Garcia v. U.S. Citizenship & Immigration Servs.
| Citation | 168 F.Supp.3d 50 |
| Decision Date | 02 March 2016 |
| Docket Number | Civil Action No. 15-744 (JEB) |
| Parties | Armando Garcia, Plaintiff, v. U.S. Citizenship and Immigration Services, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Thomas A. Elliot, Lichtman & Elliot, PC, Washington, DC, for Plaintiff.
April Denise Seabrook, Jennifer Joy Lee, U.S. Attorney's Office, Washington, DC, for Defendant.
JAMES E. BOASBERG
As modernist architect Ludwig Mies van der Rohe once reflected, “It is not possible to go forward while looking back.” Yet that is exactly what Plaintiff Armando Moya Garcia, an alien émigré from Cuba, seeks to do here. He wants this Court to turn back time, not in a literal sense, but in a legal one, so that his quest to remain in this country may go forward.
Garcia came to the U.S. by boat in 1980, and in 1981, while he was a minor living in Florida, his mother applied on his behalf for lawful-permanent-resident (LPR) status with the predecessor agency of what is now U.S. Citizenship and Immigration Services. After years of waiting without a decision on that application, Garcia filed a second application as an adult in 1990. Initially successful in obtaining LPR status on that one, he was later ordered deportable, in large part because of a cocaine-trafficking conviction. He subsequently sought—and was denied—a discretionary waiver from deportation; as a result, he has been under an order of supervision ever since. Garcia has two goals in bringing this suit: to obtain through the Freedom of Information Act a record of any adjudication of his 1981 application and, barring that, to secure a reconsideration of his LPR request under the facts and law as they stood in 1981—before his criminal conviction—so that he may seek another chance at a deportation waiver.
On his FOIA cause of action, the Court ultimately concludes that USCIS has adequately searched—albeit in vain—for a record of a 1981 adjudication. As to his LPR-reconsideration claim, Plaintiff's theory of relief is both too speculative and too spectral to establish that he has standing. It would require the exercise of extraordinary nunc pro tunc equitable remedies—ones the Court doubts it has the authority to grant—to bend time in the manner Garcia seeks, rewinding 20 years of changes to immigration laws and 35 years of facts relating to him. As such relief is not warranted here, the Court will grant Defendants' combined Motion for Summary Judgment and Motion to Dismiss.
Because the relevant parts of Plaintiff's story take place in both the past (his claim for adjustment of status under his 1981 Application for LPR status) and the present (his FOIA inquiry), the Court will recount them separately.
“[O]ur Byzantine immigration laws and administrative regulations are second or third in complexity [only] to the Internal Revenue Code.” Santiago v. Holder, 312 Fed.Appx. 867, 868 (9th Cir.2009)
(Pregerson, J., dissenting). The Court's recitation of the background of Plaintiff's case, accordingly, is light on facts but heavy on law.
Plaintiff Armando Garcia Moya is a citizen of Cuba who currently resides in Falls Church, Virginia. See Compl., ¶ 9. Although the parties do not account for his early childhood, on October 19, 1981—when Plaintiff was nine—his mother filed on his behalf a Form I-485A, an Application by Cuban Refugee for Permanent Residence, with Immigration and Naturalization Services (INS), the predecessor agency to USCIS. Id., ¶ 15; see also Notice (ECF No. 13), Exh. 8 (I-485A Application (Oct. 19, 1981)). Plaintiff's mother appears to have filed his 1981 application in person, and Garcia seems to have been interviewed by INS that same day, see Compl., ¶ 15, but his family never received notification of the resolution of his application. Id., ¶ 16. Once Garcia reached the age of majority in 1990, he filed a second Form I-485A application, on November 19, 1990. Id.; see also Notice, Exh. 10 (I-485A Application (Nov. 19, 1990)). While his 1981 application omitted the date and location of his arrival in the United States, his 1990 application suggests he arrived in Miami, Florida, by boat on August 11, 1980. See I- 485A Application (Nov. 19, 1990) at 1. At no time either before the filing of his 1990 application or during its adjudication does Plaintiff suggest he or his mother ever inquired into the status of the 1981 application.
