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The Honorable James L. Robart
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UNITED STATES DISTRICT COURT
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WESTERN DISTRICT OF WASHINGTON
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AT SEATTLE
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NORTHWEST IMMIGRANT RIGHTS
PROJECT, ET AL.
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PLAINTIFFS,
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vs.
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U.S. CITIZENSHIP AND IMMIGRATION )
SERVICES, ET AL.
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DEFENDANTS.
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/ / /
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Case No. 88‐379R
STIPULATION OF SETTLEMENT
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Plaintiffs in the above captioned matter, on behalf of themselves, the Class and all
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Class Members (as defined below), and Defendants Michael B. Mukasey, the Attorney
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General of the United States, the United States Department of State, the Department of
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Homeland Security, by and through their undersigned counsel, hereby enter into this
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Stipulation and Agreement of Settlement, subject to the approval of the Court pursuant to
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Rule 23 of the Federal Rules of Civil Procedure.
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WHEREAS:
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1.
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below:
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District Court for the Western District of Washington (docket No. 88‐379R).
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b.
“Class member” means any Person included in the Class.
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c.
“Effective Date of Settlement” or “Effective Date” means the date upon
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which the Settlement contemplated by this Stipulation shall become effective, as set forth
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in paragraph 20 below.
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amended complaint filed February 6, 2004, in this Action and “Defendant” or
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“Defendants” means the defendants identified in the same complaint.
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Holguin, Center for Human Rights and Constitutional Law, 256 S. Occidental Blvd., Los
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Angeles, CA 90057, and Robert Gibbs and Robert Pauw, Gibbs, Houston Pauw, 1000
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Second Ave, Suite 1600. Seattle, WA 98104.
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and successors, their departments or agencies, and their past or present agents,
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employees, and contractors.
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liabilities, and causes of action, of every nature and description, whether known or
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unknown, accrued or unaccrued, whether based on federal, state, local, statutory or
Wherever used in this Stipulation, the following terms have the meanings set forth
a.
d.
e.
f.
g.
Settlement
“Action” means the above‐captioned action pending in the United States
“Plaintiff” or “Named Plaintiff” means the plaintiffs identified in the
“Plaintiffs’ Counsel” or “Class Counsel” means Peter Schey and Carlos
“Released Parties” means any and all of the Defendants, their predecessors
“Settled Claims” means any and all actions, suits, claims, demands, rights,
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common law or any other law, rule or regulation, that were asserted or that could have
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been asserted or could be asserted in any forum, that the Plaintiffs, the Class, the Class
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Members or any of them, or any of their heirs, representatives, attorneys, successors,
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assigns, and any person they represent, in the past had, now have, or might in the future
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have against the Defendants or any of them, which regard, concern, relate to, refer to,
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arise out of, or are based upon, in any way: (a) the allegations, transactions, facts, matters,
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occurrences, representations, omissions, disclosures, statements, failure to disclose or
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action involved, set forth, referred to or that were, could be, or could have been asserted
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in the Action, whether known or unknown, including without limitation Unknown
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Claims as herein defined, and whether or not concealed or hidden; or (b) the Defendants’
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defense of or settlement of the Action. Provided, however, that the definition of Settled
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Claims shall not in any way impair or restrict the rights of the settling parties to enforce
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the settlement via the dispute resolution provisions of this Stipulation at paragraphs 7 and
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16. As used herein, “Unknown Claims” shall mean any and all actions, suits, claims,
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demands, rights, liabilities, and causes of action that the Plaintiffs, the Class, or any of the
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Class Members do not know of or suspect to exist in their favor at the time of the release
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of the Released Parties, including but not limited to those that, if known by them, might
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have affected their agreement to the Settlement. Any plaintiff or class member whose
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application for legalization pursuant to Immigration and Nationality Act (ʺINAʺ) section
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245A is timely made under this settlement stipulation and is denied, may seek judicial
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review of such denial only under INA section 245A(f)(4)(A) in the appropriate court of
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appeals, upon review of a final order of removal (including a final order of deportation or
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exclusion).
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h.
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2.
Defendants deny all liability with respect to the Action, deny that they have
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engaged in any wrongdoing, deny the allegations in the Complaint filed in the Action,
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deny that they committed any violation of law, deny that they acted improperly in any
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way, and deny liability of any kind to the plaintiffs, the Class, or the Class Members, but
Settlement
“Settlement” means the settlement contemplated by this Stipulation.
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have agreed to the settlement and dismissal of the Action with prejudice in order to: (i)
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avoid the substantial expense, inconvenience, and distraction of continued protracted
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litigation; and (ii) finally put to rest and terminate the Action and any and all Settled
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Claims.
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3.
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Defendants’ Counsel with respect to a compromise and settlement of the Action with a
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view to settling the issues in dispute and achieving the best relief possible consistent with
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the interests of the Plaintiffs, the Class, and all Class Members.
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4.
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fair, reasonable, and in the best interests of the Plaintiffs, the Class, and all Class
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Members; have agreed that the Released Parties should be released from the Settled
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Claims pursuant to the terms and provisions of this Stipulation; and have agreed to the
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dismissal of the Action with prejudice, after considering the substantial benefits that the
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Plaintiffs, the Class, and all Class Members will receive from settlement of the Action, the
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risks of litigation, and the desirability of permitting the Settlement to be consummated as
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provided by the terms of this Stipulation.
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parties to this Stipulation, through their respective attorneys, subject to the approval of
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the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, in consideration
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of the benefits flowing to the parties hereto from the Settlement, that the Settled Claims as
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against the Released Parties shall be compromised, settled, forever released, barred, and
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dismissed with prejudice, upon and subject to the following terms and conditions:
Class Counsel has conducted discussions and arms’ length negotiations with
Class Counsel have concluded that the terms and conditions of this Stipulation are
NOW, THEREFORE, it is hereby STIPULATED AND AGREED, by and among the
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Release; Scope and Effect of Release
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disposition of the Action with prejudice and of any and all Settled Claims as against all
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Released Parties.
