Doe v. Wolf
| Decision Date | 12 June 2020 |
| Docket Number | Case No. 19-cv-03852-DMR |
| Court | U.S. District Court — Northern District of California |
| Parties | JOHN DOE, Plaintiff, v. CHAD F. WOLF, et al., Defendants. |
Plaintiff John Doe 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 application for consent to reapply for admission to the United States. Plaintiff now moves pursuant to Federal Rule of Civil Procedure 56 for summary judgment to reverse the February 27, 2019 decision by USCIS's Administrative Appeals Office ("AAO") affirming the decision. [Docket No. 31 (Pl.'s Mot.).] Defendants Chad F. Wolf, Department of Homeland Security ("DHS"), Kenneth T. Cuccinelli, Richard Valeika, and USCIS cross-move for summary judgment to affirm the AAO's decision. [Docket No. 33 (Defs.' Mot.).] This matter is appropriate for determination without oral argument. Civil L.R. 7-1(b). For the following reasons, Plaintiff's motion is granted in part. Defendants' motion is denied.
This case arises from USCIS's denial of Plaintiff's Form I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal. The court sets forth the governing statutory framework contained in the relevant provisions of the Immigration and Nationality Act ("INA"), as well as the undisputed facts underlying these cross-motions.
In 1996, Congress amended the INA by enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996) ("IIRIRA"). "IIRIRA established 'admission' as the key concept in immigration law and defines the term as 'the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.'" East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 756 (9th Cir. 2018) (quoting 8 U.S.C. § 1101(a)(13)(A)) (citing Vartelas v. Holder, 566 U.S. 257, 262 (2012)). A noncitizen seeking "admission" to the United States "cannot gain entry if she is deemed 'inadmissible' on any of the numerous grounds set out in the immigration statutes." Vartelas, 566 U.S. at 263 (citing 8 U.S.C. § 1182). In particular, 8 U.S.C. § 1182(a) sets forth reasons why noncitizens may be "ineligible to receive visas and ineligible to be admitted to the United States." In relevant part, the statute provides that a noncitizen who "enters or attempts to enter the United States without being admitted" after having been "unlawfully present in the United States for an aggregate period of more than 1 year" or having "been ordered removed" from the country is inadmissible. 8 U.S.C. § 1182(a)(9)(C)(i). However, section 1182(a) includes an exception to that basis for inadmissibility. It states that the foregoing category of inadmissibility does not apply under certain circumstances when the alien is seeking admission more than 10 years after having last departed the United States:
[§ 1182(a)(9)(C)(i)] shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien's reapplying for admission.
8 U.S.C. § 1182(a)(9)(C)(ii). Therefore, a noncitizen who is inadmissible under § 1182(a)(9)(C)(i) "may seek admission into the United States if: (1) he has been absent from the United States more than ten years, and (2) he has received the consent of the Secretary of Homeland Security to the application for readmission." Gonzales v. Dep't of Homeland Security, 508 F.3d 1227, 1231 (9th Cir. 2007) (citing 8 U.S.C. § 1182(a)(9)(C)(ii)). "[P]ermission to reapply [for admission] is sought by the filing of an I-212 form." Id. (citing 8 C.F.R. § 212.2).
Plaintiff John Doe was born in Mexico in 1966. Administrative Record ("A.R.") 113.1 His wife is a lawful permanent resident of the United States and two of his four children are United States citizens. A.R. 104, 117-18,120, 122, 124.
In 1986, Plaintiff entered the United States without inspection and settled in California. A.R. 104, 469. Between 1986 and 1996, Plaintiff traveled between Mexico and the United States several times, each time entering the United States without inspection. A.R. 469. In 2002, Plaintiff left the United States to visit his parents in Mexico. When he attempted to return to United States in January 2003, U.S. Customs & Border Protection ("CBP") apprehended him. He was detained and subsequently removed from the United States. A.R. 469, 606-09. Following his removal, Plaintiff re-entered the United States without inspection in January 2003. A.R. 469. Plaintiff's January 2003 re-entry without inspection rendered him inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i). As noted, that provision states that a noncitizen who "enters or attempts to enter the United States without being admitted" after having been "unlawfully present in the United States for an aggregate period of more than 1 year" or having "been ordered removed" from the country is inadmissible. 8 U.S.C. § 1182(a)(9)(C)(i).
