760 F. Supp. 796 (1991) AMERICAN BAPTIST CHURCHES, et al., Plaintiffs, v. Richard THORNBURGH, et al., Defendants. Civ. No. C-85-3255-RFP. United States District Court, N.D. California. January 31, 1991. Marc Van Der Hout, Deborah Smith, Nat. Lawyers Guild, James J. Garrett, Michael L. Zigler, Lori A. Schechter, Darryl Hamm, Morrison & Foerster, San Francisco, Cal., Lucas Guttentag, American Civ. Liberties Union, Immigrants' Rights Project, Morton Stavis, Frank E. Deale, Ellen Yaroshefsky, Center for Constitutional Rights, New York City (Carolyn P. Blum, University of California, Asylum Appeals Clinic, Boalt Hall School of Law, Berkeley, Cal., of counsel), for plaintiffs. William T. McGiven, Jr., U.S. Atty., Stephen L. Schirle, Chief, Civ. Div., Mary Beth Uitti, Asst. U.S. Atty., San Francisco, Cal., Stuart M. Gerson, Asst. Atty. Gen., Robert L. Bombaugh, Director, Francesco Isgro, Lisa Dornell, Attys., Office of Immigration *797 Litigation, U.S. Dept. of Justice, Civ. Div., Washington, D.C., for defendants. STIPULATED ORDER APPROVING CLASS ACTION SETTLEMENT AGREEMENT PECKHAM, District Judge. On December 19, 1990, this Court provisionally approved the Stipulated Settlement Agreement submitted by the parties. Published notice of the pendency of the Settlement Agreement and of the fairness hearing was given to class members as provided in the Order Preliminarily Approving Stipulated Settlement Agreement by counsel for the plaintiffs in the manner set forth in the Declaration of Deborah Smith, filed on January 29, 1991. On January 31, 1991, the Court held a fairness hearing to consider objections to the proposed Settlement Agreement. The Court having considered the one objection received and having made an independent determination that the Settlement Agreement is a fair, adequate and reasonable settlement of this action, it is hereby ORDERED that the Settlement Agreement attached hereto is approved; and it is further ORDERED that the instant action is dismissed with prejudice pursuant to the terms of the Settlement Agreement except insofar as the Court retains continuing jurisdiction as provided for in Paragraph 33 of the said Agreement; and it is further ORDERED that the defendants, in making the disbursements of funds referred to in Paragraphs 5 and 41 of the said Agreement, will make the payments to Marc Van Der Hout as trustee and it is further ORDERED that costs and fees shall be as set forth in Paragraph 41 of the Settlement Agreement. APPENDIX STIPULATED SETTLEMENT AGREEMENT TABLE OF CONTENTS Page 1. AMENDMENT OF CLASS ............................................. 799 2. CLASS MEMBERS ELIGIBLE FOR DE NOVO ASYLUM ADJUDICATION ......... 799 a. SALVADORANS WHO: ............................................ 799 b. GUATEMALANS WHO: ............................................ 800 3. NOTICE OF RIGHTS HEREUNDER ..................................... 800 a. NOTICE BY PUBLICATION ....................................... 800 b. NOTICE BY MAIL .............................................. 800 1. CLASS MEMBERS IN EOIR PROCEEDINGS ........................ 800 2. CLASS MEMBERS WITH CASES PENDING IN FEDERAL COURT ................................................... 800 3. CLASS MEMBERS NOT IN PROCEEDINGS ......................... 800 c. SALVADORAN CLASS MEMBERS .................................... 800 1. APPLICANTS FOR TEMPORARY PROTECTED STATUS ................ 800 2. APPLICANTS GRANTED TEMPORARY PROTECTED STATUS WHO DO NOT RE-REGISTER .................................. 801 3. APPLICANTS WHO DO NOT APPLY FOR TEMPORARY PROTECTED STATUS .................................................. 801 d. CLASS MEMBERS DETAINED UNDER INS AUTHORITY .................. 801 4. CONTENTS OF NOTICES ............................................ 801 5. FUNDING FOR PUBLIC NOTICE ...................................... 801 6. TIME TO RESPOND TO MAILED NOTICE ............................... 802 7. TIME FOR FILING NEW ASYLUM APPLICATION ......................... 802 8. AVAILABILITY OF NOTICES AT INS OFFICES ......................... 802 9. FAILURE TO COMPLY WITH NOTICE AND FILING REQUIREMENT ........... 802 10. COMMENCEMENT OF DE NOVO ADJUDICATION ........................... 802 11. SCHEDULING OF INTERVIEWS ....................................... 803 12. LEGAL ASSISTANCE ............................................... 803 13. CONTINUANCE OF INTERVIEW ....................................... 803 *798 14. INSTRUCTIONS WITH RESPECT TO REVIEW OF PRIOR APPLICATIONS ...... 803 15. PRELIMINARY ASSESSMENT AFTER INTERVIEW ......................... 803 16. ADDITIONAL REVIEW PROCEDURES ................................... 804 17. DETENTION OF CLASS MEMBERS ELIGIBLE FOR RELIEF ................. 804 18. EMPLOYMENT AUTHORIZATION ....................................... 804 a. SCOPE ....................................................... 805 b. FILING OF A COMPLETE ASYLUM APPLICATION ..................... 805 c. TIMELY ADJUDICATIONS ........................................ 805 d. ELIGIBILITY AND FEES ........................................ 805 e. WORK AUTHORIZATION AFTER DENIAL ............................. 805 19. STAY OF DEPORTATION AND DEFERRAL OF EXCLUSION AND DEPORTATION CASES PENDING NEW ADJUDICATION ................................ 805 a. PENDING ASYLUM OFFICER DETERMINATION ........................ 805 1. ADMINISTRATIVE CLOSING OF CASES PENDING BEFORE EOIR .................................................... 805 2. CASES PENDING BEFORE THE ATTORNEY GENERAL ................ 806 3. CASES PENDING IN THE FEDERAL COURTS ...................... 806 4. CASES NOT STAYED ......................................... 806 b. STAY PENDING JUDICIAL REVIEW ................................ 806 20. RESUMPTION OF CASES IF ASYLUM IS DENIED ........................ 806 a. CASES PENDING BEFORE IMMIGRATION JUDGES ..................... 806 b. CASES PENDING BEFORE THE BIA ................................ 807 c. CASES PENDING IN THE FEDERAL COURTS ......................... 807 21. CLASS MEMBERS WITH FINAL ORDERS ................................ 807 22. COMMENTS OF THE BUREAU OF HUMAN RIGHTS AND HUMANITARIAN AFFAIRS TO THE ASYLUM OFFICER ................................. 807 23. REVIEW OF GLOSSARIES ........................................... 807 24. CENTRALIZED INFORMATION CENTER ................................. 807 25. INSTRUCTIONAL MATERIALS ........................................ 807 26. OPPORTUNITY TO ADDRESS TRAINING SESSION TO BE HELD FOR THE BHRHA ..................................................... 