Challenge to DHS' Refusal to Follow Perez-Gonzalez Decision: Duran-Gonzalez v. DHS

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).

The suit is brought by Northwest Immigrants Right Project, the American Immigration Council, and Van Der Hout, Brigagliano & Nightingale, LLP.

CASE UPDATES [1] |  RESOURCES [2]

CASE UPDATES

Initial Proceedings in District Court

On September 28, 2006, plaintiffs filed a complaint in district court asking the court to order DHS to follow the Ninth Circuit’s decision in Perez-Gonzales. The court granted a preliminary injunction and certified the class. On January 8, 2007, defendants filed a Notice of Appeal to the Ninth Circuit Court of Appeals. 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.

• Complaint [3]
• Order Granting Motion for Preliminary Injunction and Class Certification [4]
• Order Modifying the Preliminary Injunction [5]

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.

• Ninth Circuit’s Decision [6]
• Duran Gonzalez Q&A, December 19, 2007 [7]
• Notice to Class Members Following Ninth Circuit’s Denial of Rehearing Petition [8]

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, 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 v. Ashcroft. 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.

• First Amended Complaint [9]
• Notice to Class Members following denial of preliminary injunction [10]

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 I-212 waiver applications and adjustment of status 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.

• Plaintiffs’ Appeal Brief [11]
• Government’s Response Brief [12]
• Plaintiffs’ Reply Brief [13]
• Notice to Class Members (July 8, 2009) [14]
• Ninth Circuit’s Decision in Morales-Izquierdo v. DHS [15]

RESOURCES

Most recent notice [14] to class counsel

Ninth Circuit Briefs on Retroactivity of Duran Gonzales

• Plaintiffs’ Appeal Brief [11]
• Government’s Response Brief [12]
• Plaintiffs’ Reply Brief [13]

Sample Documents

• Sample Petition for Review and Request for Stay (reinstatement order) [16]
• Sample AAO brief, denial of I-212 [17]
• I-871, Notice of Intent/Decision to Reinstate Prior Order [18]

Additional Resources

• June 17, 1997 INS Memo, Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) [19]
• May 6, 2009 USCIS Memo, Consolidation of Guidance on Unlawful Presence [20]
• AAO Decisions [21]
• Instructions for Filing an Emergency Petition for Review with Request for a Stay [22]
• Duran Gonzales Q&A (December 19, 2007) [7]
• USCIS Memo on 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 [23]