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Thread: Late Amnesty Life/lulac/css IMMIGRANT ASSISTANCE PROJECT

  1. #1
    Guest
    MEMORANDUM

    TO: IAP CLASS MEMBERS & INTERESTED PERSONS

    FROM: ROBERT GIBBS / ROBERT PAUW

    DATE: September 27, 2002

    RE: IMMIGRANT ASSISTANCE PROJECT - STATUS OF THE CASE
    _____________________________________________________________________________

    We are writing to you to give you an update on the status of the case Immigrant Assistance Project v. INS ("Known to the Government" litigation). This class action lawsuit covers individuals who entered the United States on non-immigrant visas prior to January 1, 1982 and who were deemed to be ineligible for legalization because their violation of non-immigrant status was not "known to the government". See INA 245A(a)(2)(B). The lawsuit includes both individuals who applied for legalization and were denied and also individuals who did not file applications.

    On March 3, 1999 the district court reaffirmed a prior order (see 709 F.Supp. 998 and 717 F.Supp. 1444 (W.D.Wash. 1989), aff'd 976 F.2d 1198 (9th Cir. 1992)) which recognized the possibility that class members may qualify for legalization by virtue of failing to file address reports prior to January 1, 1982. The court also issued an order allowing class members to submit late amnesty applications and obtain employment authorization. The INS appealed the district court's order to the Ninth Circuit Court of Appeals. On September 24, 2002, the Ninth Circuit issued a decision upholding the district court's order. The case will be sent back to the district court for further proceedings.

    We would like to make sure that we have current information regarding the class members of this lawsuit. Please complete the enclosed questionnaire so that we will be able to contact you when there is new information that is relevant to your case.

    Please do not hesitate to contact us if you have any questions. Our e-mail addresses are:
    rgibbs@ghp-law.net and rpauw@ghp-law.net.


    INFORMATION FORM FOR CLASS MEMBERS
    IMMIGRANT ASSISTANCE PROJECT V. INS (LEAP)

    In order to qualify for benefits under this lawsuit, you must have entered the U.S. on a non-immigrant visa before January 1, 1982 and maintained residence in the U.S. since January 1, 1982. Please provide the following information.

    I. Your Name (Last, First, Middle): ______________________________________________________________

    Date of Birth (Month, Day, Year): ___________________ Place of Birth: _____________________________

    Address: _________________________________ Phone Number: _____________________________

    _________________________________

    II. Name of Attorney or Representative (if any): ____________________________________________________

    Address: _________________________________ Phone Number: ______________________

    _________________________________

    III. Date of first entry into U.S. _____________________ Type of visa? ______________________________
    (visitor, student, etc.)

    IV. You must show that you violated your non-immigrant status BEFORE JANUARY 1, 1982.
    Which of the following categories apply to you (check all that apply)

    A. _____ I violated my immigration status by working before January 1, 1982, and I have tax records or social security records or other records from the federal government to show that I performed this work

    B. ____ I violated my immigration status before January 1, 1982 in the following manner:

    ___ I was in the U.S. on January 1 but did not file an address report with INS before January 31

    ___ I did not file an address report with INS every 90 days

    ___ I moved but did not submit a change of address form to INS within 10 days of moving

    C. ____ I violated my immigration status before January 1, 1982 in the following manner:

    ___ I was in the United States on an F-visa (student visa) and dropped out of school, transferred schools without advance INS permission, or did not take a full course of studies

    ___ I was in the United States on an H-visa (temporary worker) or L-visa (intra-company transferee) and stopped working for the designated employer

    D. ____ I obtained a reinstatement to status (or other immigration benefit) which expired after January 1, 1982.
    This reinstatement (or other immigration benefit) was obtained even though I did not qualify for the benefit, for example because I had worked without authorization.

    If this category applies to you, please provide the following additional information (if available):

    a. What benefit or status did you obtain that expired after January 1, 1982? ______________

    b. When and where did you obtain this benefit? ______________________________________

    ___________________________________________________________________________

    c. When did this benefit or status expire? ___________________________________________

    V. I [ ] did / [ ] did not file an application for legalization with INS or a Qualified Designated Entity ("QDE") during the legalization application period (May 5, 1987 to May 4, 1988).


    VI. [If you did apply for legalization during the application period, provide the following information]

    A Number ____________________

    Current status of application (denied, pending on appeal, etc) ______________________


    VII. [If you did not apply for legalization during the application period, provide the following information]

    Explain why you did not apply for legalization during the application period (May 5, 1987 to May 4, 1988) (check all the boxes that apply)

    ___ I attempted to file a completed application for legalization, but INS refused to accept my application.

    Date you attempted to apply (approximate) __________________________________________

    INS office where you attempted to apply ____________________________________________

    ___ I attempted to file an application for legalization with a Qualified Designated Entity ("QDE"), but the QDE refused to accept or process my application.