808 27. OPPORTUNITY TO ADDRESS TRAINING SESSION FOR NEW ASYLUM OFFICERS ...................................................... 808 28. OPPORTUNITY TO ADDRESS IMMIGRATION JUDGES ...................... 808 29. GAO MONITORING ................................................. 808 30. PLAINTIFFS' MONITORING ......................................... 808 31. TOLLING PROVISION .............................................. 809 32. REPRESENTATION AND WARRANTY .................................... 809 33. RETENTION OF JURISDICTION ...................................... 809 34. EXERCISE OF JURISDICTION ....................................... 809 35. CLAIMS BY INDIVIDUAL CLASS MEMBERS ............................. 809 36. DISPUTE RESOLUTION ............................................. 810 a. NOTICE OF CLAIMED VIOLATION ................................. 810 b. RESPONSE OF ADVERSE PARTY ................................... 810 c. NEGOTIATION ................................................. 810 d. DEPORTATION ................................................. 810 e. DETENTION ................................................... 810 37. TERMINATION .................................................... 810 38. DISMISSAL ...................................................... 810 39. RELEASE FROM OBLIGATIONS UNDERTAKEN PURSUANT TO SIGNING OF AGREEMENT BY THE PARTIES ................................... 811 40. REPRESENTATIONS REGARDING AGREEMENT ............................ 811 41. PAYMENT OF ATTORNEYS' FEES AND COSTS ........................... 811 42. NOTICES ........................................................ 811 *799 WHEREAS, Plaintiffs, many Salvadoran and Guatemalan citizens in the United States, have filed this action against Defendants, Richard L. Thornburgh, on behalf of the United States Department of Justice, Gene McNary, on behalf of the Immigration and Naturalization Service ("INS"), and James A. Baker, III, on behalf of the United States Department of State, raising, among other issues, systemic challenges to the processing of asylum claims filed by Salvadorans and Guatemalans pursuant to the Refugee Act of 1980 and the regulations promulgated thereunder; and WHEREAS, the system of asylum processing has been significantly changed by regulations effective October 1, 1990; and WHEREAS, under the new asylum regulations as well as the old: foreign policy and border enforcement considerations are not relevant to the determination of whether an applicant for asylum has a well-founded fear of persecution; the fact that an individual is from a country whose government the United States supports or with which it has favorable relations is not relevant to the determination of whether an applicant for asylum has a well-founded fear of persecution; whether or not the United States Government agrees with the political or ideological beliefs of the individual is not relevant to the determination of whether an applicant for asylum has a well-founded fear of persecution; the same standard for determining whether or not an applicant has a well-founded fear of persecution applies to Salvadorans and Guatemalans as applies to all other nationalities; and WHEREAS, Section 302 of the Immigration Act of 1990, Pub.L. No. 101-649, to be codified at § 244A of the Immigration and Nationality Act, 8 U.S.C. § 1254a, amends the Immigration and Nationality Act to authorize the Attorney General to designate any foreign state (or any part thereof) so as to give Temporary Protected Status to nationals of such state; and WHEREAS, Section 303 of the Immigration Act of 1990 designates El Salvador under INA Section 244A and thereby entitles Salvadorans who meet the requirements of Section 303 to Temporary Protected Status; and WHEREAS, Plaintiffs and Defendants believe that it is in their best interests to settle this action by establishing the practices and procedures set forth below; THEREFORE, Plaintiffs and Defendants enter into and stipulate that this agreement imposes binding obligations on the parties and their successors and that this agreement constitutes a full and complete resolution of the issues raised in this action. 1. AMENDMENT OF CLASS. At or before the time this agreement is submitted to the Court for final approval, the parties will submit a joint motion for recertification of the class to include only: a. all Salvadorans in the United States as of September 19, 1990; and b. all Guatemalans in the United States as of October 1, 1990. Unless the class is so recertified by the Court at the time the agreement is finally approved this agreement shall be of no force and effect. 2. CLASS MEMBERS ELIGIBLE FOR DE NOVO ASYLUM ADJUDICATION. The following class members, if they have not been convicted of an aggravated felony as that term is defined in the Immigration and Nationality Act, as amended, will be afforded a de novo, unappealable asylum adjudication before an Asylum Officer, including a new interview, under the regulations in effect on October 1, 1990: a. Salvadorans who: (1) apply for Temporary Protected Status under Section 303 of the Immigration Act of 1990 within the statutory period designated for registration under Section 303(c)(3) of such Act, whether or not such individual actually qualifies for such status; or (2) indicate to the INS their intent in writing to apply for a de novo asylum adjudication before an Asylum Officer, *800 or otherwise to receive the benefits of this agreement, within the period of time designated for initial registration under Section 303(c)(3) of the Immigration Act of 1990. b. Guatemalans who indicate to the INS in writing their intent to apply for a de novo asylum adjudication before an Asylum Officer, or otherwise to receive the benefits of this agreement, within the period of time commencing July 1, 1991 and ending on December 31, 1991. However, Salvadoran and Guatemalan class members who were interviewed by an Asylum Officer regarding their asylum applications between October 1, 1990 and November 23, 1990, will not be entitled to obtain a new asylum interview or a new initial Asylum Officer adjudication but will be entitled to all other rights and benefits they would otherwise receive under this agreement except for the provisions of paragraph 22 for those BHRHA comments issued prior to the date of preliminary approval. Class members apprehended at time of entry after the date of preliminary approval of this agreement shall not be eligible for the benefits hereunder. 