Desai v. Mayorkas
| Decision Date | 31 August 2022 |
| Docket Number | 4:22-cv-03497 |
| Parties | Urvashi Navin Desai and Vikash Kumar Desai, Plaintiffs, v. Alejandro Mayorkas, U.S. Department of Homeland Security, et al. Defendants. |
| Court | U.S. District Court — Southern District of Texas |
MEMORANDUM AND RECOMMENDATION
The bureaucratic mess that Plaintiffs have endured is nothing short of a nightmare. For more than twenty years, Plaintiff Urvashi Navin Desai, together with her husband, Plaintiff VikashKumar Desai, took all administrative steps necessary to obtain her legal permanent residence and, ultimately, apply for naturalization. Yet, unbeknownst to Plaintiffs, the U.S State Department purportedly terminated Ms. Desai's visa application years before U.S. Citizenship and Immigration Services (“USCIS”) issued her green card. According to Defendants (collectively, the “Government”), that means her green card is invalid despite USCIS's prior decision to issue it.
But the Government found itself in a quandary. Having failed to timely communicate the information about Ms. Desai's visa between its agencies- much less to Ms. Desai-the Government is now time-barred from rescinding her green card. And Ms. Desai understandably was hesitant to rescind it voluntarily unless the Government agreed to act promptly on her new round of applications for status-which the Government has refused to do. Instead, the Government chose to initiate removal proceedings. That course of action threatens to tear Ms. Desai away from her family her business, and the life that she has built during her decades-long residence in the United States.
The Court sympathizes with Ms. Desai's plight and has serious concerns with the Government's strongarm tactics. But, as discussed below, the Immigration and Nationality Act constrains the Court's ability to afford the relief that Ms. Desai seeks. As a result, it is recommended that the Court grant the Government's Motion to Dismiss, Dkt. 13 and that Plaintiffs' claims be dismissed without prejudice.
Also pending before the Court are two procedural motions. Plaintiffs seek leave to file a sur-reply in opposition to the Government's motion to dismiss, Dkt. 23, and the Government seeks to strike Plaintiffs' Exhibit 1 (Dkt. 16-1) to their response to the motion to dismiss. Dkt. 17, 27. As explained below, these motions are denied.
This is an immigration case arising out of Urvashi Navin Desai's (“Ms. Desai”) application for naturalization. Ms. Desai married VikashKumar Desai (“Mr. Desai”), a United States citizen, nearly twenty-two years ago in September 2000. Dkt. 1 ¶ 17. The following year, Mr. Desai filed a Petition for Alien Relative, Form I-130, to sponsor Ms. Desai's family visa in the United States. Id. The Petition was granted in 2002. Id.
Nine years later, and on March 14, 2011, Ms. Desai filed her Application for Adjustment of Status, Form I-485, to become a Lawful Permanent Resident-i.e., a green card holder. Id. On June 27, 2013, Defendant United States Citizenship and Immigration Services (“USCIS”) approved Ms. Desai's petition after reviewing her background, processing her filing fees, and interviewing her and Mr. Desai. Id. ¶ 18. To this date, she has been living in the United States on the green card (the I-551 Permanent Resident Card) issued as a result of this approval. Id. ¶ 26; see also Dkt. 16-1 at 2-8 (correspondences regarding Ms. Desai's green card).
On July 19, 2016, Ms. Urvashi filed her Form N-400 to apply to become a naturalized United States citizen. Dkt. 1 ¶ 19. Her application was denied in 2017 because USCIS determined that her application for a green card (Form I-485) never should have been approved in 2013. Id. ¶¶ 19-21. According to USCIS, the Desais' petition for a family visa had been terminated by the United States Department of State prior to her filing of her Form I-485, which should have rendered her application ineligible. Id. ¶ 20. The Government has stated that USCIS was “unaware” of the Department of State's termination at the time that it approved Ms. Desai's green card. Dkt. 13 at 7. But the Desais never received an explanation as to why her Form I-485 was approved despite this discrepancy or why she was not notified of the error prior to her July 2016 naturalization application. Dkt. 1 ¶ 21.
On January 25, 2018, Ms. Desai appealed the USCIS's denial of her naturalization by filing a Form N-336, a Request for Hearing on a Decision in Naturalization. Id. ¶ 19. The hearing was held on March 29, 2021, but no decision has been issued. Id. ¶ 25, Ex. 6.
