Alvarez Sosa v. Barr

Decision Date31 March 2019
Docket Number17-CV-4520 (SJF)(GRB)
Citation369 F.Supp.3d 492
Parties Lorena Del Carmen ALVAREZ SOSA, Plaintiff, v. Attorney General William P. BARR, Secretary Kirstjen M. Nielsen, Acting Deputy Secretary Claire M. Grady, District Director Thomas Cioppa, Acting District Director John Thompson, and Barbara Q. Velarde, Chief of the Administrative Appeals Office, Defendants.
CourtU.S. District Court — Eastern District of New York

Bruno Joseph Bembi, Law Office of Bruno J. Bembi, Hempstead, NY, for Plaintiff.

Megan Jeanette Freismuth, U.S. Attorney's Office, Central Islip, NY, for Defendants.

ORDER

FEUERSTEIN, District Judge:

Pending before the Court are the objections of plaintiff Lorena del Carmen Alvarez Sosa (collectively, "plaintiff") to the Report and Recommendation of the Honorable Gary R. Brown, United States Magistrate Judge, dated February 4, 2019 ("the Report"), recommending that defendants' motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure be granted in all respects. For the reasons set forth below, the Report is accepted in its entirety and, for the reasons set forth below and in the Report, defendants' motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure is granted in all respects.

I. Discussion
A. Standard of Review

Any party may serve and file written objections to a report and recommendation of a magistrate judge on a dispositive matter within fourteen (14) days after being served with a copy thereof. 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b)(2). Any portion of such a report and recommendation to which a timely objection has been made is reviewed de novo . 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b)(3). The court, however, is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed. See Thomas v. Arn , 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Any portion of a report and recommendation to which no specific timely objection is made is reviewed only for clear error. See Fed. R. Civ. P. 72(b) ; Spence v. Superintendent, Great Meadow Corr. Facility , 219 F.3d 162, 174 (2d Cir. 2000) (a court may review a report to which no timely objection has been interposed to determine whether the magistrate judge committed "plain error.")

Moreover, objections that simply reiterate the original arguments, without identifying a specific error in the report and recommendation, e.g. , why a specific finding or conclusion is faulty or the magistrate judge erred in rejecting a specific argument, are reviewed under the clear error standard. See, e.g. Harris v. TD Ameritrade Inc. , 338 F.Supp.3d 170, 174 (S.D.N.Y. 2018) ; E.E.O.C. v. AZ Metro Distribs., LLC , 272 F.Supp.3d 336, 339 (E.D.N.Y. 2017). "The goal of the federal statute providing for the assignment of cases to magistrates is to increase the overall efficiency of the federal judiciary[ ] ... [and] [t]here is no increase in efficiency, and much extra work, when a party attempts to relitigate every argument which it presented to the Magistrate Judge." Wider v. Colvin , 245 F.Supp.3d 381, 385 (E.D.N.Y. 2017) (quotations and citations omitted); Bassett v. Electronic Arts, Inc. , 93 F.Supp.3d 95, 100-01 (E.D.N.Y. 2015) ("The clearly erroneous standard ... applies when a party makes only conclusory or general objections, or simply reiterates its original arguments."); Trivedi v. New York State Unified Court Sys. Office of Court Admin. , 818 F.Supp.2d 712, 726 (S.D.N.Y. 2011), aff'd sub nom Seck v. Office of Court Admin. , 582 F. App'x 47 (2d Cir. Nov. 6, 2014) ("[W]hen a party makes only conclusory or general objections [ ] the Court will review the Report strictly for clear error.[ ] Objections to a Report must be specific and clearly aimed at particular findings in the magistrate judge's proposal." (quotations, alterations and citation omitted) ).

Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b).

B. Objections

Plaintiff assigns no specific error to any of Magistrate Judge Brown's findings or conclusions in the Report. Rather, plaintiff reiterates her original arguments in opposition to defendants' motion for judgment on the pleadings, inter alia , that it was arbitrary, capricious, an abuse of discretion and unlawful for the USCIS: (i) to fail (A) to send her a request for evidence ("RFE"), (B) to consider the Family Court orders which were issued after she filed her application for special immigrant juvenile ("SIJ") classification ("I-360 Petition"), but were received by USCIS before it had reviewed her I-360 Petition, and (C) to recognize that the family court orders "were in effect when [it] began to review [plaintiff's] ... application[,]" (Plaintiff's Objections to the Report ["Plf. Obj."] at 1-3; Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Judgment on the Pleadings ["Plf. Mem."] at 7-8); and (ii) to deny her I-360 Petition "precisely because of her age, contrary to the provisions of Section 235(d)(6) of the 2008 [Trafficking Victims Protection Reauthorization Act (‘2008 TVPRA’), 8 U.S.C. § 1232(d)(6) ]...."2 (Plf. Obj. at 3-4).