3. NOTICE OF RIGHTS HEREUNDER. Notice of the availability of rights hereunder shall be given to class members in English and Spanish in the following manner. a. NOTICE BY PUBLICATION. All class members who are entitled to benefits under this agreement will receive notice by publication only, unless a class member is specifically entitled to personal notice either by personal service or by first-class mail under paragraphs b, c, or d below. b. NOTICE BY MAIL. (1) CLASS MEMBERS IN EOIR PROCEEDINGS. All class members who had cases pending with EOIR on November 30, 1990, or those pending on certification before the Attorney General, will be mailed a notice by Defendants, via first-class mail, informing them of the opportunity for eligible class members to apply for a de novo asylum adjudication before an Asylum Officer and providing a list, furnished by Plaintiffs by December 31, 1990, and limited to 8 pages, of available legal services. The notice will be mailed to either the class member, or to the current attorney or accredited representative who is listed on the EOIR computer, whichever party is listed with EOIR as being the appropriate party to receive notices. No notice need be mailed to class members whose cases were administratively closed prior to November 30, 1990. Salvadorans shall be mailed this notice by March 31, 1991. Guatemalans shall be mailed this notice on or after July 1, 1991, and no later than September 30, 1991, except as specifically set forth in subparagraph d, below. (2) CLASS MEMBERS WITH CASES PENDING IN FEDERAL COURT. Class members who have cases pending in federal court (except those cases listed in Exhibit 16) will be mailed a notice by Defendants via first-class mail, informing them of the opportunity for eligible class members to apply for a de novo asylum adjudication before an Asylum Officer. The notice will be mailed to either the class member or to the current attorney of record. Salvadorans shall be mailed such notice prior to March 31, 1991. Guatemalans shall be mailed this notice on or after July 1, 1991, and no later than September 30, 1991, except as specifically set forth in subparagraph d, below. (3) CLASS MEMBERS NOT IN PROCEEDINGS. No asylum denial or intent to deny asylum will be issued to eligible class members whose District Director asylum interviews were conducted prior to October 1, 1990. c. SALVADORAN CLASS MEMBERS. (1) APPLICANTS FOR TEMPORARY PROTECTED STATUS. Salvadoran class members who apply for Temporary Protected Status, shall be provided *801 with further written notice, in the following time and manner, of eligible class members' right to apply to an Asylum Officer for a de novo asylum adjudication: (a) Class members who obtain Temporary Protected Status shall be sent a notice by first-class mail no sooner than thirty (30) days before the expiration or termination of such status. (b) Class members who apply for but are denied Temporary Protected Status shall be served notice by first-class mail or by personal service upon such denial. In each case, the notice shall advise eligible class members that they must submit any new asylum application within 90 days. If a new application is not submitted, the Asylum Officer adjudication will proceed based on the previously-filed application, if one exists, and any supplements submitted thereafter. (2) APPLICANTS GRANTED TEMPORARY PROTECTED STATUS WHO DO NOT RE-REGISTER. Salvadoran class members who are granted Temporary Protected Status but whose status is terminated because they do not re-register in the six-month period commencing July 1, 1991, may be sent a notice at any time after January 1, 1992, as set forth in Exhibit 4, advising them that they must return the attached response form within 90 days indicating their intent to proceed with an asylum adjudication before an Asylum Officer. Individuals who return that response form would continue to be entitled to receive the notice specified in Paragraph 3(c)(1) above. A class member who fails to return the response form shall remain eligible for a readjudication if he or she comes to INS and satisfies the reasonable excuse standards set forth in paragraph 13. (3) APPLICANTS WHO DO NOT APPLY FOR TEMPORARY PROTECTED STATUS. Salvadoran class members who timely apply solely for a de novo asylum adjudication under this agreement shall be served in person or by first class mail, at such time as the government may determine, notice of the right of eligible class members to file a new asylum application within 90 days of the receipt of notice. d. CLASS MEMBERS DETAINED UNDER INS AUTHORITY. Any class member entitled to notice under this agreement, who is in detention pursuant to INS detention authority, shall receive the notice set forth in Exhibits 1 and 2 promptly by personal service from INS. A class member who is subject to an INS detainer, while in the custody of the Attorney General or any state or local penal official pursuant to a commitment after conviction for a crime, shall not be considered detained under INS authority until he is released from the custody deriving from the conviction. Whenever a detained class member is required to respond to a notice in order to preserve any rights or benefits under this agreement, the INS shall provide the detained class member with all forms and writing materials necessary to exercise rights or benefits under this agreement and a photocopy of the class member's executed response or a receipt of filing. 4. CONTENTS OF NOTICES. Plaintiffs and Defendants agree to use the notices in the form attached hereto as Exhibits 1, 3, 4, 5, 6, and 8A for Salvadorans and Exhibits 2, 7 and 8B for Guatemalans. Along with these notices, the Defendants will also mail Form I-765. 5. FUNDING FOR PUBLIC NOTICE. Defendants will provide to Plaintiffs' Counsel $200,000.00 to fund public notice to be expended generally as set forth in the public notice plan attached as Exhibit 15. Published notice that is funded in whole or in part by the Defendants will not be disseminated unless the parties agree on the content of the publication. The newspaper advertisement will be as set forth in Exhibit *802 15A and 15B. Any additional newspaper announcements or advertisements will be submitted to Defendants and, if no objection is received from Defendants within 10 days time, Plaintiffs may place the advertisement or announcement. If announcements or advertisements will run in newspapers not mentioned in Exhibit 15, the names of those publications shall be submitted to Defendants who will have 10 days to object to the forum. Radio and television announcements or advertisements may be disseminated on any stations licensed by the FCC. The script for any television or radio announcement or advertisement must be submitted to Defendants who will have ten days to object to such script. Defendants agree to exercise their review in good faith and will not object to the content of any publication unless the information is incorrect, misleading or is derogatory toward the government. This agreement does not limit public notice not funded by the Defendants. The funds for the public notice must be provided as follows: $100,000 within 10 days after the court has given preliminary approval to this agreement and $100,000 within 10 days of final approval. Plaintiffs will account for the use of the funds and will return any unused portion. Two accounts will be provided; one by September 1, 1991, and the other by March 1, 1992. Any unused funds will be returned by April 1, 1992. 