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Notice

Implementation of Class Action Judgment in Proyecto San Pablo v. INS

Document Details

Information about this document as published in the Federal Register.

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This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

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AGENCY:

Immigration and Naturalization Service, Justice.

ACTION:

Notice.

SUMMARY:

This notice implements the class action judgment in Proyecto San Pablo v. INS, No. Civ 89-456-TUC-WDB (D.Ariz.) by notifying aliens who Start Printed Page 4519applied for legalization under section 245A of the Immigration and Nationality Act (Act), 8 U.S.C. 1255a, of their rights under the judgment. This notice is necessary because neither the class counsel nor the Immigration and Naturalization Service (Service or INS) has reliable information concerning the names and addresses of class members.

DATES:

This notice is effective January 29, 2003.

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FOR FURTHER INFORMATION CONTACT:

Robert Raymond, Office of the General Counsel, Immigration and Naturalization Service, 425 I Street NW., Room 6109, Washington DC 20536, telephone (202) 514-2895.

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SUPPLEMENTARY INFORMATION:

1. Why Is the Service Publishing This Notice?

The Service is publishing this notice to comply with the judgment entered on March 27, 2001, as amended, in the class action entitled Proyecto San Pablo v. INS No. Civ 89-456-TUC-WDB (D.Ariz.) (Proyecto case). Service regulations do not permit aliens to file motions to reopen in legalization cases under section 245A of the Act, 8 U.S.C. 1255a. The Court's judgment, however, requires the Service to reopen certain legalization cases and make new decisions in those cases. This notice explains how to obtain a new decision in your case.

2. To Whom Do the Personal Pronouns “I,” “Me,” “My,” “You” and “Your” Refer?

In this Notice, the personal pronouns “I,” “me,” “my,” “you” and “your” refer to any alien who filed a timely application for legalization and who believes that he or she may be a class member in the Proyecto case.

3. Does This Notice Apply to My Case?

This notice applies to your case if you meet each of the following requirements:

(a) You filed an application for legalization under section 245A of the Act during the period that began May 5, 1987, and ended May 4, 1988;

(b) You filed this application with a legalization office in the former Northern or Western region of the Service (that is, in: Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington (State), Wisconsin, or Wyoming);

(c) The Service denied your application for legalization or terminated your temporary residence under section 245A(g)(2)(B)(i) of the Act because, at some time during the period beginning before January 1, 1982, and ending on the date you filed your legalization application, you were “outside the United States as a result of a departure under an order of deportation.”

4. What Does the Court's Order Permit Me To Do?

If this Notice applies to your case, then you may obtain a new Service decision on your legalization application. You may also obtain employment authorization, in 1-year increments, until the Service makes a new decision in your case. The Service may not deport you until it makes a new decision in your case. In addition, you will be given an opportunity to obtain a copy of your prior deportation or exclusion records under the Freedom of Information Act (FOIA). You will also be able to submit and have adjudicated, Form I-690, Application for Waiver of Grounds of Excludability Under sections 245A or 210 of the Immigration and Nationality Act, or any other waiver you deem appropriate, although the parties continue to dispute the legal effect of such a waiver.

5. How Do I Obtain Employment Authorization?

The Proyecto judgment requires the Service to extend your employment authorization until the Service reopens your case and makes a new decision. If your current employment authorization document has expired, or is about to expire, you should apply for a new employment authorization document by completing Form I-765, Application for Employment Authorization, and filing it, without fee. Follow the instructions listed on the Form I-765. To make it clear that you are claiming to be a Proyecto class member, you must write the word “Proyecto” in box 16 on the Form I-765. The Employment Authorization Application must be adjudicated within 90 days of the date of its receipt. You must file your Form I-765 with the Nebraska Service Center. The address is: Immigration and Naturalization Service, Nebraska Service Center, Attn: Proyecto Unit, PO Box 87687, Lincoln, NE 68501-7687.

6. Will the Service Give Me a New Employment Authorization Card, if My Card Expires Before My Case Is Decided?

Yes, any employment authorization card will be valid for 1 year, and so long as you have filed a motion to reopen as described below in paragraph 10, you may apply for renewal until the Service makes a final decision in your case. You will not be eligible for an extension of employment authorization, however, if you fail to file a motion to reopen within 1 year from the date you receive this notice. So long as you file a timely motion to reopen, the Service may not deport you until it issues a new decision in your legalization application.