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themselves, their heirs, executors, administrators, representatives, attorneys, successors,
The obligations incurred pursuant to this Stipulation shall be in full and final
On the Effective Date, the Plaintiffs, the Class, and the Class Members, on behalf of
Settlement
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assigns, agents, affiliates and partners, and any Persons they represent (“Releasing
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Parties”), shall be deemed to have, and by operation of the Final Judgment shall have
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fully, finally, and forever released, relinquished, and discharged the Released Parties of
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and from any and all of the Settled Claims, and the Releasing Parties shall be forever
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barred and enjoined from bringing or prosecuting any Settled Claims against any of the
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Released Parties. The terms of this paragraph do not limit the operation of paragraphs 7
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and 16.
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1.
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Members of the following class pursuant to Rule 23 of the Federal Rules of Civil
Class Definition
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Procedure are entitled to relief pursuant to this Settlement Agreement:
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All persons who entered the United States in a non‐immigrant status prior to
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January 1, 1982, who are otherwise prima facie eligible for legalization under § 245A
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of the INA, 8 U.S.C. § 1255a, who are within one or more of the Enumerated
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Categories described below in paragraph 2, and who —
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A)
between May 5, 1987 and May 4, 1988, attempted to file a complete
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application for legalization under § 245A of the INA and fees to an INS
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officer or agent acting on behalf of the INS, including a Qualified
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Designated Agency (“QDE”), and whose applications were rejected for
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filing (hereinafter referred to as “Sub‐class A members”); or
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B)
between May 5, 1987 and May 4, 1988, attempted to apply for legalization
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with an INS officer, or agent acting on behalf of the INS, including a QDE,
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under § 245A of the INA, but were advised that they were ineligible for
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legalization, or were refused legalization application forms, and for whom
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such information, or inability to obtain the required application forms, was a
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substantial cause of their failure to file or complete a timely written
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application (hereinafter referred to as “Sub‐class B” members); or
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Settlement
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C)
filed a legalization application under INA § 245A and fees with an INS
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officer or agent acting on behalf of the INS, including a QDE, and whose
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application
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i.
has not been finally adjudicated or whose temporary resident status
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has been proposed for termination (hereinafter referred to as “Sub‐
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class C.i. members”),
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ii.
was denied or whose temporary resident status was terminated,
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where the INS or CIS action or inaction was because INS or CIS
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believed the applicant had failed to meet the “known to the
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government” requirement, or the requirement that s/he demonstrate
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that his/her unlawful residence was continuous (hereinafter referred
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to as “Sub‐class C.ii. members”).
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2.
Enumerated Categories
(1)
Persons who violated the terms of their nonimmigrant status prior to
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January 1, 1982 in a manner known to the government because
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documentation or the absence thereof (including, but not limited to, the
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absence of quarterly or annual address reports required on or before
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December 31, 1981) existed in the records of one or more government
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agencies which, taken as a whole, warrants a finding that the applicant was
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in an unlawful status prior to January 1, 1982, in a manner known to the
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government.
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(2)
Persons who violated the terms of their nonimmigrant visas before January
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1, 1982, for whom INS/DHS records for the relevant period (including
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required school and employer reports of status violations) are not contained
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in the alien’s A‐file, and who are unable to meet the requirements of 8 C.F.R.
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§§ 245a.1(d) and 245a.2(d) without such records.
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(3)
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Persons whose facially valid “lawful status” on or after January 1, 1982 was
obtained by fraud or mistake, whether such “lawful status” was the result of
Settlement
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(a)
reinstatement to nonimmigrant status;
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(b)
change of nonimmigrant status pursuant to INA § 248;
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(c)
adjustment of status pursuant to INA § 245; or
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(d)
grant of some other immigration benefit deemed to interrupt the
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continuous unlawful residence or continuous physical presence
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requirements of INA § 245A.
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3.
Notice to Class Members
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A.
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Defendants shall, within sixty (60) days from the date of the Courtʹs final approval
General notice provisions
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of this Settlement Agreement pursuant to Paragraph 18 below, issue a press release, and a
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Class Notice in English and Spanish (the texts of which are attached as Exhibit 1)
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announcing this Settlement Agreement. The press release, Class Notice, Class Member
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Worksheet (attached as Exhibit 2), and all necessary application forms shall be distributed
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to the media and community‐based organizations according to CIS’s normal procedure
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for doing so, with a copy of these lists provided to Class Counsel. The final Settlement,
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press release, Class Notice, Class Member Worksheet and Form I‐687 shall at that time be
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posted on Defendants’ web site in accordance with the regular practice for posting Forms
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and Settlement information on the site.
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B.
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Within 15 days of the district Court’s final approval of this Settlement Agreement
Individual notice to Sub‐class C class members
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pursuant to Paragraph 18 below, Defendants shall forward an instruction to all District
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Offices, Regional Offices, and Service Centers to use reasonable efforts to identify Sub‐
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class C members whose legalization applications were pending at any level of USCIS as of
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January 1, 2006. Within one week of issuing such instruction, Defendants shall provide a
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copy of the instruction to Plaintiffs’ counsel. Within forty‐five (45) days of the notice sent
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to District Offices, Regional Offices , and Service Centers, such offices shall use reasonable
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efforts to identify Sub‐class C members whose legalization applications were pending at
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any level of USCIS. Defendants shall, within 90 days of the Court’s final approval of this
Settlement
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Settlement Agreement pursuant to Paragraph 18 below, forward to Plaintiffs’ counsel a
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list (in Excel format) containing the name, A‐Number, SSN (if available) and last known
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address of applicants in Sub‐class C pursuant to the instruction mentioned above. This
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list will be provided pursuant to an agreed Protective Order, attached hereto.
