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- Lawsuit to Challenge DHS' Refusal to Follow Perez-Gonzalez, Ninth Circuit I-212 Decision
Last updated August 06, 2009

Duran Gonzales is a circuit-wide class action challenging DHS’ refusal to follow Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). In Duran Gonzales, 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 (under INA § 245(i)) along with an accompanying I-212 waiver application. See Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006).

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

Special AILF Teleconference on August 7, 2009: Duran Gonzales Litigation -- Update and Q&A With Plaintiffs' Counsel. Counsel for the plaintiffs will provide an update on the class action and offer suggestions for lawyers whose clients are class members or are otherwise affected by the Ninth Circuit’s adverse decision. The hour long program will consist of a half hour discussion by the plaintiffs' counsel followed by a half hour of questions and answers. The registration fee is $30. Register here. Materials for the teleconference are posted below.


Updates:

    8/3/09: Plaintiffs filed their reply brief in the Ninth Circuit.

    7/20/09: The government filed its response brief at the Ninth Circuit.

    6/22/09: Plaintiffs filed their appeal brief in the Ninth Circuit. Plaintiffs argue that the court’s prior decision in Duran Gonzales should not apply retroactively to those individuals who filed for adjustment of status (with I-212 waivers) in reliance on the old law (as set forth in Perez-Gonzalez). Class counsel have issued a notice to class members regarding the status of the litigation and steps class members may take in their individual cases.

    3/17/09: The district court entered judgment in favor of the defendants on February 27, 2009, and plaintiffs subsequently filed a notice of appeal. The Ninth Circuit docket number is 09-35174. The appellants' opening brief is due June 22, 2009.

    2/23/09: Class counsel have a issued a notice to class members regarding the status of the class litigation and steps class members may take in their individual cases.

    2/6/09: The district court denied a preliminary injunction. In addition, 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. Read the notice to class members and the court order.

    1/23/09: The district court granted a temporary restraining order (TRO). Read the notice to class members and the court order. The court will hold a hearing on 2/4/09 to determine whether to continue the TRO.

    1/21/09: 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. Read the notice to class members.

    1/16/09: The Ninth Circuit denied the petition for rehearing and rehearing en banc. The preliminary injunction may vacate on January 23, 3008. Read more about the court's order.

    3/14/08: The Ninth Circuit ordered the government to file a response to the petition for rehearing en banc. The court also granted AILA's motion to submit a brief as amicus curiae in support of the plaintiffs.

    2/27/08: Plaintiffs-Appellees filed a petition for rehearing en banc. The Ninth Circuit had extended the time for filing the petition until February 28, 2008.

    12/19/07: Class counsel prepared a Duran Gonzalez Q&A to address issues that have arisen following the Ninth Circuit’s adverse decision, including the effective date of the decision, qualifications for class membership, and strategies for class members and others affected by the decision.

    12/3/07: On November 30, 2007, the Ninth Circuit issued a decision vacating the preliminary injunction in Duran Gonzalez v. DHS. Read more about the court's decision.

    8/5/07: The court held the oral argument and has taken the matter under advisement.

    6/25/07: The Ninth Circuit calendared the case for oral argument in Seattle, Washington on August 6, 2007.

    6/1/07: Defendants filed their opening reply brief in support of their interlocutory appeal to the Ninth Circuit.

    4/27/07: Plaintiffs filed their answering brief in opposition to the interlocutory appeal to the Ninth Circuit. Plaintiffs asked the Court to uphold the district court's order granting the preliminary injunction.

    3/2/07: Defendants filed their opening brief in support of their interlocutory appeal to the Ninth Circuit. They argue that the district court erred in granting the preliminary injunction.

    1/8/07: Defendants filed a Notice of Appeal to the Ninth Circuit Court of Appeals from the district court’s order granting class certification and a preliminary injunction. The notice of appeal is filed pursuant to 28 U.S.C. § 1292(a)(1), which gives the courts of appeals jurisdiction over interlocutory appeals. The district court’s order remains in effect.

    12/19/06: The court issued an order modifying the Preliminary Injunction. The changes made to the order are minor. Click here to see the order.

    11/14/06: The court issued an order granting Motion for Preliminary Injunction and Class Certification. For more information on the order, click here. To view the order, click here.

    10/27/06: Plaintiffs filed replies to Defendants' Opposition to Plaintiffs' Motion for Class Certification and Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction.

    10/18/06: Defendants filed an Opposition to Plaintiffs' Motion for Class Certification and an Opposition to Plaintiffs' Motion for Preliminary Injunction.

    10/11/06: The court issued an order granting temporary relief. For information about the TRO, click here.

    10/11/06: The court scheduled a hearing on Plaintiffs' Motion for Class Certification and Motion for Preliminary Injunction for November 6, 2006.

    10/4/06: At a hearing on October 4, 2006, the court granted temporary relief.

Court Documents:

Press Releases:

Materials for 8/7/09 Teleconference


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