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The CSS and LULAC/Newman filing period ended on December 31, 2005.
Background
Commencing May 24, 2004, and continuing through December 31, 2005, thousands of long-term immigrants around the country have the opportunity to apply for legalization of status under the 1986 IRCA. This legalization opportunity results from settlements reached in the Catholic Social Services v. Ridge and Newman v. Department of Homeland Security (formerly LULAC v. INS) class action cases in 2004.
On January 23, 2004, the federal district court in Sacramento, California, approved a settlement of the CSS class action. On February 17, 2004 a federal judge approved a final settlement in the Newman (LULAC) case.
The government issued a formal press release announcing the CSS and Newman (LULAC) legalization program on March 22, 2004. At that time, the government also released a public notice explaining the program and made legalization application forms and instructions available in U.S. Citizenship and Immigration Services ("CIS") offices nationwide and its web page. All necessary forms are also available on this site.
Comenzando el 24 de Mayo, 2004, y continuando por un ano, miles de inmigrantes indocumentados que han vivido a largo-plazo en los Estados Unidos tendran la oportunidad de solicitar Amnistia debajo el IRCA de 1986. Esta oportunidad de legalizacion resulta de acuerdos recientemente alcanzados en los casos de Catholic Social Services (CSS) v. Ridge y Newman v. Department of Homeland Security (antes LULAC v. INS).
El 23 de enero del 2004, la corte del distrito federal en Los Angeles, California, aprovo un acuerdo de la demanda colectiva CSS. El 17 de febrero del 2004, la corte del distrito federal en Los Angeles, California, aprovo un acuerdo de la demanda colectiva Newman/LULAC.
El acuerdo requierio que el govierno emita un aviso de prensa formal anunciando el programa de legalizacion Newman/LULAC el 22 de Marzo del 2004. En ese tiempo, el govierno emitio un aviso publico que explico el programa y que hico disponible las aplicaciones de legalizacion e instruciones en las oficinas de Ciudadania y Servicios de Inmigracion ("CIS") en los Estados Unidos y en la pagina web.
Click here for a full background of the CSS case
Click here for a full background of the Newman case
Click here to read the CSS/Newman Press Release
Click here to read the CSS Summary of Settlement
Download the December 2005 CHRCL memorandum to attorneys re: approaching filing deadline (link to 12-05 CHRCL Memo to Attorneys).
Download the December 2005 CHRCL memorandum to class members re: approaching filing deadline, etc. (link to 12-05CHRCL Memo to Class Members).
CSS lawsuit Background
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CSS challenged an INS regulation declaring that persons who had traveled outside the U.S. during the original 12-month application period (May 1987 – May 1988) were ineligible to apply for legalization unless they had re-entered with advance parole.
The INS initially defended its advance parole rule as a reasonable interpretation of the IRCA’s "continuous physical presence" eligibility criterion, but the district court entered summary judgment striking the rule down shortly before the end of the 12-month application period. The district court held the advance parole rule inconsistent with INA § 245(a)(3)(B), which specifically permitted applicants "brief, innocent, and casual" absences abroad.
One month after the application period closed, the INS conceded that its advance parole regulation was improper, declined to appeal the merits of the summary judgment, and agreed to discontinue applying the rule to pending legalization applications. By then, however, the agency had turned away or discouraged thousands of would-be applicants, telling them they were ineligible to apply for legalization because they had briefly traveled in violation of the advance parole rule.
Under the CSS interim relief order, the INS was required to grant temporary work authorization and stays of deportation to class members who were prima facie eligible for legalization. Persons were permitted to apply for interim relief until December 2, 1995.
In 1998, the Ninth Circuit ruled that pursuant to § 377 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), the court did not have jurisdiction to address the claims of CSS class members unless the applicant "attempted to file a complete application and application fee" with a legalization officer and the applicant and fee were refused ("Group 1" applicants). The CSS case was subsequently dismissed and INS stopped issuing work permits and began detaining and removing CSS class members. In response, a new case, Catholic Social Services v. Reno, Cv. No. S-98-629-LLK (CSS II) was brought by the Center.