Later in 2003, Plaintiff and his wife decided to leave California and move back to Mexico to be close to their families. A.R. 106, 469. They moved to Uruapan in the state of Michoacán, Plaintiff's hometown, where Plaintiff started a business. A.R. 106. After his 2003 return to Mexico, Plaintiff remained in Mexico for over ten years. A.R. 469.
According to Plaintiff, at some point after his return to Mexico, a violent group known as Caballeros Templarios or "Knights Templar" took control over Uruapan and imposed taxes on the local businesses, including Plaintiff's. A.R. 107-08. In 2014, Knights Templar detained Plaintiff's son for two days. They beat and shot him before releasing him. A.R. 108. Later thatyear, Plaintiff became unable to pay the tax to Knights Templar. After missing a payment, armed men visited his business and threatened to kill him and his family if he did not pay. Afraid that he would be killed, Plaintiff left Michoacán with his wife and children the following day. A.R. 108.
Plaintiff arrived with his family at the Otay Mesa port of entry in San Diego, California on June 26, 2014. He presented himself to a CBP officer and requested asylum in the United States. A.R. 469, 592-94. Plaintiff was presumed inadmissible to the United States, served with a Notice and Order of Expedited Removal from the United States, and detained pending an interview by an asylum officer. A.R. 570-73, 575-76, 592-94, 597-99. An asylum officer interviewed Plaintiff in July 2014 and found that he had a credible fear of torture. A.R. 550-69. Thereafter, Plaintiff's order of expedited removal was vacated and he was ordered to appear before an immigration judge. A.R. 548-49. On August 22, 2014, CBP released Plaintiff from detention and paroled him into the United States until August 22, 2015 pursuant to 8 C.F.R. § 212.5, which authorizes parole "on a case-by-case basis for 'urgent humanitarian reasons' or 'significant public benefit.'" A.R. 115, 484; 8 C.F.R. § 212.5(b). The statute under which Plaintiff received parole expressly states that parole under such circumstances "shall not be regarded as an admission of the alien" to the United States, 8 U.S.C. § 1182(d)(5)(A), and Plaintiff's parole document states that it is "not valid for employment nor entry into the U.S.A." A.R. 115, 484.
After being paroled into the United States, Plaintiff relocated to the San Francisco Bay Area.2 In June 2015, Plaintiff's U.S. citizen daughter filed a Form I-130 Petition for Alien Relative on his behalf and Plaintiff filed a Form I-485 Application to Register Permanent Residence or Adjust Status to become a lawful permanent resident (the "I-485 application"). A.R. 457-63, 476, 477. Plaintiff also filed a Form I-212 Application for Permission to Reapply for Admission Into the United States After Deportation or Removal (the "I-212 application"), seeking consent to reapply for admission under the exception to inadmissibility found in 8 U.S.C. §1182(a)(9)(C)(ii). A.R. 70-71. In his I-212 Application, Plaintiff acknowledged the following bases for his inadmissibility: "I entered or attempted to enter the United States without being admitted or paroled after having been removed (INA section 212(a)(9)(C)(i)(I))" and "I entered or attempted to enter the United States without being admitted or paroled after having been unlawfully present in the United States for a period of more than 1 year, in the aggregate (INA section 212(a)(9)(c)(i)(I))." A.R. 71.
USCIS approved Plaintiff's daughter's I-130 Petition in March 2016. A.R. 417. In October 2016, USCIS denied Plaintiff's I-485 application to adjust status. A.R. 432-33. In its decision, USCIS stated that Plaintiff was ineligible to adjust his status because he was inadmissible under 8 U.S.C. § 1182(a)(9)(C). It further stated that Plaintiff could not seek consent to reapply for admission under section 1182(a)(9)(C) because "consent to reapply . . . is available only if the applicant is outside the United States, and only after the applicant has been abroad for at least 10 years." A.R. 433 (emphasis added).3 Plaintiff moved to reopen and to reconsider the decision. A.R. 82-85. On January 10, 2017, USCIS granted Plaintiff's motion, set aside the denial of the I-485 application, and placed the application "in a pending status for further review." A.R. 69.
On August 3, 2018, USCIS denied Plaintiff's I-212 application and also denied his I-485...
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