7. How Do I Obtain a New Decision in My Case?

Because the legalization application period ended more than 13 years ago, it is not likely that the Service will have a current address for you. For this reason, the Service will not act to reopen your case until you notify the Service that you want the Service to do so. If you want to exercise your rights under the Proyecto decision, you must file with the Service a motion to reopen, without fee. As described below, your motion to reopen may include all information and/or waiver applications you wish the Service to consider. As such, you should first attempt to obtain any information you may need through the FOIA process as described below in question 8. In addition, you should prepare any waiver applications you wish to be considered and submit all of the information along with your motion to reopen. If you have not received a response to your FOIA request at the time you must file your motion to reopen, then you must still file your motion to reopen, but you may wait to submit the supporting documents until after you receive the response to any FOIA requests that you have made.

To avoid delays, please make sure that your motion to reopen clearly states that you are seeking the reopening of your case under the judgment in the Proyecto case.

8. Where Do I File My FOIA Requests?

The Service's FOIA requests are filed according to the instructions on Form G-639, Freedom of Information/Privacy Act Request (available on the Service's Web site at http://www.ins.usdoj.gov). To make a FOIA request, you may use Form G-639, or a letter specifically indicating which records are being requested. The form approved by the Court for requesting your Service records is attached.

A. Service Records

In order to obtain a copy of your prior Service file you must file a FOIA request with the Service. File your FOIA request with the Nebraska Service Center. The address is: Immigration and Naturalization Service, Nebraska Start Printed Page 4520Service Center, Attn: FOIA/PA Unit, PO Box 82521, Lincoln, NE 68501-2521.

B. Immigration Court Records

In order to obtain a copy of your prior deportation or exclusion records from the Immigration Court, you must file a FOIA request with the Executive Office of Immigration Review (EOIR). Since EOIR is not part of the Service, you must send your EOIR FOIA request directly to EOIR at the following address: Office of the General Counsel, Executive Office for Immigration Review, FOIA/PA Requests, 5107 Leesburg Pike, Suite 2400, Falls Church, VA 22041.

The EOIR does not have its own special FOIA request form. However, EOIR will accept either the Form G-639, or a letter specifically indicating which records are being requested. The form approved by the Court for requesting your EOIR records is included as an appendix to this notice.

9. Where Must I File the Motion to Reopen?

You must file your motion to reopen with the Nebraska Service Center. The address is: Immigration and Naturalization Service, Nebraska Service Center, Attn: Proyecto Unit, PO Box 87687, Lincoln, NE 68501-7687.

10. When Must I File the Motion to Reopen?

You must file your motion to reopen no later than 1 year from the date you are personally served with this Notice by the Service, as described below.

The Service will personally serve you with a copy of this notice in one of three ways. First, on or about the time of the publication of this Notice in the Federal Register, if you are known to meet the Proyecto class definition, the Service will mail this Notice, by certified mail return receipt requested, to your last known address contained in your file. Second, after publication of this Notice in the Federal Register, when you file an application for employment authorization (Form I-765), the Service will check your alien file to see if there is written confirmation that you previously received this notice. If there is no such confirmation, the Service will mail a copy of this Notice, by certified mail return receipt requested to you at the address listed on the application for employment authorization, or to your attorney or representative as required by 8 CFR 292.5, if a Form G-28, Notice of Entry of Appearance as Attorney or Representative has been filed since the publication of this notice in the Federal Register. Third, the Service may personally deliver a copy of this Notice to you at any time the Service encounters you.

The 1-year time period for filing your motion to reopen begins on the date that personal service in one of the three ways described above is confirmed to have occurred. The Service cannot deny your legalization application, or deny work authorization pursuant to this Notice, unless the Service can confirm that this Notice has been served on you in one of the three ways described above.

If you need to file FOIA requests before you can file your motion to reopen, then you must still file your motion to reopen within the 1-year time period described above. If you have not yet received the results from your FOIA requests, then your motion to reopen must include a statement that you are awaiting your FOIA results.

11. What Must I Include With My Motion To Reopen?

You should include in your motion to reopen:

(1) A copy of any documents that you received from the Service and EOIR in response to your FOIA requests that you want to have included in your legalization record of proceeding,

(2) A waiver application (Form I-690) with the fee established in 8 CFR 103.7(b) (currently $35) (available on the Service's Web site at http:// www.ins.usdoj.gov) if you wish the Service to adjudicate a waiver,

(3) Any brief, any other waiver that you wish to have adjudicated, and any other evidence you wish to submit in support of your motion; and

(4) Either a statement that you are ready to have a new decision entered in your case, or a statement that you are still awaiting the results of your FOIA requests.

