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ARCHIVED ISSUE PAGE (LAST UPDATED JANUARY 2011)

This page summarizes and discusses class action and other multi-party lawsuits that deal with current issues affecting the immigrant community and that do not fall into categories covered by Litigation Issue Pages.

Latest Developments

Second Circuit Upholds Post-9/11 Call-In Program

Rajah v. Mukasey, 544 F. 3d (2d Cir. 2008)

The Second Circuit court of appeals affirmed a BIA ruling finding a post-9/11 Special Call-In Registration Program valid. The program, part of the National Security Entry-Exit Registration System (NSEERS), required certain male non-immigrants over the age of 16 from designated countries to appear for registration and fingerprinting. When plaintiffs complied with the program, they were placed in deportation proceedings. Plaintiffs sued, alleging, inter alia, that the program lacks statutory authorization, is unconstitutional, and that regulatory violations occurred during implementation of the program.

The court held the program is statutorily authorized by 8 U.S.C. § 1303(a) and (b) and does not violate the Constitution. The court did find that defendants violated regulatory provisions during the course of the program but held that the violations did not require suppression of evidence or termination of proceedings.

Immigration Firm, Department of Labor Settle Lawsuit

Fragomen v. Chao, No. 08-01387 (D.D.C. Nov. 3, 2008)

An immigration law firm, Fragomen, Del Ray, Bernsen Loewy LLP, filed suit against the Department of Labor (DOL), challenging its "new" interpretation of 20 CFR § 656.10(b)(2), a regulation governing the labor certification process. The regulation addresses, inter alia, the process for evaluating whether a U.S. applicant for a position is "qualified," and how counsel may represent employers throughout the labor certification process.

According to the complaint, DOL's new interpretation improperly bars employers from consulting with counsel to determine whether U.S. applicants are "qualified" under the regulations, allowing employers to consult with an attorney only after initially assessing that the applicant is "unqualified." Plaintiff alleged that this interpretation resulted in a 100 percent audit of all its labor certifications.

Plaintiff claimed that the agency's interpretation of the regulation and related actions exceed its statutory authority; violate the Constitutional rights of employers to consult with their counsel and of counsel to provide advice to their clients; and contravene the regulation DOL purports to be implementing.

In August, DOL issued a Restatement of the PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule in 20 CFR § 656.10(b)(2). http://www.foreignlaborcert.doleta.gov/ DOL argued that the issuance of this guidance rendered plaintiff’s challenges to previous guidance moot.

On November 3, 2008, the parties entered into a settlement agreement. Under the terms of the agreement, Fragomen agreed to comply with the restrictions on preliminary screening of applications and participation in interviews set forth in the Restatement. DOL agreed that it would release all pending audits triggered solely by attorney-consideration issues within 30 days of the entry of the Stipulation Agreement.

Fifth Circuit Reverses Dismissal of Deportation Suit

Castro v. United States of America, 560 F.3d 381 (5th Cir. 2009), aff’g 2007 U.S. Dist. LEXIS 9440 (S.D. Tex. 2007), vacated and rev’d per curiam by 608 F.3d 266 (5th Cir. 2010), petition for cert. filed Aug. 30, 2010 (No.10-309)

A woman whose daughter was deported to Mexico in 2003 sued the government on behalf of herself and her minor child. The daughter, who is a U.S. citizen, was just shy of her first birthday when she was deported along with her undocumented father despite information provided by plaintiff to border officials that her daughter was a U.S. citizen. As a result, the plaintiff could not locate her daughter for the next three years. The complaint alleges violations of the Fourth, Fifth, and Tenth Amendments and tort claims under the Federal Tort Claims Act (FTCA).

On February 9, 2007, the district court dismissed the case. The court held that the government is protected against the tort claims by the discretionary function exception of the FTCA. Moreover, because the daughter was returned to plaintiff, the court dismissed as moot the claims under the Fourth and Fifth Amendments and 8 USC § 1101.

On appeal challenging the district court’s finding that it lacked jurisdiction over the FTCA claims, the Fifth Circuit reversed the dismissal of the suit. The appellate court rejected the lower court's determination that the government agents' conduct was discretionary and thus subject to immunity under the FTCA.

On August 28, 2009, in response to a petition filed by appellee United States, the Fifth Circuit granted rehearing en banc. On June 2, 2010, a divided en banc court vacated the decision and affirmed the district court dismissal of the FTCA claims for want of jurisdiction. The panel agreed with the district court that the discretionary function exception applies and that the constitutional claims and claim for injunctive relief are moot.

Judges Stewart and DeMoss dissented, arguing that if Border Patrol agents exceeded their authority under the Constitution or a statute, the discretionary function exception under the FTCA would not apply. In Judge DeMoss’ separate dissent, he expressed that even if the Border Patrol agents acted within the scope of their authority and the discretionary function exception applied, the plaintiff's tort claims still would not be barred by sovereign immunity because the law enforcement proviso waives sovereign immunity for the plaintiff’s claims for false imprisonment, abuse of process and assault.

Judge Dennis concurred in the judgment in part and dissented in part. He agreed with the other dissenting judges that if the Border Patrol acted outside of its authority, tort claims would not be barred by the discretionary function exception of the FTCA. He also agreed with Judge DeMoss regarding the application of the law enforcement proviso. However, he concluded that the facts of this case do not “disclose any constitutional or statutory violations that would make the discretionary function exception inapplicable.” Thus, he would dismiss all the claims except those covered by the law enforcement proviso, namely, claims for abuse of process and assault.

The plaintiff then filed a petition for certiorari. The petition is currently pending before the Supreme Court.

Legalization Suit Settles After 20 Years

Northwest Immigrant Rights Project v. USCIS, No. 88-379 (W.D. Wash. June 2, 2008)

The parties to a 20-year-long class action that challenged the denial of legalization applications to eligible individuals finalized a settlement agreement on September 8, 2008. The suit challenged the "known to the government" requirement of INA § 245A that formed the basis for USCIS' denial of otherwise eligible applications. Section 245A of the INA automatically made applicants eligible for legalization as long as they entered the United States prior to January 1, 1982.

Class Action Seeks to Enforce CSPA § 3, INA § 203(h)

Costello v. Chertoff, No. 08-688 (C.D. Cal. Nov. 18, 2009), appeal docketed, No. 09-56846 (9th Cir. Nov. 19, 2009)

Plaintiffs filed a class action to challenge USCIS' failure to implement § 3 of the Child Status Protection Act (CSPA), codified at INA § 203(h)(3). This provision states that where certain beneficiaries of visa petitions, including derivative beneficiaries, are unable to retain the status of "child" under the CSPA formula, they nevertheless are entitled to automatic conversion of the petition to the appropriate category and retention of the priority date from the original petition.

The plaintiffs originally were named as beneficiaries in petitions filed for them by their U.S. citizen parents or by their U.S. citizen siblings. Each plaintiff had one or more minor children listed as a derivative beneficiary on the original petition, and each eventually became a lawful permanent resident. Their children "aged-out," however, and were not able to immigrate through the original petitions. The plaintiffs are seeking to enforce § 203(h)(3) and retain the original priority date for their children.

While the motion for class certification was pending, the BIA issued Matter of Wang, 25 I&N Dec. 28 (BIA 2009). The BIA found that INA § 203(h)(3) is ambiguous. It went on to hold that this section would apply only to visa petitions filed by an LPR parent for a child as either a direct or derivative beneficiary. Thus, the Board found that the priority date retention and automatic conversion provision does not apply to a derivative beneficiary of a 4th preference family-based visa petition (the petition at issue in Matter of Wang).

Following the BIA's decision in Matter of Wang, the Court invited the parties to submit supplemental briefs to address the decision and its impact on the pending motion for class certification. AILF and AILA submitted an amicus brief in support of class certification, arguing that the BIA's decision ignores the plain language of the act and is not entitled to deference. On July 16, 2009, the court issued an order certifying a class as defined as "[a]liens who became lawful permanent residents as primary beneficiaries of third- and fourth-preference visa petitions listing their children as derivative beneficiaries, and who subsequently filed second-preference petitions on behalf of their aged-out unmarried sons and daughters, for whom Defendants have not granted automatic conversion or the retention or priority dates pursuant to § 203(h)(3)." Nonetheless, on November 10, 2009, the court granted the government’s motion for summary judgment. The court found that the BIA’s decision in Matter of Wang interpreting § 203(h)(3) was entitled to deference and was to be followed. The plaintiffs appealed to the Ninth Circuit. All briefing at the Ninth Circuit was completed on October 6, 2010. A decision has yet to be entered.