6. TIME TO RESPOND TO MAILED NOTICE. Guatemalan class members who receive notice by mail will have a 90 day period from the mailing of the notice in which to notify the INS of their desire to avail themselves of the opportunity to appear before an Asylum Officer. Salvadoran class members who receive notice by mail pursuant to paragraph 3(b) and who do not apply for Temporary Protected Status shall have until June 30, 1991 to respond. Proof of mailing the notice via first class mail is a rebuttable presumption of receipt of the notice. 7. TIME FOR FILING NEW ASYLUM APPLICATION. Class members who receive notice by mail or in person and who have 90 days from the mailing of the notice to seek a de novo asylum adjudication before INS are entitled to an additional 90 days to file a new asylum application (I-589). A class member who does not submit a new application will receive a de novo adjudication by the Asylum Officer based on any previously-submitted application. Either application may be supplemented after submission. The Defendants will provide only the initial 90-day notice. For those Guatemalan class members to whom only public notice is directed, the opportunity to seek a de novo asylum adjudication shall remain open until December 31, 1991. Guatemalans who timely indicate their intent may submit any new application for asylum for consideration by an Asylum Officer by no later than March 31, 1992. 8. AVAILABILITY OF NOTICES AT INS OFFICES. The INS agrees to make notices available to class members who walk into INS offices to request information based on the public notice. The information to be provided to walk-ins will be in the form attached hereto as Exhibit 6 for Salvadorans and Exhibit 7 for Guatemalans. 9. FAILURE TO COMPLY WITH NOTICE AND FILING REQUIREMENT. Failure to file a timely response to the mailed or personally served notice or failure to timely file the asylum application if no application is already on file will render class members ineligible for any relief set forth in this settlement agreement. Proof of the mailing will be a rebuttable presumption that the class member received notice. 10. COMMENCEMENT OF DE NOVO ADJUDICATION. The parties agree that, with respect to the class members afforded a de novo adjudication before an Asylum Officer pursuant to this agreement, the Defendants shall hold in abeyance the new adjudications until April 1, 1991, except for detained class members, represented aliens who request an earlier interview and Guatemalans with a final order of deportation who receive mailed notice pursuant to paragraph *803 3(b). However, for those class members who receive mailed notice and (1) are Salvadorans who do not register for Temporary Protected Status or the benefits of this agreement by June 30, 1991; or (2) are Guatemalans who do not timely respond by December 31, 1991, or within 90 days of the date of mailing if notice by mail is required, with a request for a de novo adjudication before an Asylum Officer, any relief under this agreement is deemed waived, and proceedings before EOIR or the courts which were either administratively closed or stayed may be resumed at the discretion of the Defendants. 11. SCHEDULING OF INTERVIEWS. The Defendants, consistent with governmental resources, reserve the right to control the scheduling of the interviews for all eligible class members not in detention. Non-detained class members who are provided an employment authorization document will not commence or maintain an action to compel a timely interview arising out of this agreement until July 1, 1994. Eligible class members (other than aliens who may be detained under the standards set forth in paragraph 17 and whose proceedings may be stayed by the provisions of paragraph 19(a)(1)) will not be placed in proceedings nor will proceedings be resumed before the adjudication is completed. However, Salvadorans who were granted Temporary Protected Status and are issued orders to show cause pursuant to section 303(d)(1) of the Immigration Act of 1990 may be placed in deportation proceedings at any time after January 1, 1992. Such proceedings will then be administratively closed until the adjudication process before the Asylum Officer is completed. 12. LEGAL ASSISTANCE. The INS will provide to class members who avail themselves of the interview procedure set forth in this agreement, a list of legal or accredited organizations willing to assist class members. The list shall be furnished by Plaintiffs to Defendants by December 31, 1990, and will not exceed 8 pages. The INS reserves the right to also provide the local free legal services list to class members. 13. CONTINUANCE OF INTERVIEW. Eligible class members will receive written notification of their interview date, including the attachment set forth in Exhibit 9, and will be given one continuance based on the submission of a written request on Form G-56 to reschedule, provided that request is received by INS at least two days before the scheduled interview. All other requests for continuances or reschedulings of interview dates, including those submitted after the interview date, will be granted only if the applicant has a reasonable excuse for not appearing. If the asylum claim has been denied due to a failure to appear at an interview and the applicant provides within a reasonable time such a reasonable excuse, (as illustrated in Matter of Ruiz, Int. Dec. 3116 (BIA 1989)), the asylum claim shall be reopened (without need to file a motion to reopen) and the application processed without regard to the failure to appear. Without limiting any other bases for reasonable excuse, a showing by the applicant at any time that he did not receive an interview notice or that it was sent to a prior address after the applicant informed the INS of a change of address shall constitute a reasonable excuse. An unexcused failure to appear for interview will be a ground for recommendation to deny or a denial of asylum. 