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In the event that defendants identify further potential Sub‐class C members within
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one (1) year after providing the initial list to class counsel, defendants shall within 30 days
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of so identifying additional class members provide plaintiffs’ counsel with the same
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categories of information as in the initial list of Sub‐class C members.
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4.
Application procedures
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A.
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Within sixty (60) days of the Court’s final approval of this Settlement Agreement
Distribution of application materials
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pursuant to Paragraph 18 below and during the remainder of the application period
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specified in ¶¶ 4B and 4C Defendants shall make available at their district offices the final
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Settlement, press release, Class Notice and Class Member Worksheet, and Form I‐687.
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Within sixty (60) days of the Court’s final approval of this Settlement Agreement
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pursuant to Paragraph 18 below and during the remainder of the application period
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specified in ¶ 4, Defendants shall make available to all persons upon oral or written
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request, including a request submitted through its forms webpage, a copy of Form I‐687,
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Class Member Worksheet and instructions, and Form I‐765. All forms and instructions
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shall be as agreed herein.
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B.
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Defendants shall, within ninety (90) days after the issuance of Notices required in ¶
Application Period for Sub‐class A and Sub‐class B Members
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3A above, commence accepting NWIRP/IAP Class Membership Worksheets and Forms I‐
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687, Application for Status as a Temporary Resident, with fee and supporting
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documentation, from individuals who assert they are Sub‐class A or Sub‐class B class
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members as defined above. Defendants shall thereafter continue to accept such
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worksheets and applications for twelve (12) months.
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Settlement
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Applications shall be deemed filed on the date postmarked in accordance with the
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provisions at 8 C.F.R. § 245a.12(a)(2007). All I‐687 applications and motions to reopen
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showing prima facie eligibility under INA § 245A submitted within the time frames
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outlined in this Settlement Agreement shall be deemed timely filed applications under
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Immigration and Nationality Act § 245A.
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C.
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Application Period for Sub‐class C Members
1.
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Applicants Who Filed Initially During the Regular Application
Period (May 1987‐May 1988) and Are Still Pending a Final Decision
or whose Lawful Temporary Residence has been Proposed for
Termination.
Defendants shall, after the issuance of Notices required in ¶ 3A above, commence
adjudicating all pending subclass C.i. applications in accordance with the terms of this
Settlement Agreement. The Defendants shall, within a reasonable time, either approve
the application, or send notice of this settlement agreement in the form of Exhibit 1 (either
with or without a notice of intent to deny or request for evidence).
Class members whose timely filed applications are still pending or who have
received a notice of proposed termination of the approval of their applications, may (but
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are not required to) submit a NWIRP Class Member Worksheet (Exhibit 2) to the USCIS.
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Such NWIRP Class Member Worksheet, together with any available copies of their
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timely filed applications, receipts, and any notices that the former INS or the USCIS sent
them regarding their applications are to be sent to: NWIRP Worksheet, USCIS, National
Benefits Center, P.O. Box 9001, Lees’ Summit, MO 64002‐9001 .
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2.
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Applicants Who Initially Filed During the Regular Application
Period (May 1987‐May 1988) and Have Received a Final Denial of
Their Application or whose Lawful Temporary Residence has been
Terminated.
Applicants who initially filed during the regular application period and have
received a final denial of their applications or whose Lawful Temporary Residence has
been terminated (Subclass C.ii.) may file a class member worksheet and motion to reopen
on Form I‐290B (Notice of Appeal to the Administrative Appeals Office) with fee, at any
Settlement
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time, but no later than one year after receiving the notice under Paragraph 3. of this
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agreement. If a class member worksheet and motion to reopen are to be denied as
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untimely under this paragraph, the Defendants shall have the burden of proving that the
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class member actually received the notice under Paragraph 3 of this agreement, provided
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that the class member files or filed the class member worksheet and motion to reopen
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while physically present in the United States and not from abroad. A completed NWIRP
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Class Member Worksheet and motion to reopen on Form I‐290B shall be filed with fee at
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USCIS, PO Box 804727 , Chicago, Illinois, 60680‐4108.
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All I‐687 applications and motions to reopen showing prima facie eligibility under
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INA § 245A submitted within the time frames outlined in this Settlement Agreement shall
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be deemed timely filed applications under Immigration and Nationality Act § 245A.
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5.
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Application fees
There shall be no fee for filing a Class Member Worksheet. When under this
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Settlement Agreement a filing fee may be charged, the fee shall be the fee applicable by
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regulation or Federal Register Notice at the time of filing the application(s). Class
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members who previously filed an I‐687 with fee during the period May 5, 1987 to May 4,
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1988 are not required under this Settlement Agreement to pay a new I‐687 fee. However,
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a Subclass C member whose I‐687 application was previously denied, will be required to
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pay the current motion to reopen filing fee to reopen the application
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All class member applicants must file a Form I‐765 with fee if they wish to receive
employment authorization. All applicants must pay the standard biometrics fee.
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Applications timely filed and pending as of the date of this Settlement Agreement
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under the settlements in Catholic Social Services, Inc. v. Reno, CIV No. S‐86‐1343 LKK (E.D.
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Cal.), or Newman; et al. v. Bureau of Citizenship and Immigration Services, et al., Civ. No. 87‐
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4757‐WDK (C.D. Cal.), shall be adjudicated in accordance with the adjudications
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standards described below in Paragraph 8B. No further fee is required of such applicants
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in order for these provisions to apply.
