February 2, 2009: Important Information for Duran-Gonzales Class Members Amended Complaint and Application for Temporary Restraining Order Filed and Granted – New Hearing Scheduled for February 4, 2009

On January 21, 2009, class counsel 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. These motions were made in light of the Ninth Circuit's denial of the petition for rehearing and rehearing en banc in Duran-Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007). Read more about the denial of the rehearing petition at http://www.ailf.org/lac/chdocs/Duran-Gonzalez-denial.pdf.

The amended complaint alleges that the government cannot apply the Duran-Gonzales decision, which adopted Matter of Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), retroactively to the detriment of Plaintiffs and class members who relied on Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). The complaint and separate motion ask the court to redefine the class as follows:

Individuals who are inadmissible under INA § 212(a)(9)(C)(i)(II) and whose I-212 waiver applications were filed within the jurisdiction of the Ninth Circuit in conjunction with applications for adjustment of status under INA § 245(i) and were pending at any time on or after August 13, 2004 [the date of Perez-Gonzalez] and on or before November 30, 2007 [the date of Duran-Gonzales] and prior to any final reinstatement of removal decision.

In addition, class counsel asked the court to issue an immediate temporary restraining order for the amended class, restraining the government from (a) denying any pending I-212 waiver applications; and (b) giving legal effect to any denied I-212 waiver application, including treating any denial as a final administrative decision.

On January 23, 2009, the district court granted a temporary restraining order (TRO). For further information, you may read the notice to class members and the court order. The court will hold a hearing on February 4, 2009 to determine whether to continue the TRO.

Class counsel remind current class members that the Ninth Circuit vacated the District Court's preliminary injunction and the mandate issues on Friday, January 23, 2009. Absent a grant to continue the TRO, if the mandate issues, USCIS will be allowed to deny class members' I-212 applicationsand "give effect" to already denied applications, which could result in individuals being put in removal proceedings or being subject to reinstatement of removal.

For more information about the suit see http://www.ailf.org/lac/lac_lit_92806.shtml.