25, 2011 at 8:30 a.m. Parties may appear telephonically provided that notice is given to the clerk by August 23, 2011. Court Reporter: Pat Cueno. (pj) (Entered: 07/27/2011)
20 First STIPULATION to AMEND filed by Plaintiff Jane Bullecer, Don Cajucom, Ruby Conda, Althea Pobre Dayo. (Attachments: # 1 Proposed Order Stipulation to Amend)(Sturman, David) (Entered: 08/01/2011)
21 ORDER by Judge George H Wu: 1. Plaintiffs are granted leave of Court to file First Amended Complaint to add Juan P. Osuna, Executive Director of the Executive Office for Immigration Review, and Executive Office for Immigration Review as Defendants and to addadditional Plaintiffs.2. Plaintiffs shall manually file the First Amended Complaint within ten (10)days of this order and serve Defendants. 3. Defendants shall not respond to the original Complaint in this matter unless Plaintiffs fail to file the amended complaint within the time granted.4. Defendants Motion to Dismiss for Lack of Subject Matter Jurisdiction, filed on April 26, 2011, and presently set for August 25, 2011, is vacated andtaken off−calendar 9 . (pj) (Entered: 08/05/2011)
23 FIRST AMENDED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT against defendants Robert M. Cowan, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, David Roarke, Juan P Osuna, Executive Office of Immigration Review amending Complaint − (Discovery), Complaint − (Discovery) 1 ,filed by Plaintiffs Don Cajucom, Ruby Conda, Althea Pobre Dayo, Jane Bullecer, Francis Raymond P Dayo, Wblespher Espinoza, Amada Espinoza (pj) (Entered: 08/26/2011)
22 NOTICE OF DOCUMENT DISCREPANCIES AND ORDER by Judge George H Wu ORDERING FAC submitted by Plaintiffs Jane Bullecer, Don Cajucom, Ruby Conda, Althea Pobre Dayo received on 8/19/2011 to be filed and processed; filed date to be the date the document was stamped Received but not Filed with the Clerk. (pj) (Entered: 08/26/2011)

Case: 2:11-cv-728 As of: 09/24/2013 06:42 PM PDT 5 of 6

10/04/2011 10/23/2011 10/24/2011 10/24/2011 10/26/2011 11/09/2011 11/21/2011 12/15/2011
03/06/2012 03/07/2012 04/09/2012 04/12/2012 05/31/2012

24 NOTICE OF MOTION AND MOTION to Certify Class filed by PLAINTIFF Jane Bullecer, Don Cajucom, Ruby Conda, Althea Pobre Dayo, Francis Raymond P Dayo, Amada Espinoza, Wblespher Espinoza. Motion set for hearing on 11/7/2011 at 08:30 AM before Judge George H Wu. (Attachments: # 1 Proposed Order Proposed Order)(Sturman, David) (Entered: 10/04/2011)
25 NOTICE of Continuance of reset to 11/14/11 at 8:30 AM (Attachments: # 1 Proposed Order)(Hildebrand, Regan). (Entered: 10/23/2011)
26 ANSWER to Amended Complaint, 23 filed by Defendant Robert M. Cowan, Executive Office of Immigration Review, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, Juan P Osuna, David Roarke.(Hildebrand, Regan) (Entered: 10/24/2011)
27 OPPOSITION to MOTION to Certify Class 24 filed by Defendants Robert M. Cowan, Executive Office of Immigration Review, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, Juan P Osuna, David Roarke. (Hildebrand, Regan) (Entered: 10/24/2011)
28 ORDER RE DEFENDANTS' UNOPPOSED MOTION TO RESET THE HEARING DATE by Judge George H Wu: It is Hereby Ordered that Defendants Unopposed Motion to Reset theHearing Date is hereby GRANTED. The hearing date is rescheduled to Monday,November 21, 2011, at 8:30 AM. 24 25 (pj) (Entered: 10/28/2011)
29 MINUTE ORDER IN CHAMBERS by Judge George H Wu: Plaintiff's MOTION to Certify Class 24 is continued to 12/15/2011 at 08:30 AM before Judge George H Wu. Reply will be due by no later than November 21, 2011. (jag) (Entered: 11/09/2011)
30 REPLY support MOTION to Certify Class 24 filed by Plaintiffs Jane Bullecer, Don Cajucom, Ruby Conda, Althea Pobre Dayo, Francis Raymond P Dayo, Amada Espinoza, Wblespher Espinoza. (Attachments: # 1 Declaration)(Sturman, David) (Entered: 11/21/2011)
31 MINUTES OF Plaintiffs' Motion for Class Certification filed 10/4/2011: The Court's Tentative Ruling is circulated and attached hereto. Court hears argument. Motion Hearing held before Judge George H Wu: Plaintiffs' Motion for Class Certification is continued to 3/12/2012 at 08:30 AM before Judge George H Wu. Joint Report is due by Noon on March 8, 2012; Discovery is stayed until March 12, 2012. Court Reporter: Pat Cuneo. (pj) (Entered: 12/21/2011)
32 STATUS REPORT filed by Defendants Robert M. Cowan, Executive Office of Immigration Review, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, Juan P Osuna, David Roarke. (Attachments: # 1 Proposed Order)(Hildebrand, Regan) (Entered: 03/06/2012)
33 ORDER by Judge George H Wu: Having considered the parties' filings, the Court hereby GRANTS their request for a thirty−one (31) day continuance of the instant matter. The instant matter is continued until April 12, 2012, at 8:30 AM before Judge George H. Wu. A joint status report is due by noon on April 9, 2012. Discovery is stayed until April 12, 2012. (ir) (Entered: 03/08/2012)
34 STATUS REPORT filed by Defendants Robert M. Cowan, Executive Office of Immigration Review, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, Juan P Osuna, David Roarke. (Hildebrand, Regan) (Entered: 04/09/2012)
35 MINUTES: PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (filed 10/04/11): Parties advise that settlement negotiations are ongoing Plaintiffs Motion for Class Certification 24 is continued to May 31, 2012 at 8:30 a.m. Parties may appeartelephonically provided that notice is given to the clerk by May 29, 2012 by Judge George H Wu Court Reporter: Pat Cuneo. (ir) (Entered: 04/13/2012)
36 MINUTES OF Motion Hearing 24 held before Judge George H Wu. Parties advise that settlement negotiations are ongoing. Plaintiffs Motion for Class Certification is continued to June 28, 2012 at 8:30 a.m. The parties are advised that the motion will be vacated and no appearance will be required provided that a Stipulation to