    Date you attempted to file (approximate) ____________________________________________

    QDE office where you attempted to apply ___________________________________________

    ___ I was told by the INS not to apply for legalization

    When were you told, where, by whom (if known) _____________________________________

    ___ I was told by a QDE not to apply for legalization

    When were you told, where, by whom (if known) _____________________________________

    ___ I was told that the INS would not accept my application if I attempted to apply.

    When were you told, where, by whom ______________________________________________

    ___ INS refused to give me an application form when I attempted to apply.

    Other explanation for why you did not file an application during the application period:

    ______________________________________________________________________________________

    ______________________________________________________________________________________

    Attach any documents you have supporting your answer to this question.

    Please mail or fax this form to:

    GIBBS HOUSTON PAUW
    1000 Second Avenue, Suite 1600
    Seattle, WA 98104
    ATTN: LEAP
    (206) 689-2270 (FAX)

  2. #2
    Guest
    MEMORANDUM

    TO: IAP CLASS MEMBERS & INTERESTED PERSONS

    FROM: ROBERT GIBBS / ROBERT PAUW

    DATE: September 27, 2002

    RE: IMMIGRANT ASSISTANCE PROJECT - STATUS OF THE CASE
    _____________________________________________________________________________

    We are writing to you to give you an update on the status of the case Immigrant Assistance Project v. INS ("Known to the Government" litigation). This class action lawsuit covers individuals who entered the United States on non-immigrant visas prior to January 1, 1982 and who were deemed to be ineligible for legalization because their violation of non-immigrant status was not "known to the government". See INA 245A(a)(2)(B). The lawsuit includes both individuals who applied for legalization and were denied and also individuals who did not file applications.

    On March 3, 1999 the district court reaffirmed a prior order (see 709 F.Supp. 998 and 717 F.Supp. 1444 (W.D.Wash. 1989), aff'd 976 F.2d 1198 (9th Cir. 1992)) which recognized the possibility that class members may qualify for legalization by virtue of failing to file address reports prior to January 1, 1982. The court also issued an order allowing class members to submit late amnesty applications and obtain employment authorization. The INS appealed the district court's order to the Ninth Circuit Court of Appeals. On September 24, 2002, the Ninth Circuit issued a decision upholding the district court's order. The case will be sent back to the district court for further proceedings.

    We would like to make sure that we have current information regarding the class members of this lawsuit. Please complete the enclosed questionnaire so that we will be able to contact you when there is new information that is relevant to your case.

    Please do not hesitate to contact us if you have any questions. Our e-mail addresses are:
    rgibbs@ghp-law.net and rpauw@ghp-law.net.


    INFORMATION FORM FOR CLASS MEMBERS
    IMMIGRANT ASSISTANCE PROJECT V. INS (LEAP)

    In order to qualify for benefits under this lawsuit, you must have entered the U.S. on a non-immigrant visa before January 1, 1982 and maintained residence in the U.S. since January 1, 1982. Please provide the following information.

    I. Your Name (Last, First, Middle): ______________________________________________________________

    Date of Birth (Month, Day, Year): ___________________ Place of Birth: _____________________________

    Address: _________________________________ Phone Number: _____________________________

    _________________________________

    II. Name of Attorney or Representative (if any): ____________________________________________________

    Address: _________________________________ Phone Number: ______________________

    _________________________________

    III. Date of first entry into U.S. _____________________ Type of visa? ______________________________
    (visitor, student, etc.)

    IV. You must show that you violated your non-immigrant status BEFORE JANUARY 1, 1982.
    Which of the following categories apply to you (check all that apply)

    A. _____ I violated my immigration status by working before January 1, 1982, and I have tax records or social security records or other records from the federal government to show that I performed this work

    B. ____ I violated my immigration status before January 1, 1982 in the following manner:

    ___ I was in the U.S. on January 1 but did not file an address report with INS before January 31

    ___ I did not file an address report with INS every 90 days

    ___ I moved but did not submit a change of address form to INS within 10 days of moving

    C. ____ I violated my immigration status before January 1, 1982 in the following manner:

    ___ I was in the United States on an F-visa (student visa) and dropped out of school, transferred schools without advance INS permission, or did not take a full course of studies

    ___ I was in the United States on an H-visa (temporary worker) or L-visa (intra-company transferee) and stopped working for the designated employer

    D. ____ I obtained a reinstatement to status (or other immigration benefit) which expired after January 1, 1982.
    This reinstatement (or other immigration benefit) was obtained even though I did not qualify for the benefit, for example because I had worked without authorization.

