98 Cal. Daily Op. Serv. 3748, 98 Daily Journal D.A.R. 5164 Maria Walters William Walters Cesar Corona-Alvarez Antonio Alvarez Ninfa De Adames, Guadalupe Adames, Husband and Wife Camila Garcia-Cruz Omar Kayyam Meziab, Leslie Meziab, Husband and Wife, on Behalf of Themselves and All Others Similarly Situated v. Janet Reno, Attorney General of the United States Doris M. Meissner, Commissioner of the United States Immigration and Naturalization Service United States Immigration and Naturalization Service

The Attorney General of the United States and other parts of the U.S. government (collectively, "the government") appeal from the district court's determination that certain administrative procedures employed by the Immigration and Naturalization Service ("INS") violated the constitutional requirements of due process. The government also appeals the district court's certification of the plaintiff class and the court's entry of permanent injunctive relief. We agree with the district court that the nationwide procedures by which the INS obtained waivers in document fraud cases violated the aliens' rights to due process of law. We also agree that certification of plaintiffs as a class under Fed.R.Civ.P. 23(b)(2) was appropriate. And although we modify one of the provisions in the injunction, we uphold its principal terms.

The plaintiffs brought suit against the government on behalf of themselves and similarly situated noncitizens, seeking declaratory and injunctive relief on the ground that the administrative procedures used by the INS to obtain final orders under the document fraud provisions of the Immigration and Naturalization Act of 1990 ("INA" or "the Act") violated their rights to procedural due process. Under § 274C of the Act, 8 U.S.C. § 1324c, the INS may issue an unappealable final order against an alien who has been accused of document fraud if the alien does not request a hearing in writing within 60 days of receiving the notice of intent to fine ("the fine notice") and the notice of rights/waiver ("the rights/waiver notice") forms. Such an order renders the alien deportable and permanently excludable. Deportation is automatic, except in narrowly limited circumstances. If the alien signs a statement waiving his rights with respect to the document fraud charges, including his right to a hearing, the INS will immediately issue an unappealable final order assessing a fine and requiring the alien to cease and desist from his wrongful conduct, but the ultimate result that ordinarily will follow soon thereafter will be the issuance of an order of deportation.

In their complaint, the plaintiffs contend that despite the dramatic immigration consequences for those charged with violating the document fraud provisions of the INA, the forms served on aliens in connection with these charges are dense and written in complex, legal language. The plaintiffs allege that on account of the confusing nature of the forms, aliens in document fraud proceedings are not adequately informed of the steps they must take in order to contest the charges brought against them and thus do not learn how to obtain a hearing on them. Moreover, they allege, they do not learn the true consequences of failing to request that hearing. They also challenge the general procedures by which the forms are presented to them. The plaintiffs moved to certify a class of approximately 4,000 aliens who had been or were subject to final orders, and moved for the entry of a preliminary injunction, summary judgment, a permanent injunction, and an order requiring the INS to reopen each plaintiff's document fraud case and provide hearings if necessary.

In March 1996, Judge Coughenour certified the plaintiffs as a class with the following characteristics:

All non-citizens who have or will become subject to a final order under § 274C of the Immigration and Naturalization Act because they received notice forms that did not adequately advise them of their rights, of the consequences of waiving their rights or of the consequences of failing to request a hearing.

Under the district court's order, an individual alien can establish his status as a class member by attesting that he did not understand either his rights in the document fraud proceedings or the consequences of waiving his rights. In the same order, Judge Coughenour ruled on summary judgment that the procedures and forms used by the INS in document fraud cases are unconstitutional because they deny aliens their rights to due process of law. The court also granted permanent injunctive relief; the terms of the injunction were to be decided after the parties submitted proposals to the court.

In October 1996, Judge Coughenour entered final judgment in favor of the plaintiffs and granted a permanent injunction requiring the INS to take a variety of actions to remedy the constitutional violations. According to the terms of the injunction, the INS must: (1) revise the two misleading forms (the fine notice and the rights/waiver notice); (2) send notice to possible class members at their last known addresses, and, through a publicity campaign that must include specific attempts to contact all class members inside and outside of the country, publicize the opportunity for class members to reopen their document fraud proceedings; (3) refrain from deporting noncitizens on the basis of § 274C final orders that were entered without a hearing until class members have the opportunity to pursue reopening procedures; (4) reopen § 274C proceedings for each class member who was subject to a § 274C final order, unless the government can show that alien received adequate notice; (5) parole or make other arrangements for class members outside the United States to pursue reopened proceedings; and (6) recharge any alien charged with deficient forms who failed to request a hearing but has not yet been subjected to a final order, unless the government can show that the alien received adequate notice.

