Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Otero v. Kelly

United States District Court, D. Arizona

July 18, 2017

Carmen Figueroa Otero and Alberto Otero, Plaintiffs,
v.
John F. Kelly, Secretary for the Department of Homeland Security,, Defendants.

          ORDER

          CINDY K. JORGENSON UNITED STATES DISTRICT JUDGE.

         Pending 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 (Doc. 52).

         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 (“Kramer”), District Court Director for the Phoenix CIS, and Julie Hashimoto, Director for the Tucson Field Office of CIS (collectively, “Defendants”).[1] 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).

         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.

         Otero 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 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. 34), p. 14 (emphasis removed).

         On 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.

         Pursuant to an agreement of the parties, the Court ordered the temporary restraining order be converted to a preliminary injunction on November 28, 2016.

         On 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.

         On 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).

         On 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 unopposed motion.

         On March 9, 2017, the Oteros filed a Motion for Extension of Time to File Dispositive Motions and Request ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.