    If this category applies to you, please provide the following additional information (if available):

    a. What benefit or status did you obtain that expired after January 1, 1982? ______________

    b. When and where did you obtain this benefit? ______________________________________

    ___________________________________________________________________________

    c. When did this benefit or status expire? ___________________________________________

    V. I [ ] did / [ ] did not file an application for legalization with INS or a Qualified Designated Entity ("QDE") during the legalization application period (May 5, 1987 to May 4, 1988).


    VI. [If you did apply for legalization during the application period, provide the following information]

    A Number ____________________

    Current status of application (denied, pending on appeal, etc) ______________________


    VII. [If you did not apply for legalization during the application period, provide the following information]

    Explain why you did not apply for legalization during the application period (May 5, 1987 to May 4, 1988) (check all the boxes that apply)

    ___ I attempted to file a completed application for legalization, but INS refused to accept my application.

    Date you attempted to apply (approximate) __________________________________________

    INS office where you attempted to apply ____________________________________________

    ___ I attempted to file an application for legalization with a Qualified Designated Entity ("QDE"), but the QDE refused to accept or process my application.

    Date you attempted to file (approximate) ____________________________________________

    QDE office where you attempted to apply ___________________________________________

    ___ I was told by the INS not to apply for legalization

    When were you told, where, by whom (if known) _____________________________________

    ___ I was told by a QDE not to apply for legalization

    When were you told, where, by whom (if known) _____________________________________

    ___ I was told that the INS would not accept my application if I attempted to apply.

    When were you told, where, by whom ______________________________________________

    ___ INS refused to give me an application form when I attempted to apply.

    Other explanation for why you did not file an application during the application period:

    ______________________________________________________________________________________

    ______________________________________________________________________________________

    Attach any documents you have supporting your answer to this question.

    Please mail or fax this form to:

    GIBBS HOUSTON PAUW
    1000 Second Avenue, Suite 1600
    Seattle, WA 98104
    ATTN: LEAP
    (206) 689-2270 (FAX)

  3. #3
    Guest
    Hi:

    Is this article for information only ??
    Or are we suppose to fill and fax the questionaire in to the attorney on the article even though the letter is dated 2002??

    Please advise ASAP. Thanks.

  4. #4
    Guest
    It's up to you, here more information:

    MEMORANDUM
    September 2002

    IAP v. INS, Case No. C88-379R (W.D.Wash.)
    ["Known to the Government"]
    _________________________________________________________________


    Immigrant Assistance Project v. INS, Case No. C88-379R (W.D.Wash) ("IAP" or 'LEAP") is a nationwide class action lawsuit filed in 1988 on behalf of legalization applicants who were denied because the violation of their non-immigrant status was not "known to the government". See INA 245A(a)(2)(B). It was a companion case to Ayuda v. Meese.

    WHO IS INCLUDED IN THE CLASS?

    The class as currently defined includes all individuals who fell under the Ayuda case, generally covering individuals eligible for legalization who entered the United States on a non-immigrant visa before January 1, 1982. There are two subclasses in the IAP case: (1) people who filed timely applications; and (2) people who were "front-desked" by INS or a "QDE", or who failed to file an application during the application period.

    WHAT IS THE STATUS OF THE CASE?

    On March 3, 1999 Judge Rothstein issued an order that affects legalization applicants who fall in the "known to the Government" category. The order reaffirms the orders that were issued in this case in 1989, see 709 F.Supp. 998, 717 F.Supp. 1444 (W.D.Wash. 1989), and requires the Immigration Service to adjudicate pending legalization applications in accordance with the 1989 orders. These orders effectively overturn Matter of H, 20 I&N Dec. 693 (Comm'r 1993). The March 3, 1999 order also provides benefits (including work authorization and a stay of deportation) for the benefit of people who were "front-desked".

    Judge Rothstein's order was stayed pending INS's appeal to the Ninth Circuit Court of Appeals. On September 24, 2002 the Ninth Circuit upheld the order and remanded the case to the district court for further proceedings.

    WHY IS INS's POLICY INCORRECT?

    There are primarily three arguments that plaintiffs have made in the IAP case as to why INS's policy is wrong. These arguments are relevant for individuals in both of the subclasses described above. For more detail on these arguments, see 66 Interpreter Releases pp. 313-325 (March 20, 1989).

    A. Violation of the Address Reporting Requirements.

    Prior to January 1, 1982, every nonimmigrant (except most A's and G's) was subject to three reporting requirements:

    (1) annual address reports had to be filed on or before January 31 if the alien was in the United States as of January 1 of that year (these reports were made on INS Form I-53);

    (2) in addition to the annual reports, every three months the alien had to file a quarterly address report (these reports were made on INS Form AR-11);

    (3) any alien who moved was required to send an address change notice to INS within 10 days (these notices were made on Form AR-11).

