JEROME B. SIMANDLE, District Judge.
This case involves a petition for judicial review of the denial of Plaintiff's application for naturalization. Plaintiff also seeks a declaratory judgment barring the rescission or invalidation of her lawful permanent resident status, and finding that she has been and continues to be a lawful permanent resident of the United States. The matter is before the Court on Defendants' motion to dismiss and, in the alternative, for summary judgment. [Docket Item 6.]
In the American immigration and citizenship system, individuals can be lawfully present in the United States under a number of possible statuses. A non-citizen can be paroled into the country at the discretion of the Attorney General without formal admission or immigration status on a temporary basis. 8 U.S.C. § 1182 (d) (5). A non-citizen can receive a nonimmigrant visa, permitting the individual to seek entry into the country for temporary travel, work, or study, among other categories. 8 U.S.C. § 1201; 8 U.S.C. § 1101 (a) (15). A non-citizen can also become a lawful permanent resident (LPR), with permission to remain indefinitely, on the basis of certain family relationships, among other bases. 8 U.S.C. § 1151; 8 U.S.C. 1153 (a). And, ultimately, a non-citizen can apply for naturalization to become a United States citizen.
Plaintiff, Jitka Rotschild, was born in what was then Czechoslovakia and is a citizen of the Czech Republic who entered the United States on a nonimmigrant visa on or about March 19, 1992, with permission to remain for one year. Compl. ¶ 8; Defs.' Ex. J ("USCIS Denial of Naturalization") 2-3. Two years later, Plaintiff married Tomas Rotschild who, at the time, was a lawful permanent resident of the United States. Compl. ¶ 8. A citizen or lawful permanent resident may petition for official recognition of a relationship to a nonimmigrant spouse, 8 U.S.C. § 1154 (a) (1) (B), which if granted provides the spouse a basis for petitioning for lawful permanent resident status. After their marriage, Mr. Rotschild filed a petition to classify Plaintiff as his immediate relative. Compl. ¶ 8.
On January 28, 1998, Plaintiff submitted an application to adjust her status to that of an LPR, a procedure permitting an individual to change immigration status while remaining in the United States. Compl. ¶ 11.
While her application to adjust status was pending, Plaintiff voluntarily departed the United States "a few times" to visit her ailing grandmother in the Czech Republic. Apparently unbeknownst to Plaintiff, these departures placed her into a category of nonimmigrants affected by an amendment to the immigration laws. The statute provides that any non-citizen who "was unlawfully present in the United States for a period of more than 180 days but less than 1 year, [and who] voluntarily departed the United States" before commencement of removal proceedings "and again seeks admission within 3 years of the date of such alien's departure or removal" is inadmissible. 8 U.S.C. § 1182 (a) (9) (B) (i) (I). An amendment to the statute further defined unlawful presence to include "if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General . . ." 8 U.S.C. § 1182 (a) (9) (B) (ii). Consequently, by voluntarily departing prior to approval of her adjustment of status application, Plaintiff was precluded from obtaining LPR status without a waiver of inadmissibility under 8 U.S.C. § 1182 (a) (9) (B) (v). That provision permits the Attorney General to waive the inadmissibility created by operation of 8 U.S.C. § 1182 (a) (9) (B) (i) (I) when necessary to avoid extreme hardship to a lawfully resident spouse of the inadmissible individual.
Plaintiff does not contend that she filed a written waiver application in conjunction with her adjustment of status application. Compl. ¶ 17. However, in connection with her application for permanent residence, Plaintiff appeared for an interview with an immigration officer, at which time "absolutely all of the information regarding her initial admission, her marriage to Mr. Rotschild, his I-130 application, his naturalization, and her departure and reentry on advanced parole," as well as the hardship experienced by Plaintiff and Mr. Rotschild, were disclosed.
On September 8, 2006, Plaintiff filed an application to naturalize as a United States citizen. Compl. at 14; Def.'s Ex. B. USCIS denied the naturalization application on September 22, 2007, citing the lack of evidence that Plaintiff received a waiver. Defs.' Ex. J. The USCIS denial stated that because there was no evidence that Plaintiff received a waiver, her adjustment of status application was "approved in error" and Plaintiff was therefore ineligible to become a naturalized citizen.
Plaintiff filed her Complaint with this Court on October 19, 2010. [Docket Item 1.] Plaintiff seeks review of the denial of an application for naturalization, pursuant to 8 U.S.C. § 1421 (c).
Defendants move to dismiss Plaintiff's claim seeking declaratory judgment for lack of subject matter jurisdiction, arguing that there is no case or controversy to be resolved by declaratory judgment. The subject matter of federal courts is restricted to "cases" and controversies." U.S. Const. art. III, § 2. Among the components of whether a plaintiff has presented a case or controversy to be resolved is whether the plaintiff is properly a party to a justiciable dispute, a concept called standing, and whether the matter is properly reviewed at this time, a concept called ripeness.
In this case, as is somewhat common, the concepts of standing and ripeness overlap. That is, the question of whether Plaintiff is threatened with imminent injury (standing) is nearly identical to the question of whether there is hardship to the parties in withholding court consideration until there is enforcement action (ripeness).
