Practice alert for married people post-removal
“The ACLU of Massachusetts has negotiated a proposed settlement that would apply to New England noncitizens with unexecuted final orders of removal who are married to USCs, and their lawyer asked us to share the information below with any Vermont folks working with immigrant communities. If the settlement gets approved, members of the “class” (defined below) will have the opportunity for two years to reopen and move to dismiss their removal orders. Since you work with so many people and organizations serving impacted community members, I wanted to share this with you in case its helpful for your networks.
Thanks!
Hillary
Notice of proposed settlement in Calderon Jimenez v. Mayorkas impacting New England area noncitizens who have final orders of removal and are married to U.S. citizens
Summary by class counsel at ACLU of Massachusetts
On October 25, 2024, a federal district court preliminarily approved a proposed settlement in Calderon Jimenez v. Mayorkas. The case was filed in 2018 on behalf of a class of certain U.S. citizens and their noncitizen spouses who have final orders of removal and live in New England. The two-year settlement agreement has two key terms: first, it provides a process by which most noncitizen class members should be able to reopen their removal proceedings. Second, during the two-year period of the settlement, ICE may not take enforcement actions against class members unless ICE determines that the individual poses a threat to public safety. The settlement will go into effect if it is approved by the federal district court after a public hearing on January 16, 2025. The deadline for class members to object to the settlement is January 3, 2025. If a class member or their counsel wants to appear at the January 16, 2025 hearing, they should file a Notice of Intent to Appear by January 6, 2025. For more information, including a copy of the full agreement and a copy of the class notice which includes a summary of the agreement, please see aclum.org/calderonsettlement.
Who is in the class? A couple is in the class if:
One spouse is a U.S. citizen.
One spouse is a noncitizen with a final order of removal, and has not departed the United States under that order.
The U.S. citizen spouse has filed an I-130 “Petition for Alien Relative” for the noncitizen spouse, and that petition is pending or has been approved.
They live in New England, or the noncitizen spouse is detained in New England.
The noncitizen spouse is not “ineligible for a provisional waiver under 8 C.F.R. § 212.7(e)(4)(i) or (vi)” -- meaning that they are 17yo or older, and don’t have a pending application for LPR status with USCIS.
Note that people can become class members if they satisfy these criteria at any time during the 2y settlement period. Class members are in the class if they meet the definition above. They do not need to do anything in order to become part of the class.
Reopening procedure: During the 2y settlement period, ICE will presumptively join motions to reopen and dismiss filed by noncitizen class members. To take advantage of this procedure, a class member must submit a request to the OPLA office having jurisdiction over the removal order. They must identify themselves as a Calderon class member; include a copy of the I-130 filed with USCIS; provide (i) the I-601A with supporting documentation that they intend to file or (ii) evidence of eligibility to adjust and a copy of the I-485 with supporting documentation that they intend to file; provide a declaration of their intent to depart the US to consular process after approval of their I-601A, or intent to apply for adjustment of status. The noncitizen must also follow the SOPs for that OPLA field office location, which could include a background check or standardized form. ICE can decline to join a motion to reopen if ICE determines the noncitizen: “is a threat to public safety, typically because of serious criminal conduct,” or “is a threat to national security,” or “has engaged in serious immigration benefit fraud or is a repeat immigration violator.”
Enforcement: ICE cannot take enforcement actions against class members during the 2y settlement period unless ICE determines, in good faith based on the facts in a noncitizen’s case, that the noncitizen poses a threat to public safety or national security. The determination must be made by a DFOD or higher level officer. ICE also cannot transfer a class member out of New England without first determining that they pose a threat to public safety or national security. An enforcement action covered by this provision is an ICE ERO arrest, initial detention, decision to continue detention after a custody review, removal, or instruction to a noncitizen to depart the United States. Class counsel must be provided with notice 5 days prior to any removal, and 5 days prior to any date by which a class member is required to depart the United States.
Additional provisions: The settlement provides a conflict resolution procedure that must be used before a compliance issue can be brought before the federal court. During the 2y settlement term, a class member cannot bring a claim that a noncitizen’s arrest, detention or removal unlawfully interferes with their rights to pursue lawful status by way of their marriage to a U.S. citizen spouse and the provisional waiver process, except through the conflict resolution procedures of the settlement. But class members can bring other legal challenges, including habeas claims challenging detention for other reasons.
Next steps:
The settlement will go into effect if it is approved by the federal court after a hearing before The Honorable Mark L. Wolf on January 16, 2024, at 1pm at the John Joseph Moakley United States Courthouse, Courtroom 2.
A class member who wishes to object to the settlement may do so by January 3, 2025. Objections must be sent to the Clerk of Court; U.S. District Court for the District of Massachusetts; 1 Courthouse Way; Boston, MA 02210. The objection should be marked with “Attention: Calderon, et al. v. Mayorkas, et al., Case 18-cv-10225-MLW.” Note that the court cannot order a different settlement. It can only approve or reject the proposed settlement. If a class member or their counsel wants to appear at the January 16, 2024 hearing, they should file a Notice of Intent to Appear by January 6, 2024.
If the settlement is approved, it will take effect for two years (from approximately January 2025 to January 2027). Class members may began to make use of the reopening procedure as soon as the settlement is in effect, and will receive the protections of the enforcement provisions for a 2y period. Class members do not need to take any steps to be part of the class.
For more information about the settlement and objection procedure, see the class notice. See these links for translations into Spanish, Portuguese, Haitian Creole, and Chinese. If any of these links do not work due to the forwarding of this email, all documents are available at aclum.org/calderonsettlement.
For the full settlement agreement, see here. See these links for translations into Spanish, Portuguese, Haitian Creole, and Chinese. All of these documents are also available at aclum.org/calderonsettlement.
The Calderon case was litigated by the ACLU of Massachusetts, WilmerHale, and Kathleen Gillespie. You may also contact class counsel at (857) 347-5511, or calderonclass@aclum.org.
Hillary Rich
Pronouns: she/her
Staff Attorney
ACLU of Vermont
PO Box 277, Montpelier, VT 05601
(802) 257-6882|hrich@acluvt.org
Follow us:
