United States District Court, D. Arizona
K. Jorgenson United States District Judge
before the Court is the Motion for Preliminary Injunction
and/or Temporary Restraining Order (Doc. 25) filed by
Plaintiff Carmen Figueroa Otero (“Otero”). A
response has been filed (Doc. 27). The parties presented
argument on October 26, 2016, and the Court took the matter
under advisement. In light of the scheduled interview of
Otero, on October 27, 2016, this Court issued a summary (Doc.
29) Order granting the request for Temporary Restraining
Order and setting this matter for hearing on the request for
Preliminary Injunction. The summary Order informed the parties
a more detailed order would follow. This is that Order.
Additionally, this Order modifies the specific injunctive
relief ordered in its summary Order (Doc. 29).
as the issues presented in the Motion to Dismiss (Doc. 17)
and the Motion for Leave to File Second Amended Complaint
(Doc. 18) are so interrelated to the issues presented in the
Motion for Preliminary Injunction and/or Temporary
Restraining Order (Doc. 25), the Court finds it is
appropriate to also address these pending motions herein.
and Procedural Background
February 16, 2016, Otero filed a Complaint for Declaratory
and Injunctive Relief against Jeh Johnson, Secretary for the
Department of Homeland Security, Leon Rodriguez, Director for
the United States Citizenship and Immigration Services
(“CIS”), John Kramer, District Court Director for
the Phoenix CIS, Julie Hashimoto, Director for the Tucson
Field Office of CIS (collectively, “Defendants”).
Otero alleges she believed in good faith she was a U.S.
citizen until approximately May 2013. She further alleges she
should be granted classification as an "immediate
relative" of her husband, Mr. Alberto Otero, who is a
U.S. citizen and resident of Marana, Arizona. An
"immediate relative" of a U.S. citizen is instantly
"eligible to receive an immigrant visa, " as long
as she can demonstrate she "was inspected and admitted
or paroled into the United States." See INA §
201(b), 8 U.S.C. § 1151(b); INA § 245(a), 8 U.S.C.
United States Department of Homeland Security
("DHS"), Citizenship and Immigration Services,
Tucson Field Office ("TFO"), denied Otero's
application on September 28, 2015, stating it was denying the
application because Otero had not been "inspected and
admitted or paroled into the United States, " because
she had used her improperly-issued U.S. passport to gain
entry into the country as a U.S. citizen in May 2013. The
decision denying the application states, inter alia:
You indicated on your Form I-485 that your last entry into
the United States was at or near San Ysidro, California on or
about May 2013, using a United States Passport. At that time,
you were not inspected, admitted, or paroled. Because you are
unable to show that you were inspected and admitted or
paroled, or that you are exempt from that requirement, you
are ineligible as a matter of law to adjust status in the
United States. You have not established that you are eligible
for adjustment under INA 245(i). Therefore, USCIS must deny
your Form I-485. See INA sections 245(a) and 245(i); 8 CFR
The Supreme Court has recognized that a United States citizen
is not subject to the same scrutiny and requirements as an
alien during the process of inspection and admission.
Reid v. INS, 420 U.S. 619, 624-25 (1975).
Immigration authorities more closely examine the right of
aliens to enter the country and they require and obtain
information and records, such as fingerprints and
registration forms, to help keep track of aliens who have
been admitted after they have entered the country.
Id. at 625. Aliens who enter by falsely claiming to
be a United States citizen significantly frustrate the
process for inspecting incoming aliens and effectively put
themselves in a position that is “comparable to that of
a person who slips over the border and who has, therefore,
clearly not been inspected.” Id. (quoting
Goon Mee Heung v. INS, 380 F.2d 236, 237 (1st Cir.
