©Attorney Farhad Sethna, 2021
This blog article provides information on the class settlement between various plaintiffs – asylum-seekers, and the US government. The case is Mendez-Rojas v. Johnson 305 F. Supp. 3d 1176 (W.D. Wash. 2018). Briefly, in Mendez-Rojas, the court agreed that the government’s failure to provide adequate notice of the one-year filing deadline for asylum applications was a violation of the law, namely, the Immigration and Nationality Act (INA), the Administrative Procedures Act (APA), and the due process rights of asylum-seekers under the Fifth Amendment to the US Constitution. The court also ruled that the government had failed to comply with the INA and the APA by not providing a uniform mechanism for class members to timely file their asylum applications.
The court finally approved of the party’s settlement agreement on November 4, 2020.
This blog article attempts to explain the terms of that settlement agreement in the following paragraphs. However, please note, this is a highly technical agreement, with lots of clauses, requirements, and exceptions. Therefore, anyone reading this article who may think that he or she is affected by the Mendez-Rojas class settlement must contact qualified counsel in order to assess their specific case. Please note that this article is only generalized advice and is not meant to be a specific examination of your specific case under the Mendez-Rojas settlement.
Are there any limitations to the Mendez-Rojas class settlement?
Yes, there are. Only class members in removal proceedings who were issued notices to appear and/or were in removal proceedings on or after June 30, 2016 qualify for class membership.
Additionally, anyone who received a notice to appear issued after January 26, 2021 will not be considered a class member because the government issued revised notices to appear with adequate notice of the one-year filing deadline. Furthermore, the USCIS has publicly provided notice of the new procedural mechanism for filing asylum applications as of January 26, 2021.
Is there a deadline to file for class membership under Mendez-Rojas?
Yes, there is. This is a bright line deadline, which ends on April 22, 2022. Therefore, any person wishing to claim class membership under Mendez-Rojas must file such application with the government – either the USCIS or an immigration court, if in proceedings, before that date.
Again, consult with qualified counsel to determine how to present such notice properly.
Unrepresented aliens may raise this issue directly before the immigration judge in immigration court. However, please be advised that the April 22, 2022 deadline is absolute. It may be very hard to overcome a bar to membership if the government was not placed on notice on or before that date.
What are the class memberships, and who qualifies?
There are two basic types of class memberships, Class A and class B. Each of those two classes are divided into two sub-classes – the first subclass being those who are not in removal proceedings, and the second being those who are in removal proceedings.
Both Class A and Class B are virtually identical, and separated by only one major factor – Class A is composed of individuals who received a credible fear asylum interview from the USCIS; Class B individuals simply expressed a fear of return to their country of origin, and where not given an interview as were people in Class A. That being said, Class A and Class B can be summarized as follows:
Class A:
- Encountered by DHS upon arrival in United States or within 14 days of unlawful entry;
- Received a credible fear interview in which they were found to have a credible fear of persecution or torture;
- Did not receive individualized notice of the one-year filing deadline for asylum applications; and
- Have not filed an asylum application, or filed an asylum application more than one year after the last arrival in the United States.
Recall, as set forth above, Class A is divided into two sub-classes: first, for those not in removal proceedings and second, for those who are in removal proceedings. These are Class A (i) and Class A (ii), respectively.
Similarly, Class B includes the following aliens:
- Encountered by DHS upon arrival in United States or within 14 days of unlawful entry;
- Expressed a fear of return to the country of origin;
- Were released from DHS custody upon issuance of a notice to appear;
- Did not receive individualized notice of the one-year filing deadline for asylum applications; and
- Have not filed an asylum application, or filed an asylum application more than one year after his or her last arrival in the United States.
As above, Class B is also divided into (i) those who are not in removal proceedings; and (ii) those who are in removal proceedings.
How the two sub-classes – (i) and (ii) are treated by the USCIS is discussed below:
Filing with the USCIS – when will it be accepted, and when will it be returned or transferred to immigration court?
The USCIS has provided detailed information on its website indicating “What happens after you file Form I-589 with USCIS”. You can find this on the USCIS website here:
Briefly, the only time that USCIS will accept your form and continue to process it will be if you are not in immigration court proceedings at the time you file your asylum application and DHS has not issued you a notice to appear, Form I-862. In all other cases, USCIS will either accept your Form I-589 and send it to the immigration court or would reject your Form I-589 and return it to you.
The instance where USCIS would reject your Form I-589 and return it to you will be if the DHS has previously issued you a notice to appear, Form I-862, and your notice to appear has already been filed and docketed with the immigration court for more than 22 days as of the date that you filed you asylum application with the USCIS.
In all other cases, as noted above, USCIS will accept your Form I-589 and send it to the immigration court. The date that your Form I-589 was received by the USCIS will serve as the filing date for the purpose of the asylum one-year filing deadline.
To summarize, there are three possible outcomes for aliens filing Form I-589, Application for Asylum with the USCIS:
- For individuals who filed their Form I-589 with the USCIS asylum office, if the asylum application was received 21 calendar days or less after the notice to appear was filed with the immigration court, the asylum filing date with the USCIS will count. And the USCIS asylum office will forward the Form I-589 to the immigration court.
- If the asylum application was received by the USCIS more than 21 calendar days after the notice to appear was filed with the immigration court, the USCIS would reject the asylum application and return it to you.
- If there is no pending immigration court case and DHS has not issued an NTA, the USCIS will accept your asylum application and give you a hearing date.
What is “Adequate Notice”?
As I have stated above, this is a complicated process. What constitutes adequate notice may be an issue. For instance: How was notice given? Was it oral or written? Was it in a group setting or an individualized setting? Another issue that may come into play is whether the asylum applicant actually declared a fear of returning to their home to country or not. In such instances, the underlying documentary evidence on Form I-213 as completed by the Customs and Border Protection official may become the subject of dispute and debate. All of those issues must be clearly considered in light of preserving and protecting the asylum applicant’s ability to claim Mendez-Rojas class membership.
Conclusion
It is critical to understand that if an applicant is not able to claim asylum, they are reduced to seeking either Withholding of Removal under the Immigration and Nationality Act or Withholding under the UN Convention Against Torture. The standards for both of those forms of relief are five higher than the standard for asylum. Therefore, it is easier to claim asylum. Hence qualification in Mendez-Rojas class membership can be extremely beneficial.
Please stay tuned to this issue and consult appropriate and reliable sources of information and qualified professionals for further advice.
© Farhad Sethna, Attorney, 2021
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.