    In discovery in the IAP case, the Immigration Service admitted that there were records in existence prior to January 1, 1982 from which it could be determined whether or not an applicant had violated the address report requirements. INS admitted that on some occasions it reviewed its records to determine whether or not a person had filed the required address reports, and based on the records it was known whether or not the person was in a legal status. In fact, in some cases it is still currently possible to make this determination. For example, INS has retained copies on microfilm of the required annual reports. A review of those files will show whether or not the applicant complied with the annual report. Furthermore, if an alien had an A-file created prior to January 1, 1982, all AR-11 forms were filed in that file. These A-files are still in existence. Thus, if an applicant had an A-file created before January 1, 1982, a review of that file would reveal whether or not the applicant complied with the quarterly and 10-day address requirements.

    The district court established "shifting burden of proof" procedure whereby the applicant must first come forward with some evidence (e.g. an affidavit) showing that he or she failed to file the required address reports. If such a showing is made, then it is presumed that the violation was known to the government. The burden then shifts to INS to review its files and come forward with evidence showing that the violation of status did not occur or was not known. In effect, INS must review its files and come forward with copies of the address reports that were filed. If INS cannot do this, then the applicant is presumed to have met his or her burden of proof.

    B. Students / Temporary workers who violated status.

    Under INS regulations in place prior to January 1, 1982, if a student dropped out of school or quit attending classes (for example because of a transfer to another school), the school was required to notify INS of this fact. Similarly employers were required to notify INS if an employee in H-status or L-status quit working. Assuming that schools and employers follow the law, as one must in the absence of evidence to the contrary, this type of violation of status would have been known to the government prior to January 1, 1982. In discovery, we learned that INS maintained these records for three years and then destroyed them. Consequently, through no fault of their own, these applicants are not able to meet their burden of proving the "known to the government" requirement.

    The district court determined that it would be unfair to deny an applicant under these circumstances. Again, the court adopted a presumption that the violation of status was known to the government. Upon a showing that the violation occurred (e.g. by an affidavit, or by a school transcript), the burden shifted to the INS to review its records and show that the particular school or employer did not report violations of status by its students or employees as required by law. If INS cannot do this, then the applicant is presumed to have met his or her burden of proof.

    C. Reinstatement to Status

    The third issue addressed in the IAP cases concerned applicants who could show a violation of status prior to January 1, 1982, but who were later reinstated to status. Plaintiffs argued that if the reinstatement to status occurred by fraud or mistake (for example because the applicant falsely stated on the application for reinstatement form that he had not worked without authorization, or that he had complied with all address reporting requirements), then the reinstatement to status was void and the person was not really reinstated to legal status. The Immigration Service changed its original view on this matter and issued a precedent decision agreeing that students who obtained reinstatement of status without disclosing prior unauthorized employment did not thereby obtain legal immigration status. Matter of N, 19 I&N Dec. 760 (Comm'r 1988). The district court ordered the Immigration Service to reopen and readjudicate applications that were denied prior to Matter of N.

    In Matter of H, 20 I&N Dec. 693 (Comm'r 1993), the Immigration Service considered whether a legalization applicant who failed to file required address reports prior to January 1, 1982 is in an unlawful status that is known to the Government. The Commissioner held that the failure to file address reports constitutes a violation of status such that the applicant was thereby in an unlawful status, but held that the failure to file address reports does not warrant a finding that the person's unlawful status was "known to the Government". The Commissioner reached this result without consideration of the IAP's 1989 orders, which were upheld on appeal. See 976 F.2d 1198 (9th Cir. 1992). (The Supreme Court subsequently vacated and remanded the case for consideration of jurisdictional issues.) As a result the Immigration Service has taken the position that these applications can be denied.

    HOW ARE APPLICATIONS CURRENTLY BEING HANDLED?

    For many years the Immigration Service held the IAP (or Ayuda) cases in abeyance. More recently, however, INS has been adjudicating and denying these applications. The Ninth Circuit's decision makes it clear that these denials are improper, and overturns Matter of H. On remand to the district court, plaintiffs will seek an order requiring INS to reopen and readjudicate cases that have been improperly denied.

    WHO SHOULD I CONTACT FOR FURTHER INFORMATION?

    If you are a class member, or if you represent or provide assistance to class members, please complete the attached questionnaire so that we will be able to contact you when there are any developments in the IAP case.

    If you have already obtained legal status through some other method, or if you have left the United States and do not wish to pursue benefits under this lawsuit, please let us know so that we can remove you from our lists and focus our attention on those class members who still need assistance.

    Please do not hesitate to contact us if you have any questions. Our e-mail addresses are:
    rgibbs@ghp-law.net and rpauw@ghp-law.net.

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