What is the ABC Settlement Agreement?

May 10, 2010 - PRLog -- In 1985, a group of religious organizations and refugee advocacy organizations filed a class action lawsuit in federal court against the Bureau of Citizenship and Immigration Services (INS), the Executive Office for Immigration Review (EOIR) and the United States Department of State (DOS). The lawsuit is known as American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (initially known as American Baptist Churches of the U.S.A. v. Meese), and is commonly referred to as the ABC lawsuit. A federal judge subsequently certified a class of Guatemalan and Salvadoran nationals as plaintiffs in the lawsuit. The plaintiffs alleged, among other things, that the BCIS , EOIR and DOS engaged in discriminatory treatment of asylum claims made by Guatemalans and Salvadorans. In 1990, the government and attorneys representing the certified class settled the class action lawsuit. The ABC settlement agreement was approved by a federal court in January 1991. The ABC settlement agreement provides that an eligible class member who registers for benefits and applies for asylum by the agreed-upon dates (these deadlines were initially defined in the settlement agreement, but the asylum filing deadlines were later extended by agreement of the parties) is entitled to an initial or de novo asylum interview and adjudication under the asylum regulations published July 27, 1990, which became effective October 1, 1990, and special provisions of the settlement agreement. The settlement agreement also contains special provisions regarding employment authorization and detention of eligible class members.
What are the benefits of the ABC settlement agreement?
Guatemalans and Salvadorans who are eligible for benefits of the settlement agreement are entitled to the following benefits:
Stay of Deportation (Removal)
No eligible class member may be deported (or removed) until he or she has had an opportunity to obtain the benefits of the Settlement Agreement.
De Novo asylum interview and decision by an BCIS Asylum Officer under the 1990 asylum regulations
A de novo asylum interview and decision means a new interview and decision, irrespective of any prior decisions on the asylum claim. This means that, even if an ABC class member who is eligible for ABC benefits was denied asylum before the implementation of the ABC settlement agreement, the class member could have a new determination on eligibility for asylum by an asylum officer. Under the ABC settlement, the procedures for making the asylum determination are governed by the 1990 asylum regulations, which are different from the current asylum regulations, as well as special procedures explained in the settlement agreement itself. In particular, the 1990 regulations require an asylum officer to send any applicant found ineligible for asylum a notice explaining the reasons why the applicant has been found ineligible. The applicant then is given a period of time to respond before a final decision is made on his or her asylum application.
Detention restrictions
The ABC settlement agreement restricts the BCIS ‘ detention authority over eligible class members. According to the settlement agreement, an eligible class member may be detained only under the following circumstances:
The class member has been convicted of a crime involving moral turpitude for which the sentence actually imposed exceeded a term of imprisonment in excess of six months; or The class member poses a national security risk; or The class member poses a threat to public safety.
A likelihood to abscond is not a reason to detain an eligible class member. However, the BCIS may impose a semi-annual reporting requirement upon ABC class members deemed likely to abscond. Also, mandatory detention provisions enacted by Congress in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) may require detention of ABC class members in other situations, as well.
Employment Authorization
Class members who are eligible for ABC benefits and who apply for asylum and employment authorization are entitled to employment authorization without regard to the “non-frivolous” standard that was required under the 1990 regulations, if they pay a fee generally applicable to employment authorization applications. If no fee is paid, the request is decided under the “non-frivolous” standard.
A request for employment authorization made by a class member eligible for ABC benefits must be decided within 60 days of filing. If the request is not adjudicated within 60 days of filing, the applicant is entitled to immediate employment authorization.
Eligibility for Benefits of the Settlement Agreement (Definition of class member, registration deadlines, asylum filing deadlines, bars to eligibility)
Who is eligible for ABC benefits?
To be eligible for ABC benefits, an applicant must meet three requirements. The applicant must be a class member have registered for ABC benefits by the agreed upon date and have applied for asylum by the required date.
A class member who meets these three requirements may nonetheless be ineligible for benefits if he or she has been convicted of an aggravated felony or was apprehended at the time of entry after December 19, 1990.
Who is an ABC class member?
Class members` are defined solely by nationality and entry date. ABC class members are defined as:
All Salvadorans physically present in the United States on or before September 19, 1990, and
All Guatemalans physically present in the United States on or before October 1, 1990.
Continuous presence in the United States before or since these dates is not required. For example, if a Guatemalan entered the United States in July of 1990, returned to Guatemala in 1992, and reentered the United States in 1996, the individual is still an ABC class member and will be eligible for ABC benefits so long as he or she was not apprehended at the time of reentry in 1996 and meets the other eligibility requirements.
What is ABC registration?
To be eligible for ABC benefits, a Guatemalan or Salvadoran class member must have directly registered for ABC by sending an ABC registration form to the BCIS ABC Project post office box in Washington, D.C. by the date agreed upon by the parties to the settlement agreement. A Salvadoran class member may also have registered by applying for Temporary Protected Status (TPS) by the required date. Guatemalans and Salvadorans had different registration dates, as follows:
Guatemalans: Must have sent an ABC registration form to the ABC Project post office box in Washington, D.C. on or before December 31, 1991.
Salvadorans: Must have sent an ABC registration form to the ABC Project post office box in Washington, D. C. or applied for TPS on or before October 31, 1991.

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