In June of 1998, Chief Judge Emeritus Lawrence K. Karlton, in the federal district court in Sacramento, California, issued temporary restraining orders barring the INS from revoking employment authorization previously granted to class members and enjoined INS from detaining or removing any CSS I class members.
In November of 2000, an en banc panel of the Ninth Circuit Court of Appeals issued an opinion reversing the panel opinion directing that CSS be dismissed. The court of appeals held that the CSS case could go forward and that certain CSS class members (those who did not have a completed application or fee when they attempted to apply) could challenge that statute as denying them equal protection of the laws.
On August 27, 2001, the United States District Court for the Eastern District of California reinstated the action in light of the retroactive repeal of § 377 of IIRAIRA. On February 15, 2002, the court permitted plaintiffs to amend their complaint to seek relief on behalf of class members who were not benefited by the retroactive repeal of § 377 on the grounds that the selective repeal of that statute denies affected class members access to the courts in violation of the equal protection guarantee of the Fifth Amendment.
In June 2002, the Center presented a motion for summary judgment to the federal district court, asking that the court enter judgment requiring the INS to accept and decide legalization applications from CSS class members under the original 1986 amnesty law.
The result of the latest motion is the present settlement agreement. More information on the terms of the settlement agreement and the application process are available here: 2003 CSS Settlement (link to CSS Settlement document)
Newman Case BackgroundReturn to Top
Note: This document gives background information and history for Newman only. For current information regarding the recent settlement agreements, click here: 2003 Newman Settlement (link to Newman Settlement)
The Center for Human Rights and Constitutional Law, with the help of other organizations, has litigated for the past fifteen years on behalf of persons who were shut out of the legalization, or "amnesty" program established by the Immigration Reform and Control Act of 1986 (IIRAIRA). The Center brought two major class action lawsuits on behalf of these individuals: Catholic Social Services v. Reno, Cv. S-86-1343 LLK (CSS) and Newman v. INS, Cv. No. 87-4757-WDK (JRx) (C.D. Cal.) The resident classes in these cases comprise an estimated 500,000 long-term residents.
LULAC challenged an INS regulation that declared persons who had traveled outside the U.S. and returned between 1981 and 1986 using a "facially valid" nonimmigrant visa or other entry document ineligible for legalization. The INS’s facially valid documentation rule similarly violated the IRCA, which permitted persons to retain eligibility for legalization although they had made brief trips abroad, whether or not they had traveled with facially valid documents.
The INS eventually conceded that the facially valid documentation rule was improper, and, as in Catholic Social Services, rescinded the rule. By the time it did so, however, the agency had turned away numerous applicants, erroneously telling them they were ineligible to apply for legalization because they had traveled.
Under the LULAC interim relief order, the INS was required to grant temporary work authorization and stays of deportation to class members who were prima facie eligible for legalization. Persons were permitted to apply for interim relief until May 29, 1996
On July 2, 1999, the United States District Court for the Central District of California issued a permanent injunction requiring the INS to accept and process legalization applications from "front-desked" class members: that is, persons who presented a complete application and fee to an INS officer or QDE during the 1987-88 application period but were turned away. The INS appealed, but the appeal was stayed pending the en banc disposition of the CSS 2.
The United States Ninth Circuit Court of Appeals ruled on April 15, 2002, that the district court in that case had properly enjoined the INS to accept and adjudicate legalization applications filed by "front-desked" class members: i.e., those class members who attempted to file a complete application and fee with the INS during the 1987-88 application year but were unlawffuly prevented from dong so. The court of appeals reversed, however, to the extent the district court had declined to include in that judgment class members who had gone to an INS office to file for legalization, but did not have a complete application and fee in hand.
