Status: March 2011Commencing May 24, 2004, and continuing through December
31, 2005, some 80,000 thousand long-term immigrants applied for legalization of status under the 1986 IRCA.
This legalization opportunity resulted from settlements reached
in the Catholic Social Services v. Napolitano and Newman v. Department of
Homeland Security (formerly LULAC v. INS) class action cases in 2004.
Applications denied as "abandoned" or because the applicant now resides outside the United States ("foreign filers").
On May 18, 2010, the United States District Court ordered United States Citizen and Immigration Services (CIS) to take the following remedial action in favor of class members whose applications CIS declared abandoned or rejected because the class member now resides abroad.
Although the order technically applies only to CSS class members, USCIS has indicated it will apply these procedures to LULAC/Newman class members as well.
• Benefits for class members whose applications CIS declared abandoned.
On December 14, 2009, the Court ruled that CIS may not apply its abandonment regulation, 8 C.F.R. § 103.2(b)(13), in adjudicating legalization applications filed by CSS class members. The Court did not, however, decide what CIS must do instead of applying § 103.2(b)(13), or what it must do to restore the rights of class members whose legalization applications the agency unlawfully declared abandoned prior to the Court’s order.
In its May 18th order the Court resolved these questions and ordered CIS to take the following steps with respect to class members whose legalization applications CIS unlawfully declared abandoned:
1) CIS must identify all class members whose applications were declared abandoned pursuant to 8 C.F.R. § 103.2(b)(13). The agency must make all reasonable efforts to finish the identification process within 180 days, or by November 15, 2010.
2) CIS will issue amended decisions in all abandonment cases. The amended decision will rule on the merits of the applicant’s eligibility for legalization, rather than solely on whether the applicant timely responded to a notice of intent to deny or request for additional evidence, etc. The decision will also advise applicants of their right to appeal adverse decisions to the Administrative Appeals Office (AAO).
3) Class members who wish to appeal to the AAO will have 90 days from the date the amended decision is mailed to file their administrative appeals.
4) CIS must “where possible,” either refund filing fees class members paid to file motions to reopen CIS decisions declaring their legalization applications abandoned, or credit those filing fees toward the cost of their appeals to the AAO, at the class members’ option.
5) The AAO must review appeals filed by class members whose applications CIS declared abandoned “on the merits”: that is, the AAO may not deny or dismiss an appeal on the grounds that the class member failed to respond timely to a notice of intent to deny or request for additional evidence, appear for interview on his or her legalization application.
• Benefits for class members whose applications CIS rejected or denied because they now live abroad (“foreign filers”).
In its December 14, 2009, order, the Court ruled that CIS violated the settlement in failing to advise foreign filers that they could seek review before the CSS/Newman special masters of the agency’s having rejected their legalization applications and class membership worksheets because they no longer live in the United States.
The Court ordered CIS to submit an affidavit describing what steps it would take to advise rejected foreign filers of their right to appeal the special masters.
In its May 18th order, the Court requires CIS to take the following additional steps in favor of foreign filers:
1) By August 16, 2010, CIS must send rejected foreign filers an invitation to re-submit their Form I-687 legalization applications, class membership worksheets, and supporting documentation. Rejected foreign filers will have six months from the date CIS mails the invitation to re-submit their applications to CIS.
2) CIS must accept re-submitted applications and worksheets from rejected foreign filers with the 2004-05 filing fee of $240.00, rather than the current $710.00 filing fee.
3) CIS must arrange to conduct biometrics and interviews of foreign filers at U.S. consulates abroad.
4) CIS must, within 180 days—November 15, 2010—re-open without fee the legalization applications of foreign filers whose applications CIS did not reject. CIS will send such applicants a Form I-797 Reopening Notice.
5) CIS must adjudicate both rejected and accepted foreign filers’ legalization applications and class member worksheets on their merits. Where the agency denies a foreign filer’s class membership worksheet or legalization application, it must advise him or her of the right of appeal to the CSS/Newman special masters or the AAO, as appropriate.
Persons who believe USCIS has failed to comply with the above requirements are encouraged to contact General Counsel Carlos Holguin at crholguin<at>centerforhumanrights.org.
I-687 denials and terminations of temporary resident status
The Center is concerned that CIS adjudicators are violating the CSS and LULAC/Newman settlements in the following ways:
1) Misapplication of the preponderance of the evidence standard.
8 C.F.R. § 245a.12(e) requires CIS to adjudicate legalization applications using the familiar “preponderance of the evidence” standard.
Class counsel have received reports that CIS adjudicators and the Administrative Appeals Office may be misapplying the preponderance of the evidence standard in the following ways:
• Finding or inventing some weakness in individual items of documentary evidence of unlawful residence and thereupon declaring such evidence wholly lacking in probative weight.
• Refusing to give declarations any probative value because the declarant failed to attach documentary evidence of his or her U.S. residence during the period the declarant affirms a legalization applicant’s residence or presence in the U.S.
• Refusing to give declarations any probative value because the declarant failed to provide details about his or her employment, physical address, or daily activities.
This list is not exclusive.
2) Evading regulatory procedures for termination of temporary resident status.
8 C.F.R. § 245a.2(u) prescribes the procedure CIS must follow to terminate temporary resident status.
Class counsel have received reports that when CSS and Newman class members appear for interview on applications to adjust to permanent resident status, CIS is revisiting their eligibility for lawful temporary residence, finding temporary residence was improvidently granted, rescinding temporary residence, and denying adjustment, all without regard to § 245a.2(u).
Lawyers and advocates are encouraged to report instances of the above to Carlos Holguín, General Counsel, Center for Human Rights & Constitutional Law, crholguin<at>centerforhumanrights.org.
- Form to Gather Declarations (PDF)
- Use this form to gather information for sworn declarations in support of class membership and residency applications
- USCIS Forms and Fees Webpage
CIS forms are also available for download at the CIS website. Check CIS
website for current filing fees as they change fairly often.
List of attorneys and community-based organizations familiar with the CSS & Newman/LULAC cases.
Below are PDF files containing a list of attorneys and community-based organizations that attended CHRCL's training on applying for benefits under the CSS and Newman/LULAC settlements. Please note that the Center for Human Rights and Constitutional Law does not endorse any of the attorneys or organizations that appear on the lists. The Center encourages class members to retain counsel knowledgeable about the settlements and USCIS application procedures.
- Los Angeles. CA Attorney List (PDF)
- Dallas, TX Attorney List (PDF)
- Orlando, FL Attorney List (PDF)
- Miami, FL Attorney List (PDF)
- Houston, TX Attorney List (PDF)
- Monterey, CA Attorney List (PDF)
- San Francisco, CA Attorney List (PDF)
- San Jose, CA Attorney List (PDF)
- San Diego, CA Attorney List (PDF)
Click here for background on the CSS lawsuit.