Compere v. Riordan
| Decision Date | 20 March 2019 |
| Docket Number | Civil Action No. 18-12431-NMG |
| Parties | Patrice COMPERE and Marly Compere Bernado, Plaintiffs, v. Denis RIORDAN, Lee Francis Cissna, The Department of Homeland Security, Kirstjen Nielsen and Todd Lyons, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Ragini N. Shah, Suffolk University Law School, Boston, MA, for Plaintiffs.
Jason C. Weida, US Attorney's Office, Boston, MA, for Defendants.
This case arises out of removal proceedings brought against Patrice Compere ("Compere"). Compere and his mother, Marly Compere Bernado, also known as Marly Brizard ("Brizard" or collectively "plaintiffs"), filed a complaint against the Department of Homeland Security and various officers and officials of the Department of Homeland Security, the United States Citizenship and Immigration Services (the "USCIS") and Immigration and Customs Enforcement ("ICE") (collectively "defendants") alleging that they have unlawfully deprived Compere the opportunity to adjudicate his application for adjustment of status. Specifically, plaintiffs submit that defendants violated the Administrative Procedure Act, 5 U.S.C. § 555(b), by unreasonably failing to produce for nearly 15 years the necessary documentation for Compere to file the Form I-485 Adjustment of Status application. As a result of that allegedly unreasonable delay in agency action, Compere is no longer eligible for naturalization because of subsequent criminal convictions and is subject to a final order of removal from the United States.
Plaintiffs seek a writ of mandamus to compel the USCIS to adjudicate Compere's application for adjustment of status nunc pro tunc to April, 2004, when the USCIS first failed to produce the necessary documentation to plaintiffs for that application. Pending before the Court is 1) plaintiffs' motion for a preliminary injunction to stay Compere's removal to Haiti pending the adjudication of the merits of the writ of mandamus and 2) defendants' motions to dismiss the original and amended complaints.
Compere is a 31-year-old native and citizen of Haiti. He is a resident of Stoughton, Massachusetts, but is not a citizen of the United States nor a lawful permanent resident. He entered the United States on humanitarian parole in August, 1989, at the age of two. Compere grew up and went to school in the United States, speaks very little Haitian Creole or French, has no immediate family in Haiti and has two children who are both U.S. citizens.
Brizard is Compere's mother. She also resides in Stoughton, Massachusetts, and is a naturalized U.S. citizen. She came to the United States in 1987 after Compere was born. She was 13 years old at the time and entered the United States as a derivative of her mother (Compere's grandmother) who was then a lawful permanent resident.
The Department of Homeland Security is a department under the Executive Branch of the U.S. federal government responsible for all matters related to public security, including matters regarding citizenship and immigration. Defendant Kirstjen Nielsen is the acting Secretary of the Department of Homeland Security and is responsible for the administration of the immigration laws.
Defendant Lee Francis Cissna is the Director of the USCIS, the branch of the Department of Homeland Security charged with administering the country's naturalization and immigration system, including the adjudication of immigration applications. Cissna is the official charged with supervisory authority over all operations of the USCIS. Defendant Denis Riordan is the District Director of the Boston District of the USCIS. Riordan is the official of the USCIS with general supervisory authority over all operations within the Boston District.
Defendant Todd Lyons is the Acting Field Officer of ICE in Boston, Massachusetts, which is the federal law enforcement agency tasked with enforcing U.S. immigration laws. In his role as Acting Field Officer, Lyons is responsible for the enforcement of federal immigration laws, including the deportation of removeable aliens, in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont.
Brizard became a naturalized U.S. citizen in September, 1999, when Compere was 12 years old. In 2002, Brizard sought the assistance of an attorney, Daniel Honore, to assist her with applying to adjust Compere's status to lawful permanent resident. Attorney Honore apparently told Brizard that she would need a form known as an I-94, which is an arrival and departure record issued by a Customs and Border Protection Officer to foreign visitors entering the United States. Brizard did not have the original I-94 for Compere from 13 years earlier so Attorney Honore helped her apply for a replacement I-94 in April, 2003.