Because the Government took the position that Ms. Desai was not holding a valid green card, Mr. Desai restarted the process from the beginning, out of an abundance of caution. Id. ¶ 24. On June 14 and December 6, 2019 respectively, Mr. Desai filed another Petition for Alien Relative, Form I-130, and Ms. Desai filed another Application for Adjustment of Status, Form I-485. Id. USCIS took no action on these applications, which were pending until this litigation commenced. Dkt. 16-3 (USCIS Decision on I-485).
On October 20, 2021, the Desais filed this suit, naming as defendants Attorney General Merrick Garland, Secretary of the U.S. Department of Homeland Security Alejandro Mayorkas, USCIS Director Ur Mendoza Jaddou, and Acting Field Office Director of USCIS Houston District Office Wallace L. Carroll. Dkt. 1 ¶¶ 5-8. They brought two claims: one for de novo review of Ms. Desai's eligibility for naturalization and another, in the alternative, for mandamus relief that would force Defendants to end their undue delay in adjudicating Ms. Desai's pending Forms N-336, I-130, and I-485. Id. at 9-17.
The next day, USCIS's agency counsel acknowledged the lawsuit and faxed the Desais' counsel a copy of a proposed Agreement to Rescission of Ms. Desai's green card. Dkt. 16-1 at 18. The execution of that Agreement, according to USCIS agency counsel, was required before USCIS would adjudicate the Desais' more recently filed Forms I-130 and I-485. Id. at 19. The Government acknowledges that, at the time of the offer and even currently, it could not rescind Ms. Desai's green card without her waiver because the Immigration Nationality Act and Code of Federal Regulations impose a five-year statute of limitations on rescission proceedings. Dkt. 17 at 2-3 (citing 8 U.S.C. §§ 1255, 1256 and 8 C.F.R. part 246.1).
In early November 2021, counsel for the Desais and USCIS agency counsel negotiated by email. See Dkt. 16-1. The Desais were hesitant to agree to the rescission of her green card without any assurances that the second Form I-130 and I-485 applications would be granted-or even reviewed promptly. Id. at 7-8. Negotiations stalled over the timing and terms of the rescission. Id. at 3-6.
In the last substantive email from agency counsel, USCIS stated, “If the U.S. District Court orders USCIS to adjudicate the [second] I-485, USCIS will deny the I-485 because [Ms. Desai] is already a lawful permanent resident.” Id. at 4. USCIS also warned that, Id. USCIS did not respond to the Desais' counsel follow up emails, other than to inform them, without explanation, that the proposed November 29, 2021 interview date for their I-130 was cancelled. Id. at 2-3.
On November 18, 2021, the Desais served the Government with this lawsuit, effectuating an answer date of January 18, 2022. Dkts. 11, 12. Eight days before the Government's answer deadline, Defendant Department of Homeland Security began removal proceedings against Ms. Desai by issuing a Notice to Appear. Dkt. 14-1. The Notice provides the following justification for her removal: “On or about June 27, 2013, USCIS erroneously adjusted you to lawful permanent residence because you lacked an approved Form I-130, Petition for Alien Relative, an immediately available visa, to support the adjustment as required by Section 245(a)(3) of [the INA].” Id. at 4.
On January 18, 2022, Defendants filed a motion to dismiss arguing that, pursuant to 8 U.S.C. § 1429, the Court could not consider Ms. Desai's naturalization application or compel the Government to do so because Ms. Desai was subject to removal proceedings. Dkt. 13 at 4-8. For the same reason, the Government argued that the Court could not exercise subject matter jurisdiction over the Desais' second Form I-130 and I-485 applications. Id. at 8-9. The Government also argued, in the alternative, that Ms. Desai failed to exhaust her administrative remedies and to state a claim pursuant to Rule 12(b)(6). Outside the filings in this lawsuit, on January 21, 2022, USCIS administratively closed the Desais' Form I-485 application, citing a lack of jurisdiction to adjudicate that application while Ms. Desai is in removal proceedings. Dkt. 16-3 (USCIS Decision on I-485).
This series of adverse actions taken against Ms. Desai resulted in a flurry of filings in this Court. The Desais filed a response to the motion to dismiss, Dkt. 16, which was followed by the Government's reply, Dkt. 17, and the Desais' attempted sur-reply. Dkt. 22. The Government...
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