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Otero v. Johnson

United States District Court, D. Arizona

November 2, 2016

Carmen Figueroa Otero, Plaintiff,
v.
Jeh Johnson, Secretary for the Department of Homeland Security, et al., Defendants.

          ORDER

          Cindy K. Jorgenson United States District Judge

         Pending 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.[1] 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).

         Additionally, 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.

         Factual and Procedural Background

         On 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. 1255(a).

         The 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 245.10.
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. 1967)).
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.

         Motion for Leave to File Second Amended Complaint, Exhibit I, Attachment 1 (Doc. 18-10) (emphasis added).[2]

         Otero 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 CFR 1235]
(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 alien.
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.
* * * * *

         Motion for Leave to File Second Amended Complaint, Exhibit J (Doc. 18-11).

         On June 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.

         Motion 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).

         Otero requests this Court reverse the agency decision not to reopen or reconsider its denial of Otero's adjustment of status application, [3] 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 Court's orders.

         An Amended Complaint (Doc. 10) was filed. The amendment substituted Al Gallmann for Jon Kramer as a defendant.

         On June 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.

         On June 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.

         Standard for Injunctive Relief

         The 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).

         TROs 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.

         Under 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 ...


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