In its order certifying the class and finding due process violations, the district court did not resolve all of the claims raised by the plaintiffs. However, after the government moved for summary judgment in its favor on the remaining claims,1 the district court stated in its order for a permanent injunction that "there is no reason to rule on the alternate grounds for that relief represented by the three issues defendants ask the Court to decide." The district court dismissed without prejudice the leftover claims.

The government challenges the district court's factual findings and legal conclusions in toto.

Although there is no question that the United States has extraordinarily broad powers in the area of immigration and border control, it is also well established that aliens facing deportation from this country are entitled to due process rights under the Fifth Amendment. Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). As the Supreme Court has explained on a number of occasions, "once [an] alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly." Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). Thus, the government is not free to deport an alien from the United States unless it has first accorded him the most basic procedural protections--notice and a hearing at a meaningful time and in a meaningful manner. Id. at 32-33, 103 S.Ct. 321.2 The plaintiffs assert that the INS regularly violates these constitutional precepts in the context of document fraud proceedings.

At the heart of this case is the plaintiffs' allegation that the procedures by which INS agents procured waivers of the right to a hearing in document fraud proceedings were constitutionally deficient because the forms used in connection with these proceedings did not adequately inform aliens of their right to a hearing or of the drastic immigration consequences that would ensue if the alien failed to request a hearing. As a result, the aliens' waivers were not made knowingly and voluntarily. These procedures, the plaintiffs contend, have been employed nationwide by the INS in virtually every case in which the government has charged an alien with committing document fraud.

An alien who is alleged to have committed civil document fraud in violation of § 274C learns of the charges against him by means of several INS forms that are served upon him. Two forms--the fine notice and the rights/waiver notice--are served simultaneously. Because aliens who commit civil document fraud are subject to immediate deportation, they also receive another form, an Order to Show Cause ("OSC") regarding deportation. The OSC is frequently served at the same time as the initial two forms.

The fine notice, which is written in English, informs the alien of the specific charge against him and states that he will be fined and ordered to cease and desist from the prohibited activity as a consequence of the charge. This form also notifies the alien that he may request a hearing to contest the charge. With respect to the hearing, the fine notice states:

If a written request for a hearing is not timely filed, the Service will issue a final and unappealable order directing you to pay a fine in the amount specified in this Notice and to cease and desist from such violation(s).

Notwithstanding the notice's statement that the failure to file a request for a hearing will result in a final order imposing a fine and a cease and desist requirement, the notice does not explain or even mention the severe immigration consequences that will ordinarily result if the alien fails to request a hearing--specifically, the high probability that the alien will be deported immediately. Nor does it advise the alien that document fraud constitutes a deportable offense and that he will not be able to contest the charge at his deportation hearing.

The rights/waiver notice is a very dense form. It is divided roughly into thirds. In the top third, it lists the various rights to which the alien is entitled in the context of document fraud proceedings, such as the right to be represented by an attorney and the right to file a written request for a hearing. Buried in the middle third of the form, just above a line on which the INS official signs his name to indicate personal service, is a statement that an alien who is subject to a final order under § 274C "will be excludable pursuant to Section (a)(6)(F) of the Act and deportable pursuant to Section 241(a)(3)(C) of the Act." In the bottom third of the notice, the INS provides a section in which the alien may waive his right to a hearing and admit that he engaged in document fraud. The acknowledgement reads:

I acknowledge that I have (read) (had interpreted and explained to me in the _____ language) and understand the contents of this document, a copy of which I have received. I further understand that I waive the right to request a hearing before an administrative law judge and agree to pay the penalty amount, as specified in the Final Order. I understand that this waiver shall result in the entry of a Final Order for a violation of Section 274C of the Act, from which there is no appeal.

The acknowledgement does not state that the alien understands that by waiving his right to a hearing as to the document fraud charges he also waives his right to challenge his deportability and excludability on that account, and he will in most instances be permanently barred from re-entering the country. The acknowledgement only asks the alien to acknowledge that he is agreeing to pay a fine and that an order will be issued "for a violation of Section 274C of the Act." It does not ask him to acknowledge that he is consenting to his deportability and that the deportation hearing he will receive will in most instances be rendered meaningless. Further, neither the fine notice nor the rights/waiver notice provides a form the alien can use to request a hearing on the charges of document fraud.