The Ninth Circuit ruled that because of the retroactive repeal of § 377, these class members – known as "xonstructive filers" – must now be afforded relief similar to that previously granted front-desked class members only. The court of appeals also ruled that class members who are not benefited by the nunc pro tunc repeal of § 377 must be permitted to challenge their continuing exclusion from the federal courts on equal protection grounds. The Center urged the district court to issue a decision expanding the permanent injunction to include constructive filers requiring the INS to follow strict guidelines for identifying those class members who are entitled to have their legalization applications decided under the 1986 amnesty law. That motion resulted in the present Settlement Agreement.
CSS/ NEWMAN PRESS RELEASEReturn to Top
New One-year Amnesty for Many Pre-1982 Immigrants Starts Today
Today marks the beginning of a one-year application period for thousands of long-term undocumented immigrants throughout the country who were unlawfully turned away by the INS when they attempted to file for legalization during the 1987-88 one-time amnesty signed by President Reagan in 1986.
Center for Human Rights and Constitutional law
Los Angeles
Press Release
FOR IMMEDIATE RELEASE (5/24/04)
Contact: Peter Schey, Esq.
PHONE (323) 251-3223
email: pschey@centerforhumanrights.org
Los Angeles, Ca. Today marks the beginning of a one-year application period for thousands of long-term undocumented immigrants throughout the country who were unlawfully turned away by the INS when they attempted to file for legalization during the 1987-88 one-time amnesty signed by President Reagan in 1986. The 1986 law, the Immigration Control and Reform Act of 1986, granted an unprecedented amnesty to aliens who had resided in the United States since before 1982. The law also for the first time imposed sanctions on employers who hired undocumented workers. Interpreting the new law to disallow most applicants who had briefly traveled abroad after 1982, the INS rejected thousands of applicants who had visited relatives or traveled outside the country during the required period of residence.
Class action lawsuits that were filed during the 1987-88 application period challenging the travel rules were finally settled earlier this year after control of the INS transferred from the Department of Justice to the Department of Homeland Security. Complete copies of the class action settlement agreements are available at the web site of the Citizenship and Immigration Services of DHS (former INS) at uscis.gov (select CIS settlements), and at www.legalizationusa.org.
Under the terms of the settlements in the two class action cases, Catholic Social Services v. Ridge and Newman/LULAC v. CIS, undocumented immigrants who resided in the United States from any date before 1982 until they tried to apply for amnesty and were turned away during the 1987-88 application period, may now come forward and file applications to legalize their status. Under the settlements the applications will be confidential and may not be used to commence deportation proceedings if the application is denied. Applicants will also have the right to seek temporary work permits and permission to travel abroad while their applications are pending.
The settlement agreements take into account the passage of time since class members first applied for amnesty and were turned away. The settlements provide that the CIS may not deny applications simply because they are based upon the affidavits of third parties showing an applicant's required residence from 1982 to 1987-88. To avoid long backlogs of applications before the CIS, the settlements require that applications be processed within 180 days.
"We look forward to thousands of undocumented immigrants all around the country of all nationalities having the opportunity to come forward and legalize their status during the coming year. The INS should have legalized their status fifteen years ago. Their exploitation on the job, discrimination in all walks of life, and fugitive status, will finally come to an end. Their communities will be better off as this population of long-term residents can finally work legally, pay more taxes, and can far more fully participate in social and civic affairs." Peter Schey, President. Center for Human Rights and Constitutional Law, lead counsel for plaintiffs.
CSS Summary of SettlementReturn to Top
This is a summary of a settlement filed in this case and approved by the Court on January 23, 2004 (hereinafter "CSS settlement").
1. Class definition
The following persons are entitled to benefits under this CSS settlement:
All persons who are otherwise prima facie eligible for legalization under § 245A of the INA, and who tendered completed applications for legalization under § 245A of the INA and fees to an INS officer or agent acting on behalf of the INS, including a QDE, during the period from May 5, 1987 to May 4, 1988, and whose applications were rejected for filing because an INS officer or QDE concluded that they had traveled outside the United States after November 6, 1986 without advance parole.