14. INSTRUCTIONS WITH RESPECT TO REVIEW OF PRIOR APPLICATIONS. Administrative files shall not be reviewed or considered by Asylum Officers except pursuant to the procedures and instructions set forth in Exhibit 10, the terms of which are incorporated herein by reference. 15. PRELIMINARY ASSESSMENT AFTER INTERVIEW. After an eligible class member has been interviewed by an Asylum Officer and before any prior administrative file is reviewed or the application is sent to the BHRHA for comment, the Asylum Officer shall make a preliminary assessment on whether or not the applicant appears to have established a *804 prime facie case of either past persecution, or a well-founded fear of persecution, based on one of the five statutory grounds which shall be noted on the INS assessment sheet. Any transmittal to the Bureau of Human Rights and Humanitarian Affairs of the State Department (hereinafter "BHRHA") by the INS requesting BHRHA comments on a class member's asylum application shall contain a specific recommendation by the Asylum Officer to grant or deny asylum. The Asylum Officer shall not reserve judgment or otherwise make a "non-committal" recommendation or assessment. If the initial determination is that it appears that either past persecution or a well-founded fear of persecution based on one of the five statutory grounds has been established, the application will not be denied without (1) informing the applicant in writing of the specific facts and reasons for such change, (2) informing the applicant of the right to inspect the record of proceedings, including any non-privileged adverse information, and (3) informing the applicant of the opportunity to submit comments or evidence to rebut the notice of intent to deny. 16. ADDITIONAL REVIEW PROCEDURES. The INS shall implement the following procedures for a period of 30 months, commencing on January 1, 1991. The initial decision will be made by the Asylum Officer who interviews the class member. The case will then be reviewed de novo by a supervisory Asylum Officer. If the initial decision to deny an application was made by an Asylum Officer who prior to October 1, 1990, had interviewed asylum applicants, made preliminary recommendations or adjudicated asylum claims, or if an Asylum Officer's decision to grant asylum is overruled by a supervisor who, prior to October 1, 1990, had interviewed asylum applicants, made preliminary recommendations or adjudicated asylum applications for INS, the case will be reviewed and the final determination made by INS CORAP by a person who had not adjudicated asylum claims before October 1, 1990. That person shall complete the review form set forth in Exhibit 11. 17. DETENTION OF CLASS MEMBERS ELIGIBLE FOR RELIEF. The INS may only detain class members, eligible for relief under paragraph 2, who are otherwise subject to detention under current law and who: (1) have 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 (2) pose a national security risk; or (3) pose a threat to public safety. Where an eligible class member would be subject to detention, regardless of whether the class member is actually in detention, defendants may, at their election, provide notice to the eligible class member and process the class member's readjudication application pursuant to the provisions applying to detained class members. However, the government reserves the right to impose a semi-annual reporting requirement upon those class members whom the government determines are likely to abscond. Notwithstanding any other provision of this agreement, any Guatemalan who was in the United States as of October 1, 1990, who has not been convicted of an aggravated felony, who is in detention and could not be detained under the provisions of this paragraph if he were an eligible class member, shall be released upon delivering to INS the response form attached to Exhibit 2, and he or she shall have 180 days from his release to file a new asylum application if one is not on file. The special rules in this paragraph with respect to detention of class members shall not prevent the INS from detaining a class member after the Asylum Officer has issued a final decision. Such detention, if based on a likelihood of absconding, may only be based on events occurring after the Asylum Officer decision has been rendered. 18. EMPLOYMENT AUTHORIZATION. The following special provisions shall apply to requests for work authorization by class members entitled to the benefits of paragraph 2: *805 a. SCOPE. The employment authorization procedures set forth in this agreement apply only to class members who identify themselves as class members and who seek work authorization under this agreement. b. FILING OF A COMPLETE ASYLUM APPLICATION. Class members who seek employment authorization must have an asylum application on file or file a completed asylum application and Form I-765. Class members may supplement the asylum application up until the date of the decision by the Asylum Officer. c. TIMELY ADJUDICATIONS. Class members who request employment authorization on Form I-765 and who do not have such request adjudicated within sixty days of filing, will be entitled to immediate employment authorization. d. ELIGIBILITY AND FEES. Notwithstanding any other provisions concerning eligibility for employment authorization or the waiver of fees for asylum applicants, eligible class members who apply for employment authorization under this agreement are entitled to employment authorization without regard to the "non-frivolous" standard required under 8 C.F.R. § 208.7(a) and class members may be charged the fee generally applicable to employment authorization applications (currently $35), for the issuance of the employment authorization document (hereinafter "EAD"). Eligible class members who can demonstrate that they fall within the poverty guidelines as set forth in 45 C.F.R. § 1060.2 will not be required to pay the fee. The government agrees that no fee will be imposed to extend the EAD unless a fee for extension is provided for by regulation for asylum applicants generally. Nothing in this agreement shall preclude the INS from assessing fees authorized by the statute for temporary protected status. e. WORK AUTHORIZATION AFTER DENIAL. Applications for employment authorization and/or extensions thereof, after denial of the asylum application, will be governed by the provisions of the regulations that became effective on October 1, 1990, or as subsequently amended. 