The ABC Settlement Agreement

 

Introduction

ABC settlement agreementThe American Baptist Churches v. Thornburgh (ABC) Settlement Agreement was a class action settlement between a class of Guatemalan and Salvadoran nationals and the United States Government rendered in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) [PDF version] on January 31, 1991.

During the proceedings for American Baptist Churches v. Thornburgh, which began in 1985 [the case was initially American Baptist Churches of the U.S.A. v. Meese], a judge certified as plaintiffs a class of Guatemalan and Salvadoran nationals who alleged that the Immigration and Naturalization Service (INS) [now United States Citizenship and Immigration Services (USCIS)], the Executive Office for Immigration Review (EOIR), and the Department of State (DOS) had engaged in discriminatory treatment of asylum claims made by Guatemalans and Salvadorans. The government reached a settlement (ABC settlement) with the attorneys representing the plaintiffs in 1990, and that settlement was approved in American Baptist Churches v. Thornburgh.

Class Membership and Registration for ABC Benefits

ABC class members are:

  • Salvadorans who were physically present in the United States on or before September 19, 1990; and
  • Guatemalans who were physically present in the United States on or before October 1, 1990.

Note that continuous physical presence in the United States since those dates is not required to be an ABC class member. An ABC class member may depart the United States, reenter, and still be eligible for ABC benefits. The only scenario in which this would not be the case is if the ABC class member is apprehended at the time of reentry.

However, an ABC class member must have registered by the deadlines specified in the settlement in order to be eligible for benefits under the ABC settlement. A Salvadoran must either have properly submitted an ABC registration form before October 31, 1991, or have applied for temporary protected status (TPS) on or before the same date. In order for a Guatemalan to be eligible for ABC benefits, he or she must have properly submitted an ABC registration form on or before December 31, 1991.

Furthermore, in order to be eligible for ABC benefits, the registered ABC class member must either have applied for asylum prior to registration, or must have applied for asylum by a specified date. For Guatemalan class members, the asylum application cutoff date was January 3, 1995, and for Salvadoran class members, it was February 16, 1996, or within 90 days from the issuance of a Notice 5 [which was mailed to Salvadorans who had applied for TPS by the date required for registration as an ABC class member].

Registered ABC class members whose asylum claims were rejected prior to the ABC settlement were entitled to de novo asylum interviews for a new assessment of asylum eligibility pursuant to the settlement. However, they were not required to request such a new hearing and assessment in order to be eligible for ABC benefits.

Bars to ABC Benefits for Registered Class Members

  • The ABC settlement agreement explicitly excludes the following registered ABC class members from eligibility for ABC benefits:
  • Those who have been convicted of aggravated felonies [as defined in INA § 101(a)(43)]; and
  • Those who were apprehended when attempting to reenter the United States after December 19, 1990.

If USCIS determines that an ABC class member would otherwise have been eligible for ABC benefits but for one of those two grounds, it will send a letter explaining that the ABC class member has been found to be ineligible for ABC benefits. The ABC class member may not be removed within 30 days from the date on the notice and may use that time to challenge the ruling.

Detention Restrictions

Registered ABC class members are generally precluded from being put into detention by USCIS. In accordance with the settlement, there are three specific cases in which USCIS may detain a registered ABC class member:

  • The ABC class member has been convicted of a crime involving moral turpitude and sentenced to more than six months' imprisonment; or
  • The ABC class member poses a national security risk; or
  • The class member poses a threat to public safety.

USCIS notes that this list is not necessarily exhaustive, and that mandatory detention provisions enacted by Congress in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) may require the detention of ABC class members. Furthermore, although likelihood to abscond is not grounds for detaining an ABC class member, USCIS may still impose a semi-annual reporting requirement on an ABC class member if it determines that the ABC class member is likely to abscond.

Filing for Asylum

Registered ABC class members who still wish to file for asylum are entitled to do so. ABC asylum applications will be adjudicated under the rules that existed in 1990 at the time of the ABC settlement, rather than under the current asylum rules. USCIS notes that a major difference between the 1990 asylum rules and the current asylum rules is that, under the 1990 rules, an asylum officer is required to send an applicant determined to be ineligible for asylum a notice of the containing the reasons for ineligibility. After receiving such a notice, an applicant has a certain period of time in which to respond before a final decision on the asylum application is rendered.

An ABC class member who files for asylum is entitled to obtain employment authorization without regard “non-frivolous” standard for obtaining employment authorization that existed under 1990 regulations, provided that the class member pays the generally applicable fee. If the class member does not pay the fee, the application will be adjudicated under the “non-frivolous” standard. USCIS is required to make a final determination on the employment authorization application within 60 days, and if no such determination is made within that period, the ABC class member is entitled to immediate employment authorization.

Suspension of Deportation and Special Rule Cancellation of Removal under NACARA § 203

Cancellation of removal for non-LPRs and the previous suspension of deportation relief are generally only available to non-LPRs embroiled in removal or deportation proceedings. However, registered ABC class members are entitled to apply, depending on the circumstances, for special rule cancellation of removal or suspension of deportation without being formally placed into removal proceedings. Furthermore, the standards for NACARA cancellation for ABC class members are similar to those that existed for suspension of deportation prior to the 1996 enactment of the IIRIRA and the new cancellation of removal rules. The rules for NACARA suspension of deportation and special rule cancellation are much more favorable to applicants than regular non-LPR cancellation of removal. If an ABC class member is granted NACARA suspension of deportation or special rule cancellation of removal, his or her status will be adjusted to lawful permanent resident (LPR). Please note, however, that while continuous physical presence is not a requirement for eligibility for ABC benefits, 7 years' continuous physical presence and certain other factors are required in order to be eligible for NACARA suspension of deportation and special rule cancellation of removal. To learn more, please see our full article on the subject.

Advice

The main benefits today for registered ABC class members are the ability to apply for asylum under the rules that existed in 1990, and eligibility for NACARA suspension of deportation and special rule cancellation of removal. If a registered ABC class member is considering seeking either form of relief, he or she should consult with an experienced immigration attorney for a full evaluation of the situation and a proper assessment of which course of action is best for obtaining relief with the special benefits afforded to ABC class members.

If an ABC class member is found to be ineligible for ABC benefits based on a specific ground in the settlement, the ABC class member should consult with an experienced immigration attorney to determine if there are any grounds under which he or she may be able to successfully contest that determination.

Resources and materials:

“American Baptist Churches v. Thornburgh (ABC) Settlement Agreement,” USCIS, October 28, 2008, available at http://www.uscis.gov/laws/legal-settlement-notices/american-baptist-churches-v-thornburgh-abc-settlement-agreement [link]

“Nicaraguan Adjustment and Central American Relief Act (NACARA) 203: Eligibility to Apply with USCIS,” July 15, 2015, available at http://www.uscis.gov/humanitarian/refugees-asylum/asylum/nicaraguan-adjustment-and-central-american-relief-act-nacara-203-eligibility-apply-uscis [link]