A second case raising the same issue also was filed in the same district court and was decided by summary judgment for the government for the same reasons as in Costelo. The plaintiff in this case has also appealed to the Ninth Circuit.  Cuellar de Osorio v. Sharfen, No. 08-0840 (C.D. Cal. filed June 23, 2008), appeal docketed No. 09-56786 (9th Cir. Nov. 12, 2009).

Additionally, the respondent in Matter of Wang filed a district court action challenging the BIA’s decision. Wang v. Holder, No. 09-1641 (N.D. Ohio filed July 16, 2009). Plaintiffs thereafter moved to voluntarily dismiss their complaint without prejudice pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. The court granted the motion to dismiss on September 14, 2009.

TPS Registrants Sue for Refunds of Fees; Court Certifies Class

Bautista-Perez v. Mukasey, No. 07-4192 (N.D. Cal. filed Aug. 16, 2007)

Nationals of El Salvador, Honduras, and Nicaragua who applied to register for TPS sued the government for charging them more than the required amount in fees. Under INA § 244(c)(1)(B), "the amount of any fee shall not exceed $50," but according to plaintiffs, the TPS regulations require fees over $50. Specifically, TPS registrants must pay an $80 biometrics fee for each re- registration. The plaintiffs seek refunds of fees higher than $50 and an order enjoining DHS from imposing fees higher than $50.

The government moved to dismiss the case, arguing lack of jurisdiction, improper venue, and failure to state a claim. On February 4, 2008, the court denied the motion to dismiss.

On January, 26, 2009, defendants renewed their motion to dismiss, which the court again denied. Specifically, the court rejected defendants' claim that sovereign immunity precludes suit against the government and that plaintiffs' claim is moot.

On July 9, 2009, the court granted plaintiffs’ motion for class certification. The class is defined as “[a]ll nationals of El Salvador, Honduras, and Nicaragua who have applied to register or re-register for Temporary Protected Status (“TPS”) at any time from August 16, 2001 to the present” and is certified as to all injunctive and declaratory relief claims. The court also granted the plaintiffs motion to bifurcate issues of liability and injunctive/declaratory relief from issues of class member restitution. Thus, the court deferred ruling on whether to certify the class as to monetary relief until after the resolution of the liability stage of the case.

On August 17, 2009, Bautista-Perez filed a motion for partial summary judgment and declaratory relief. On October 2, 2009, the government filed a cross-motion for summary judgment. Hearings on both motions were held on November 23, 2009.

On April 6, 2010, the court denied plaintiffs’ motion for partial summary judgment and granted in part and denied in part defendants’ motion for summary judgment. The court then ordered plaintiffs to file an amended complaint on or before October 29, 2010. Plaintiffs did not file an amended complaint, and the court dismissed the case with prejudice.

U.S. Citizen Sues Over Wrongful Deportation

Guzman v. Chertoff, No. 08-01327 (C.D. Cal. filed Feb. 27, 2008)

A U.S. citizen of Mexican descent and his mother filed suit against DHS, the Los Angeles Sheriff's Department and the United States, alleging that plaintiff, who was removed to Mexico, was wrongfully deported. Prior to his removal, the plaintiff, who is cognitively impaired and cannot read above a second-grade level, was incarcerated in a Los Angeles County jail for a misdemeanor. He was then transferred to ICE custody after an interview with an official from the Los Angeles County Sheriff's Department. The interrogation was part of a pilot project between LASD and federal immigration officials that allows LASD agents to assist in immigration matters. The complaint alleges that ICE officials then coerced plaintiff, who was born in California and possessed a California driver's license, to sign a waiver of his right to a removal hearing and to agree to voluntarily depart to Mexico. ICE officials then removed plaintiff to Tijuana, Mexico, where he remained "lost" for approximately three months until authorities apprehended him when he tried to cross the border into the United States. The complaint states that federal and state authorities violated plaintiffs' constitutional rights, including due process and equal protection rights, when they targeted plaintiff because of his race and ethnicity and illegally deported him to Mexico. Plaintiffs seek damages, declaratory relief and attorneys' fees.

