United States District Court, D. Arizona
K. JORGENSON UNITED STATES DISTRICT JUDGE.
before the Court is the Motion for Leave to Take Discovery
(Doc. 49) filed by Carmen Figueroa Otero
(“Otero”) and Alberto Otero (collectively,
“the Oteros”). A response (Doc. 51) and a reply
(Doc. 53) have been filed. Also pending before the Court is
the Motion to Supplement Administrative Record (Doc. 50) and
the Motion for Extension of Time and for Status Conference
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 (“Kramer”),
District Court Director for the Phoenix CIS, and 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, 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).
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.
requested the matter be reopened or reconsidered on October
16, 2015. Defendants denied Otero's request on December
18, 2015. On June 15, 2016, Defendants issued a decision that
. . . 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. 34), p. 14 (emphasis removed).
October 27, 2016, this Court granted Otero's request for
a temporary restraining order (Docs. 29 and 31). On November
10, 2016, a Second Amended Complaint (Doc. 34) was filed.
Plaintiff Alberto Otero was added to the action in the Second
Amended Complaint. The Oteros again request preliminary and
final injunctive relief and request this Court set aside
USCIS' flawed findings of fact and conclusions of law and
order the matter remanded to USCIS for readjudication of
Otero's adjustment of status application consistent with
the Court's findings and order. Alternatively, the Oteros
request this Court to issue a judgment declaring that
Defendants violated Otero's due process rights by failing
to allow her to issue a brief in opposition to
Defendants' motion to reopen her proceedings when such
reopening may result in an adverse decision against Otero.
The Oteros also request the Court retain jurisdiction during
the adjudication of the adjustment of status application in
order to ensure compliance with the Court's orders and
award reasonable costs and attorneys' fees.
to an agreement of the parties, the Court ordered the
temporary restraining order be converted to a preliminary
injunction on November 28, 2016.
December 28, 2016, Defendants filed a Motion to Dismiss
Second Amended Complaint (Doc. 38). A response (Doc. 40) and
a reply (Doc. 49) have been filed.
January 9, 2017, the Court ordered case management deadlines
in this case. Included in the Order was a directive that
“Plaintiff may file a motion for leave to take
discovery after review of the administrative record.”
January 9, 2017, Order (Doc. 41).
February 21, 2017, the Oteros filed a Motion for Discovery
(Doc. 49). The Oteros assert that at a minimum, Officer
Nelson should be subject to deposition. A response (Doc. 51)
and a reply (Doc. 53) have been filed. Also on February 21,
2017, the Oteros filed an Unopposed Motion to Supplement
Administrative Record (Doc. 50). The Court will grant this
March 9, 2017, the Oteros filed a Motion for Extension of
Time to File Dispositive Motions and Request ...