In addition to these two forms, aliens charged with civil document fraud are also served with an OSC regarding deportation. As noted above, the OSC is frequently served simultaneously with the fine notice and the rights/waiver notice. The OSC is five pages long, and, unlike the fine notice and the rights/waiver notice, which are written in English only, the OSC is written in both English and Spanish. Often, a warrant authorizing the arrest of the alien, also translated into Spanish, is attached to the OSC.

The first page of the OSC notifies the recipient that deportation proceedings are pending against him and informs him of the specific allegations with respect to his deportability. Sometimes the allegations refer to the document fraud, which is the subject of the accompanying documents. Sometimes they charge only illegal entry or some similar offense. OSCs in the second category may then be amended to charge the document fraud directly. The second page explains the purpose of the notice as follows:

This notice identifies your rights as an alien in deportation proceedings, and your obligations and the conditions with which you must comply in order to protect your eligibility to be considered for certain benefits.

It further explains that a hearing will be scheduled "no sooner than 14 days from the date [the alien] was served with [the OSC]" and that at this hearing, the alien "will be given the opportunity to admit or deny any or all of the allegations in this Order to Show Cause, and whether [he is] deportable on the charges set forth [in the order]." It does not, however, advise an alien who has been charged in the OSC with document fraud that unless he requests a separate hearing on those charges, he will not be able to contest them at the deportation hearing, and that he will not be able to contest his deportability or excludability at any time thereafter. Nor does it tell him that in order to obtain the separate hearing on the document fraud charges, he must file a separate written request, unlike in the case of the deportation hearing, which, he is told, he will receive automatically. It also does not advise those aliens who are charged with offenses other than document fraud that the document fraud charges, which were contained in the other forms that were simultaneously served on him, or were served on him during the same general time period, cannot be contested at the deportation hearing. Finally, it does not provide the alien with any form that will enable him to request the separate hearing that is required on the document fraud charges.

On the third page, the OSC identifies the specific provision of the INA under which he is subject to deportation and explains that the INS will mail under separate cover a notice regarding the date of the deportation hearing. The fourth page describes in detail the sequence of events that will follow if the alien fails to appear at the deportation hearing. The fifth and final page contains a Certificate of Translation and Oral Notice, in which the alien may verify that the OSC was read to him in Spanish.

In sum, an alien charged with civil document fraud receives three forms advising him of two hearings. One hearing, he is told--the hearing on the document fraud charges, the consequence for which is stated to be a fine and a cease and desist order--will be held only if the alien submits a written request. The other hearing, the alien is advised--the hearing on the far graver issue whether he will be deported--will be held automatically, without the need for him to do anything. He is also told that at that hearing he will be able to respond to the allegations that constitute the basis for the threatened deportation. None of the forms advises the alien that if he fails to request a separate hearing on the document fraud charges, the deportation hearing he receives will ordinarily be meaningless, that he will be found deportable and excludable on the ground of document fraud without any further opportunity to challenge that determination, and that his deportation will in most instances be virtually automatic.

As a threshold matter, we must determine whether the district court's grant of summary judgment was proper. In reviewing that decision, we view the evidence presented in the light most favorable to the nonmoving party. We look first at the facts upon which the district court relied and examine the government's contention that material facts were in dispute. We then consider the government's argument that the district court's legal analysis is flawed.

The district court concluded that the plaintiffs were entitled to summary judgment because the INS procedures for securing waivers of a hearing on document fraud charges create an unacceptable risk of confusion likely to result in erroneous deportation. Specifically, the district court found that the following factors caused many aliens to misapprehend the consequences of the failure to seek a hearing on the document fraud charges.

First, the district court found that because the forms are written in complex and legalistic language, they "fail to indicate in clear, simple terms that a document fraud final order leads to immediate deportation with almost no chance of readmission." In reaching its conclusion that the members of the plaintiff class were unable to understand the import of the fine notice and rights/waiver notice forms, the district court relied on statistical evidence to show that noncitizens generally do not understand that when they sign the rights/waiver form, they are waiving their right to contest the document fraud charges. Additionally, the district court relied on specific testimony by class members who testified that when they signed the waivers, they did not fully understand that they were relinquishing their right to be heard on the document fraud charges; rather, they believed that they could still contest the document fraud charges at their deportation hearing.