This was only the beginning of Garcia's interactions with federal agencies. Six months after he filed his 1990 application, Plaintiff was convicted on May 31, 1991, of distribution and possession with intent to distribute more than 500 grams of cocaine. See Notice, Exh. 11 (Order to Show Cause and Notice of Hearing (Nov. 21, 1995)) at 6; id., Exh. 7 (Decision of Immigration Judge (Jan. 23, 1996)) at 2. Around that same time, his status was adjusted to that of lawful permanent resident by INS. To the Court's initial confusion, Plaintiff's pleadings never specify the date this adjustment took place, and the record evidence and Defendants' briefings contradict themselves as to whether it occurred on April 19, 1991, or April 19, 1992.1 Because the Memorandum of Creation of Record of Lawful Permanent Residence for Plaintiff is dated April 19, 1991, in multiple places on the document, and because that document is the official record of his adjustment of status, the Court will assume the 1991 date is accurate. See Notice, Exh. 12 (). In any case, at the time his status was adjusted, it was also made administratively retroactive to January 1, 1982, a fact the parties do agree on. Id.; see also Compl., ¶ 16; Reply at 19. Absent any other explanation, the retroactive status appears to have been made in recognition of his earlier—and then-outstanding—1981 application.
Plaintiff's honeymoon with LPR status did not last long, however. In 1995, he was issued an Order to Show Cause and Notice of Hearing, in which he was informed that he was subject to deportation under several provisions of the Immigration and Naturalization Act. See Order to Show Cause. The grounds for his deportation included his involvement with illegal drug trafficking, his conviction related to a controlled substance, and the procurement of immigration benefits (his LPR status) based on fraudulent or willful misrepresentation by attesting in his 1990 application that he was not then involved in drug trafficking or narcotics distribution. Id. at 3, 6.
The subsequent events are legally complicated, but reciting them with precision is critical to the disposition of Plaintiff's case. At his January 4, 1996, hearing on the issue of deportation, Garcia admitted all of the allegations of fact contained in the Order to Show Cause, and he was consequently found to be “deportable as charged.” See Decision of Immigration Judge at 2. Although both the parties' briefs and the documentary record fail to establish this, the parties appear to agree that Garcia's LPR status was terminated as a result of the immigration judge's order that he be deported. See Compl., ¶ 16; Defendants' Statement of Material Facts (ECF No. 11-2) at 7. At a minimum, the case law supports this conclusion. See Matter of Lok, 18 I. & N. Dec. 101, 101 (BIA 1981)
(); Rivera v. I.N.S., 810 F.2d 540, 541 (5th Cir.1987)
(applying Matter of Lok); see also United States v. Yakou, 428 F.3d 241, 248 (D.C.Cir.2005). The Court, accordingly, proceeds under the assumption that at the present moment Garcia no longer has LPR status.
What happened next involves considerable legal time travel, given the changing and fluid nature of this country's immigration laws. Having been ordered deportable, Garcia applied for a discretionary waiver from deportation under § 212(c) of the INA (then codified as amended at 8 U.S.C. § 1182(c)
, and since repealed). See Decision of Immigration Judge at 2. Confusingly, at the time Garcia applied, the plain text of § 212(c) suggested such a waiver was available only in instances of exclusion proceedings—that is, when an LPR who had left the country returned and was denied re-entry. See 8 U.S.C. §§ 1182(a), (c), repealed by Omnibus Consolidated Appropriations Act, 1997, Pub. L. 104–208, § 304(b), 110 Stat. 3009, 3009-597 (Sept. 30, 1996) (). The parties do not provide any evidence suggesting Garcia entered exclusion proceedings after returning from abroad, and the address listed in his 1995 order to show cause, as well as that listed in the immigration judge's 1996 decision, suggest he was incarcerated at the time he applied for the waiver. See Order to Show Cause at 1 (); Decision of Immigration Judge at 1 (same). At first blush, then, Garcia's seeking a § 212(c) exclusion waiver would seem to have been improper.
The Court presumes that the reason Garcia sought such a waiver is that at the time (1996), the relevant statute—8 U.S.C. § 1182(c)
—granted immigration judges considerably more discretion in waiving deportation or exclusion orders than did the equivalent waiver for aliens ordered deported from within the United States, then known as a § 244 waiver (since moved to § 237 of the INA and re-codified as amended at 8 U.S.C. § 1227 ). See Zamora – Mallari v. Mukasey, 514 F.3d 679, 683–86 (7th Cir.2008) (). Indeed, after the Second Circuit in 1976 found that such difference in treatment between those ordered deportable and those ordered excludable was arbitrary and in...
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