American Baptist Churches v. Thornburgh (ABC) Settlement Agreement

Background

What Is the ABC Settlement Agreement?

In 1985, a group of religious organizations and refugee advocacy organizations filed a class action lawsuit in federal court against the Immigration and Naturalization Service (INS) (now USCIS), 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 INS (now USCIS), 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.

Benefits of the Settlement Agreement

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 a USCIS 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 USCIS' 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, USCIS 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 and 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 USCIS 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.

What Were the Deadlines for Applying for Asylum under the ABC Settlement?

To be eligible for ABC benefits, a class member must have applied for asylum within a specified period of time.  Those class members who had not applied for asylum by the time of the settlement were required to file for asylum by the following cut-off dates:

Guatemalans:  The class member must have filed an asylum application on or before January 3, 1995.
Salvadorans:  The class member must have applied for asylum on or before January 31, 1996 [The INS (now USCIS) then extended a grace period to February 16, 1996 for processing purposes], or within 90 days from issuance of a Notice 5.

Class members who had already applied for asylum at the time of the settlement were entitled to file a new asylum application, but were not required to do so.  For example, if a class member applied for asylum in 1988, he or she was not required to file another asylum application, even if the initial application had been denied.

What is Notice 5?

As required by the settlement agreement, USCIS sent a notice to Salvadorans who had registered for the first grant of TPS (regardless of whether they had subsequently re-registered for TPS or registered for Deferred Enforced Departure -- DED).  This notice is referred to as Notice 5 and was sent at the end of July 1995.

Notice 5 informed Salvadoran class members who applied for TPS that:

• they had a right to new asylum adjudications;
• in order to remain eligible for ABC benefits, they must apply for asylum by January 31, 1996, if an asylum application was not already on file with USCIS or EOIR; and
• they had the right to file a new application, even if they had an asylum application pending before USCIS or EOIR, but were not required to do so.

If USCIS determines that it did not send a Notice 5 to a Salvadoran who applied for TPS or that the notice was not sent to the last address provided by such a person to USCIS, USCIS will provide that person with a Notice 5 and give him or her 90 days from the date of notice to apply for asylum under the ABC settlement agreement.

Are There Any Bars to Eligibility for ABC Benefits if the Basic Eligibility Requirements Are Met?

Yes.  The settlement agreement specifically excludes two classes of individuals from eligibility, even if they meet all the basic requirements, such as class membership, registration and asylum filing requirements.

First, any class member who has been convicted of an aggravated felony, as defined in section 101(a)(43) of the Immigration and Nationality Act (INA) is ineligible for ABC benefits.

Second, any class member who is apprehended at the time of entry into the United States, after December 19, 1990, is ineligible for ABC benefits.

If you are otherwise eligible for ABC benefits, but a bar applies, USCIS will give you a letter explaining that you have been found ineligible for ABC benefits.  The USCIS cannot remove you from the United States for 30 days from the date of that notice, unless the removal is based on an aggravated felony conviction. This is to give you time to challenge the finding if you think it is incorrect.

Dependents

If I Am Eligible for ABC Benefits, Are My Spouse and Children Eligible Too?

Not necessarily.  Each person must independently establish eligibility for ABC benefits.  This means that your spouse or child may be eligible for ABC benefits only if he or she is a class member, has registered for ABC, and has met the applicable deadline for applying for asylum.

To be a class member, your spouse or child must be a 1) Guatemalan national who entered the United States on or before October 1, 1990, or 2) a Salvadoran national who entered the United States on or before September 19, 1990.

To register, your spouse or child must have individually registered for ABC benefits. Your registration for yourself will not count for registration for your spouse or child.

If your spouse or child was properly included in your asylum application by the applicable deadline, that will count as having met the filing deadline.  A dependent will also be considered to have met the asylum filing deadline if the dependent, though not initially included on the principal’s asylum application, was properly included in the principal's asylum application before the expiration of the filing deadline.  Your spouse or child could also have met the filing deadline by submitting his or her own asylum application by the filing deadline.

What if a Spouse or Child Is No Longer Eligible to Be Included as a Derivative on an Asylum Application?

A dependent who is no longer eligible to be included as a derivative on a principal’s asylum application may still be eligible for ABC benefits, so long as the dependent is a registered ABC class member who was properly listed as an included dependent on a principal asylum application prior to the applicable filing deadline.  To retain ABC benefits, the dependent will be required to file his or her own principal asylum application within 90 days of being notified that he or she has lost derivative status.

When Will I Be Scheduled for an ABC Asylum Interview?

Beginning in 1997 the INS (now USCIS), suspended asylum interviews for ABC class members, except in certain circumstances, to give them an opportunity to apply for relief under NACARA 203. An ABC class member who has submitted a Form I-881 is scheduled for an ABC asylum interview at the same time as the NACARA 203 interview. Additionally, the USCIS Asylum Program recently began scheduling for interview ABC asylum applicants who have not filed a Form I-881 application for suspension of deportation or special rule cancellation of removal (NACARA 203) and who have not requested employment authorization in the last three years. In the future the USCIS Asylum Program will schedule remaining ABC Asylum applicants for interview. If they appear for the ABC asylum interview and indicate a desire to apply for relief under NACARA, the interview will be rescheduled to give them the opportunity to apply under NACARA.

If you are eligible for ABC benefits and do not wish to submit an I-881 and want to have an ABC asylum interview, please submit a written request for an ABC interview to the Asylum Office that has jurisdiction over your asylum claim.  If you have submitted an I-881 to USCIS, USCIS will schedule your ABC asylum interview at the same time you are scheduled for your I-881 (NACARA 203) interview.  USCIS continues to interview those ABC eligible applicants who are being detained.

Do I Need to Notify USCIS If I Move?

ABC class members are instructed to follow the same procedures as all other asylum applicants for reporting a change of address. See Frequently Asked Questions About Asylum: Do I Need to Notify USCIS If I Move? and How Do I Report a Change of Address to USCIS? Additionally, ABC class members should notify the Asylum Office that has jurisdiction over the class member's asylum application of any change of address. They can do this by sending to the Asylum Office responsible for the asylum application a copy of the Form AR-11 or a signed and dated letter containing the change of address. Please note, on November 30, 2005, the ABC Project Post Office Box was officially closed and use of Form I-855, ABC Change of Address Form, discontinued. Any mail sent to the ABC Project Post Office Box after that date will be returned to sender if the mail contains a return address, or destroyed if it does not. See USCIS Announces New Address Change Procedures for ABC Class Members and Follow-Up Message: USCIS Announces New Address Change Procedures for ABC Class Members.