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Settlement
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Applications timely filed and pending as of the date of this Settlement Agreement
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under § 1104 of the Legal Immigration Family Equity Act (LIFE Act), Title XI of H.R. 5548,
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enacted by reference in Public Law 106‐553 (Dec. 21, 2000), and the LIFE Act
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Amendments, Title XV of H.R. 5666, enacted by reference in Public Law 106‐554 (Dec. 21,
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2000), shall be adjudicated in accordance with the adjudications standards described
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below in ¶ 8B. No further fee is required of such applicants in order for these provisions
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to apply.
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CSS, Newman, and LIFE Act § 1104 applicants whose applications have been denied
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but are approvable under the standards established in this settlement may file motions to
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reopen in accordance with ¶ 4C2 above.
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6.
Adjudication of Class Member Worksheets
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A.
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NWIRP Class Membership Worksheets shall be approved if, based on responses to
Adjudicatory standard
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questions asked on the Worksheet, it appears more probable than not that the applicant
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meets the class definition. A determination that an applicant is a class member is not
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binding on Defendants for the purposes of an adjudication on the merits of the
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application for temporary residence, which shall be conducted de novo. Class Member
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Worksheets and any accompanying evidence of entry on a non‐immigrant visa prior to
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January 1, 1982, shall not be disapproved solely because applicants do not possess
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Government‐issued records establishing class membership. Applicants, other than
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Subclass C members, shall attach to the Class Member Worksheet any available evidence
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regarding their non‐immigrant entry into the United States before January 1, 1982,
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including, for example, copies of passports, entry stamps, visa applications, I‐94’s, I‐20’s,
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airline travel records, documents showing that they were present in the United States in
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non‐immigrant status prior to or shortly after January 1, 1982, or credible declarations
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regarding entry prior to January 1, 1982 with a non‐immigrant visa. If an applicant does
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not possess or is unable to obtain this type of evidence, the applicant may submit a sworn
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statement that identifies: (1) the U.S. Consulate where the pre‐1982 non‐immigrant visa
Settlement
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was applied for, (2) the approximate date that it was obtained, (3) the type of visa
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obtained, (4) the approximate date when the visa was used to enter the United States,
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(5) where the applicant entered the United States using the non‐immigrant visa, and
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(6) includes a brief description of any activities that the class member engaged in
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consistent with the terms of the visa immediately after entering the United States.
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Applicants may also request that the USCIS check its records, prior to an adjudication of
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the Worksheet, to determine if any evidence exists of the alien’s nonimmigrant entry prior
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to January 1, 1982. If the applicant has (1) failed to sign a Class Member Worksheet or I‐
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687, or (2) failed to attach an appropriate fee, or (3) on the Class Member Worksheet or I‐
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687 failed to state that he commenced unlawful residence prior to January 1, 1982, or (4) is
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clearly statutorily ineligible based on documents submitted with the application, then the
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application can be rejected as improperly filed, and returned to the applicant. If the
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application is rejected as improperly filed, then the application will be returned to the
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applicant with an explanation for the rejection. The applicant may resubmit the
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application in proper form within the filing period.
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In order for a person to be eligible for benefits under this lawsuit, he or she must be
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prima facie eligible for legalization, as that term is defined in 8 C.F.R. § 245a.1(n). A person
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who claims eligibility as a derivative beneficiary (the spouse or child of a person who was
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turned away by INS or a QDE during the legalization application period) must establish
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that (1) the qualifying family relationship existed at the time the primary applicant was
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turned away by INS or a QDE; and (2) he or she is otherwise eligible for legalization in his
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or her own right.
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B.
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Before denying an application for class membership, Defendants shall forward the
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applicant or his or her representative a notice of intended denial explaining the perceived
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deficiency in the applicantʹs Class Member Worksheet and providing the applicant thirty
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(30) days to submit additional written evidence or information to remedy the perceived
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deficiency.
Settlement
Notice of intent to deny
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1
C.
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Defendants shall send a written notice of any decision to deny a Class Member
Written notice of reasons for denying class member worksheet
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Worksheet to the applicant and to his or her attorney of record, with a copy to Class
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Counsel. The notice shall explain the reason for the denial of the Worksheet, and notify
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the applicant of his or her right to seek review of such denial by a Special Master, on the
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document attached as Exhibit 3. On review, neither Defendants nor the applicant shall be
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permitted to submit new evidence to the Special Master.
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D.
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Upon approval of the Class Member Worksheet for Applicants under Subclass
Approval of Class Member Worksheet of Applicants under Subclass C.ii.
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C.ii., the Defendants shall reopen the denied I‐687 or termination proceedings under 8
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C.F.R. § 245a.2(u). Defendants shall adjudicate the reopened forms I‐687 and termination
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proceedings under the terms of paragraph 8 of this Agreement.
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7.
Review by Special Master
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A.
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Each party shall select one person, from a list of three names recommended by the
Selection of the Special Master.
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other party, to serve as a Special Master. Appeals from denial of applications for class
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membership shall be assigned randomly to a Special Master. The two Special Masters
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shall jointly designate the mailing address for appeals and determine procedures for
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random assignment.
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B.
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Any decision by the Defendants denying an application for class membership may
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be appealed to a Special Master. Any such appeal must be post‐marked within thirty (30)
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days of the date of mailing of the notice denying the application for class membership.
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The Special Mastersʹ review shall be a record review, based on the documents and other
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evidence submitted by the applicant, and any documentary evidence relied upon by the
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Defendants in reaching the decision to deny the application for class membership.
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Review of Decisions Involving Determination of Class Membership.
The Special Masters shall be paid a fee of $125 for adjudicating each appeal under
this subparagraph. Payment of this fee shall be borne by the applicant. If the applicant
Settlement
13
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prevails, and it is determined to be a class member, the fee of $125 shall be refunded to the
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Applicant by defendants as court costs per order of the Special Masters.
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C.
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Review of Other Decisions.
