On September 28, 2006, a consortium of immigrant rights advocacy groups, including Northwest Immigrants Right Project and the American Immigration Law Foundation, filed a class action lawsuit in the U.S. District Court for the Western District of Washington, challenging the Department of Homeland Security's refusal to comply with the precedent decision of the Ninth Circuit in Perez-Gonzalez v. Ashcroft
, 379 F.3d 783 (9th Cir. 2004). Plaintiffs alleged that federal immigration officials had been ordered to deny applications for "Permission to Reapply for Admission After Deportation or Removal" filed on form I-212 (I-212 waiver application) when ten years had not elapsed since the applicants' last departure. Plaintiffs asserted that this practice violated the Perez-Gonzalez v. Ashcroft
decision, the Immigration and Nationality Act (INA), the Administrative Procedure Act (APA) and the Fifth Amendment. As a result of the practice, plaintiffs were denied the opportunity to apply for lawful permanent resident (LPR) status and faced possible deportation proceedings.
Contemporaneously with initiating the lawsuit, plaintiffs requested a temporary restraining order, a preliminary injunction and class certification. The government filed papers with the court opposing the requested relief.
Following an injunction hearing, the District Court (Judge Marsha J. Pecham) issued a preliminary injunction and certified the case as a class action. In an order dated November 13, 2006, Judge Pecham ruled that: (1) plaintiffs were not required to exhaust their administrative remedies before bringing suit; (2) plaintiffs were likely to succeed on the merits of their claim that the policy violated the INA; and (3) the requirements for class certification were satisfied. Gonzales v. U.S. Dep't of Homeland Sec.
, 239 F.R.D. 620 (W.D. Wash. 2006).
On motion by the defendants, the Court (Judge Pecham) modified the wording of its preliminary injunction on December 19, 2006, to make clear that it extended only to class members whose I-212 waiver applications were adjudicated within the jurisdiction of the Ninth Circuit.
Defendants appealed the injunction, and on January 24, 2007, the District Court entered an order staying discovery and further action in the trial court pending resolution of defendants' appeal to the Ninth Circuit.
On November 30, 2007, a three-judge panel of the Ninth Circuit (Judge Consuelo M. Callahan, Judge William C. Canby, Jr., and Judge Cynthia H. Hall) vacated the District Court's preliminary injunction. Duran Gonzales v. Dep't of Homeland Sec.
, 508 F.3d 1227 (9th Cir. 2007). It found that under the Supreme Court's decisions in Chevron USA, Inc. v. Natural Resources Defense Council
, 467 U.S. 837 (1984), and National Cable & Telecommunications Ass'n v. Brand X Internet Services
, 545 U.S. 967(2005), courts are required to defer to an administrative agency's reasonable interpretation of a statute even if there is earlier judicial precedent to the contrary; therefore, since the Court found that the Board of Immigration Appeals (BIA) had reasonably interpreted the Illegal Immigration Reform and Immigrant Responsibility Act in In re Torres-Garcia
, 23 I. & N. Dec. 866 (BIA 2006), to dispose of plaintiffs' request for injunctive relief, it had to defer to the BIA's judgment.
After considering and ultimately rejecting a petition by plaintiffs for rehearing en banc, the Ninth Circuit issued its mandate on January 23, 2009. That same day, the District Court (Judge Pechman) entered a temporary restraining order to keep class members from being deported while it finished adjudicating the case. On February 6, 2009, however, it found that in light of the Ninth Circuit's decision, there was little likelihood that plaintiffs would succeed on the merits and thus denied plaintiffs' motion for a preliminary injunction. Gonzales v. U.S. Dep't of Homeland Sec.
, No. 2:06−cv−01411, 2009 WL 302283, 2009 U.S. Dist. LEXIS 12661 (W.D. Wash. Feb. 6, 2009). On February 27, it also denied plaintiffs' motions to amend their complaint and amend and redefine the class in order to challenge the retroactive application of the Ninth Circuit decision, reaffirming its decision in its order denying the preliminary injunction that the Ninth Circuit decision could not be interpreted to apply only prospectively. Gonzales v. U.S. Dep't of Homeland Sec.
, No. 2:06−cv−01411, 2009 WL 506848, 2009 U.S. Dist. LEXIS 18753 (W.D. Wash. Feb. 27, 2009).
Having ruled on all of the legal questions before it, the Court entered judgment for the defendants. The Ninth Circuit affirmed on October 25, 2011. Duran Gonzales v. U.S. Dep't of Homeland Sec.
, 659 F.3d 930 (9th Cir. 2011). The Ninth Circuit stated that its previous decision, Duran Gonzales v. Dep't of Homeland Sec.
, 508 F.3d 1227 (9th Cir. 2007), applied retroactively. However, 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. The Ninth Circuit stayed its mandate in the present case pending the outcome of the en banc decision. 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 v. U.S. Dep't of Homeland Sec.
, 659 F.3d 930 (9th Cir. 2011). Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc). The Ninth Circuit ruled that, when it overturns its own precedent in light of the contrary statutory interpretation by an agency, it will treat such instances as if the agency changed its ruled, and analyze whether it applies retroactively under the Montogomery Ward
test. Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1328 (9th Cir. 1982). The five factors of the test include: 1) whether the case is of first impression; 2) whether the new rule is an abrupt departure from an old practice or if it merely fills a void in an unsettled area of law; 3) the extent to which a party subject to a new rule, relied on the old rule; 4) the degree of burden that retroactive application places on the party; 5) the statutory interest in applying a new rule despite the reliance on the old rule by the party.
Subsequently, the Ninth Circuit ordered the parties in the present case to submit briefs discussing the effect of the Garfias-Rodriguez
decision. On March 29, 2013, the Ninth Circuit issued an order, withdrawing its previous opinion, vacating the District Court's decision and remanding the case for further proceedings. The Ninth Circuit refused to apply law of the case in light of its en banc decision. It also added that it was expressing "no opinion on . . . . whether the Montgomery Ward factors can be adjudicated on a class-wide basis." On July 23, 2013, the Ninth Circuit issued its mandate.
On remand, the case was set for trial. However, the parties reached a settlement and the case was dismissed with prejudice on January 16, 2014, but the settlement was not yet perfected. On March 14, 2014, the parties entered a joint stipulation to reopen the case to enter the final settlement agreement. The District Court issued its preliminary approval on March 21, 2014, also reopening the case. The Court amended the class definition, and dividing the class into three subclasses. The settlement involved remedies for class members who submitted adjustment of status and I-212 waiver applications on or after August 13, 2004 and on or before November 30, 2007. Under the agreement, various subclasses are entitled, with variations that can be seen in the agreement for more detail, to have their immigration cases reopened and adjudicated on merits, based on the Montgomery Ward
factors and without retroactive application of the In re Torres-Garcia
. The defendants agreed to give notice to all potential class members and within 24 months of the effective date, provide a list of all class members and the status of the immigrations proceedings. The agreement was to terminate within 30 months of its effective date.
Following a fairness hearing, the Court issued a final order, approving the settlement agreement, on July 21, 2014. Christopher Schad - 06/22/2012
Zhandos Kuderin - 07/30/2014