Cardenas v. United States

• Decision Date: 19 August 2013
• Docket Number: Civil Action No. 12-00346-S-EJL
• Parties: MADELINE CARDENAS and ROLANDO MORA-HUERTA, Plaintiffs, v. UNITED STATES OF AMERICA, ERIC H. HOLDER, United States Attorney General, JANET NAPOLITANO, in her official capacity as Secretary of the Department of Homeland Security, JOHN KERRY, United States Secretary of State; IAN BROWNLEE, Consul General of the United States, City of Ciudad Juarez, JOHN DOES 1 - 7, Consular Officers, American Consulate General Visa Section at Ciudad Juarez, Defendants.
• Court: U.S. District Court — District of Idaho

MADELINE CARDENAS and ROLANDO MORA-HUERTA, Plaintiffs, v. UNITED STATES OF AMERICA, ERIC H. HOLDER, United States Attorney General, JANET NAPOLITANO, in her official

capacity as Secretary of the Department of Homeland Security, JOHN KERRY, United

States Secretary of State; IAN BROWNLEE, Consul General of the United States, City of

Ciudad Juarez, JOHN DOES 1 - 7, Consular Officers, American Consulate General Visa Section at Ciudad Juarez,¹ Defendants.

Civil Action No. 12-00346-S-EJL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

DATED: August 19, 2013

MEMORANDUM DECISION AND ORDER

Plaintiffs Madeline Cardenas and Rolando Mora-Huerta ("Plaintiffs") filed the instant action against various governmental defendants ("Defendants") seeking review of the government's determination that Rolando Mora-Huerta is inadmissible into the United States under two provisions of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et. seq. Pending before this Court areDefendants' Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) lack of subject matter jurisdiction, and 12(b)(6) failure to state a claim, (Dkt. 11), and Plaintiffs' First Motion to Amend (Dkt. 26).

Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument. For the reasons set forth below, the Court hereby GRANTS Plaintiffs' Motion to Amend. In the interest of judicial economy, the Court will accordingly consider Plaintiff's First Amended Complaint when ruling on Defendants' Motion to Dismiss. However, the Court also GRANTS Defendants' Motion to Dismiss.

BACKGROUND²

Plaintiffs are husband and wife. Plaintiff Madeline Cardenas ("Ms. Cardenas") is a United States citizen who resides in Idaho. Plaintiff Rolando Mora-Huerta ("Mr. Mora") is a Mexican citizen who resides in Mexico. Mr. Mora lived in the United States illegally from 2004-2009. During this period, Mr. Mora's criminal history consisted of a misdemeanor offense (for failure to purchase a valid driver's license and minor in possession/consumption/purchase of alcohol), as wellas a traffic infraction for speeding. However, Mr. Mora was never sentenced to prison nor arrested for a felony while living in the United States.

In June 2008, Mr. Mora was routed into removal proceedings following a routine traffic stop. On May 4, 2009, Mr. Mora appeared before an Immigration Judge to resolve his immigration case. Pursuant to 8 U.S.C. § 1229c, Mr. Mora applied for and was granted the benefit of voluntary departure in lieu of removal. Mr. Mora complied with the terms of the Immigration Judge's voluntary departure order and returned to Mexico on August 29, 2009.

Ms. Cardenas thereafter filed an immediate-relative petition (Form I-130) on behalf of Mr. Mora. Obtaining such a petition is generally the initial step in the immigration process for family members, as citizens, lawful permanent residents and employers may file petitions seeking Immigration and Naturalization Service ("INS") authorization for the immigration of aliens falling within various categories, such as family members.³ See 8 C.F.R. §§ 204.1 et. seq. The petition was approved on September 29, 2009. When the INS approves a petition, the alien beneficiary may then apply to a consular officer for an immigrant visa. 22 C.F.R. §§42.61 et. seq. Without a visa, the beneficiary may not enter the United States. 8 U.S.C. § 1181(a).

On March 5, 2010, Mr. Mora attended his immigrant visa interview at the U.S. Consulate in Ciudad Juarez, Mexico. During his interview, Mr. Mora was asked repeatedly if he was in a gang, and repeatedly stated that he was not a gang member. The consular officer asked Mr. Mora to return approximately three days later. Upon his return, consular officers took pictures of Mr. Mora's tattoos, which include the letter "M" for Mora, the letter "R" for Rolando, Mr. Mora's parents' names and dates of birth, Mr. Mora's complete name, Ms. Cardenas' name with a rose, and a tattoo of two theatrical masks, a symbol often referred to as "Smile Now, Cry Later."