On September 29, 2008, the federal defendants filed a motion to dismiss, which the court granted in part and denied in part. At a scheduling conference on June 8, 2009, the court stated that discovery must be completed by December 8, 2009. On September 8, 2009, plaintiffs filed a second amended complaint. On September 22 and 23, respectively, defendants LA County, and federal defendants filed answers to the second amended complaint.

The parties indicated that they reached a settlement on December 8, 2009. The parties are expected to move for a final disposition in the case.

Class Action to Restore SSI Benefits for Asylees and Refugees

Kaplan v. Chertoff, No. 06-5304 (E.D. Pa. March 5, 2008)

Seven elderly or disabled refugees and asylees filed a class action asking the government to restore their Supplemental Security Income (SSI) benefits. Federal law limits LPRs to seven years of SSI benefits. The assumption is that they will naturalize during this period and therefore become eligible to receive SSI as United States citizens. However, in numerous cases delays in processing adjustment applications and naturalization petitions have resulted in the termination of SSI benefits for the plaintiffs. The complaint alleges that more than 6,000 immigrants have lost their SSI benefits because seven years have expired and that more than 46,000 immigrants will be cut off from their SSI benefits between 2006 and 2012.

The plaintiffs survived a motion to dismiss, see Kaplan v. Chertoff, 481 F. Supp. 2d 370 (E.D. Pa. Mar. 29, 2007), and the court conditionally certified the class. Subsequently, the parties negotiated a proposed settlement agreement, and the court approved it on March 5, 2008, and dismissed the suit. The settlement affects all noncitizens who are receiving or have received SSI and are or may be subject to termination or suspension of SSI prior to a final decision on their current or future naturalization application and oath. Inter alia, the settlement provides procedures for expedited processing for class members.

Lawsuit Prompts Change in ICE’s Forced Drugging Policy

Diouf v. Chertoff No. 07-03977 (C.D. Cal. May 6, 2008)

ICE officials are now required to obtain a court order before forcibly administering drugs to individuals during removal, the government stated in a memo. The new policy comes in the wake of a lawsuit filed against the government by two detainees who were forcibly sedated during their removal. According to the new ICE memo, issued January 9, 2008, a court may authorize ICE to administer drugs during removal only if the court finds that the medication is necessary to remove the individual as well as medically appropriate. There are no exceptions to the court order requirement in an emergency or in exigent circumstances.

On April 29, 2008, the parties stipulated to dismiss the case with prejudice, and the court approved the dismissal on May 6, 2008. The terms of the agreement were not disclosed.

Federal Court Rejects Specific Consent Requirement for SIJ Applicants

Perez-Olano v. Gonzales, No. 05-03604 (C.D. Cal. Jan. 8, 2008), appeal docketed, No. 08-55580, 08-55195 (9th Cir. April 11, 2008)

On January 8, 2008, a district court enjoined the government from requiring specific consent before an immigrant minor in federal custody may seek an SIJ-predicate order in state court. The court held that that the government’s specific consent requirement found at INA § 101(a)(27)(J)(iii)(I) is limited to instances when a state court will “determine . . . custody status or placement.” In SIJ cases where the minor is in federal custody, the state court’s role generally is in making child welfare determinations regarding abuse, neglect, or abandonment, and a child’s best interests. Where an SIJ-predicate order will not determine custody or status, no specific consent is required. The court certified the class of plaintiffs whose requests for specific consent are denied or not adjudicated before they turn 18.

The court also certified a class of plaintiffs whose SIJ applications are denied or undecided when the applicant turns 18. The court denied summary adjudication on plaintiffs’ claim that defendants’ age-out regulations imposed ultra vires eligibility requirements, but stated that plaintiffs’ age-out subclass may still raise the claim that defendants unreasonable delayed adjudication of SIJ applications of minors who are subject to the age-out regulations.

On April 11, 2008, defendants filed an appeal with the Ninth Circuit. The parties are currently in mediation.