All persons who filed for class membership under Catholic Social Services, Inc. v. Reno, CIV No. S-86-1343 LKK (E.D. Cal.), (“CSS”) and who are otherwise prima facie eligible for legalization under § 245A of the INA, who, because an INS officer or QDE concluded that they had traveled outside the United States after November 6, 1986 without advance parole were informed that they were ineligible for legalization, or were refused by the INS or its QDEs legalization forms, and for whom such information, or inability to obtain the required application forms, was a substantial cause of their failure to timely file or complete a written application.
As used in subparagraph (B) the phrase “filed for class membership” includes the spouses and children of persons who actually filed for class membership as provided in 8 C.F.R. § 245a.10.
2. Distribution of CSS settlement or this summary
The CSS settlement requires that within fourteen (14) days from the date on which the district court approves the settlement, or on which the separate settlement in Newman et al v. INS et al., 87-4757-WDK (CWx) (C.D. Cal.), (“Newman”) is approved by the court, whichever is later, the Department of Homeland Security (“DHS”) must use good faith and reasonable efforts to distribute the CSS settlement or this summary thereof to all DHS officers, agents and employees who will be responsible for processing class membership claims. The DHS must also use good faith and reasonable efforts to provide the CSS settlement or summary to all DHS personnel who may in the course of their duties detain or remove individuals who may be CSS class members. DHS must use good faith and reasonable efforts to serve Class Counsel with copies of all supplemental instructions or guidelines it issues regarding implementation of this Settlement Agreement.
3. Notice to Class Members
The CSS settlement requires the Bureau of Citizenship and Immigration Services (“BCIS”) to issue a press release and a Class Notice in English and Spanish (the texts of which are attached as Attachments 2 and 3) announcing the CSS settlement within 60 days following the court’s approval of the agreement. The press release, Class Notice, and Class Member Application sheet (attached as Attachment 4) must be distributed to the media and community-based organizations according to the BCIS’s normal procedure for doing so. BCIS shall provide class counsel with a copy of the lists to which these materials are distributed. The press release, Class Notice, Class Member Applications and Appeal to Special Master of Denial of Class Membership shall be posted on the BCIS’s web site until the end of the application period referenced in 4 below. The press release, Class Notice, Class Member Applications and Appeal to Special Master of Denial of Class Membership shall also be made available at BCIS district offices until the end of the application period referenced in 4 below. Within 60 days of this Settlement Agreement and during the remainder of the application period specified in 4, BCIS shall make available to all persons, upon request, a copy of Form I-687, CSS Class Member Applications and instructions, and Form I-765.
4. Application Period
Within 30 to 60 days after notice is issued to class members under 3, above, BCIS shall begin accepting CSS Class Membership Applications and Forms I-687, Application for Status as a Temporary Resident, with fee and supporting documentation, from class member applicants. BCIS shall continue to accept such applications for class membership and temporary residence for a period of one year thereafter, and no longer. Applications shall deemed filed on the date postmarked in accordance with the provisions at 8 C.F.R. § 245a.12(a).
5. Filing of Applications
Individuals asserting a claim for relief under the CSS settlement must file a CSS Class Membership Application and a Form I-687, Application for Status as a Temporary Resident, with fee and supporting documentation. The fee for filing all forms in connection with the application process shall be the fees applicable by regulation or Federal Register Notice at the time of filing the application(s). Except as provided in 10 below, applicants must file a Form I-765 with fee if they wish to receive an employment authorization document. If a person previously filed for class membership as that term is defined in 1 above, BCIS shall refund the fee for filing the Form I-687 if such person’s application for class membership is denied. Individuals who did not previously “file for class membership” as that term is defined in 1 above, shall receive no refund of the fee for filing the Form I-687 if such person’s application for class membership is denied.
