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Final Settlement in Ninth Circuit Duran-Gonzalez Class Action

By Susan Schreiber

If you practice within the jurisdiction of the Ninth Circuit – Arizona, California, Idaho, Montana, Nevada, Oregon and Washington – a recent class action settlement concerning 245(i) adjustment applicants may affect your clients.  Under the settlement, certain applicants for adjustment of status under 245(i) who filed I-212 waiver applications to overcome inadmissibility under 212(a)(9)(C)(i)(II) will be eligible to proceed with their applications.

The Duran-Gonzalez settlement was the result of litigation challenging the Ninth Circuit's changed position on the issue of 245(i) eligibility for applicants who had entered the United States without inspection after a prior removal order.  Initially, back in 2004, the Ninth Circuit ruled that 245(i) adjustment applicants could overcome inadmissibility under INA § 212(a)(2)(C)(i)(II) for entering without inspection after a prior removal by filing a Form I-212 waiver with the adjustment application.  Perez-Gonzalez v Ashcroft, 379 F.3d 783 (9th Cir. 2004). At the time the Ninth Circuit decided this case, however, the BIA had not yet addressed this issue. This changed in 2006, when the BIA issued a decision determining that approval of an I-212 cannot cure inadmissibility under the permanent bar until the person has remained outside the United States for 10 years after the date of last departure. Consequently, such an alien is ineligible to adjust status. Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006).  As a result of the Torres-Garcia decision, the Ninth Circuit vacated the Perez-Gonzalez decision in deference to the Board's analysis.  Duran-Gonzales v. DHS (Duran I), 508 F.3d 1227 (9th Cir. 2007).

Subsequent litigation addressed the retroactivity of the Ninth Circuit's changed position on this issue. In reliance on the Perez-Gonzalez decision, many applicants submitted 245(i) adjustment applications along with I-212 waivers, some of which were denied and others held in abeyance pending resolution of the litigation.  Now, in the Duran-Gonzalez settlement, certain individuals in the Ninth Circuit who filed an application for adjustment of status and an I-212 application on or after August 13, 2004 and on or before November 30, 2007 may be eligible to proceed with their applications for adjustment or have denied applications reopened.  To review a detailed description of the groups covered by the settlement and the requirements for pursuing relief and applicable deadlines, review the "Frequently Asked Questions" prepared by the class counsel, which you may access through this link.