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Adjustment of Status Under § 245(i) for Noncitizens Previously Removed (Duran Gonzalez Class Action)

Last Updated: 
Thursday, March 27, 2014

Duran Gonzalez is a Ninth Circuit-wide class action challenging DHS’ refusal to follow Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). In Perez-Gonzalez, the Ninth Circuit had said that individuals who had been removed or deported may apply for adjustment of status (under INA § 245(i)) along with an accompanying I-212 waiver application. In Duran Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007), the Ninth Circuit overturned Perez-Gonzalez, deferring to the BIA’s holding that individuals who have previously been removed or deported are not eligible to apply for adjustment of status. See Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006).

On March 21, the District Court granted preliminary approval of the settlement agreement, including amending the class definition, in Duran Gonzalez. Read the announcement about this order and next steps in the case.

CASERESOURCES

CASE

Initial Proceedings in District Court

On September 28, 2006, plaintiffs filed a complaint asking the district court to order DHS to follow the Ninth Circuit’s decision in Perez-Gonzales. The court granted a preliminary injunction and certified the class. The class included individuals who were inadmissible under INA § 212(a)(9)(C)(i)(II), who filed adjustment of status and I-212 waiver applications prior to a reinstatement order, and whose applications were denied because ten years had not elapsed since the date of the applicant’s departure. The court also certified a second class of similarly situated individuals who had filed their applications or intended to file, but USCIS had not yet denied the applications. On January 8, 2007, the government filed a notice of appeal to the Ninth Circuit. The notice of appeal was filed pursuant to 28 U.S.C. § 1292(a)(1), which gives the courts of appeals jurisdiction over interlocutory appeals.

First Ninth Circuit Appeal – Filed by Government

On November 30, 2007, the Ninth Circuit issued a decision vacating the district court’s preliminary injunction and overturning Perez-Gonzalez. Subsequently, Plaintiffs-Appellees filed a petition for rehearing and rehearing en banc. The Ninth Circuit denied the petition on January 16, 2009.

On Remand to the District Court

On January 21, 2009, plaintiffs filed a motion to amend the complaint; a motion to amend and redefine the class (to include only individuals whose applications were pending at any time between the date of Perez-Gonzalez (August 13, 2004) and the date of Duran Gonzales (November 30, 2007)); and a request for a temporary restraining order (TRO) and preliminary injunction. The amended complaint alleges that the government cannot apply the Duran Gonzales decision retroactively to the detriment of class members who relied on Perez-Gonzalez. Initially, the district court granted a TRO.  Subsequently, however, the district court denied a preliminary injunction, and the TRO expired. As a result, USCIS now is allowed to deny class members’ I-212 applications and give effect to already denied applications, which could result in individuals being put in removal proceedings or being subject to reinstatement of removal. The district court entered judgment in favor of the defendants on February 27, 2009, and plaintiffs filed a notice of appeal.

Second Ninth Circuit Appeal – Filed by Plaintiffs

The issue on appeal is whether the Ninth Circuit’s 2007 decision should apply retroactively to class members who relied on Perez-Gonzalez (i.e., those whose adjustment of status and I-212 waiver applications were pending at any time on or after August 13, 2004 and on or before November 30, 2007).

On April 2, 2010, the Ninth Circuit issued a decision in another case, Morales-Izquierdo v. DHS, 600 F.3d 1076 (9th Cir. 2010), in which it held that Duran Gonzales applies retroactively. This decision addresses the issues on appeal in the class action. Petitioner Morales-Izquierdo filed a petition for rehearing en banc on May 17, 2010, and the named plaintiffs and the certified class in Duran Gonzales filed an amicus brief in support of the petition. The court, however, denied the petition for rehearing en banc.

On July 14, 2011, the Ninth Circuit issued an en banc decision in Nunez-Reyes v. Holder, No. 05-74350, in which it applied the civil retroactivity test from Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), and concluded that its decision applied prospectively only. The Duran Gonzalez plaintiffs filed a 28(j) letter (notifying the court of this new authority), maintaining that under Nunez-Reyes, the court should apply Duran Gonzales prospectively only as well. The court subsequently ordered supplemental briefing to address the impact of Nunez-Reyes on the appeal and held argument on September 21, 2011. On October 25, 2011, the court denied plaintiff's appeal, holding that Duran Gonzales applies retroactively. On December 9, 2011, plaintiffs filed a petition for rehearing and rehearing en banc. The court ordered the government to file a response to the petition, which the government did on January 24, 2012. The rehearing petition remains pending.