An applicant who believes that Defendants have violated his or her individual
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rights pursuant to ¶¶, 3, 4, 5, 6, 10B, or 11, of this Settlement Agreement may file a claim
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with the Special Masters. However, prior to filing any such claim, the applicant must
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advise Defendants by certified mail, or other documented delivery service to an address
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specified by Defendants, within 90 days of the discovery of the alleged violation that he or
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she believes that Defendants have violated his or her rights under such paragraphs.
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Defendants shall have forty‐five (45) days from the date they are notified of the
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applicantʹs intent to file a claim under this paragraph in which to investigate and, if
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appropriate, rectify any deficiency. If within fifty (50) days after notifying Defendants of
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his or her intent to file a claim, the applicant does not receive notice that Defendants have
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sustained the applicantʹs challenge, then the applicant may file his or her appeal to a
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Special Master. Any such appeal must be post‐marked within eighty (80) days of the date
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the applicant advised Defendants of the alleged violation.
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The Special Masters shall be paid a fee of $65 for adjudicating each appeal under
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this subparagraph C. The applicant must pay the entire fee at the time he or she files the
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notice of appeal. If the applicant prevails on the merits of his or her appeal, the fee of $65
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shall be refunded to the Applicant by defendants as court costs per order of the Special
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Master.
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8.
Adjudication of Applications for Temporary and Permanent Residence
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A.
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Defendants shall utilize the standards set forth in 8 C.F.R § 245a.18(d), or 8 C.F.R. §
General adjudicatory standards
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245a.2(k)(4), which ever is more favorable to the applicant. Failure to provide evidence
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other than affidavits shall not be the sole basis for finding that an alien failed to meet the
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continuous residence and physical presence requirements. For purposes of establishing
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residence and presence of subclass A and subclass B members within the meaning of 8
Settlement
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1
C.F.R. § 245a.2(b), the term “until the date of filing” shall mean until the date the alien
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visited an INS or QDE office consistent with the Class Definition. In evaluating the
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sufficiency of applicant’s proof of residence, Defendants shall take into account the
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passage of time and attendant difficulties in obtaining corroborative documentation of
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unlawful residence.
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Where a Request for Evidence or Notice of Intent to Deny has been issued, an
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application shall not be denied as abandoned pursuant to 8 C.F.R. § 103.2(b)(13) unless the
8
applicant is notified in writing of the consequences of failure to respond, including the
9
absence of a right to appeal, and informed of his/her right to a decision on the existing
10
record that may be appealed if the applicant notifies the CIS that he or she does not have
11
additional evidence to present.
12
13
14
15
16
An applicant’s appearance at an interview shall constitute a “request for a
decision” based on the evidence submitted for purposes of 8 C.F.R. § 103.2(b)(14).
B. Standard for determining whether unlawful status “known to the
Government” or “continuity” of unlawful residence.
With respect to the “known to the government” requirement in INA §
17
245A(a)(2)(b), Defendants shall adjudicate or readjudicate class members’ eligibility for
18
temporary residence in accordance with the following procedures:
19
1. With respect to individuals within Enumerated Category 1 and the “known to
20
the government” requirement of 8 U.S.C. § 1255a(a)(2)(B), the burden of proof shall shift
21
as follows: an applicant must make a prima facie showing that prior to January 1, 1982, the
22
applicant violated the terms of his or her non‐immigrant status in a manner known to the
23
government because documentation or the absence thereof (including, but not limited to,
24
the absence of quarterly or annual address reports required on or before December 31,
25
1981) existed in the records of one or more government agencies which, taken as a whole,
26
warrants a finding that the applicant was in an unlawful status prior to January 1, 1982, in
27
a manner known to the government. Once the applicant makes such a showing, USCIS
28
then has the burden of coming forward with proof to rebut the evidence that the
Settlement
15
1
applicant violated his or her status. If the USCIS fails to carry this burden, then it will be
2
found that the alien’s unlawful status was known to the government as of January 1, 1982.
3
If USCIS does rebut the evidence that the applicant violated his status, the applicant must
4
then show by a preponderance of the evidence that he or she was in unlawful status for
5
some other reason and that this unlawful status was known to the government. At all
6
times, the applicant carries the burden of persuasion to prove eligibility for legalization.
7
Unrebutted evidence of the lack of required § 265 address reports from agency files shall
8
establish that the applicant’s unlawful status was known to the government within the
9
meaning of 8 U.S.C. § 1255a(a)(2)(B).
10
2. With respect to individuals within Enumerated Category 2 and the “known to
11
the government” requirement of 8 U.S.C. § 1255a(a)(2)(B), the burden of proof shall shift
12
as follows: an applicant must make a prima facie showing that he or she violated the
13
terms of his or her duration of status visa prior to January 1, 1982. It is presumed that the
14
school or employer complied with the law and reported violations of status to the INS.
15
Upon an applicant’s presenting prima facie evidence that he or she violated the terms of
16
his or her non‐immigrant status, USCIS then has the burden to come forward with
17
evidence either that unlawful status did not occur through the passage of time or to rebut
18
the presumption that the unlawful status was reported to the government. The absence of
19
the school or employer report in government records is not alone sufficient to rebut this
20
presumption. If USCIS fails to carry this burden, then it will be found that the alien’s
21
unlawful status was known to the government as of January 1, 1982. If USCIS comes
22
forward with this evidence, the applicant must show by a preponderance of the evidence
23
that he or she is eligible for legalization under either the “passage of time” or “known to
24
the government” standards. The applicant always has the burden of persuasion on this
25
point.
26
3. With respect to individuals within Enumerated Category 3, defendants shall
27
adhere to Matter of N, 19 I. & N. 760 (BIA 1988) (status obtained by fraud or mistake), in
28
adjudicating or re‐adjudicating their applications for legalization or adjustment to lawful
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16
1
permanent resident status. The alien bears the burden of establishing that he or she
2
obtained “lawful” status by fraud or mistake.
