Catholic Social Svc, et al v. Orantes, et al

Filing 686

ORDER signed by Senior Judge Lawrence K. Karlton on 2/11/10 ORDERING that Benitez's Objections to the Special Master's Decision 668 are OVERRULED. The Clerk shall mail a copy of this order to Benitez at 15445 Cobalt Street #134, Sylmar, CA 91342.(Mena-Sanchez, L)

1 2 3 4 5 6 7 8 9 10 11 Plaintiffs, 12 v. 13 14 15 Defendants. 16 / 17 18 19 20 21 22 23 24 25 26 On August 24, 2009, Julio Cesar Benitez ("Benitez") filed objections to the special master's decision that he was not entitled to class membership under the court approved settlement agreement in this case. On November 17, 2009, the court granted Benitez sixty (60) days to present information to the court that his criminal convictions do not bar class membership. On January 15, 2010, Benitez filed a request for a continuance. For the reasons below, the court denies Benitez's request for a continuance and orders that his objections, Doc. 668, are overruled. 1 JANET NAPOLITANO, SECRETARY U.S. DEPARTMENT OF HOMELAND SECURITY, et al., ORDER CATHOLIC SOCIAL SERVICES, INC., - IMMIGRATION PROGRAM, et al., NO. CIV.S-86-1343 LKK/JFM UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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Benitez argued that he was intimidated and confused by an officer during his interview concerning his application for class membership with the Defendant United States Citizenship and

Immigration Services ("USCIS"). Specifically, Benitez asserts that the officer forced travel him from to the alter United his responses to questions 1987-1988.

concerning

States

between

Applicants are only entitled to be class members if they left the country during this time period. The Special Master denied

Benitez's appeal on the grounds that his response to this question barred class membership and that his criminal convictions barred class membership. Because the court could not confirm, based on the record before it, whether the criminal convictions were an actual bar, it ordered Benitez to submit supplemental briefing as to this issue. The terms of the settlement agreement indicate that "neither the Defendants nor the applicant shall be permitted to submit new evidence to the Special Master." Joint Motion to Approve Settlement of Class Action, Dec. 1, 2003, Ex. 1 ("Settlement") ¶ 8.

Accordingly, the Special Master must make its decision as to whether class membership is proper based upon the record before the USCIS officer. This court is similarly bound to decide whether class membership is proper based upon this record. In Benitez's request for a continuance, he states that

currently his criminal convictions bar class membership, but that he is actively seeking reductions or expungement in these

convictions, which potentially could in the future not bar class 2

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membership. Through this request, Benitez admits that the evidence presented to the USCIS barred him from class membership because of his criminal convictions. The court cannot consider new evidence in an appeal of the decision of the Special Master, and the evidence Benitez seeks to obtain is clearly new. Thus, Benitez's objections are overruled. The bar to the submission of new evidence to the Special Master and the court, however, does not extend to evidence of misconduct or illegality in the USCIS's initial review of

applications for class membership. For example, if an applicant appeals the decision of the USCIS denying class membership because of unlawful coercion or threatening behavior of a USCIS officer, the special master shall consider evidence of such misconduct in the appeal, even though such evidence was not presented to the USCIS. This issue is not reached in this case, however, because Benitez's application as presented to USCIS was barred due to his criminal convictions.1 For the foregoing reasons, the court orders that Benitez's Objections OVERRULED. The court further orders that the clerk of court shall mail a copy of this order to Benitez at the following address: 15445 to the Special Master's Decision, Doc. 668, are

The court only decides the question of class membership. Benitez may be entitled to adjustment of status through other provisions of the Immigration and Nationality Act. These avenues, if any such exist, may also be aided by the reduction or expungement of Benitez's criminal convictions. 3

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Cobalt St., #134, Sylmar, CA 91342. IT IS SO ORDERED. DATED: February 11, 2010.

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