Barahona-Gomez v. Ashroft

• Decision Date: 18 December 2002
• Docket Number: No. C97-0895 CW.,C97-0895 CW.
• Citation: 243 F.Supp.2d 1029
• Parties: Alonso Antonio BARAHONA-GOMEZ, et al., Plaintiffs, v. John ASHCROFT, Attorney General of the United States, et al. Defendants.
• Court: U.S. District Court — Northern District of California

243 F.Supp.2d 1029

Alonso Antonio BARAHONA-GOMEZ, et al., Plaintiffs, v. John ASHCROFT, Attorney General of the United States, et al. Defendants.

No. C97-0895 CW.

United States District Court, N.D. California, Oakland Division.

December 18, 2002.

Settlement Agreement December 18, 2002.

Marc Van Der Hout (Ca. Bar No. 80778), Zachary Nightingale (Ca.Bar. No. 184501), Van Der Hout & Brigagliano, San Francisco, CA, Robert B. Jobe (Ca. Bar No. 133089), Law Office of Robert B. Jobe, San Francisco, CA, Linton Joaquin (Ca. Bar No. 73547), National Immigration Law Center, Los Angeles, CA, Donald Ungar (Ca.Bar. No. 29989), Simmons, Ungar, Helbush & Steinberg, San Francisco, CA, for Plaintiffs; Robert Rubin (Ca.Bar. No. 85084), Lawyers Committee For Civil Rights, Of Counsel.

Robert D. McCallum, Jr., Assistant Attorney General, Civil Division, David M. McConnell, Deputy Director (Va. Bar No. 24029), Brenda M. O'Malley, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, D.C., Kevin Ryan, United States Attorney, Jocelyn Burton (CSBN 135879), Assistant United State Attorne Chief, Civil Division, San Francisco, for Defendants.

ORDER APPROVING CLASS ACTION SETTLEMENT AGREEMENT

WILKEN, District Judge.

On September 13, 2002, this Court provisionally approved the Settlement Agreement submitted by the parties. Notice of the pendency of the Settlement Agreement and of the fairness hearing was given to class members as provided in the Order Preliminarily Approving Stipulated Settlement Agreement as is set forth by cocounsel for the plaintiffs in the Declaration of Linton Joaquin and by counsel for Defendants in the Declaration of David McConnell, both filed on November 29, 2002 with the parties' Joint Motion For Final Approval of Settlement Agreement. . On December 6, 2002, the Court held a fairness hearing to consider any objections to the proposed Settlement Agreement and the parties' Joint Motion for Final Approval of Settlement Agreement.

The Court having made an independent determination that the Settlement Agreement is a fair, adequate and reasonable settlement of this action, and having resolved that any properly filed objections do not warrant not approving the proposed Settlement Agreement, IT IS HEREBY ORDERED THAT:

1. The Settlement Agreement, filed concurrently with the parties' Joint Motion for Final Approval of Settlement Agreement, is approved;

2. Pursuant to Federal Rules of Civil Procedure 23(e) and 41(a), the parties' stipulation to dismiss this action with prejudice, except insofar as provided for pursuant to paragraph I.(C), and II.(C) of the Settlement Agreement, is approved;

3. Attorneys' fees and costs shall be as set forth in paragraph II.(C)(4) of the Settlement Agreement, and Defendants, in making the disbursement of funds set forth therein shall make the payment to Marc Van Der Hout, co-counsel for Plaintiffs, as trustee;

4. The Settlement Agreement, along with this Order approving it, shall be published.

By Order of the United States District Court for the Northern District of California, the Clerk is directed to enter judgment accordingly.