At some point in communicating with the USCIS, Attorney Honore allegedly informed the agency that it should correspond directly with him rather than with Brizard. The USCIS purportedly did not acknowledge Attorney Honore's request and instead initially sent a denial of the request for a replacement I-94 directly to Brizard's address in September, 2003, indicating that the agency had no record of Compere's arrival in the United States. After learning of the denial, Brizard alleges that she reached out to Attorney Honore who told her that without the I-94, there was nothing more that he could do for her son. Attorney Honore suggested that Brizard send Compere back to Haiti to apply for an immigrant visa through consular processing but Brizard refused to do so because she had no family in Haiti at the time. She sought no further advice from Attorney Honore from that point forward.
The USCIS reversed its earlier denial of Brizard's application for a replacement I-94 just a few months later. In April, 2004, the USCIS sent a letter addressed to Compere at his home address informing him that he appeared to be on a humanitarian parolee status and that his application would be transferred to the district office in Boston for processing. Neither Brizard nor Compere apparently ever physically received or saw that letter. From April, 2004, to December, 2018, the Boston office of the USCIS took no action to produce the replacement I-94 nor did Brizard or Compere inquire into the status of that application or otherwise apply to adjust Compere's status to lawful permanent resident.
Compere became 18 years old in October, 2005. Since becoming an adult, he has been arrested and convicted for several trespassing and drug-related offenses. In 2011, he was convicted for possession to distribute heroin, a Class A substance. In 2015, he was convicted for possession of suboxone
, a Class B Substance. In 2016, he was convicted for possession of Adderall-Amphetamine, a Class B substance. He has served sentences for all three convictions.
In 2016, Compere was in a detox program in Philadelphia, Pennsylvania when ICE officers met with and questioned him. After leaving the detox program, he did not hear from ICE so he visited the USCIS office in Lawrence, Massachusetts. The USCIS informed him that he should consult an attorney because it had no information on him. In 2017, Compere finished his probation program and his probation officer told him to contact ICE. Compere met with an Officer Hamel who told him to follow-up with certain documentation, including his mother's naturalization certificate, his birth certificate and his proof of entry.
After not hearing from Officer Hamel for several months, Compere called him in October, 2017. Officer Hamel told Compere that he would need a hearing with an immigration judge which Compere took to mean that he had to attend Immigration Court that same day. Compere went to the Immigration Court located in Boston and called Officer Hamel again. Officer Hamel informed Compere that his hearing would not be that day but that he should wait at the court for Hamel to pick him up. Compere complied with that instruction and was arrested and taken into ICE custody by Officer Hamel later that day.
Compere was placed in removal proceedings and charged as an arriving alien with three counts of removability: 1) not having a proper immigrant visa in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I) ; 2) being someone the Attorney General has reason to believe is a trafficker of a controlled substance in violation of 8 U.S.C. § 1182(a)(2)(C)(i) ; and 3) having been convicted of a violation of any law or regulation relating to a controlled substance in violation of 8 U.S.C. § 1182(a)(2)(A)(i)(II). In 2018, after several hearings, an immigration judge found Compere to be removable.
Compere filed an application for relief under the Convention Against Torture. He claims that he is afraid to return to Haiti because he could potentially face torture and prolonged imprisonment upon arrival as a criminal deportee. He also submits that his close relationship to Clarens Renois, a well-known political opponent of the Haitian government and former presidential candidate, increases his risk of being detained and tortured upon arrival in Haiti.
His application under the Convention Against Torture was denied in April, 2018.
The Immigration Judge found that Compere had not proven that it was more likely than not that he would be tortured if deported to Haiti. The Board of Immigration Appeals (the "BIA") affirmed that denial in September, 2018. Compere then filed a petition for review and a motion for a stay of removal with the First Circuit Court of Appeals in October, 2018. In November, 2018, the First Circuit denied Compere's motion to stay, determining that his request was jurisdictionally barred and that he was unlikely to succeed on the merits. The following day, Compere filed a motion to reopen his case with the BIA, arguing that he had obtained new evidence to support his claim for deferral of removal under the Convention Against Torture.
The day after Compere filed his ...
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