3
C.
4
5
6
7
8
9
10
Administrative appeals
The Administrative Appeals Office shall adjudicate such appeals in accordance
with the standards set forth in this Settlement Agreement. Applicants are entitled to work
authorization during the pendency of such appeals as provided in INA § 245A. Appeals
and motions to reopen properly presented to the Administrative Appeals Office showing
prima facie eligibility under INA § 245A shall be deemed timely filed applications under
Immigration and Nationality Act § 245A.
9.
Issuance or Renewal of Employment Authorization and Travel Authorization
11
A.
Employment Authorization.
12
Defendants shall issue employment authorization to class members pursuant to 8
13
14
15
C.F.R. § 245a.2(n) and 8 C.F.R. § 274a.12(c)(22). Class member applications for
employment authorization and renewal of employment authorization shall be accepted
16
17
18
19
20
21
22
23
24
25
26
27
28
and adjudicated in accordance with 8 C.F.R. § 274a.13.
Advance Parole
B.
Defendants shall adjudicate advance parole requests made by class members
pursuant to 8 C.F.R. § 212.5(f) and 8 C.F.R. § 245a.2(m), & (n).
10.
Time for Determining Class Membership and Legalization Applications
A.
Class member worksheets
Defendants shall use good faith and reasonable efforts either to approve Class
Membership Worksheets or to issue notices of intended denials of same within one
hundred and twenty (120) days of the date such applications are received by CIS. If a
notice of intended denial is issued, defendants shall endeavor to issue a final decision on
Settlement
17
1
the application for class membership within ninety (90) days after receipt of an applicantʹs
2
supplemental evidence or explanation, if any.
3
B.
4
5
6
7
8
9
Defendants shall use good faith and reasonable efforts to adjudicate I‐687 or I‐698
forms filed by class members within one hundred and eighty (180) days of the approval of
their Class Membership Worksheet. “Adjudication” as used in this paragraph includes
the mailing of a request for additional evidence or issuance of a notice of intent to deny.
The time it takes an applicant to respond to a request for additional evidence or a notice of
intent to deny shall not be included in the period of adjudication.
10
C.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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Legalization applications
Adjustment for high volume
If the aggregate volume of Form I‐687 applications received under this Settlement
Agreement and the Settlement Agreements reached in CSS v. Ridge, S86‐1343‐LKK (E.D.
Cal); Newman v. DHS, Civ 87‐4757‐WDK (C.D. Cal), exceeds two hundred forty thousand,
it is anticipated that the approximate processing times referenced in subparagraphs A and
B above will double. In the event Defendants believe good cause exists to extend the time
periods set forth above, such as in the case of excessive fraud, unexpected geographic
distribution of applications and skeletal applications, Defendants shall provide Class
Counsel with a written explanation of such cause and proposed alternative target periods.
The parties shall meet and confer in a good faith effort to resolve any disagreements over
proposed new target periods prior to petitioning this district court pursuant to ¶ 16
below.
11.
Confidentiality of Applications
Subject to the terms of the attached Stipulation and Order of Protection Regarding
Privacy Act Information and Information Covered by 8 U.S.C. § 1255A(c)(5), Defendants
shall treat all applications, Class member worksheets, and materials filed pursuant to this
Settlement Agreement, including applications for employment authorization and advance
parole as confidential in accordance with 8 U.S.C. § 1255a(c)(5). The confidentiality
28
Settlement
18
1
provisions in existence at the time of the access, use or disclosure of information in
2
applications determines the whether the access, use or disclosure is permissible.
3
12.
4
Reporting on Implementation of This Agreement
Defendants shall file with Plaintiffs’ counsel reports of their compliance with the
5
provisions described in ¶¶ 3‐4. In addition, commencing four months after the beginning
6
of the filing period referenced in ¶ 4, Defendants shall prepare quarterly reports setting
7
forth the cumulative number of Subclass A and B Class Membership applications, Forms
8
I‐687, and Forms I‐765, that were received, approved, denied and pending. Copies of
9
such reports shall be provided to Class Counsel, within 30 days of the close of each
10
quarter.
11
13.
12
Costs and Attorneys Fees
Defendants will pay plaintiffs attorneys fees and costs, as determined by a separate
13
agreement, hereby incorporated into this Settlement Agreement. Plaintiffs shall bear any
14
costs incurred by plaintiffs in connection with notifying the class of the terms and
15
conditions of this Stipulation.
16
14.
Duration of Agreement
17
Unless the Settlement Agreement is terminated as provided at paragraph 21, and
18
except as provided in paragraph 4C2, the Settlement Agreement will remain in effect for
19
one year after the Defendants adjudicate the last I‐687 application filed by a class member.
20
Defendants agree to promptly notify Class Counsel of the date it adjudicates the last such
21
application.
22
15.
23
Dismissal of Complaint, Dissolution of Injunctive Orders and Other Decisions
In the event the district court approves this Settlement Agreement, the parties will
24
seek dismissal of this action pursuant to Paragraph 19 below. If the district court does not
25
approve settlement, this Settlement Agreement is null and void.
26
16.
27
28
Continuing Jurisdiction
The parties agree that notwithstanding the filing and granting of any motion
pursuant to ¶ 15, the district court will retain jurisdiction in this action over only the
Settlement
19
1
matters described in A and B below. Defendants reserve and do not waive any defenses
2
that they may have to a claim brought under this paragraph, including defenses without
3
limitation already raised in the litigation and defenses that may arise under new laws or
4
regulations.
5
6
A. Claims by Plaintiffs or Defendants that either party has engaged in a pattern
and practice of refusing to implement any of the relief set forth in this Agreement.