6. Adjudication of class member applications and legalization applications
The BCIS will approve CSS Class Membership Applications if, based on responses to questions asked on the application, it appears more probable than not that the applicant meets the class definition. A determination that an applicant is a class member is not binding in any manner for the purposes of an adjudication on the merits of the application for temporary residence, which shall be conducted de novo. Class Member Applications shall not be denied solely because applicants do not possess documentary evidence establishing class membership. The DHS must treat information and materials submitted in connection with Class Member Application as confidential in accordance with 8 U.S.C. § 1255a(c)(5).
7. Intended Denials of Class Membership
Before denying an application for class membership, the applicant or his or her representative shall be sent a notice of intended denial explaining the perceived deficiency in the applicant's Class Member Application and providing the applicant 30 days to submit additional written evidence or information to remedy the perceived deficiency.
8. Denial of Applications for Class Membership
The BCIS shall send written notice of a decision to deny an application for class membership to the applicant and his or her attorney of record, with a copy to Class Counsel. The notice shall explain the reasons for the denial of the application and notify the applicant of his or her right to seek review of such denial by a Special Master, on the document attached as Attachment 5, a copy of which should be mailed to the applicant along with the notice of decision. On review, neither the BCIS nor the applicant shall be permitted to submit new evidence to the Special Master.
9. Review by Special Master
Selection of the Special Masters. Each party shall select one person, from a list of three names recommended by the other party, to serve as a Special Master. Appeals from denials of applications for class membership shall be assigned randomly to a Special Master. The two Special Masters shall jointly designate the mailing address for appeals and determine procedures for random assignment.
Review of Decisions Involving Determination of Class Membership. Any decision by BCIS denying an application for class membership may be appealed to a Special Master. Any such appeal must be post-marked within 30 days of the date of mailing of the notice denying the application for class membership. The Special Master’s review shall be based on the documents and other evidence submitted by the applicant, and any documentary evidence the BCIS relies on in reaching the decision to deny the application for class membership. The Special Master shall be paid a fee of $125 for adjudicating each appeal under subparagraphs (i) and (ii) below. Payment of this fee shall be paid by the parties as follows: (i) If the appeal involves a denial of class membership based on criminal or security-related grounds, the applicant is responsible for paying the entire fee; and (ii) If the appeal involves a denial of class membership on other than criminal or security-related grounds, the fee shall be paid equally by the BCIS and the applicant. The applicant’s portion of the fee must accompany his or her notice of appeal. The BCIS must submit its portion of the fee within 30 days of being notified by the Special Master that an appeal has been duly filed.
Review of Other Decisions. An applicant who believes that DHS has violated his or her individual rights pursuant to 3, 4, 5, 7, 10, 12, or 13 of the Settlement Agreement may file a claim with the Special Master. However, prior to filing any such claim, the applicant must advise the DHS by certified mail, or other documented delivery service to an address specified by DHS, that he or she believes that DHS has violated his or her rights under paragraphs 3, 4, 5, 7, 10, 12, or 13. DHS shall have 45 days from the date it is notified of the applicant’s intent to file a claim under this paragraph in which to investigate and, if appropriate, rectify any deficiency. If 50 days after notifying DHS of his or her intent to file a claim, the applicant does not receive notice that defendants have sustained the applicant’s challenge, then the applicant may file his or her appeal to the Special Master. Any such appeal must be post-marked within 80 days of the date the applicant advised Defendants of the alleged violation.
The Special Master shall be paid a fee of $65 for adjudicating each appeal under this subparagraph C. The applicant must pay the entire fee at the time he or she files the notice of appeal. If the applicant prevails on the merits of his or her appeal, DHS must reimburse the applicant the entire fee within a reasonable time after being notified that the applicant prevailed on appeal.
10. Renewal of Employment Authorization Documents
The BCIS shall, without fee, reissue or renew for a period of one year employment authorization to applicants in the class defined herein who were previously issued such employment authorization pursuant to interim relief orders in Catholic Social Services, Inc. v. Reno, CIV No. S-86-1343 LKK (E.D. Cal.). An applicant shall be entitled to have his or her employment authorization renewed only during the application period and only one time under this provision.