The Third Circuit employs a three part test to determine ripeness in the context of pre-enforcement declaratory judgment: "first, the adversity of the parties' interests; second, the probable conclusiveness of a judgment; [and] third, the practical utility to the parties of rendering a judgment."
Defendants contend that there is no case or controversy here because USCIS has not instituted any proceedings as to Plaintiff. Moreover, they point out, in Garcia v. Attorney General of U.S., 553 F.3d 724 (3d Cir. 2009), the Third Circuit Court of Appeals held that even when an immigrant obtained LPR status by fraud, federal law forbids removal of the immigrant after five years have elapsed since the adjustment of status.
Plaintiff argues that even if Defendants' representation that they intend to follow Garcia were binding, Plaintiff still faces the threat of removal if she leaves the boundaries of the Third Circuit since four other circuits have found that removal is not subject to a five year statute of limitations, and the other circuits have not yet decided the issue. See Asika v. Ashcroft, 362 F.3d 264 (4th Cir. 2004); Stolaj v. Holder, 577 F.3d 651, 656 (6th Cir. 2009);
The disputed issue here is whether the threat of rescission or removal proceedings is uncertain and contingent, or is sufficiently certain to warrant declaratory judgment.
As a matter of settled law, Plaintiff's claim that her possible travel to other circuits makes the case ripe is incorrect. It is true that the threat of enforcement in another circuit can be sufficient to create standing and ripeness for pre-enforcement review.
The sole question is therefore whether there is a sufficient threat of the institution of removal proceedings in this circuit to make the claim for declaratory judgment ripe.
To begin, it is not clear that the mere possibility of rescission or removal proceedings, even in the absence of other circumstances decreasing the likelihood of such proceedings, is sufficient to make a claim for declaratory judgment ripe. The Southern District of New York has addressed the question of whether the mere possibility of removal proceedings is sufficient to create a case or controversy and found the case to be unripe.
But the Court need not reach the question of whether the generalized threat of removal proceedings makes the claim ripe, because other factors in this case make the possibility of rescission or removal proceedings even more remote. Specifically, Defendants have acknowledged that such proceedings would be unlawful. Defs.' Reply Br. 5. USCIS's representation that they have no plans to bring proceedings is not an express assurance of non-enforcement,
Plaintiff argues that the findings of the USCIS on her naturalization application raise a specific and imminent threat of removal, contrary to Defendants' position taken in this case. But the question in the naturalization proceedings was whether Plaintiff had shown that she obtained her LPR status in accordance with substantive law, and not whether the statute of limitations bars rescission or removal if her LPR status was not obtained lawfully. It is also worth noting that although the Court can hypothesize ways in which the threat of removal might alter the day-to-day life of an individual, Plaintiff has not made any concrete arguments or allegations regarding why it is necessary for her to have a declaration that any removal proceedings brought in this circuit would contravene 8 U.S.C. § 1256 (a).
In sum, Plaintiff does not have standing by virtue of her assertion that she might some day travel outside this judicial circuit. And while this Court is not necessarily persuaded that declaratory judgment regarding the lawfulness of removal proceedings could never be ripe prior to the initiation of removal proceedings, Defendants' acknowledgment in this action that rescission or removal proceedings in this circuit would be unlawful is sufficient to remove whatever imminent threat of removal might otherwise be present. Consequently, this Court lacks subject matter jurisdiction to grant Plaintiff a judgment stating that 8 U.S.C. § 1256 (a) bars rescission or removal proceedings against her.
Rule 8 (a) (2) provides that "[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Further, a "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."
The Third Circuit requires that a district court presented with a motion to dismiss conduct a two-part analysis, as explained in
When considering a motion to dismiss, a district court generally relies only upon "the complaint, attached exhibits, and matters of public record."
Defendants interpret the waiver provision found at 8 U.S.C. § 1182 (a) (9) (B) (v) as requiring the filing of a written application for a waiver of inadmissibility. Defendants argue that because Plaintiff concedes she did not file a written application for waiver of inadmissibility, she could not have been granted a waiver after she voluntarily departed prior to her application for adjustment of status being approved. Therefore, they reason, because Plaintiff was never properly granted a waiver of inadmissibility, her LPR status was approved in error, making her ineligible to naturalize because "[N]o person shall be naturalized unless he has been lawfully admitted to the United States for permanent residence." 8 U.S.C. § 1429;
The waiver provision, § 1182 (a) (9) (B) (v), reads: "The Attorney General has sole discretion to waive [§ 1182 (a) (9) (B) (i)] in the case of an immigrant who is the spouse . . . of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawful resident spouse . . . of such alien." The particular procedures involved in obtaining such a waiver are left unstated. Moreover, regulations in place at the time of both the filing and approval of Plaintiff's application to adjust status did not address the type of waiver at issue in this case.