The BIA noted in Quilantan, 25 I&N Dec. at 293, that an
immigration officer is not empowered to inspect a United
States citizen in the same manner as an alien. Acknowledging
this difference in treatment between citizens and aliens, the
BIA held there that an alien who entered the United States
under a false claim of United States citizenship cannot be
considered to have been inspected. Id. (citing
Reid v. INS, 492 F.2d 251, 255 (2d Cir. 1974);
Matter of S-, 9 I&N Dec. 599, 600 (BIA 1962)). There is
no reason to diverge from the long-standing rule that an
alien who enters the United States by falsely claiming United
States citizenship, knowingly or otherwise, effectively
eludes the procedural regularity of inspection by an
immigration officer. See Reid v. INS, 420 U.S. at
624-25; Matter of F-, 9 I&N Dec. 54 (Reg'l
Comm'r, Ass't Comm'r 1960). It must therefore
hold that such an entry does not constitute an admission as
that term is defined in section 101(a)(13)(A) of the Act.
The evidence of record shows that, when you filed your
application, your were present in the United States contrary
to law because you were present without admission or parole.
You are not authorized to remain in the United States and
should make arrangements to depart as soon as possible.
Failure to depart may result in your being found ineligible
for immigration benefits and inadmissible to the United
States in the future. See section 212(a)(9)(B) of the INA.
for Leave to File Second Amended Complaint, Exhibit I,
Attachment 1 (Doc. 18-10) (emphasis added).
requested the matter be reopened or reconsidered on October
16, 2015. Defendants denied Otero's request on December
18, 2015. That decision states inter alia:
. . . The denial did not address a “knowingly”
false claim to United States citizen and denial was not based
on a false claim to United States citizen, rather that
applicant could not have been inspected and admitted because
the entry was as a United States citizen. It should be noted
that even though it was a false claim to United States
citizenry the applicant has not been charged or found
inadmissible for false claim to United States citizen.
* * * * *
The denial did not contain Title 8 of the Code of Federal
Regulations, Part 1235 - Inspection of Persons applying for
admission which states:
Title 8 - Aliens and Nationality [8 CFR]
PART 1235 - INSPECTION OF PERSONS APPLYING FOR ADMISSION [8
(b) U.S. citizens. A person claiming U.S.
citizenship must establish that fact to the examining
officer's satisfaction and must present a U.S. passport
if such passport is required under the provisions of 22 CFR
part 53. If such applicant for admission fails to satisfy the
examining immigration officer that he or she is a U.S.
citizen, he or she shall thereafter be inspected as an
Counsel has not provided any legal basis identifying that
aliens and United States citizens are inspected and admitted
in the same manner. In fact each of the precedent decisions
glaringly outline the significant difference in inspection
and admission of aliens as related to entry of a United
States citizen. Declaring the entry to be regular is a
disregard for the laws pertaining to aliens and those
relegated for United States citizens.
* * * * *
for Leave to File Second Amended Complaint, Exhibit J (Doc.
15, 2016, Defendants issued a decision that states:
. . . USCIS moves to grant the Service Motion to Reopen under
8 CFR 103.5(a)(5) based on the failure to establish whether
your false claim to United States citizenship was made
knowingly. Thus, the following order is entered:
ORDER: It is ordered that the motion be granted and the I-485
application be returned to a pending status.
for Leave to File Second Amended Complaint, Exhibit K (Doc.
18-12). Otero asserts Defendants had scheduled a re-interview
of her for October 28, 2016. Otero asserts:
Subjecting Ms. Figueroa Otero to another interview on the
subject of whether she made a knowing false claim to
citizenship would transform questioning into interrogation,
and would change the nature of the administrative proceedings
from non-adversarial to adversarial, which is prohibited.
See, e.g., USCIS Adjudicator's Field Manual
(“AFM”), Chapter 15.1(a) (2014)
(“Interviews conducted by adjudication officers are
non-adversarial in nature, as opposed to a court proceeding
involving two attorneys where each advocates a particular
position.”); see also id., Chapter 15.4(a)
(“Interview proceedings are not to be adversarial in
nature. The purpose of the interview is to obtain the correct
information in order to make the correct adjudication of the
case, not to prove a particular point or to find a reason to
deny the benefit sought. The purpose is to cover (and
discover) all the pertinent information, both favorable and
unfavorable to the applicant.).”