19. STAY OF DEPORTATION AND DEFERRAL OF EXCLUSION AND DEPORTATION CASES PENDING NEW ADJUDICATION. Unless an individual class member objects and waives the right to apply hereunder, upon signing of this agreement by the parties, Defendants agree to stay the deportation and, on or before January 31, 1991, (subject to preliminary Court approval of this agreement), to stay or administratively close the EOIR proceedings of any class member (unless they have been convicted of an aggravated felony), whose cases were pending on November 30, 1990, until the class member has had the opportunity to effectuate his or her rights under this agreement. However, any class member whose deportation proceeding is based on a criminal ground of deportability or whose proceeding was commenced after November 30, 1990, will not have his or her case automatically administratively closed on or before January 31, 1991. Rather, that individual may ask the Immigration Court or the BIA to administratively close his or her case and the case will be administratively closed unless the class member has been convicted of an aggravated felony or is subject to detention under paragraph 17. a. PENDING ASYLUM OFFICER DETERMINATION. While an eligible class member's new asylum adjudication is pending before an Asylum Officer, the following rules shall apply to administrative and judicial proceedings: (1) ADMINISTRATIVE CLOSING OF CASES PENDING BEFORE EOIR. Proceedings before EOIR will be administratively closed (except for class members detained under the provisions of paragraph 17 whose proceedings *806 shall be stayed if they request such action) pending an adjudication by an Asylum Officer. The adjudication will proceed even if the case is pending before EOIR. In those cases where an Asylum Officer determines that asylum should be granted, the government will move to terminate proceedings before EOIR so that the officer will have jurisdiction to grant the asylum request. If the Immigration Judge decides not to terminate such proceedings, the INS will stipulate before the Immigration Judge that the class members shall be granted asylum, and, if necessary, join in an appeal from the denial of asylum. (2) CASES PENDING BEFORE THE ATTORNEY GENERAL. If a class member's case is pending before the Attorney General for review under 8 C.F.R. § 3.1(h) (1990), the review will not be stayed by virtue of this agreement and the class member's asylum claim before the Asylum Officer need not be adjudicated under this agreement until the Attorney General renders his decision. (3) CASES PENDING IN THE FEDERAL COURTS. Where a case is pending in a federal court, except a case pending on the government's rehearing petition or petition for certiorari, the government, upon final court approval of this agreement, will make a request that the proceeding be stayed pending an adjudication by an Asylum Officer, unless an individual class member objects to a stay in his or her case. The government will move to vacate the final order and to dismiss the federal court proceedings where an Asylum Officer determines that asylum should be granted. (4) CASES NOT STAYED. For the cases set forth in Exhibit 16 which are not stayed because they are pending on petition for rehearing or certiorari or pending before the Attorney General, the eligible class member shall be deemed to have met all responding and filing requirements for a de novo asylum adjudication before an Asylum Officer. At the completion of the federal court or Attorney General proceeding, those individuals will be sent a notice informing them of their right to submit a new asylum application to an Asylum Officer unless asylum has otherwise been granted to them. b. STAY PENDING JUDICIAL REVIEW. Defendants will stay the deportation of class members denied any of the rights or benefits of this agreement (including membership in the class and eligibility to apply) for 30 days from the date of such denial to permit the applicant to pursue an action in federal court, except that persons ordered deported pursuant to 8 U.S.C. § 1251(a)(4)(B) [8 U.S.C. § 1251(a)(2)(A)(iii) as amended by Public Law 101-649] shall not have their deportations stayed by virtue of this agreement. 20. RESUMPTION OF CASES IF ASYLUM IS DENIED. If the asylum application is finally denied under the procedures set forth in this agreement, the following rules will apply to resumption of proceedings: a. CASES PENDING BEFORE IMMIGRATION JUDGES. Upon notice from INS, the proceedings shall be recalendared. If the asylum hearing had not previously been completed, further testimony and evidence may be presented and the new asylum application may be submitted to the immigration judge for decision and may become part of the record of proceedings. The INS will join in a motion by the class member to make the new asylum application a part of the record. The old application will remain in the record for whatever evidentiary value it might have. In those cases where the asylum hearing has been completed but the immigration judge has not issued a decision, the INS will join in a motion that the immigration judge reopen the proceeding and take additional *807 evidence on any new issues or facts asserted in the asylum application. b. CASES PENDING BEFORE THE BIA. Upon notice from INS the proceedings shall be resumed. Where the class member seeks a remand to the immigration judge, the INS will stipulate that the evidence presented in support of the motion was not previously available, but reserves the right to oppose the class member's motion to remand on any other basis. c. CASES PENDING IN THE FEDERAL COURTS. The government will request that the court proceedings be resumed. A class member is not precluded from filing a motion to reopen with EOIR subject to the applicable regulations, but this agreement shall not otherwise expand the class member's rights to reopen in any way. 21. CLASS MEMBERS WITH FINAL ORDERS. Nothing in this agreement shall be construed to afford a right to further deportation or exclusion proceedings for those class members with a final order of deportation or exclusion, with the exception of any stays granted pursuant to paragraph 19. 