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Francois v. Johnson

United States District Court, D. Arizona

April 21, 2014

Sabina Francois, Plaintiff,
Jeh Johnson, et al., [1] Defendants.


PAUL G. ROSENBLATT, District Judge.

Before the Court is Defendants' motion to dismiss. (Doc. 14.) Plaintiff filed a response opposing the motion, together with a cross-motion for summary judgment. (Doc. 23.) Defendants responded with a motion to hold Plaintiff's cross-motion for summary judgment in abeyance. (Doc. 26.) For the reasons set forth herein, the Court grants Defendants' motion to dismiss. The other motions will be denied.


Plaintiff, a native and citizen of Trinidad and Tobago, states that she lawfully entered the United States as a nonimmigrant visitor on August 12, 1983. (Doc. 1, ¶¶ 11, 12.) Plaintiff married Randolph Barclay, a U.S. citizen, on February 1, 1992. ( Id., ¶ 13.) On March 15, 1993, Barclay filed a spousal visa petition (Form I-130) with the Immigration and Nationalization Service ("INS"), seeking to classify Plaintiff as his spouse for immigrant visa purposes. ( Id., ¶ 14.) On the same day, Plaintiff filed an adjustment application (Form I-485) with the INS, seeking to adjust her status to that of a lawful permanent resident and obtain a green card. ( Id. )

Plaintiff was unable to produce her passport and her Form I-94, evidencing that she was lawfully admitted to the United States in 1983. ( Id., ¶ 19.) Plaintiff attempted to establish that she lawfully entered the United States by submitting affidavits, but the INS deemed the affidavits insufficient because they did not clearly establish the date of her entry. ( Id., ¶ 19, 20.) The INS advised Plaintiff and Barclay to withdraw their pending documents and to re-file new documents that would not require Plaintiff to prove her lawful entry. ( Id., ¶ 21.) On July 23, 1993, Plaintiff withdrew her pending adjustment application and Barclay withdrew his pending spousal visa petition. ( Id., ¶ 23.)

On July 8, 1994, Barclay filed a second spousal visa petition for Plaintiff. ( Id., ¶ 22.) The INS approved that petition on August 18, 1994. ( Id., ¶ 24.) On October 1, 1994, 8 U.S.C. § 1255(i) became effective. ( Id., ¶ 25.) Pursuant to that statute, Plaintiff filed a new application and paid the $1, 000 fee on December 6, 1994. ( Id., ¶ 26.) The INS interviewed Plaintiff and Barclay regarding the adjustment application on May 4, 1995. ( Id., ¶ 27.)

Following the interview, the INS determined that Plaintiff's marriage to Barclay was not legitimate such that it could confer immigration benefits to Plaintiff. ( Id., ¶ 28.) The INS did not notify Plaintiff of its intent to revoke the petition before the actual revocation occurred. ( Id., ¶ 30.) It did, however, issue a Notice of Intent to Revoke ("NOIR") to Barclay on September 25, 2000, informing him of the reasons it intended to revoke the approved petition.[2] (Doc. 14, Ex. A at 4.) On March 20, 2001, the INS revoked Barclay's approved spousal visa petition pursuant to 8 U.S.C. § 1154(c). (Doc. 1, ¶ 28.) Plaintiff alleges that Barclay appealed that revocation to the Board of Immigration Appeals ("BIA") on April 3, 2001. ( Id., ¶ 32.) On July 16, 2001, the INS denied Plaintiff's second adjustment application because there was no approved spousal visa petition. ( Id., ¶ 33.) On January 1, 2002, Barclay and Plaintiff divorced. ( Id., ¶ 36.)

Plaintiff then married a second U.S. citizen, James Earl Voice. ( Id., ¶ 37.) Voice filed a spousal visa petition for Plaintiff with the United States Citizenship and Immigration Services ("USCIS")[3] on October 19, 2006, and Plaintiff filed a third adjustment application on the same date. ( Id. ) On July 6, 2007, USCIS denied Voice's spousal visa petition under section 1154(c) based on its conclusions that Voice and Plaintiff had failed to establish the legitimacy of their marriage, as well as that of Plaintiff's marriage to Barclay. ( Id., ¶ 39; see Doc. 14, Ex. B at 3.) USCIS denied Plaintiff's third adjustment application on the same date, again because there was no approved spousal visa petition. ( Id., ¶ 40.) Voice appealed the denial of his spousal visa petition to the BIA. ( Id .; see also Doc. 14, Ex. B at 3.) On October 7, 2009, the BIA vacated the denial because USCIS had failed to issue Voice a Notice of Intent to Deny ("NOID") before it denied his petition, and remanded the matter to USCIS for further action. (Doc. 14, Ex. B at 4.)

On July 6, 2007, U.S. Immigration and Customs Enforcement ("ICE") issued a Notice to Appear ("NTA") against Plaintiff, thereby initiating removal proceedings against her. (Doc. 1, ¶ 41; Doc. 14, Ex. A at 1.) Pursuant to Plaintiff's motion, the immigration judge dismissed those proceedings as premature because Voice's appeal to the BIA was still pending. (Doc. 14, Ex. A at 10.) ICE then issued a new NTA on February 4, 2011, re-initiating removal proceedings. ( Id., Ex. C at 1.) ICE amended its NTA to add additional charges against Plaintiff on August 29, 2012. ( Id. at 1; see Doc. 1, ¶ 46.)

Plaintiff moved to terminate her removal proceedings on the basis that she became a lawful permanent resident pursuant to her 1993 adjustment application. (Doc. 14, Ex. C. at 2.) In support of this defense Plaintiff produced a document that had been stored in her alien file and which her counsel had received in response to a FOIA request. ( Id. at 5.) The document, an undated notice with the rubber-stamped signature of former INS District Director Ruth Anne Myers, states that Plaintiff's 1993 adjustment application was granted. ( Id. ; see Doc. 1, ¶ 43.)

ICE and Plaintiff disputed the legal effect of this document during Plaintiff's removal proceedings. ( Id. at 5-11.) On May 11, 2012, the immigration judge denied Plaintiff's motions to terminate. ( Id. at 2.) Plaintiff moved the immigration judge to reconsider that order. ( Id. ) On December 6, 2012, the immigration judge rejected Plaintiff's argument that this notice constituted evidence that she was lawfully admitted for permanent residence pursuant to her 1993 application. ( Id. at 11.) The immigration judge explained that "clear and convincing evidence supports the DHS argument that respondent's 1993 application for adjustment of status was not approved, notwithstanding the existence of the undated and unissued approval notice in the respondent's file." ( Id. ) The immigration judge therefore concluded that Plaintiff "is not a lawful permanent resident of the United States" and held her removable. ( Id. )

On July 22, 2009, Plaintiff filed an application to naturalize (Form N-400) with USCIS, seeking U.S. citizenship. (Doc. 1, ¶¶ 55, 81.) USCIS rejected the filing on the same date for "residency issues." (Doc. 14, Ex. D.) Plaintiff filed this action on September 26, 2013.


Plaintiff's complaint raises six causes of action, alleging claims under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706; the Declaratory Relief Act, 28 U.S.C. § 2201; and the Mandamus Act, 28 U.S.C. § 1361. Specifically, Plaintiff alleges that she is entitled to relief because USCIS unlawfully revoked Barclay's I-130 petition and unlawfully denied Plaintiff's I-485 applications. She seeks an order compelling USCIS to register her status as a lawful permanent resident. Defendants contend that the complaint must be dismissed ...

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