7
B. Claims by Plaintiffs that Defendants have expressly repudiated this Agreement.
8
C. As a prerequisite to bringing any such claim, at least sixty (60) days prior to
9
bringing any action pursuant to this provision, the parties shall meet and confer in a good
10
faith effort to resolve any of their differences. The party alleging non‐compliance has the
11
burden of initiating the meet and confer. The parties agree that the Court lacks
12
jurisdiction where there has been no meaningful effort by the movant to first meet and
13
confer pursuant to this provision.
14
D. Any action under this provision must be brought no later than one year after
15
Defendants adjudicate the last I‐687 legalization application filed by a class member.
16
17.
Class Counsel
17
Class Counsel for the purposes of this Settlement Agreement are Robert H. Gibbs
18
and Robert Pauw, Gibbs, Houston and Pauw, 1000 Second Ave, Suite 1600, Seattle, WA
19
98104 (206) 682‐1080, and Peter Schey and Carlos Holguín, Center for Human Rights and
20
Constitutional Law, 256 S. Occidental Blvd., Los Angeles, CA 90057 (213) 388‐8693. Each
21
document required to be served on Class Counsel under this Agreement will be served on
22
the Class Counsel designated to receive such document by Class Counsel pursuant to this
23
paragraph within 20 days of the Court’s approving this Settlement Agreement.
24
18.
25
Approval of Agreement
This Agreement has been approved by authorized representatives of the Secretary
26
of the U.S. Department of Homeland Security, and the Assistant Attorney General, United
27
States Department of Justice.
28
Settlement
20
1
This Agreement is subject to approval by the United States District Court pursuant
2
to Federal Rule of Civil Procedure 23. Concurrently with their filing of this Stipulation,
3
Class Counsel and Defendants’ Counsel shall jointly apply to the Court for preliminary
4
Court approval of the Settlement contemplated by this Stipulation and entry of a
5
Preliminary Approval Order, substantially in the form appended hereto as Exhibit 4.
6
Such Preliminary Approval Order will seek approval of a Notice to the Class, as well as a
7
finding that the following satisfies the publication requirements of Fed. R. Civ. P. 23: (1)
8
Defendants shall post the Settlement Agreement and the Exhibits attached to the
9
Settlement Agreement in appropriate places on the USCIS website. www.uscis.gov (2)
10
Plaintiffs shall post the Settlement Agreement and the Exhibits attached to the Settlement
11
Agreement in appropriate places on plaintiffs’ counsels’ websites.
12
www.centerforhumanrights.org and www.ghp‐law.net (3) Defendants shall distribute
13
the Settlement agreement and the Exhibits attached to the Settlement agreement to all
14
immigration assistance providers listed, as of the Effective Date of this Settlement, on the
15
Roster of Recognized Organizations and Accredited Representatives maintained by the
16
Executive Office for Immigration Review pursuant to 8 C.F.R. § 292 and § 1292, and the
17
Pro Bono Program section of the EOIR website.
18
19.
Terms of Order and Final Judgment
19
If the Settlement contemplated by this Stipulation is approved by the Court,
20
counsel for the parties shall request that the Court enter Final Judgment and dismissal of
21
this action substantially in the form appended hereto as Exhibit 5.
22
20.
23
24
Effective Date of Settlement, Waiver or Termination
The Effective Date of this Stipulation shall be the date when all the following shall
have occurred:
25
26
(A)
the form appended hereto as Exhibit 4;
27
28
entry of the Preliminary Approval Order in all material respects in
(B)
approval by the Court of the Settlement, following notice to the Class
and a hearing, as prescribed by Rule 23 of the Federal Rules of Civil Procedure; and
Settlement
21
1
(C)
entry by the Court of Final Judgment, in all material respects in the
2
form appended hereto as Exhibit 5, and the expiration of any time for appeal or review of
3
such Final Judgment, or, if any appeal is filed and not dismissed, after such Final
4
Judgment is upheld on appeal in all material respects and is no longer subject to review
5
upon appeal or review by writ of certiorari, or, in the event that the Court enters an order
6
and final judgment in a form other than that provided above (“Alternative Judgment”)
7
and none of the parties hereto elects to terminate this Settlement, the date that such
8
Alternative Judgment becomes final and no longer subject to appeal or review by writ of
9
certiorari.
10
21.
Termination of Settlement and Stipulation
11
Defendants’ Counsel or Class Counsel shall have the right to terminate the
12
Settlement and this Stipulation by providing written notice of their election to do so
13
(“Termination Notice”) to all other parties hereto within thirty (30) days of (a) the Court’s
14
declining to enter the Preliminary Approval Order or modification of that Preliminary
15
Approval Order in any material respect; (b) the Court’s declining to approve the
16
Settlement embodied in this Stipulation, or any material part of it; (c) the Court’s
17
declining to enter the Final Judgment or modification of the Final Judgment in any
18
material respect; (d) the date upon which the Final Judgment is modified, reversed, or
19
vacated in any material respect by the Court, the Court of Appeals or the United States
20
Supreme Court; or (e) the date upon which an Alternative Judgment is modified,
21
reversed, or vacated in any material respect by the Court, the Court of Appeals or by the
22
United States Supreme Court.
23
Except as otherwise provided herein, in the event the Settlement is terminated or
24
modified in any material respect or fails to become effective for any reason, then the
25
Settlement shall be without prejudice and none of its terms shall be effective or
26
enforceable; the parties to this Stipulation shall be deemed to have reverted to their
27
respective status in the Action as of the date and time immediately prior to the execution
28
of this Stipulation; and except as otherwise expressly provided, the parties shall proceed
Settlement
22
1
in all respects as if this Stipulation and any related orders had not been entered. In the
2
event the Settlement is terminated or modified in any material respect, the Defendants
3
shall be deemed not to have waived, modified, or be estopped from asserting any
4
additional defenses available to them.
5
22.