Proposed SAC (Doc. 24-1), p. 14 (emphasis removed).
requests this Court reverse the agency decision not to reopen
or reconsider its denial of Otero's adjustment of status
application,  order Defendants to grant Otero's
adjustment of status application, and retain jurisdiction
during the adjudication of the adjustment of status
application in order to ensure compliance with the
Amended Complaint (Doc. 10) was filed. The amendment
substituted Al Gallmann for Jon Kramer as a defendant.
17, 2016, a Motion to Dismiss Case (Doc. 17) was filed.
Defendants assert CIS vacated the challenged denial and
reopened Otero's I-485 application. Defendants assert
that, because CIS's action is no longer final, it cannot
provide the basis for subject matter jurisdiction under the
Administrate Procedures Act (“APA”), 5 U.S.C.
§§ 501, et seq. Defendants also assert the Court
cannot grant the requested relief of ordering Defendants to
grant Otero's adjustment status because the authority to
grant an adjustment of status is within the discretion of the
agency, not the district court.
21, 2016, Otero filed a Motion for Leave to File a Second
Amended Complaint ("SAC") (Doc. 18). The proposed
amendments include a claim regarding the reopening of the
proceeding by CIS and asking the Court to direct CIS to
perform the non-discretionary duty of permitting Otero to
submit a brief within 30 days of the service of the CIS
motion to reopen her case. Additionally, the request for
relief has been modified to correctly seek relief that this
Court may provide.
for Injunctive Relief
standard for a temporary restraining order ("TRO")
is the same as for a preliminary injunction; a preliminary
injunction is "an extraordinary and drastic remedy, one
that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion." Mazurek
v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)
(citation omitted) (emphasis in original). The Ninth Circuit
has adopted two tests a district court must use when deciding
whether to grant a preliminary injunction. See Alliance
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135
(9th Cir. 2011) (finding District Court "made an error
of law" by employing only one test when denying
preliminary injunction). First, a plaintiff can attempt to
satisfy the four-part test adopted by the Supreme Court in
Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7 (2008). Under the Winter test, a
plaintiff "must establish that he is likely to succeed
on the merits, that he is likely to suffer irreparable harm
in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the
public interest." Id. at 20. If a plaintiff
cannot meet the Winter test, he may attempt to
satisfy the second test by showing there are "serious
questions going to the merits, " the balance of
hardships tips sharply in his favor, there is a likelihood of
irreparable injury, and the injunction is in the public
interest. Cottrell, 632 F.3d at 1135. This latter
"sliding scale approach" allows a plaintiff to make
a lesser showing of likelihood of success provided he will
suffer substantial harm in the absence of relief.
Id. at 1133. The Ninth Circuit has explained that
"these two alternatives represent ‘extremes of a
single continuum, ' rather than two separate tests. Thus,
the greater the relative hardship to the moving party, the
less probability of success must be shown."
Immigrant Assistant Project of Los Angeles County
Fed'n of Labor (AFLCIO) v. INS, 306 F.3d 842, 873
(9th Cir. 2002) (citation omitted).
are governed by Fed.R.Civ.P. 65(b). A TRO lasts for only 14
days and may only be extended an additional 14 days for good
cause shown or upon consent of the opposing party.
Fed.R.Civ.P. 65(b). If a TRO is granted, the motion for a
preliminary injunction must be heard at the earliest possible
time and takes precedence over all matters except older
matters of the same character. Id.
the rule, a TRO may not be issued without imposition of a
bond or other security upon the applicant. Fed.R.Civ.P.
65(c). The district court, however, has wide discretion in
setting the amount of the bond. Connecticut General Life
Ins. Co. v. New Images of Beverly Hills, 321 F.3d 878,
882 (9th Cir. 2003). In fact, the amount may ...