Chen v. Mayorkas
| Decision Date | 24 September 2021 |
| Docket Number | 20-cv-05254-DMR |
| Parties | JIANFENG CHEN, Plaintiff, v. ALEJANDRO N. MAYORKAS, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT RE: DKT NOS. 9, 20
Plaintiff Jianfeng Chen filed this action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. seeking to reverse the decision by the United States Citizenship and Immigration Services (“USCIS”) denying his Form I-90 Application to Replace Permanent Resident Card. Plaintiff now moves pursuant to Federal Rule of Civil Procedure 56 for summary judgment to reverse the July 21, 2020 decision by USCIS denying his application. [Docket No. 9 (Pl.'s Mot.).] Defendants Alejandro N Mayorkas, Secretary of the Department of Homeland Security (“DHS”), et al. cross-move for summary judgment to affirm the decision. [Docket No. 20 (Defs.' Mot.).] The court ordered the parties to submit supplemental briefing, which they timely filed. [Docket Nos. 27-29.]
This matter is appropriate for determination without oral argument. Civil L.R. 7-1(b). For the following reasons Plaintiff's motion is granted. Defendants' motion is denied.
Plaintiff is a citizen of China. He was admitted to the United States as a conditional permanent resident on December 19, 2001 as the spouse of a U.S. citizen.
The court first sets forth the governing statutory framework contained in the relevant provisions of the Immigration and Nationality Act (“INA”) and then the undisputed facts underlying these cross-motions.
“[A] conditional permanent resident is an alien admitted to the United States for permanent residence on a conditional basis due to, inter alia, his marriage to a U.S. citizen.” Eleri v. Sessions, 852 F.3d 879, 881 (9th Cir. 2017) (citations omitted). Conditional permanent residents possess all “rights, privileges, responsibilities and duties which apply to all other lawful permanent residents, ” including “the privilege of residing permanently in the United States as an immigrant.” 8 C.F.R. § 216.1. 8 U.S.C. § 1186a governs conditional permanent resident status. The statute provides in relevant part that when a noncitizen obtains permanent resident status as the spouse of a U.S. citizen “by virtue of a marriage which was entered into less than 24 months” before obtaining permanent resident status, such status is on a conditional basis. 8 U.S.C. § 1186a(a)(1), (h)(1)(A).
In order to remove the conditional basis for status, the conditional permanent resident and their U.S. citizen spouse must jointly file a petition to remove the conditions and appear together for an interview. 8 U.S.C. § 1186a(c)(1). The petition, a Form I-751 Petition to Remove Conditions on Residence, must be filed within the 90-day period before the noncitizen's second anniversary of obtaining lawful admission for permanent residence. 8 U.S.C. § 1186a(d)(2)(A). Among other things, the petition must state that the marriage “was not entered into for the purpose of procuring [the noncitizen's] admission as an immigrant.” 8 U.S.C. § 1186a(d)(1)(A). The Ninth Circuit has explained that “[t]he two-year conditional period prescribed by these provisions ‘strikes at the fraudulent marriage by the simple passage of time [because] it is difficult to sustain the appearance of a bona fide marriage over a long period.'” Eleri, 852 F.3d at 881 (quoting H.R. Rep. No. 99-906, at 9-10 (1986)). If the Secretary of Homeland Security determines that the facts alleged in the petition about the qualifying marriage are true following the interview, the conditions are removed and the noncitizen spouse remains a legal resident. 8 U.S.C. § 1186a(c)(3).
Under the INA, a noncitizen whose conditional permanent resident status under section 1186a has been terminated “is deportable.” 8 U.S.C. § 1227(a)(1)(D)(i). USCIS may terminate a conditional permanent resident's status for three reasons: 1) prior to the two-year anniversary of the noncitizen obtaining permanent resident status, the Secretary of Homeland Security determines that the qualifying marriage was entered into for the purpose of procuring the noncitizen's admission as an immigrant, 8 U.S.C. § 1186a(b)(1); 2) the conditional permanent resident and spouse fail to file a timely joint petition to remove the conditions or do not appear for the required interview, 8 U.S.C. § 1186a(c)(2); or 3) the conditional permanent resident and spouse file a timely joint petition and appear for the interview but the Secretary of Homeland Security determines that the facts contained in the petition are not true, 8 U.S.C. § 1186a(c)(3)(C).