Further, the district court found that class members who signed waivers did not understand the severe immigration consequences attendant on the document fraud charges. Specifically, they did not understand that by relinquishing their right to a hearing as to the document fraud charges, they were effectively relinquishing their right to contest their deportability or excludability. In its order granting summary judgment, the district court stated that "[m]ost, if not all, of the aliens who testified stated that they did not understand the forms, and did not realize that they faced permanent exclusion." Indeed, the district court observed that the forms are so obscure and confusing with respect to this point that even some of the INS agents who administer them are unable to explain adequately the immigration consequences of a final order on document fraud charges. According to the district court, the agents' ignorance not only demonstrates that the forms themselves are inadequate, but also shows that the agents are incapable of remedying the insufficiency of the forms by providing an explanation to the aliens.

Next, the district court noted that the impenetrable and confusing nature of the forms was heightened in the specific context in which they were used. Given that most recipients of the forms are noncitizen immigrants whose primary language is one other than English, the court concluded there is very little chance that they, in particular, would be able to plow through the legalistic language in order to figure out what steps to take so as to contest their deportation.

Additionally, the district court determined that the English-only waiver forms, which explain the document fraud hearings, are frequently presented at the same time as the OSCs regarding deportation. Unlike the fine notice and the rights/waiver notice, which are presented in English only, the OSCs are presented in English with a Spanish translation after each line or with a Spanish translation set forth in parallel columns. The simultaneous presentation of these forms is significant because they all refer to integrally related matters. The district court concluded that because the OSCs are written in both English and Spanish but the fine notice and rights/waiver notice forms are not, an alien who receives all of the forms is likely to believe that the OSC is of greater importance than the other two.

Finally, Judge Coughenour concluded that the language of the OSC is likely to give the alien the impression that in order to challenge the document fraud charge he need only appear at the deportation hearing. In other words, the OSC would lead an alien to believe that it is not necessary to take any action with respect to document fraud in order to obtain a deportation hearing at which he can effectively oppose a finding of deportability and excludability. This impression is, the district court concluded, contrary to the actual facts. As Judge Coughenour pointed out, the document fraud charge can only be contested at a separate document fraud hearing, and the alien must file a written request in order to obtain such a hearing; if the alien fails to make a request for that hearing, a final, unappealable order is entered, thereby rendering him immediately deportable, and by the time the deportation hearing rolls around the question of the alien's deportability and excludability has been resolved against him.3

The government argues that the district court ignored conflicting factual evidence in determining that the INS forms and procedures violated due process, and that summary judgment was therefore inappropriate. In support of its contention that the district court improperly granted summary judgment, the government identifies several disputed issues of fact, and argues that the district court ignored these factual disputes in finding that the forms do not provide adequate notice. Although we agree with the government that some factual issues are in dispute, we do not find that any of these issues is material to the plaintiffs' due process claims. Significantly, the government does not challenge any of the facts upon which the district court relied in concluding that the document fraud forms and procedures do not provide adequate notice. Because they played no role in the district court's constitutional analysis, the factual issues identified by the government are not material.

For example, the government points out that a factual dispute exists regarding the language abilities of the class members. The government contends that, while the district court stated that it is "uncontestable that most respondents speak primarily or only Spanish," evidence in the record demonstrates that in fact, "[m]any 274C respondents speak English well, have a working knowledge of English, or worked and lived in the United States a significant length of time." In making this argument, the government apparently wants us to attribute to the district court a categorical conclusion that the members of the plaintiff class do not speak any English. However, we do not read the district court's statement to mean anything more than what it says. That some class members may be able to communicate to a certain extent in English does not contradict the point upon which the district court relied--those who are charged with document fraud are, for the most part, aliens whose primary language is not English. Moreover, we conclude that the documents are so bureaucratic and cumbersome and in some respects so uninformative and in others so misleading that even those aliens with a reasonable command of the English language would not receive adequate notice from them.

We have likewise considered the remaining issues of fact identified by the government as being in dispute and conclude that none of them is of any consequence to the determination that the forms are constitutionally inadequate. We emphasize that summary judgment may be proper even in light of existing factual disputes, as long as none of the facts in dispute is material. Given the essential facts that determine the outcome in this case--the complexity and ineptness of the forms and the fact that they are designed to provide essential information of constitutional significance to persons of foreign birth--we conclude that the district court properly found that no issues of material fact precluded summary judgment.

According to the government, the district court's legal conclusions regarding the constitutionality of the INS forms are erroneous, and it advances the following arguments in support of this position: (1) the contents of the forms adequately apprise the alien of his rights and the direct consequences of waiving those rights, and due process does not require that forms, such as the waiver of rights form, be in any language other than English; (2) in applying Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the district court erred in calculating the various interests at stake and, as a consequence, misapplied the balancing test; and (3) even if there was a constitutional violation, the plaintiffs failed to demonstrate that any prejudice flowed therefrom.