On March 1, 2012, the Ninth Circuit withdrew its decision in a related case, Garfias-Rodriguez v. Holder, 649 F.3d 942 (9th Cir. 2011), and ordered rehearing en banc. Garfias-Rodriguez involves adjustment of status under former INA § 245(i) pursuant to Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006) (i.e., those inadmissible under INA § 212(a)(9)(C)(i)(I), as opposed to Duran Gonzales class members who are inadmissible under INA § 212(a)(9)(C)(i)(II)). The Duran Gonzales named Plaintiffs and proposed redefined class filed an amicus brief in Garfias-Rodriguez. On October 19, 2012, the court issued its en banc decision in which it overruled the retroactivity analysis that the court applied in Duran Gonzales II. This means that some Duran Gonzales class members still have viable claims that the Duran Gonzales I decision should not apply retroactively and that they should be permitted to apply for adjustment of status. Read our announcement about Garfias-Rodriguez. The Court subsequently ordered the parties to submit letter briefs addressing Garfias-Rodriguez’s impact on Duran Gonzales. The briefs were submitted on December 10, 2012.

On January 28, 2013, a panel of the Ninth Circuit Court of Appeals issued a decision with implications for Duran Gonzales class members.  In Carrillo de Palacios v. Holder, the court – in accordance with the en banc decision in Garfias-Rodriguez – engaged in a retroactivity analysis to determine whether Duran Gonzales I applies retroactively to someone who applied for adjustment of status with an I-212 waiver after the BIA’s decision in Matter of Torres-Garcia.  The panel held that Duran Gonzales I applies to someone who filed their applications after the BIA’s decision.  As a result, the petitioner in that case is not eligible for adjustment of status under INA § 245(i).  Read our announcement about Carrillo de Palacios.

On March 29, 2013, the Ninth Circuit ruled in favor of the plaintiffs and withdrew its October 25, 2011 adverse decision based on the intervening en banc decision in Garfias-Rodriguez. The court also vacated the district court’s decision denying plaintiffs’ retroactivity claims and remanded the case for further proceedings. The court noted that it was expressing “no opinion on the viability of any claims or any class or subclass definitions under the analytical framework announced in Garfias-Rodriguez—i.e., whether the Montgomery Ward factors can be adjudicated on a class-wide basis.” Read our announcement to class members regarding the court’s decision.

On Remand to the District Court

In January 2014, class counsel reached a tentative settlement with the government. The tentative settlement involves remedies for a subset of class members with retroactivity claims. Read our announcement about the tentative settlement and next steps. On March 14, 2014, plaintiffs and the government filed a joint motion for final settlement, along with a joint motion for preliminary approval of the settlement agreement, including amending the class definition. The joint motion asks the court to preliminarily approve the settlement agreement, amend the definition of the certified class to the definition agreed upon in the settlement, and set a fairness hearing at which the Court likely will determine whether to approve the settlement. On March 21, 2014, the District Court granted preliminary approval of the settlement agreement, including amending the class definition, in Duran Gonzalez. The court set a fairness hearing for July 11, 2014, at which the Court will consider whether to approve the settlement. Read our announcement about the court order and next steps in the case.

RESOURCES

USCIS Memo: Adjudicating Forms I-212 for Aliens Inadmissible under INA 212(a)(9)(C) or Subject to Reinstatement under 241(a)(5) in light of Gonzalez v. DHS (May 19, 2009)

USCIS Memo: Consolidation of Guidance on Unlawful Presence (May 6, 2009)

INS Memo: Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) (June 17, 1997)

Instructions for Filing an Emergency Petition for Review with Request for a Stay

Sample Petition for Review and Request for Stay (reinstatement order)

Sample AAO brief, denial of I-212