USCIS Ordered to Visa Petitions and Adjustment Applications Concurrently

Ruiz-Diaz v. USA, No. 07-1881 (W.D. Wash. June 11, 2009)

Religious workers with pending I-360 visa petitions filed a class action to challenge USCIS' policy of requiring an approved petition before they can file an I-485 adjustment of status application . Because religious workers cannot file concurrently, often their non-immigrant status expires before the I-360 is approved, and they are forced to leave the United States. Plaintiffs allege that the USCIS policy violates the INA, the First Amendment, the Equal Protection Clause, and the Religious Freedom Restoration Act.

On May 1, 2008, the district court granted preliminary relief for several of the named plaintiffs, finding that they had "raised serious questions regarding their eligibility for adjustment of status and that they have a fair chance of success on the merits of their declaratory and/or injunctive relief claim." On June 30, 2008, the court granted plaintiffs' motion for class certification. The class is defined as follows: “all individuals currently in the United States who are beneficiaries of a Petition for Special Immigration (Religious Worker) (Form I-360) that has been filed or will be filed, and who were or would be eligible to file an Application for Adjustment of Status (Form I-485) but for CIS’s policy codified at 8 C.F.R. § 245.2(a)(2)(i)(B) that the Form I-360 petition must be approved before the Form I-485 application can be filed.”

On March 23, 2009, the court granted the plaintiff's' summary judgment motion. The court concluded that 8 C.F.R. § 245.2(a)(2)(i)(B) is an unreasonable and impermissible construction of the governing statute, and the government "may not, therefore, reject or refuse to accept plaintiffs' applications for adjustment of status based on the regulation barring religious workers from concurrent filing."

On June 11, 2009, the court issued a final order in the case. It directs USCIS 1) to accept I-485 applications and I-765 employment authorization applications submitted concurrently or subsequent to the I-360 visa petition and 2) to adjudicate the applications in the same manner as applications from non-religious worker applicants. The order also stated that those beneficiaries whose I-485 and I-765 applications were rejected by defendants pursuant to 8 C.F.R. § 245.2(a)(2)(i)(B) and who reapply, are entitled to have their applications processed as if they had been submitted on the original submission date. The court further explained how the order would affect accrual of unlawful presence and unauthorized employment, and the status of the beneficiary's spouse or child. For details, please read the court's order below.

Surviving Spouses Challenge USCIS’s Denial of Relative Visas; Issue Resolved by October 2009 Legislation

Successful Class Action

Hootkins v. Napolitano, No. 07- 05696 (C.D. Cal. April 28, 2007)

Spouses of deceased United States citizens prevailed in a class action challenging USCIS’s denial of their immigrant visa petitions. Prior to their deaths, the U.S. citizen spouses had filed I-130 visa petitions for their spouses. After the petitioning spouses’ deaths, USCIS denied the I-130 applications, finding that the beneficiary spouses were no longer immediate relatives under INA § 201(b)(2). Plaintiffs alleged that defendants misinterpreted the statute and that the petitioners’ deaths did not “strip” them of their status as spouses.

On January 7, 2009, the court granted plaintiffs' motion for class certification, but limited the class to the Ninth Circuit. The class included all noncitizens whose U.S. citizen spouses died before their second wedding anniversary and whose citizen spouse had filed an I-130 petition and affidavit of support, so long as the individual could also show that the petition was pending or was adjudicated at a USCIS office within the Ninth Circuit or, at the time of death, the deceased spouse or individual lived in the Ninth Circuit. The court also certified a subclass of immigrant spouses who entered on fiancé visas.

On April 28, 2009, the court issued a final order finding that, based on the decisions in Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006) and Lockhart v. Chertoff, 561 F.3d 611 (6th Cir. 2009), plaintiffs who reside in the Ninth and Sixth Circuits are entitled to "immediate relative" classification under INA § 201(b)(2). Further, the court found that defendants' application of Freeman to Ninth Circuit plaintiffs, as set forth in a November 8, 2007 USCIS Memorandum, was invalid, and that Freeman applies equally to those cases in which an I-485 application was not filed prior to the U.S. citizen spouse's death. Finally, the court held that 8 C.F.R. § 205.1(a)(3)(C)(2), which revokes a person's I-130 on the basis of the petitioning U.S. citizen spouse's death, to be invalid as applied to plaintiffs in the Ninth and Sixth Circuits.