To the extent that plaintiff's "objections" can be construed as asserting that Magistrate Judge Brown erred in failing to consider her claims under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), plaintiff never expressly raised such a claim in her complaint.3 Rather, the complaint: (i) asserts, in relevant part, that "[t]his is a proceeding seeking mandamus relief under all [sic] the All Writs Act, 28 U.S.C. § 1651... [and] declaratory relief under 28 U.S.C. §§ 2201 and 2202 [,]"(Complaint ["Compl."], ¶ 14)4 ; (ii) sets forth six (6) claims alleging that defendants (A) violated the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(27)(J) ; Section 235(d)(6) of the 2008 TVPRA, 8 U.S.C. § 1232(d)(6) ; the terms of the settlement agreement in the class action, Perez-Olano v. Holder , No. 05-cv-2604 (C.D. Cal. 2005) (the "Perez-Olano Settlement Agreement")5 ; and "the Fifth Amendment's guarantee of due process of law," by failing to grant plaintiff's I-360 Petition (first through fourth claims for relief, respectively), (Compl., ¶¶ 51-57), (B) violated 8 C.F.R. § 204.11"and other regulations" by failing to grant her I-360 Petition and to send an RFE "which [US]CIS normally sends to all applicants to request missing documents and to allow applicants additional to [sic] submit such documentation" (fifth claim for relief), (Compl., ¶ 59), and (C) "violated provisions of the [APA] in making 8 C.F.R. § 204.11 a rule as it contradicts 8 U.S.C. § 1101(a)(27)(J) and is thus an impermissible interpretation of the statute" (sixth claim for relief), (Compl., ¶ 61); and (iii) seeks an order granting plaintiff's I-360 Petition or "issu[ing] instructions to the Defendants on further processing of the I-360 [Petition]." (Compl. at 13, "Wherefore" clause). The only references in the complaint to the APA are in the sixth claim for relief, where, in addition to the aforementioned assertion that defendants' violated the APA by promulgating 8 C.F.R. § 204.11, (see Compl., ¶ 61), plaintiff cites two sections of the APA for the general proposition that the statute "authorizes suits by a ‘person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute[,] " (Compl., ¶ 62) (quoting 5 U.S.C. § 702 ); and "also provides relief for a failure to act: ‘The reviewing court shall ... compel agency action unlawfully withheld or unreasonably delayed.’ " (Id. ) (quoting 5 U.S.C. § 706(1) ).

Nonetheless, since both parties addressed plaintiff's first, second, fifth and sixth claims in the complaint as potentially asserting claims under 5 U.S.C. § 706(2)(A), (see Defendants' Memorandum of Law in Support of Motion for Judgment on the Pleadings at 17-20; Plf. Mem. at 6-8, 10; and Defendants' Reply Memorandum in Further Support of Motion for Judgment on the Pleadings at 4-7), and this Court recently construed similar claims asserted by another plaintiff in the case Espinoza Calle v. Whitaker , No. 18-cv-1957 (E.D.N.Y), to assert claims under 5 U.S.C. § 706(2)(A), the Court will likewise construe plaintiff's complaint as asserting claims under 5 U.S.C. § 706(2)(A).6 Specifically, in addition to plaintiff's sixth claim for relief, plaintiff's claims alleging that defendants violated the INA (first claim for relief), its implementing regulations (fifth claim for relief) and the 2008 TVPRA (second claim for relief) are construed as seeking judicial review of the decision denying her I-360 Petition pursuant to 5 U.S.C. § 706(2), which empowers the reviewing court, inter alia , to "hold unlawful and set aside agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law...."

1. APA Review

The standard of review under 5 U.S.C. § 706(2)(A)"is highly deferential and presumes the agency's action to be valid." Residents for Sane Trash Sols., Inc. v. U.S. Army Corps. of Eng'rs , 31 F.Supp.3d 571, 588 (S.D.N.Y. 2014), appeal dismissed , No. 14-3396 (2d Cir. Oct. 15, 2014); see also Coal. on W. Valley Nuclear Wastes v. Bodman , 625 F.Supp.2d 109, 116 (W.D.N.Y. 2007), aff'd sub nom Coal. on W. Valley Nuclear Wastes v. Chu , 592 F.3d 306 (2d Cir. 2009) ("An agency's decision is accorded a presumption of regularity...." (quotations and citation omitted) ). The Court "must consider whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment."

Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). "Although this inquiry...

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