22. COMMENTS OF THE BUREAU OF HUMAN RIGHTS AND HUMANITARIAN AFFAIRS TO THE ASYLUM OFFICER. Any BHRHA comments to the Asylum Officer for class members will not contain a recommendation to deny asylum without articulation of the reasons for the recommendation. The reasons stated will refer to all facts or considerations by which the recommendation is made. Each BHRHA comment letter issued with respect to a class member will contain a statement that: This letter is advisory only. It is only one of several sources of information relevant to the applicant's claim. You may also rely on material provided by other credible non-governmental sources and international organizations. The determination regarding asylum is to be made by the Immigration and Naturalization Service and/or the Executive Office for Immigration Review. 23. REVIEW OF GLOSSARIES. The Department of State has provided for Plaintiffs' review the glossaries or form language being used by BHRHA officers in their advisory opinions on Salvadoran and Guatemalan asylum claims and maintained in the computerized data base of the BHRHA as of October 1, 1990. BHRHA will consider Plaintiffs' comments, which will be provided by February 1, 1991, in making any revisions it deems necessary to those glossaries and form language and will provide copies of the revised glossaries or form language and copies of deleted materials to plaintiffs' counsel by April 1, 1991. 24. CENTRALIZED INFORMATION CENTER. INS shall include in its centralized information center additional materials prepared by groups included on the list attached hereto as Exhibit 12 to the extent supplied by the groups or the plaintiffs. In the event a computer data base is developed such materials will be considered for inclusion if submitted in machine readable form. Until a computerized data base is created and thereafter for materials which may be too voluminous to include in the data base, the INS will distribute supplied copies of the reference materials described herein to each administrative center for Asylum Officers. 25. INSTRUCTIONAL MATERIALS. The Defendants agree to distribute to all Asylum Officers, BHRHA personnel preparing comments on asylum applications, and immigration judges a copy of the training manual entitled "United States Law and INS Refugee/Asylum Adjudications" as revised. The training manual is an attempt to explain the law and procedure of asylum as it has been interpreted by the BIA and the courts to date. It is not intended to create legal rights in any individual. None of the provisions of this manual shall have the force and effect of law. The Defendants reserve the full right to provide additional materials which they *808 deem appropriate in the light of continuing interpretations of the law by the administrative authorities and the courts. The delivery to BHRHA personnel, EOIR personnel, and Asylum Officers is solely for their information and is not intended to be a binding guide to their decisions in individual cases. 26. OPPORTUNITY TO ADDRESS TRAINING SESSION TO BE HELD FOR THE BHRHA. Plaintiffs' representatives may address BHRHA Asylum Officers for a length of time not less than one-half day at a future training session planned for 1990-91, plus an additional one-half day with those officers responsible for Central America. The scope of the presentation will be asylum law and procedures and country conditions. 27. OPPORTUNITY TO ADDRESS TRAINING SESSION FOR NEW ASYLUM OFFICERS. Plaintiffs' representatives will be given the opportunity to address for a length of time of not less than one day the Asylum Activity Preparation Training Class for Asylum Officers to be held in or about March of 1991 at no expense to the government. The contents of Plaintiffs' designees' remarks will not be restricted by the government and may include special factors believed to be appropriate to adjudicating class members' asylum applications. The Defendants do not intend to either censor or endorse the views Plaintiffs may express in those sessions. However, the Defendants reserve the right to be the final arbiter of the interpretation to be given to case law on asylum. 28. OPPORTUNITY TO ADDRESS IMMIGRATION JUDGES. Plaintiffs' representatives will be given an opportunity to address for a period of time not less than two hours the immigration judges' conference to be held in or about May of 1991 pursuant to such financial arrangement as are generally applicable to other non-governmental speakers. The scope of the presentation will be asylum law and procedures and the terms of this settlement agreement. 29. GAO MONITORING. The parties agree that the GAO will be invited to conduct at least two reviews of the government's asylum program as administered by INS and EOIR under the new regulations, the earliest of which will commence no earlier than May 1, 1992. The Department of Justice is not in a position to commit the GAO to conduct such studies. However, the Department will consult with Plaintiffs and the parties will jointly accept responsibility for raising the matter with the GAO. Plaintiffs believe that the areas set forth in Exhibit 13 are among those appropriate for GAO study. Defendants do not object to Plaintiffs having the same opportunity to comment, prior to publication, on the GAO report as may be afforded to INS, EOIR and other government entities, if GAO is willing to afford Plaintiffs that opportunity. 30. PLAINTIFFS' MONITORING. In addition, Defendants will provide Plaintiffs with the following materials for the period of time indicated: a. within 30 days from the date of mailing the names, A-numbers, addresses and counsel of record, if any, to the extent such information is contained in the EOIR computer data base, for each class member in EOIR proceedings who is mailed notice pursuant to paragraph 3; b. within 90 days from the end of the initial registration period the names, A-numbers, addresses and counsel of record, if any, of all class members who apply for Temporary Protected Status to the extent supplied by the registrant at the time of registration; c. on a quarterly basis, the names, A-numbers, addresses and counsel of record, if any, of all Guatemalans who apply for the benefits of this agreement as well as any Salvadorans who apply solely for the benefits of this agreement and not for Temporary Protected Status to the extent such information is supplied by the applicant to INS; *809 d. a list of the names and A-numbers of all class members whose EOIR notices are returned to the designated return address on the notice (or a copy of such return notices); e. a list of the names, A-numbers if available, and counsel of record with addresses, if any, of all cases pending in the federal courts in which a motion to stay proceedings is filed pursuant to the requirements of this agreement; f. copies of the Department of Justice (including INS and EOIR) and Department of State (including BHRHA) initial written instructions, after preliminary Court approval, if any, and after final Court approval, to their personnel for the implementation of the agreement. g. on a quarterly basis, a list of all cases by name and A-number sent to CORAP for review pursuant to paragraph 16; h. pursuant to written authorization of a class member, a copy of the following documents from such class member's A-file: Asylum Officer preliminary assessment and transmittal sheets pursuant to paragraph 15; The information provided shall be held by Plaintiffs' counsel, subject to the terms of the protective order attached as Exhibit 14, except that it shall be permissible for Plaintiffs' counsel to contact class members for the purpose of imparting information about the terms of this settlement, to facilitate the obtaining of counsel and to inquire as to the compliance of the Defendants with the terms of this agreement. 