Plaintiff contends that there was no requirement for a written application for waiver, and that a waiver was granted when she provided the interviewing INS officer with all information related to her application for adjustment of status, and the application was approved by the immigration officer. In response, Defendants point to an internal agency memorandum from Paul W. Virtue, then Acting Executive Associate Commissioner of the INS. Defs.' Ex. G. The memorandum states that the filing of a written application for waiver is required in order for an alien who has accrued more than 180 days of unlawful presence before filing an adjustment of status application to obtain a waiver of inadmissibility under § 1182 (a) (9) (B) (v).
Plaintiff is correct that this internal memorandum regarding the proper procedure for waiver did not bind her. Agencies are largely free to design their own procedures, to the extent not directly proscribed by statute or contrary to the constitutional requirements of due process.
In this case, a rule requiring applicants for waiver to submit a written waiver application is exactly the sort of rule that must be published under § 552. Even if it were not covered by that rule, fundamental dictates of due process are unmet when a procedural rule "prescribes the manner in which the parties present themselves or their viewpoints to the agency" but is unpublished.
Defendants opted not to address Plaintiff's argument that the undisclosed requirement of a written waiver application was invalid. This is perhaps because there is little that could be argued. Plainly, both the APA and due process require notice of the rules that will govern an agency's procedures. The USCIS cannot reject an application for naturalization on the basis of an undisclosed internal procedural rule that made adjustment of status improper. Therefore, if Plaintiff did in fact obtain a waiver from the officer who adjudicated her application as she alleges, Compl. ¶ 13, then USCIS cannot revoke that waiver on the basis of Plaintiff's failure to comply with an undisclosed procedural hurdle. 5 U.S.C. § 552 (a) (1) ("[A] person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.").
Because Plaintiff alleges that the requirement was waived in the discretion of her immigration officer as an agent of the Attorney General, because the agency had no binding alternative procedure for obtaining waiver under § 1182 (a) (9) (B) (v), and because there is no other disputed element of Plaintiff's claim for entitlement to citizenship, Plaintiff sufficiently alleges that she has met the requirements for citizenship.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (a). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law.
Where the nonmoving party bears the burden of persuasion at trial, the moving party may be entitled to summary judgment merely by showing that there is an absence of evidence to support an essential element of the nonmoving party's case. Fed. R. Civ. P. 56 (c) (1) (B);
Defendants argue that, regardless of whether Plaintiff was required to file a written application for waiver, she has not sufficiently demonstrated that she was eligible for and was, in actuality, granted a waiver by any procedure. Because Plaintiff does not adduce any evidence for this motion, such as an affidavit affirming the truth of the Complaint's allegations, the question is what favorable inference must be drawn for Plaintiff from the undisputed facts.
By statute, Plaintiff bears the burden of demonstrating that she meets the requirements for naturalization: "[N]o person shall be naturalized unless he has been lawfully admitted to the United States for permanent residence. . . . [And] [t]he burden of proof shall be upon such person to show that he entered the United States lawfully, and the time, place, and manner of such entry into the United States . . ." 8 U.S.C. § 1429;
Being "lawfully admitted" means more than just having obtained LPR status. It means having properly obtained that status in accordance with substantive law.
But this case is unlike the cases upon which Defendants rely, because USCIS has not found that it did not waive Plaintiff's inadmissibility or waived it in error, or adduced any evidence in support of those propositions. Instead, USCIS incorrectly concluded that the lack of written waiver meant there had been no valid waiver. Once that incorrect conclusion is disregarded for the reasons explained above with respect to publication of procedures—as the Court is free to do on this de novo review—the Court is left with the undisputed fact that Plaintiff was granted LPR status and whatever favorable inferences may be drawn from that fact.
On the procedural posture of summary judgment in which all reasonable inferences are to be drawn in favor of Plaintiff as non-movant, the question before the Court is whether one may reasonably infer, in the absence of evidence to the contrary, that an immigrant who needed a waiver to get LPR status, and who did in fact get LPR status, therefore got a waiver. Hunt v. Cromartie, 526 U.S. 541, 552 (1999). Such an inference is reasonable. The undisputed fact of having been granted LPR status is not irrebuttable proof of having been lawfully admitted, and it may not even afford an immigrant a rebuttable presumption of lawful admittance, but it is a permissible inference that such status was afforded lawfully, and in the absence of any evidence to the contrary, this is all that is required for Plaintiff to prevail on Defendants' motion for summary judgment.
Unlike the cases relied upon by Defendants, in which an immigrant's LPR status was facially prohibited by law or affirmatively found to have been procured by fraud or erroneously granted, when the USCIS presents no facts calling LPR status into question and cannot point to any law that prohibited Plaintiff from obtaining LPR status, then the undisputed fact of having been granted LPR status permits an inference that an immigrant has been lawfully admitted.
The determination of whether Plaintiff is protected from rescission of her LPR status and removal even if she failed to receive a waiver is an issue that is not yet ripe for review. But Plaintiff does allege the prima facie facts necessary for her petition for naturalization, and when viewing all inferences in her favor, the undisputed fact of her having been granted LPR status is sufficient to create a dispute of material fact about whether she meets the required elements for naturalization. Therefore, Plaintiff's claim for declaratory judgment will be dismissed without prejudice, but Defendants' motion will otherwise be denied. The accompanying Order will be entered.
8 U.S.C. § 1256 (a).