The Secretary of Homeland Security may remove the conditional basis for a noncitizen who does not meet the joint petition requirement if the noncitizen demonstrates one of four grounds, collectively known as the “hardship waiver.” 8 U.S.C. § 1186a(c)(4); Vasquez v. Holder, 602 F.3d 1003, 1006 (9th Cir. 2010). Only two bases for waiver have potential relevance here.[1]First, noncitizens may seek a waiver of the joint filing requirement by establishing that “extreme hardship would result if [the noncitizen] is removed.” 8 U.S.C. § 1186a(c)(4)(A). Second, noncitizens may seek a waiver by establishing that “the qualifying marriage was entered into in good faith by the [noncitizen] spouse, but the qualifying marriage has been terminated” and the noncitizen was not at fault for failing to file a joint petition. 8 U.S.C. § 1186a(c)(4)(B).
Plaintiff is a citizen of China. Following his 2000 marriage to Sandra Mai, a U.S. citizen, he was admitted to the United States as a conditional permanent resident under 8 U.S.C. § 1186a(a)(1) on December 19, 2001. Administrative Record (“A.R.”) 140, 132, 139.[2] On December 18, 2003, Plaintiff timely filed an I-751 petition to remove the conditions on his permanent resident status in which he requested a hardship waiver of the requirement to file a joint petition with Mai, asserting that he “entered into the marriage in good faith, but the marriage was terminated through divorce/annulment” under 8 C.F.R. § 1186a(c)(4)(B). A.R. 135-36, 142-45. Plaintiff subsequently did not attend his June 1, 2005 interview, and on June 29, 2005, USCIS notified him that his conditional permanent resident status was terminated for his failure to appear. A.R. 132. See 8 U.S.C. § 1186a(c)(2)(A)(ii).
DHS initiated removal proceedings against Plaintiff on September 25, 2014 through the issuance of a Notice to Appear, which charged Plaintiff as removable because his conditional permanent resident status was terminated in June 2005. A.R. 129-30.
On October 2, 2015, while removal proceedings were pending, Plaintiff filed a second I-751 petition in which he again requested a waiver of the joint filing requirement on the ground that he entered into the qualifying marriage in good faith but the marriage was terminated through divorce or annulment. A.R. 107-119. In a declaration that apparently was submitted with his petition, Plaintiff stated that following his divorce from Mai, he married Xueya Li, a U.S. citizen, in 2014 and that they have two U.S. citizen children.[3] A.R. 119; see also A.R. 99.
Plaintiff appeared for an interview for his second I-751 petition on May 17, 2016. During the interview, Plaintiff admitted under oath that he married Mai “because [he was] very poor in China, and Ms. Mai helped [him] come to the United States by marrying [him].” He also provided a sworn statement in which he admitted that his marriage to Mai was “fraudulent.” A.R. 100, 2. On March 27, 2018, USCIS denied Plaintiff's second I-751 petition on the ground that he failed to establish that his marriage to Mai was entered into in good faith. A.R. 98-101. USCIS informed Plaintiff that his “permanent resident status remains terminated as of December 19, 2003.” Id. at 100.
On October 9, 2019, the Department of Justice added an additional basis for removal of Plaintiff, charging him as removable because he was “inadmissible at the time of admission because he sought to procure admission by [marriage] fraud.” A.R. 3.
During his removal proceedings, Plaintiff applied for relief under 8 U.S.C. § 1227(a)(1)(H), which is known as the “fraud waiver.” A.R. 5-10. See Vasquez, 602 F.3d at 1008, 1010. In relevant part, the fraud waiver grants the Attorney General discretion to waive provisions related to the removal of noncitizens on the ground that they were inadmissible at the time of admission due to fraud or misrepresentation for any noncitizen who “is the spouse, parent, son, or daughter” of a U.S. citizen or permanent resident. See 8 U.S.C. § 1227(a)(1)(H). If granted, the waiver “waive[s] removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.” Id. On October 10, 2019, an immigration judge granted Plaintiff a waiver of removability under 8 U.S.C. § 1227(a)(1)(H). A.R. 1.
On October 23, 2019, Plaintiff filed a Form I-90 Application to Replace Permanent Resident Card, seeking to update his expired lawful permanent resident card. A.R. 382-84. USCIS denied Plaintiff's I-90 application on July 21, 2020 on the ground that he is “ineligible to be issued a replacement” lawful permanent resident card. A.R 390-93. According to USCIS, as a conditional permanent resident, Plaintiff was required to file a timely I-751, Petition to Remove the Conditions on Residence, approval of which “results in the creation of a new Form I-551, Permanent Resident Card.” A.R. 390. USCIS noted that Plaintiff filed an I-751 petition on October 8, 2015 which was denied on April 7, 2018, [4] and wrote, ...
To continue reading
Request your trial