31. TOLLING PROVISION. With respect to any designation of Guatemala under INA § 244A or other similar executive or legislative temporary suspension of deportation, if any such relief is afforded to any eligible Guatemalan class members in the future, the terms set forth in this settlement agreement regarding the timing for the sending of and responding to notices as described in paragraphs 3 and 4 for Salvadoran Temporary Protected Status applicants shall apply to Guatemalan class members. 32. REPRESENTATION AND WARRANTY. Defendants represent and warrant that they are fully authorized and empowered to enter into this agreement on behalf of the United States Department of Justice, the United States Department of State, the Immigration and Naturalization Service and the Executive Office for Immigration Review and acknowledge that Plaintiffs enter into this agreement based on this representation. The undersigned signing on the behalf of others warrant and declare that they have all the required authorization to execute this agreement and that upon execution of the agreement in their representative capacities, their principals, and successors of such principals, shall be bound hereunder to the full extent authorized by law. 33. RETENTION OF JURISDICTION. The Court will retain jurisdiction through this action over only the following matters: a. claims by any party hereto that any other party has engaged in a pattern or practice of violation of the terms of Paragraphs 1-42 of this agreement; b. the express repudiation of any of the terms of Paragraphs 1-42 of this agreement by any party; or c. claims brought under paragraph 35; d. resolution of any dispute regarding an award of plaintiffs' attorneys' fees. 34. EXERCISE OF JURISDICTION. In exercising the retained jurisdiction under paragraph 33(a) and (b), the Court shall not act on any matter until the complaining party has initiated the dispute resolution mechanism under paragraph 36, the time for response has expired, and the negotiations have proved fruitless; nor shall the Court modify or expand in any way the undertakings of the parties hereunder without the consent of all parties. 35. CLAIMS BY INDIVIDUAL CLASS MEMBERS. If an individual class member who has sought the benefits or rights of this agreement raises any claim regarding the denial of any such right or benefit *810 (including a dispute over membership in the class) that is not within the Court's retained jurisdiction under paragraph 33(a) or (b) above, such individual is entitled to seek enforcement of the provisions hereof by initiating a separate proceeding in any federal district court, and the Defendants will not contest the jurisdiction of such court to hear any such claim except for failure of the class member to follow the procedures specified in paragraphs 2, 6, 7 and 18 of this agreement to obtain rights hereunder. If the federal district court nonetheless declines to hear the class member's claims, he shall be entitled to bring such matter before this Court and the Court will retain jurisdiction under this agreement over the class member's claims. The dispute resolution mechanism of paragraph 36 will not apply to claims brought under this paragraph. 36. DISPUTE RESOLUTION. A significant purpose of this settlement agreement is to remove complex litigation from the Court. In order to effectuate this purpose the parties agree to the following dispute resolution mechanism: a. NOTICE OF CLAIMED VIOLATION. Upon learning of any fact or facts that constitute the basis for asserting that a party has engaged in a pattern or practice of violation of the terms of this agreement or expressly repudiated any of its terms (as provided in paragraph 33(a) and (b)), the party shall notify the other party hereto of that fact or facts and request a report on any action to be taken with respect thereto prior to invoking the enforcement provisions of this agreement. b. RESPONSE OF ADVERSE PARTY. Except as provided in subparagraph e, within 30 days after receipt of such notice the other party shall notify the first party of the results of its investigation of the facts and any action it has taken or intends to take in connection therewith. c. NEGOTIATION. Thereafter the parties shall negotiate in good faith in an effort to resolve any disputes remaining after the undertakings set forth sub-paragraphs a and b have been completed. d. DEPORTATION. In any case where the notice of claimed violation concerns a class member identified by name, other than one convicted of an aggravated felony, who is at risk of imminent deportation, the Defendants shall not deport (or if deported subsequent to Defendants' receipt of notice under subparagraph a, shall offer to return the class member to the United States) such class member during the pendency of the dispute resolution procedure and 30 days thereafter to seek any judicial review. e. DETENTION. In any case where the notice of claimed violation concerns a class member who asserts that he or she is detained in violation of paragraph 17, the time for response under subparagraph b shall be 7 business days. Nothing in this provision shall limit class members' entitlement to seek judicial relief through habeas corpus to challenge his or her detention. 37. TERMINATION. The obligations assumed by the Defendants hereunder shall terminate 30 months after January 1, 1991, except with respect to any aspect of the settlement relevant to individual cases still pending on that date, including Defendants' obligations under 3(c)(1), or as otherwise specifically provided herein. If Temporary Protected Status is extended, or if the INS chooses not to serve the notice in paragraph 3(c)(1)(b), the