12. What if I Have Not Yet Received the Results of My FOIA Request?

If you are still awaiting FOIA results you must still file the motion to reopen no later than the period described in paragraph 10, above. You may include with your motion a copy of any waiver application you wish to file, a copy of your FOIA requests, any evidence you want to submit other than evidence from your FOIA requests, and a statement indicating that you are awaiting the results of the FOIA requests. You must then submit, no later than 6 months after you receive the results of your FOIA requests, any brief you wish to file and a complete copy of any documents that you want to have included in your legalization record of proceeding.

13. When Will the Service Decide My Case?

Because your motion to reopen should include any and all evidence that you want included in your legalization record of proceeding, any brief you wish to file, and any waiver application that you wish to have considered, the Service may decide your motion to reopen at any time after you file it, unless you indicate in your motion that you are still awaiting the results of your FOIA requests. If you are still awaiting the results of your FOIA requests, the Service will not rule on your motion until you have had an opportunity to obtain and review the FOIA documents. You must submit a brief and any documents you want the Service to consider no later than 6 months after you have received a response to both of your FOIA requests.

14. What if I Do Not File a Motion To Reopen?

The Service will not make a new decision in your case unless you file a motion to reopen, which you must do within the 1-year period described in this notice under the heading “When Must I File The Motion to Reopen?” (Paragraph 10). If you have received employment authorization pursuant to these instructions and do not file a motion to reopen, your employment authorization will not be renewed.

15. What if I Do Not Get This Notice With These Instructions Within a Year?

You will be permitted to file a motion to reopen and take the other steps outlined here if you come to the attention of the Service more than a year after these instructions are published, unless the Service can confirm that this Notice has been personally served on you in the manner described in this notice under the heading “When Must I File The Motion to Reopen?” (Question 10).

16. Does the Proyecto Judgment Entitle Me to a Stay of Deportation?

The March 27, 2001, Judgment of the Court requires the Service to stay your deportation and to release you from custody without bond, so long as you are a class member. Filing either the application for a new employment authorization document or the motion to reopen will help notify the Service that you are entitled to this stay and release without bond. The stay will remain in effect until the Service makes a final decision in your case. Start Printed Page 4521

17. Does the Proyecto Judgment Make Me Eligible for Legalization?

Not necessarily. According to the order of the District Court, the Service is required to reopen and readjudicate your legalization application. This does not necessarily mean that the Service will approve your application.

18. Do the Legalization Confidentiality Rules Apply to My Case?

The legalization confidentiality rules apply to your case in the same way that they apply to any other legalization case. Your applications and file requests cannot be used for any other reason than to make a determination on your eligibility for legalization. They cannot be used in removal, deportation or exclusion proceedings.

19. Do I Have the Right to Have an Attorney or Other Person Represent Me?

By statute and regulation, you have the right to be represented before the Service by any attorney or other person authorized to represent people before the Service.

Please note that Robert Gibbs, Esq., Gloria A. Goldman, Esq., and Robert Pauw, Esq., have represented the class in this case. You may retain Mr. Gibbs, Ms. Goldman, or Mr. Pauw to represent you, but you also have the right to retain any other attorney or other person authorized to represent people before the Service. If you want Mr. Gibbs or Mr. Pauw to represent you, or want further information about this case, you may contact them at: Gibbs Houston Pauw, 1000 Second Avenue, Suite 1600, Seattle, Washington 98104; telephone (206) 682-1080; Web site: www.ghp-law.net. You may also contact Ms. Goldman at 1575 West Ina Road, Tucson, Arizona 85704-1926, telephone (520) 797-9229.

If you already have your own attorney or representative, he or she may also contact Mr. Gibbs, Ms. Goldman, or Mr. Pauw for information about this case.

20. What if My Address Changes?

It is very important that you inform the Service of any change of address while your case is pending. You should promptly notify the Service in writing of a change of address by sending the change of address to any office where you filed a FOIA request, and to the Nebraska Service Center as shown below: Immigration and Naturalization Service, Nebraska Service Center, Attn: Proyecto Unit, PO Box 87687, Lincoln, NE 68501-7687.

Paperwork Reduction Act

The documentary requirements included when filing a motion to reopen your case, including the form approved by the Court for requesting your records is not considered an information collection under 5 CFR 1320.4(a)(2).

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Dated: January 23, 2003.

Michael J. Garcia,

Acting Commissioner, Immigration and , Naturalization Service.

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Note:

The appendix to this notice contains the FOIA request form provided for in the Proyecto judgment.

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[FR Doc. 03-1959 Filed 1-28-03; 8:45 am]

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