Initially, the government contests the district court's decision that the forms fail adequately to inform aliens of their rights and of the consequences of waiving them. Our review of the forms leads us to conclude that the district court properly evaluated them in light of all the relevant circumstances and correctly determined "that a confluence of factors " rendered them constitutionally inadequate. Whether or not any one of the factors alone might be insufficient to create a due process violation, the combination of factors--the forms' failure to advise the alien in clear terms of the need to request a separate hearing on the document fraud charges in order to contest deportability on that ground; the forms' failure to explain the drastic immigration consequences that ensue from a final order on the document fraud charges; the fact that the fine notice informs the alien that the penalty for document fraud is simply the imposition of a fine and the issuance of a cease and desist order; the fact that the acknowledgement in the rights/waiver form does not state that a failure to request a hearing will result in a finding of deportability and permanent excludability, and in most instances immediate deportation (although the acknowledgement purports to set forth the consequences of that failure); the legalistic language and confusing references to sections of the INA; the practice of presenting the monolingual fine notice and rights/waiver notice forms simultaneously with the bilingual OSC;4 the failure to provide translations or explanations of the forms (other than the OSC) to aliens who have difficulty comprehending English; and the statements in the OSC assuring the alien that he will receive a deportation hearing at which he may refute the charges that will serve as the basis for deportation--produces a high likelihood that aliens receiving the forms will be confused and misled.

We reject the government's argument that the document fraud forms satisfy the notice component of due process even if they do not apprise the alien of the drastic consequences regarding deportation.5 Informing an alien that a final order under § 274C will result in a finding of deportability and permanent excludability, and in most instances immediate deportation, is necessary in order to ensure that the alien understands that he must request a separate hearing on the document fraud charges in order to preserve his rights. Otherwise, the alien has no reason to know that by waiving his opportunity for a document fraud hearing, he is waiving his right to a meaningful deportation hearing. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ("The notice must be of such a nature as reasonably to convey the required information."). Here, the alien never learns how to take advantage of the deportation procedures because the combined effect of all the forms together is confusion. See also Perkins v. City of West Covina, 113 F.3d 1004, 1012 (9th Cir.1997) (explaining what kind of notice is constitutionally sufficient).

In fact, the forms the government serves on the plaintiffs are not only confusing, they are affirmatively misleading. The fine notice specifically advises the alien that a final order on the document fraud charges will direct him to pay a fine and to cease and desist from his wrongful conduct. It says nothing about the fact that a final order will result in a finding of deportability and excludability, or the likelihood that it will result in the alien's immediate deportation. The acknowledgement in the rights/waiver form exacerbates the problem by once again listing the penalties for the offense but failing to mention the drastic immigration consequences. Moreover, the OSC, which is frequently served on the alien simultaneously with the other two document fraud forms compounds the due process violation. Understandably, the OSC, which is the only form that is bilingual, is the most worrisome to the alien because it threatens deportation. As a consequence, many aliens are likely to pay more attention to the OSC than to any other form. Although the OSC specifically promises the alien an opportunity to be heard as to whether or not he should be deported, in document fraud cases such a promise is frequently illusory; for in the meantime, the alien will often have unknowingly waived his only opportunity for a hearing on charges that will render him both deportable and excludable. Yet nowhere does the OSC even hint at the need for the alien to request a separate hearing. To the contrary, it expressly informs him that a hearing at which he can contest the charges on which deportation is threatened will be scheduled automatically. By making that assurance, the government lulls the alien into a false sense of procedural security, whether or not document fraud ultimately serves as the basis for the deportation order; for, at the very least, the alien will without further recourse be held to be deportable and permanently excludable.

The government maintains that the district court erred in evaluating the relevant interests under the calculus established in Mathews v. Eldridge. As the Mathews balancing test makes clear, whether a particular procedure is sufficient to satisfy due process depends on the circumstances. Thus,

[i]n evaluating the procedures in any case, the courts must consider the interest at stake for the individual, the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and the interest of the government in using the current procedures rather than additional or different procedures.

Id. at 34, 96 S.Ct. 893 (citing Mathews, 424 U.S. at 319, 96 S.Ct. 893). We agree with the district court that the relevant factors weigh in favor of altering the document fraud forms.

