Capener v. Napolitano

• Decision Date: 07 November 2013
• Docket Number: Case No. 2:11–CV–601–DN–DBP.
• Citation: 981 F.Supp.2d 1119
• Parties: Mercedes CAPENER, Plaintiff, v. Janet NAPOLITANO, Secretary of Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of Utah

981 F.Supp.2d 1119

Mercedes CAPENER, Plaintiff,

v.Janet NAPOLITANO, Secretary of Department of Homeland Security, et al., Defendants.

Case No. 2:11–CV–601–DN–DBP.

United States District Court,

D. Utah,

Central Division.

Nov. 7, 2013.

J. Shawn Foster, Perretta Law Office, West Jordan, UT, for Plaintiff.

Jeffrey E. Nelson, U.S. Attorney's Office, Salt Lake City, UT, Regan C. Hildebrand, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM DECISION and ORDER ADOPTING REPORT AND RECOMMENDATIONS

DAVID NUFFER, District Judge.

This case was referred to Magistrate Judge Dustin Pead under 28 U.S.C. § 636(b)(1)(B).¹After extensive briefing on the issues raised, ² Judge Pead issued the Report & Recommendations (R & R)³ recommending that this court: (1) FIND it has subject matter jurisdiction over Plaintiff's amended complaint; (2) AFFIRM Defendants' decision to deny Plaintiff's adjustment Application because Defendants did not violate 5 U.S.C. § 706(2)(A); and (3) DENY Plaintiff's request for injunctive relief.⁴

The parties were notified of their right to file objections within 14 days of being served with a copy of the R & R.⁵No objections to the R & R were filed or received by the court.The court has conducted a review of the issues and finding no clear error,⁶ agrees with Judge Pead's thorough analysis, conclusions and recommendations.Accordingly, the R & R is adopted as the order of this court.

ORDER

IT IS HEREBY ORDERED that the R & R ⁷ is ADOPTED as the order of the court.

IT IS FURTHER ORDERED that the court: (1) FINDS it has subject matter jurisdiction over Plaintiff's amended complaint; (2) AFFIRMS Defendants' decision to deny Plaintiff's adjustment Application because Defendants did not violate 5 U.S.C. § 706(2)(A); and (3) DENIES Plaintiff's request for injunctive relief.The clerk is directed to close this case.

REPORT AND RECOMMENDATION

DUSTIN B. PEAD, United States Magistrate Judge.

I.INTRODUCTION

This matter was referred to the Court under 28 U.S.C. § 636(b)(1)(B).(DocketNo. 28.)Plaintiff is Mercedes Capener, a Spanish citizen.Defendants are: (1)Janet Napolitano, Department of Homeland Security(“DHS”) Secretary; (2)Alejandro Mayorkas, United States Citizenship and Immigration Services (“USCIS”) Director; (3)Gerard Heinauer, USCIS Nebraska Service Center Director; and (4)Jeanne Kent, USCIS Salt Lake Field Office Director.

On June 8, 2012, Plaintiff filed an amended complaint.(Dkt. No. 22.)¹She alleges Defendants violated the Administrative Procedure Act(“APA”), 5 U.S.C. § 706(2)(A), when they unlawfully denied her application to adjustment status to a lawful permanent resident based on their erroneous legal conclusion that she violated the immigration laws by falsely claiming U.S. citizenship.( Id. at 9.)

5 U.S.C. § 706(2)(A) permits a reviewing court to “hold unlawful and set aside agency action” that the court deems “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law....”Accordingly, Plaintiff asks the Court to declare that Defendants' denial was unlawful, to set aside the denial, and to remand the matter to USCIS with instructions to grant Plaintiff's adjustment application.(Dkt. No. 22at 10–11.)She also asks the Court for injunctive relief compelling Defendants to grant her application.( Id. at 10.)

This Court considers Plaintiff's amended complaint ( id.), and the parties' corresponding briefs (Dkt.Nos. 26–27; 29; 34–35; 38).²For the reasons set forth below, this CourtRECOMMENDSthe District CourtFIND subject matter jurisdiction over Plaintiff's amended complaint.This Court further RECOMMENDSthe District CourtAFFIRMDefendants' decision to deny Plaintiff's adjustment application.This Court also RECOMMENDSthe District CourtDENYPlaintiff's request for injunctive relief.

II.FACTUAL BACKGROUND

The parties do not dispute the facts involved in this case.(Dkt. Nos. 27at 5;29 at 1.)On March 30, 1999, Plaintiff was lawfully admitted to the United States under the Visa Waiver Program (“VWP”).(Dkt. No. 22, Ex. D.)The VWP allows people from designated countries to visit the United States for up to ninety days without obtaining a visa.8 U.S.C. § 1187.Plaintiff remained in the U.S. beyond her ninety day authorized stay.

On July 12, 2000, a Utah Driver License Division(“DLD”) employee called police because Plaintiff“came into the DL[D] with documents that belonged to another person to try to get ID.”(Dkt.No. 25–1at 15.)Plaintiff gave the DLD employee a U.S. birth certificate and social security card that belonged to a person named N.D. ( Id.)When police confronted Plaintiff with the fact that “the documents” were “not hers,”she gave officers her real name, and said “she used these documents to try to get ID to get a better job.”( Id.)