On July 2, 2010, the consular officer denied Mr. Mora's immigrant visa application, finding he was inadmissible under 8 U.S.C. § 1182(a)(3)(A)(ii) (rendering inadmissible "[a]ny alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in ... any other unlawful activity); 8 U.S.C. § 1182(a)(9)(A)(i) (rendering inadmissible any alien previously ordered removed under certain provisions of law)⁴; and 8 U.S.C. § 1182(a)(9)(B)(i)(II)(rendering inadmissible for ten years any alien unlawfully present in the United States for one year or more). On July 13, 2010, Mr. Mora sought further information underlying the visa denial. On July 20, 2010, an official with the Consular Information Unit of the U.S. Consulate General for Ciudad Juarez, Mexico stated in an email to Mr. Mora's prior counsel that:

At the time of [Mr. Mora's] June 16, 2008 arrest, Mr. Mora was identified as a gang associate by law enforcement. The circumstances of Mr. Mora's arrest, as well as information gleaned during the consular interview, gave the consular officer sufficient 'reason to believe' that Mr. Mora has ties to an organized street gang. Consequently, Mr. Mora is ineligible for a visa and has no recourse to a waiver.

In addition, pursuant to a request made under the Freedom of Information Act, Mr. Mora later obtained a copy of a Form I-213 "Record of Inadmissible Alien," dated June 20, 2008, which stated, "MORA was identified as a Sureno gang associate ... by Nampa Police Department" and that "MORA was a passenger in a vehicle owned and driven by a [REDACTED] who had identifiers consistent to [sic] being a member of the Sureno gang."

On September 21, 2010, Mr. Mora submitted evidence to the U.S. Consulate General in Ciudad Juarez to establish that he is not and has never been a member of an organized criminal group or gang. The evidence included a letter from Nampa Police Department Corporal Brandy Sutherland of the Special Investigation Unitassigned to gangs dated September 13, 2010 (hereinafter "NPD Letter."). The NPD Letter states:

After conducting a thorough search of Nampa Police Department records, I have been unable to locate any criminal gang documentation or contacts that would indicate Mr. Mora Huerta was a gang member prior to or at the time of his arrest.

In addition, I also examined NPD records for the timeframe (06/19/08) in which you indicated that Mr. Mora Huerta was arrested. I did note that during that timeframe the Nampa Police Department was conducting a multi-agency operation called "Street Sweeper" which is meant to focus law enforcement efforts on the suppression of gang activity. Agents from Immigration and Customs Enforcement (ICE) are often assigned to assist Nampa officers during this operation. It is quite possible that Mr. Mora Huerta was contacted by assisting agencies during that timeframe in the City of Nampa, but that he was not actually arrested by Nampa officers, therefore there would have been no report placed into the Nampa Police Department records system.

You also requested I review photos of tattoos you sent via email which you said were on Mr. Mora Huerta's person. Based on my training and experience as a Gang Investigator, the tattoos that are shown do not specifically indicate gang involvement. It is common to see the theatrical masks, often referred to as "Smile Now, Cry Later" on that of a person affiliated with criminal gang membership, however, this symbol is not exclusive to gangs. As for the tattoos of people's names, these do not appear to be consistent with any gang identifier. ⁵

(Dkt. 24-1.)

Mr. Mora's September 21, 2010 evidentiary submission to the U.S. Consulate General also included negative results of a criminal records search performed in the state of Guanajuato, Mexico, as well as other evidence to support Mr. Mora's good moral character. In an e-mail to Mr. Mora's counsel dated February 8, 2012, the Consular Information Unit of the U.S. Consulate General stated that, notwithstanding "careful review" of the additional evidence supplied by Mr. Mora's legal representative, the inadmissibility determination of July 2, 2010 would not be overturned.

Mr. Mora thereafter requested an advisory opinion from the visa office of the Department of State in Washington, D.C. While a consular officer's decision regarding findings of fact is conclusive, advisory opinions from the Department of State as to issues of law are binding upon the consular officer. 22 C.F.R. § 42.81(d). Mr. Mora accordingly requested an advisory opinion on the legal question of whether the "reasonable ground[s] to believe" standard of 8 U.S.C. § 1182(a)(3)(A)(ii) was correctly applied to the facts of his case. On June 1, 2012 the Department of State sent an e-mail ("Advisory Opinion") to Mr. Mora's counsel which indicated that the consular officer's decision would not be overturned.Plaintiffs allege that the Advisory Opinion incorrectly identified Mr. Mora's name and contained numerous other factual inaccuracies.⁶ Plaintiffs accordingly requested a re-review of the matter and identified the factual errors in the Advisory Opinion. Plaintiffs never received a response from the Department of State to their request for re-review.

Plaintiffs filed the instant action on July 6, 2012. The parties thereafter entered a Stipulation for Extension of Time to Answer in order to enable Mr. Mora to attend a second immigration interview and present additional evidence to the Consular Office for consideration. Prior to the second immigration interview,...