11. Adjudication of Applications for Temporary Residence
BCIS shall adjudicate each application for temporary residence filed on Form I-687 in accordance with the provisions of § 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a, regulations, and administrative and judicial precedents the INS followed in adjudicating I-687 applications timely filed during the IRCA application period. In adjudicating I-687s pursuant to this agreement, BCIS shall utilize the standards set forth in 8 C.F.R. § 245a.18(c), or 8 C.F.R. § 245a.2(k)(4), which ever is more favorable to the applicant. For purposes of establishing residence and presence in 8 C.F.R. § 245a.2(b), the term, “until the date of filing” shall mean until the date the alien was “front-desked” or “discouraged from filing” consistent with the Class Definition. In evaluating the sufficiency of applicants’ proof of residence, the BCIS shall take into account the passage of time and attendant difficulties in obtaining corroborative documentation of unlawful residence. An application shall not be denied solely because the applicant seeks to establish continuous unlawful residence only with affidavits or declarations.
12. Time for Determining Class Membership and Legalization Applications
BCIS shall use good faith and reasonable efforts either to approve applications for class membership or issue notices of intended denials within ninety (90) days of receipt. If a notice of intended denial is issued, the BCIS shall endeavor to issue a final decision on the application for class membership within ninety (90) days after receipt of an applicant's supplemental evidence or explanation, if any.
BCIS shall use good faith and reasonable efforts to adjudicate class members' I-687 forms within one hundred and eighty (180) days of approval of their application for class membership. C. If the aggregate number of Form I-687 applications received under the CSS settlement and the settlement reached in Newman v. DHS, Civ. 87-4757-WDK (C.D. Cal.), exceeds 240,000, it is anticipated that the approximate processing times referenced in subparagraphs A and B above will double.
13. Removal of Class Applicants from the United States
DHS shall not remove from the United States or detain any putative class member who appears to be prima facie eligible for class membership under the CSS settlement and for legalization under section 245A of the INA. This paragraph shall not apply to any alien who is subject to detention or removal despite his or her having been previously determined to be eligible for class membership. For example, if, after having been deemed a class member, it is found that the alien has been convicted of a crime that renders him or her ineligible for legalization, the alien may nevertheless be detained and removed from the United States.
14. Reporting on Implementation of This Agreement
Commencing four months after the beginning of the filing period, BCIS shall prepare quarterly reports setting forth the number of Class Membership applications, Forms I-687, and Forms I-765, that were received, approved, denied and pending. Copies of such report shall be provided to Class Counsel. In the event BCIS believes good cause exists to extend the time periods set forth in 12, BCIS shall provide Class Counsel with a written explanation of such cause and proposed alternative target periods.
15. Duration of Agreement
The CSS settlement will remain in effect for one year after the BCIS adjudicates the last application for class membership. BCIS will promptly notify Class Counsel of the date it adjudicates the last application for class membership.
16. Dismissal of Complaint, Dissolution of Injunctive Orders and Other Decisions
In the event the district court approves the CSS settlement, the plaintiffs will promptly move the court for dismissal with prejudice of each and every claim of the complaint, as amended, and the dissolution of any injunctive order(s) and other decisions entered by the district court.
17. Continuing Jurisdiction
The district court will retain jurisdiction in this action over only the matters described immediately below. A. Claims that DHS has engaged in a pattern and practice of refusing to implement any of the relief set forth in the CSS settlement. B. Claims that DHS has expressly repudiated the CSS settlement. C. At least sixty (60) days prior to bringing any action pursuant to this provision, the parties shall meet and confer in a good faith effort to resolve their differences. D. Any action under this provision must be brought within one year after BCIS adjudicates the last application for class membership.
18. Class Counsel
Class Counsel for the purposes of this Settlement Agreement are Peter Schey and Carlos R. Holguin, Center for Human Rights and Constitutional Law, 256 S. Occidental Blvd., Los Angeles, CA 90057, telephone (213) 388-8693, facsimile (213) 386-9484, e-mail amnestycoordinator@centerforhumanrights.org
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