On July 19, 2000, Plaintiff pled in abeyance to a class C misdemeanor violation of Utah Code Ann. § 76–8–511 for falsifying or altering government records.(Dkt.No. 25–1at 6–9.)On June 26, 2001, the state court dismissed the charge, presumably because Plaintiff complied with the plea in abeyance conditions.( Id. at 9.)

On March 23, 2001, Plaintiff married a United States citizen (“USC”).(Dkt. No. 22, Ex. E.)Marrying a USC entitled Plaintiff to apply to adjust her status to a lawful permanent resident.See8 U.S.C. §§ 1151(b)(2)(A)(i),1255(a).As such, on December 27, 2006, Plaintiff filed an adjustment application to become a lawful permanent resident.(Dkt. Nos. 22, Ex.A; 25–1 at 58–61.)

To adjust status to a lawful permanent resident, an alien must be admissible.8 U.S.C. § 1255(a).Relevant here, 8 U.S.C. § 1182(a)(6)(C)(ii)(I) renders inadmissible “[a]ny alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter ... or any other Federal or State law....”

On October 15, 2007, Defendants denied Plaintiff's adjustment application because they found her inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii)(I).³(Dkt.No. 25–1at 2–3, 58.)Defendants did not specify whether Plaintiff made a false USC claim for a purpose, benefit, or both.Instead, Defendants supported the denial by referencing Plaintiff's arrest, and subsequent conviction “for trying to obtain ID by presenting another person's U.S. Birth Certificate at” the Utah “Driver[ ]License Division.”( Id. at 3.)Defendants advised Plaintiff to depart the United States within sixty days, “or be subject to removal proceedings.”( Id.)However, to date, Defendants have not placed Plaintiff in removal proceedings, or ordered her removed.(Dkt. No. 26at 14.)

III.SUBJECT MATTER JURISDICTION

Plaintiff argues this Court maintains subject matter jurisdiction over her amended complaint under the following statutes: (1)28 U.S.C. § 1651(“All Writs Act”);(2)28 U.S.C. § 2201(“Declaratory Judgment Act”);(3)5 U.S.C. § 701 et seq.(APA); and (4)28 U.S.C. § 1331, which pertains to federal question jurisdiction.⁴(Dkt. No. 22at 5.)

Defendants express concerns about this Court's jurisdiction, but refuse to formally argue against jurisdiction.(Dkt. No. 34at 12 n. 5.)Notwithstanding Defendants' refusal, “[f]ederal courts must determine that they have jurisdiction before proceeding to the merits.”Lance v. Coffman,549 U.S. 437, 439, 127 S.Ct. 1194, 167 L.Ed.2d 29(2007).For the reasons described below, this CourtRECOMMENDSthe District CourtFIND it has subject matter jurisdiction over Plaintiff's amended complaint.

A.Federal Question Jurisdiction Permits Plaintiff to Bring APA Complaint in Federal District Court, Assuming no Other Judicial Review Limits Apply

Initially, the Court notes neither the All Writs Act, nor the Declaratory Judgment Act confer jurisdiction.United States v. Denedo,556 U.S. 904, 913, 129 S.Ct. 2213, 173 L.Ed.2d 1235(2009);Skelly Oil Co. v. Phillips Petroleum Co.,339 U.S. 667, 671–72, 70 S.Ct. 876, 94 L.Ed. 1194(1950).Similarly, “the APA does not create an independent grant of jurisdiction for the review of agency actions.”Fostvedt v. United States,978 F.2d 1201, 1203(10th Cir.1992).See alsoCalifano v. Sanders,430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192(1977).Instead, a petitioner requesting review under the APA “must identify a jurisdictional grant from ... one of the general jurisdictional provisions under Title 28 of the United States Code.”Hamilton v. Gonzales,485 F.3d 564, 569(10th Cir.2007).

Here, Plaintiff identified 28 U.S.C. § 1331 federal question jurisdiction in conjunction with her APA review request.(Dkt. No. 22at 5.)SeeO'Neill v. Cook,828 F.Supp.2d 731, 736–37(D.Del.2011)(“The APA operates in conjunction with 28 U.S.C. § 1331 ... creating a presumption of federal question jurisdiction over agency actions.”)(internal quotations omitted).Therefore, absent other judicial review limits, Plaintiff may rely on 28 U.S.C. § 1331 to bring her APA action in federal district court.SeeHamilton,485 F.3d at 569(indicating that 28 U.S.C. § 1331“confer[s] original jurisdiction over challenges to agency actions to the district courts,” and noting “that challenges to agency action under the INA seeking APA review must be filed in the appropriate district court....”).

B.Other Judicial Review Limits at 5 U.S.C. § 701(a)and8U.S.C. § 1252(a)(2)(B)(i) do not Apply to Plaintiff's Amended Complaint

Notwithstanding 28 U.S.C. § 1331, the APA prevents petitioners from challengingagency decisions where other “statutes preclude judicial review,” or where “agency action is committed to agency discretion by law.”5 U.S.C. § 701(a).Potentially preclusive here, the immigration statute at 8 U.S.C. § 1252(a)(2)(13)(i) prohibits federal courts from exercising jurisdiction over agency decisions pertaining to adjustment applications.However, in the Tenth Circuit Court of Appeals, 8 U.S.C. § 1252(a)(2)(13)(i) does “not prohibit review of what are essentially non-discretionary...