SETTLEMENT AGREEMENT

Table of Contents

                I.   RECITALS...............................................................1030
                    (A) Parties ...............................................................1030
                    (B) Definition of the Class..................................................1030
                    (C) Jurisdiction...........................................................1031
                    (D) Intention of the Parties.................................................1031
                    (E) Effective Date .........................................................1031
                II.   NEW CONSIDERATION OF APPLICATIONS FOR SUSPENSION OF
                DEPORTATION ("RENEWED SUSPENSION") ...........................1031
                    (A) Definition of "Eligible ctoss members"....................................1031
                    (B) Relief provided to eligible class members..................................1033
                           (1) Relief for All Eligible Class Members .................................1033
                           (2) If Immigration Court Has Jurisdiction Over Case......................1033
                           (3) IfBIA Has Jurisdiction Over the Case................................1033
                           (4) If Motion to Reopen/Reconsider Already Denied........................1034
                           (5) Sua Sponte Reopening If EOIR Already Decided Case..................1035
                                   (a) EOIR Identification and reopening ...............................1035
                                   (b) Procedure following remand......................................1035
                                           (i) Notice of Hearing and Administrative Closure ................1035
                                           (ii) Recalendaring ami Administrative Closure...................1036
                                           (iii) Appropriate Resolution.....................................1036
                                   (c) Motions to Reopen Permitted.....................................1036
                           (6) Limitation on Appeals..............................................1036
                           (7) Notification by EOIR of Determinations of Ineligibility.................1036
                    (C) Other Considerations...................................................1037
                           (1) Stay of Deportation and Dissolution of Injunction......................1037
                           (2) Publication and Notice..............................................1037
                           (3) Monitoring:........................................................1037
                           (4) Attorneys' Fees.....................................................1037
                           (5) Dismissal of Complaint.............................................1037
                           (6) Court's Continued Authority.........................................1037
                           (7) Dispute Resolution.................................................1039
                

I. RECITALS

(A) Parties: The parties to this Settlement Agreement ("Agreement") are:

(1) The plaintiff class (hereinafter "plaintiffs" or "class members"), as defined below at (I)(B); and

(2) The defendant officials and employees of the Executive Office for Immigration Review ("EOIR"); John Ashcroft, Attorney General of the United States in his official capacity; Michael Creppy, Chief Immigration Judge in his official capacity; Lori Scialabba, Chair of the Board of Immigration Appeals in her official capacity.

(B) Definition of the Class: The Class shall be defined as follows:

"all persons who have had (or would have had) suspension of deportation hearings conducted before April 1, 1997, within the jurisdiction of the Ninth Circuit Court of Appeals, and who were served an Order to Show Cause within seven years after entering the United States, where:

(a) the immigration judge reserved or withheld granting suspension of deportation on the basis of the February 13, 1997 directive from Defendant Chief Immigration Judge Michael Creppy; or

(b) the suspension of deportation hearing was concluded prior to April 1, 1997, the INS has appealed or will appeal, at any time, on a basis that includes the applicability of either section 309(c)(5) or 309(c)(7) of the Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), amended Pub.L. No. 104-302, 110 Stat. 3656 (Oct. 11, 1996) ("IIRIRA"), and the case was affected by the February 13, 1997 directive from Defendant Chief Immigration Judge Michael Creppy or the February 13, 1997 directive from Defendant Board Chairman Paul W. Schmidt; or

(c) the Board of Immigration Appeals ("the Board") has or had jurisdiction but withheld granting suspension of deportation (or reopening or remanding a case for consideration of an application for suspension of deportation) before April 1, 1997 on the basis of the February 13, 1997 directive from Defendant Board Chairman Paul W. Schmidt."

(C) Jurisdiction: The Court refers to the United States District Court for the Northern District of California. The parties do not dispute that the Court has jurisdiction over the parties and the subject matter of this action, and that it may appropriately enter an order approving this Agreement. The parties agree that the Court will not retain continuing jurisdiction to supervise this settlement Agreement, or to enforce its terms, except to resolve claims raised in accordance with the dispute resolution mechanism set forth in section (II)(C)(6) below.

(D) Intention of the Parties: The parties desire to resolve this litigation by entering into this Agreement, thereby avoiding the time and expense of further litigation of claims made by the plaintiffs. This Agreement is intended to dispose of all claims that were raised by Plaintiffs against Defendants in their official and individual capacities in this lawsuit. The parties acknowledge that this Agreement is fully binding upon them, and on each of their successors during the life of the Agreement. By entering into this Agreement, defendants do not admit to any violations of, or failure to comply with, the Constitution, laws or regulations. The parties agree that the Agreement is fully dispositive of all issues in this case.

(E) Effective Date: The "effective date" of this agreement shall be 30 days after the date of the final Court approval of this agreement.

II. NEW CONSIDERATION OF APLICATIONS FOR SUSPENSION OF DEPORTATION ("RENEWED SUSPENSION")

The Executive Office for Immigration Review (EOIR) will provide the following relief to "eligible class members", as defined below.

(A) Definition of "Eligible class members"

The following class members are eligible for the relief provided below by this agreement:

(1) individuals for whom the Immigration Judge either reserved a decision, or scheduled a merits hearing on a suspension application under Immigration and Nationality Act ("INA") § 244 (as such section existed in 1996, before amendment by IIRIRA), between February 13, 1997 and April 1,...