It is clear that the plaintiffs' interests in this case are significant. See Plasencia, 459 U.S. at 34, 103 S.Ct. 321 (noting that the alien's interest in deportation proceedings "is, without question, a weighty one" because "[s]he stands to lose the right 'to stay and live and work in this land of freedom.' ") (quoting Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945)). The government's interests in the administration of its immigration laws and in preventing document fraud are likewise considerable. Id. Striking the proper balance between these interests can be achieved by adopting procedures that reduce the risk of erroneous deprivation without imposing an undue burden on the government.

Requiring the government to alter slightly its procedures in document fraud proceedings will achieve the desired effect--additional safeguards--without visiting upon it any inordinate hardship. Specifically, it is possible to reduce the risk of erroneous deprivation (i.e., erroneous deportation) by ensuring that aliens facing charges of document fraud are adequately notified that they must request a separate hearing to contest those charges and that their failure to do so will ordinarily foreclose their ability to challenge their status as deportable aliens.6 Providing constitutionally adequate notice requires only minor changes in the content of the forms themselves and equally slight adaptations in the INS's method of presenting the forms. Requiring the INS to ensure that there are no significant inconsistencies in the written language of forms that affect whether or not an alien will be rendered deportable and permanently excludable, and requiring minor modifications to the written content of the forms will not be unduly burdensome, particularly in light of the benefits of such safeguards.

The government additionally challenges the district court's finding that certain members of the plaintiff class suffered prejudice as a result of the constitutionally deficient proceedings.7 We question whether the plaintiffs in this case must demonstrate prejudice in order to prevail on their due process claims.8 However, because both parties assume that they must do so, we do not consider the question here. Instead, we assume arguendo that prejudice is required and conclude that the district court properly found that the plaintiffs made the required showing.

When it is necessary to demonstrate prejudice as a result of a constitutional violation, the alien must show that the inadequate procedures occurred "in a manner so as potentially to affect the outcome of the proceedings." Hartooni v. INS, 21 F.3d 336, 340 (9th Cir.1994); see also United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir.1996) (holding that in order to show prejudice, an alien need not prove that he would not have been deported, just that he had "plausible grounds for relief"). Ordinarily, there must be plausible scenarios in which the outcome of the proceedings would have been different, absent the constitutional violation. See United States v. Leon-Leon, 35 F.3d 1428, 1430 (9th Cir.1994).

Here, the district court determined that at least two class plaintiffs had demonstrated that the lack of adequate notice as to their document fraud proceedings potentially affected the outcome of their document fraud proceedings. In the cases of Ninfa Guerrero de Adames and Antonio Santana-Alvarez, the district court found that each had a viable legal defense to the charges that had been brought against them. With respect to Adames, the district court found that she could have made a persuasive argument that the document fraud charges, as applied to her, violated the prohibition against ex post facto laws. In Santana-Alvarez's case, the district court found that he had a strong legal argument that his conduct did not constitute a violation of the document fraud laws. There is no evidence to suggest that these findings are erroneous.9 The district court determined that if Adames and Santana-Alvarez had not waived their right to a hearing, they might have been able to defend against the charges successfully. Accordingly, the district court concluded that the lack of notice regarding the right to a hearing potentially affected the outcome of the proceedings.

We agree with the district court that Adames and Santana-Alvarez are not precluded from showing prejudice simply because they admitted, while testifying under grants of immunity, that they had used fraudulent immigration documents. It is sufficient for purposes of showing prejudice that the plaintiffs have demonstrated plausible grounds for relief. The potential legal defenses identified by the district court satisfy this standard.

Rule 23(a) provides that a court should certify a class only if the following prerequisites are met: (1) the class is too numerous, making joinder of the parties impracticable; (2) common questions of law or fact exist among the class members; (3) the claims of the class representatives are typical of the claims of the class; and (4) the class representatives will adequately represent the interest of the class. In addition to satisfying the mandatory prerequisites in Rule 23(a), the potential class members must also demonstrate that they meet at least one of the alternative requirements under Rule 23(b). In this case, the government disputes the existence of two of these requirements--commonality and adequacy of representation. Additionally, the government challenges the district court's certification of the class under Rule 23(b)(2).

Requiring there to be common questions of law or fact prior to certifying a class serves chiefly two purposes: (1) ensuring that absentee members are fairly and adequately represented; and (2) ensuring practical and efficient case management. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). In this case, each class member raises the same constitutional question: whether the nationwide procedures used by INS in document fraud proceedings sufficiently apprise aliens of their constitutional right to a hearing, thereby satisfying the notice component of due process.

The government maintains that the commonality requirement is lacking because the actual experiences of the class members are not sufficiently similar. Some indivi