The court ordered defendants to reopen the immediate relative petitions and applications for adjustment of status and immigrant visas of plaintiffs in the Sixth and Ninth Circuits and to adjudicate then in a manner consistent with the court's holding.

Read the complaint, court decisions and other related materials, including FAQs.

Several other courts also issued favorable decisions in cases addressing this same issue. See e.g., Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006); Taing v. Napolitano, No. 08-1179, 2009 U.S. App. LEXIS 10718 (1st Cir. May 20, 2009); Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. 2009); Richards v. Napolitano, No. 09-01663, 2009 U.S. Dist. LEXIS 55253 (E.D.N.Y. June 29, 2009), appeal docketed, No. 09-3875 (2d Cir. Sept. 15, 2009). But see Robinson v. Napolitano, 554 F.3d 358 (3d Cir. 2009).

New Legislation Ends “Widow Penalty”

On Wednesday, October 28, 2009, President Obama signed H.R. 2892 into law. The law is Public Law No. 111-83 and contains two measures to address survivors’ issues: 1) self-petitioning rights for all widow(er)s of American citizens and their children; and 2) certain survivors’ rights for other immigrants.

The nonprofit organization Surviving Spouses Against Deportation has set up a website that provides additional information about various efforts to assist surviving spouses. Further information, about the new legislation, including a FAQ, can be found there.

Fee Increase Challenged for Immigrant Applications and Petitions Dismissed

Service Employees International Union v. Chertoff, No. 07-1286 (D. Or. Nov. 6, 2008)

The Service Employees International Union (SEIU) and Pineros y Campesinos Unidos del Noroeste (Northwest Treeplanters and Farmworkers United) (PCUN) brought suit challenging a USCIS rule implementing a new fee schedule that took effect on July 30, 2007. The unions alleged that defendants 1) violated section 286 of the INA by imposing fees on individuals that exceed the costs of providing adjudication and naturalization services, 2) violated immigration laws, the APA and the United States Constitution by implementing revenue-raising measures, and 3) violated the Chief Financial Officers Act of 1990, the INA and the APA by failing to properly account for their revenues and costs. Plaintiffs request that the court declare the new rule to be unlawful and vacate it.

Defendants moved to dismiss plaintiffs' amended complaint on December 21, 2007. The court granted in part and denied in part defendants' motion. On November 6, 2008, the court dismissed the case with prejudice after defendants filed an unopposed motion to dismiss the surviving claims.

Suit Dismissed Over USCIS’s Failure to Provide Evidence of LPR Status

Pantoja-Castillo v. Sanchez, No. 07-204 (S.D. Tex. Sept. 4, 2008)

Lawful permanent residents (LPRs) filed a class action challenging USCIS' failure to provide documentation of their residency. Under section 304(d) of the INA, the government is required to provide LPRs with a certificate of alien registration or an alien registration receipt card. The plaintiffs are long-term LPRs with expired or missing registration cards (I-551s). They sought to renew or replace their I-551s by filing I-90s and complying with USCIS's application requirements. The plaintiffs alleged that USCIS did not provide them with evidence of their LPR status, but rather interrogated the plaintiffs about past criminal conduct and/or old deportation proceedings and ordered plaintiffs to produce documents.

The complaint alleged that USCIS "converted the process by which new green cards are issued into an enforcement procedure, and condition[ed] the issuance of such cards on Plaintiffs' compliance with requirements beyond those contemplated, or authorized, by law." The complaint sought mandamus, injunctive and declaratory relief.

The proposed class included LPRs who filed or will file I-90 applications to renew or replace their I-551s, who complied with the requirements of 8 C.F.R. §264.5 (2007), and in whose cases defendants requested or will request documentation about alleged involvement with the criminal justice system and/or past deportation proceedings. Plaintiffs moved to certify the class on September 21, 2007.

On August 29, 2008, the parties came to a settlement agreement, and the court dismissed the case on September 4, 2008.

In related news, DHS published a proposed rule regarding I-551s. See Application Process for Replacing I-551 Without Expiration Date, 72 Fed. Reg. 46922 (Aug. 22 2007). The proposed rule would require all LPRs with I-551s with no expiration dates to apply for replacement cards. Eventually, DHS will terminate the validity of I-551s without expiration dates. As of December 2007, DHS is reviewing comments submitted to it.