6
7
No Admission of Wrongdoing
This Stipulation, whether or not consummated, and any proceedings taken
pursuant to it:
8
(A)
shall not be construed to waive, reduce or otherwise diminish the
9
authority of the Defendants to enforce the laws of the United States against class members
10
notwithstanding the terms of this Stipulation, consistent with the Constitution and laws of
11
the United States.
12
(B)
shall not be offered or received against the Defendants as evidence of,
13
or construed as or deemed to be evidence of, any presumption, concession, or admission
14
by any of the Defendants of the truth of any fact alleged by the Plaintiffs or the validity of
15
any claim that had been or could have been asserted in the Action or in any litigation, or
16
the deficiency of any defense that has been or could have been asserted in the Action, or
17
of any liability, negligence, fault, or wrongdoing of the Defendants; or any admission by
18
the Defendants of any violations of, or failure to comply with, the Constitution, laws or
19
regulations.
20
(C)
shall not be offered or received against the Defendants as evidence
21
that failure to provide documents within the time frame set forth herein, or within any
22
time frame, is unjustified or illegal; and
23
24
25
26
27
28
Settlement
23
1
(D)
shall not be offered or received against the Defendants as evidence of
2
a presumption, concession, or admission of any liability, negligence, fault or wrongdoing,
3
or in any way referred to for any other reason as against any of the parties to this
4
Stipulation, in any other civil, criminal, or administrative action or proceeding, other than
5
such proceedings as may be necessary to effectuate the provisions of this Stipulation;
6
provided, however, that if this Stipulation is approved by the Court, Defendants may
7
refer to it and rely upon it to effectuate the liability protection granted them hereunder.
8
23.
9
Additional Provisions
A.
This Stipulation, and the obligations incurred herein, shall be in full and
10
final disposition of the Action with prejudice and any and all Settled Claims against
11
Defendants. On the Effective Date, Plaintiffs shall be deemed to have fully, finally, and
12
forever released, relinquished, and discharged the defendants of and from any and all
13
Settled Claims.
14
B.
15
16
All of the exhibits attached hereto are hereby incorporated by reference as
though fully set forth herein.
C.
This Stipulation may not be modified or amended, nor may any of its
17
provisions be waived except by a writing signed by all parties hereto or their successors‐
18
in‐interest.
19
20
21
22
23
D.
The headings herein are used for the purpose of convenience only and are
not intended to have legal effect.
E.
The waiver by one party of any breach of this Stipulation by any other party
shall not be deemed a waiver of any other prior or subsequent breach of this Stipulation.
F.
This Stipulation and its exhibits constitute the entire agreement among the
24
parties hereto concerning the Settlement of the Action, and no representations, warranties,
25
or inducements have been made by any party hereto other than those contained and
26
memorialized in such documents.
27
28
Settlement
24
1
G.
This Stipulation may be executed in one or more counterparts. All executed
2
counterparts and each of them shall be deemed to be one and the same instrument
3
provided that counsel for the parties to this Stipulation shall exchange among themselves
4
original signed counterparts.
5
6
H.
This Stipulation shall be binding upon, and inure to the benefit of, the
successors and assigns of the parties hereto.
7
I.
This Stipulation shall not be construed more strictly against one party than
8
another merely by virtue of the fact that it, or any part of it, may have been prepared by
9
counsel for one of the parties, it being recognized by the parties that this Stipulation is the
10
result of arms’ length negotiations between the parties and that all parties have
11
contributed substantially and materially to the preparation of this Stipulation.
12
J.
All counsel and any other person executing this Stipulation and any of the
13
exhibits hereto, or any related settlement documents, warrant and represent that they
14
have the full authority to do so and that they have the authority to take appropriate action
15
required or permitted to be taken pursuant to the Stipulation to effectuate its terms.
16
K.
Class Counsel and Defendants’ Counsel agree to cooperate fully with one
17
another in seeking Court approval of the Preliminary Order in Connection with the
18
Settlement Proceedings, the Stipulation and Agreement of Settlement, and to promptly
19
agree upon and execute all such other documentation as may be reasonably required to
20
obtain final approval by the Court of the Settlement.
21
22
23
24
25
26
27
Dated: September 8, 2008.
28
Settlement
25
1
2
GIBBS, HOUSTON PAUW
Robert H. Gibbs, WSBA 5932
Robert Pauw
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ALTSHULER, BERZON, NUSSBAUM,
RUBIN & DEMAIN
Michael Rubin
177 Post Street, Suite 300
San Francisco, CA 94108
(415) 391‐1655
/s/ Robert H. Gibbs______________
Robert H. Gibbs
WSBA Number 5932
GIBBS HOUSTON PAUW
1000 Second Ave, Suite 1600
Seattle, WA 98104
Telephone: (206) 224‐8790
Fax: (206) 689‐2270
E‐mail: rgibbs@ghp‐law.net
Counsel for Plaintiffs
/s/ Peter A. Schey___________________
Peter A. Schey
Cal. Bar Number 58232
CENTER FOR HUMAN RIGHTS
& CONSTITUTIONAL LAW
256 S. Occidental Blvd.
Los Angeles, CA 90057
Telephone: (213) 388‐8693
Fax: (213) 386‐9484
E‐mail: [email protected]
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22
/ / /
23
CENTER FOR HUMAN RIGHTS &
CONSTITUTIONAL LAW
Peter A. Schey
Carlos R. Holguin
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Dated: September 8, 2008
Anthony Norwood
U.S. Department of Justice
Office of Immigration Litigation
Settlement
26
1
2
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
202‐353‐9777
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/s/ Anthony Norwood_______________
Anthony Norwood
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Settlement
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File Type | application/pdf |
File Title | Microsoft Word - IAP-NWIRP Settlement corrected with address fixes 09082008.DOC |
Author | robert.gibbs |
File Modified | 2008-09-10 |
File Created | 2008-09-10 |