12/28/2005
Federal Court Orders Department of Homeland Security to Issue Proof of Lawful Status to Permanent Residents
Unfounded Security Concerns Do Not Justify Withholding Documentation Beyond a Reasonable Time
SAN FRANCISCO , December 28, 2005 - A federal court issued a permanent injunction against the Department of Homeland Security (DHS), ordering the agency to provide documentation of lawful status (“green cards”) to a nationwide class of lawful permanent residents (LPRs) who have been denied such proof for months and, in many cases, years. The December 22, 2005 order by U.S. District Court Judge Marilyn Hall Patel of the Northern District of California added teeth to her August 2005 summary judgment ruling, in which she held that the DHS’s policy of withholding documentation from persons already determined to be LPRs by Immigration Courts was arbitrary and capricious, and violated the DHS’s nondiscretionary duty to issue documentation in a timely manner. In issuing a permanent injunction, the court rejected the DHS's national security contentions, concluding that such arguments were “illogical and unacceptably vague as a legal justification for withholding documentation.” The plaintiff class is represented by Cooley Godward LLP, the Texas Lawyers' Committee for Civil Rights, and the Mexican American Legal Defense and Educational Fund (MALDEF). The DHS had acknowledged that the class, originally estimated to exceed 12,000, numbered in excess of 6,000 persons as of October 2005.
John C. Dwyer, a partner at Cooley Godward, which is handling the suit on a pro bono basis, welcomed the ruling, stating: “It's unfortunate when it takes an order from a federal judge to get the federal government to do what they are obligated to do by law. Judge Patel got it right, and we hope that the Department of Homeland Security will now finally provide the documentation to which these lawful residents are entitled.”
The permanent injunction requires the DHS to issue documentation of lawful status to members within a set period of time after the member appears at an appointment at a U.S. Citizenship and Immigration Services (USCIS) office and requests documentation. The applicable time period depends on whether the member was adjudicated as an LPR before or after April 1, 2005, when the Justice Department changed certain regulations that apply to members. Generally, the court’s injunction requires the DHS to issue documentation within 30 days of the first USCIS appointment for post-April 1, 2005 grantees and within 60 days for pre-April 1, 2005 grantees. The time periods afford DHS the opportunity to verify that the member was granted LPR status and allows for collection of biometrics information, such as fingerprints and photographs. The injunction also required the USCIS to post a notice to members on its website containing instructions for obtaining documentation. A member may start the process of obtaining documentation by making an appointment at a local USCIS district office and presenting the Immigration Court’s order granting LPR status along with proof of their identity. The DHS’s failure to abide by the injunction is to be remedied through contempt proceedings before the court.
Javier N. Maldonado, Executive Director of the Texas Lawyers’ Committee, commended the ruling, stating: "We are extremely pleased with the court’s injunction. Our clients will now have the opportunity to fully enjoy the important rights and privileges of being a lawful permanent resident in the United States , that is to work, travel, attend school, and pursue the American dream.”
The lawsuit, Santillan, et al. v. Gonzales, et al., was filed in federal district court in San Francisco in July 2004. The class action suit charged that DHS offices nationwide are consistently rejecting and delaying lawful permanent residents’ requests for documentation of their LPR status. Green card delays, which have lasted from months to years, have created serious hardships for immigrants and their families.
The Department of Homeland Security has 60 days from the entry of the injunction to file an appeal.
The public interest litigation partnership of Cooley Godward's Pro Bono practice and the non-profit TexasLawyers' Committee was facilitated by the Litigation Assistance Partnership Project (LAPP) of the American Bar Association ( ABA).
You can receive a full copy of the summary judgment order by going to Litigation.