Case: 2:11-cv-728 As of: 09/24/2013 06:42 PM PDT 6 of 6

06/26/2012 06/28/2012 07/26/2012 07/27/2012 08/01/2012 08/01/2012 08/09/2012 04/26/2013
05/09/2013 05/15/2013 05/20/2013

Dismiss, with a proposed order, is filed by noon on June 26, 2012. Parties will file a one−page status report, by June 26, 2012, in the event the settlement is not finalized. Court Reporter: Wil Wilcox. (kti) (Entered: 06/01/2012)
37 STATUS REPORT Regarding Settlement filed by Defendants Robert M. Cowan, Executive Office of Immigration Review, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, Juan P Osuna, David Roarke. (Hildebrand, Regan) (Entered: 06/26/2012)
38 MINUTES OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 24 before Judge George H Wu: Settlement is reached. The joint motion for preliminary approval will be filed by July 30, 2012 with the hearing set for August 9, 2012 at 8:30 a.m. Plaintiffs motion for class certification is vacated and taken off−calendar.Court Reporter: Pat Cuneo. (jre) (Entered: 06/29/2012)
39 NOTICE OF MOTION AND MOTION for Extension of Time to File Parties' Settlement Agreement By Two Days filed by Defendants Executive Office of Immigration Review, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, Juan P Osuna, David Roarke. (Attachments: # 1 Supplement)(Hildebrand, Regan) (Entered: 07/26/2012)
40 ORDER RE DEFENDANTS' EX PARTE MOTION TO EXTEND TIME TO FILE THE PARTIES SETTLEMENT AGREEMENT by Judge George H Wu: It is Hereby Ordered that Defendants motion for a two (2) day extension tofile the parties settlement agreement is hereby GRANTED. The parties will filetheir settlement agreement by August 1, 2012. 39 (pj) (Entered: 07/27/2012)
41 NOTICE of Settlement filed by Defendants Robert M. Cowan, Executive Office of Immigration Review, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, Juan P Osuna, David Roarke. (Hildebrand, Regan) (Entered: 08/01/2012)
42 APPLICATION for Settlement Approval of Tentative Class Action filed by Defendants Robert M. Cowan, Executive Office of Immigration Review, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, Juan P Osuna, David Roarke. Application set for hearing on 8/9/2012 at 08:30 AM before Judge George H Wu. (Hildebrand, Regan) (Entered: 08/01/2012)
43 MINUTES OF APPLICATION FOR SETTLEMENT APPROVAL 42 held before Judge George H Wu:;Based on the Tentative circulated and attached hereto, and for reasons stated on the record, the above entitled action is dismissed pursuant to the settlement as oftoday's date. (Made JS−6. Case Terminated.) Court Reporter: Anne Kielwasser. (pj) (Entered: 08/13/2012)
44 NOTICE OF MOTION AND MOTION to Enforce Settlement Agreement filed by Plaintiff Jane Bullecer, Don Cajucom, Ruby Conda, Althea Pobre Dayo, Francis Raymond P Dayo, Amada Espinoza, Wblespher Espinoza. Motion set for hearing on 5/23/2013 at 08:30 AM before Judge George H. Wu. (Attachments: # 1 Declaration Declaration of David Sturman, # 2 Proposed Order Proposed Order)(Sturman, David) (Entered: 04/26/2013)
45 REPLY In Opposition MOTION to Enforce Settlement Agreement 44 filed by Defendants Robert M. Cowan, Executive Office of Immigration Review, F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, Juan P Osuna, David Roarke. (Hildebrand, Regan) (Entered: 05/09/2013)
46 NOTICE OF MOTION AND MOTION for Leave of Regan Hildebrand to Appear for Telephonic filed by Defendant F. Gerald Heinauer, Alejandro Mayorkas, Janet Napolitano, Donald Neufeld, Juan P Osuna, David Roarke. Motion set for hearing on 5/23/2013 at 08:30 AM before Judge George H. Wu. (Hildebrand, Regan) (Entered: 05/15/2013)
47 NOTICE OF MOTION AND MOTION to Withdraw MOTION to Enforce Settlement Agreement 44 filed by Plaintiff Jane Bullecer, Don Cajucom, Ruby Conda, Althea Pobre Dayo, Francis Raymond P Dayo, Amada Espinoza, Wblespher Espinoza. Motion set for hearing on 5/23/2013 at 08:30 AM before Judge George H. Wu. (Sturman, David) (Entered: 05/20/2013)