Ginters v. Cangemi, No. Civ. 06-638ADMAJB.

• Decision Date: 07 March 2006
• Docket Number: No. Civ. 06-638ADMAJB.,No. Civ. 06-956ADMAJB.
• Citation: 419 F.Supp.2d 1124
• Parties: Viktors GINTERS, Petitioner, v. Mark CANGEMI, District Director, U.S. Immigration and Customs Enforcement (ICE); Michael Chertoff, Secretary, Department of Homeland Security; Alberto Gonzalez, United States Attorney General, Respondents; and Viktors Ginters and Rochelle Ginters, Plaintiffs, v. Denise Frazier, District Director, Citizenship and Immigration Services; Eduardo Aguirre, Director, Citizenship & Immigration Services; Michael Chertoff, Secretary, Department of Homeland Security; Alberto Gonzales, United States Attorney General, Defendants.
• Court: U.S. District Court — District of Minnesota

419 F.Supp.2d 1124

Viktors GINTERS, Petitioner, v. Mark CANGEMI, District Director, U.S. Immigration and Customs Enforcement (ICE); Michael Chertoff, Secretary, Department of Homeland Security; Alberto Gonzalez, United States Attorney General, Respondents; and Viktors Ginters and Rochelle Ginters, Plaintiffs, v. Denise Frazier, District Director, Citizenship and Immigration Services; Eduardo Aguirre, Director, Citizenship & Immigration Services; Michael Chertoff, Secretary, Department of Homeland Security; Alberto Gonzales, United States Attorney General, Defendants.

No. Civ. 06-638ADMAJB.

No. Civ. 06-956ADMAJB.

United States District Court, D. Minnesota.

March 7, 2006.

Herbert Igbanugo, Blackwell Igbanugo, P.A., Minneapolis, MN, argued on behalf of Petitioner/Plaintiffs.

Gregory G. Brooker, Assistant United States Attorney, Minneapolis, MN, argued on behalf of Respondents/Defendants.

MEMORANDUM OPINION AND ORDER

ANN D. MONTGOMERY, District Judge.

I. INTRODUCTION

On February 24, 2006, oral argument before the undersigned United States District Judge was heard on Petitioner Viktors Ginters' ("Ginters" or "Petitioner") Petition for a Writ of Habeas Corpus ("habeas petition") [Civ. No. 06-638, Docket No. 1] and Motion for a Temporary Restraining Order ("TRO") [Civ. No. 06-638, Docket No. 2]. On March 2, 2006, Ginters and his wife, Rochelle Ginters ("Rochelle"),¹ filed a Complaint for Declaratory Review of Visa Petition Denial by CIS District Director [Civ. No. 06-956, Docket No. 1] and Emergency Motion for a TRO [Civ No. 06-956, Docket No. 2]. For the reasons set forth herein, the Court lacks jurisdiction to hear Petitioner's habeas petition and accordingly transfers Petitioner's habeas petition to the Eighth Circuit. The Court dismisses Petitioner's Complaint for Declaratory Review, and both of Petitioner's TRO Motions are denied.

II. BACKGROUND

A. Ginters' Marriage to Denise Harris and First I-130 Petition

Petitioner Ginters is a thirty-two year old citizen of Latvia. Admin. Rec. [Civ. No. 06-638, Docket No. 20] at 2, 4. Ginters came to the United States on a B-2 nonimmigrant visitor's visa on October 28, 1995, and had permission to remain in the United States until October 26, 1996. Id. at 2, 40-41. On September 21, 1996, shortly before his visa was to expire, Ginters married Denise Harris ("Harris").² Id. at 17. Harris then filed a Petition for Alien Relative ("I-130 petition") on Ginters' behalf on March 11, 1997. Id. at 21, 30.

According to Ginters, he met Harris at a bar in May of 1996. Ginters Aff. [Civ. No. 06-638, Docket No. 4] at 1; Admin. Rec. at 34. After dating for a few months, Harris asked Ginters to marry her. Ginters Aff. at 2-3; Admin. Rec. at 35. Ginters states that they had become best friends; Harris was in love with him, and he hoped that he would fall in love with her over time. Ginters Aff. at 2-3; Admin. Rec. at 35. However, Ginters' relationship with Harris deteriorated rapidly after they were married. Ginters Aff. at 4-5; Admin. Rec. at 36. Ginters allegedly changed his lifestyle after joining a church and becoming a Christian, but Harris was unwilling to conform to Ginters' new lifestyle or to give up smoking and drinking. Ginters Aff. at 4-5; Admin. Rec. at 36. Ginters moved out of the apartment he shared with Harris in January of 1997, after just four months of marriage, and ultimately divorced Harris on March 16, 1998. Ginters Aff. at 5.

On October 20, 1997, Harris wrote a letter to the Immigration and Naturalization Service ("INS"),³ informing INS that the only reason Ginters married her was to stay in the United States and to stay out of the Latvian military. Admin. Rec. at 23. Harris alleged that Ginters never loved her and that their marriage was never consummated. Id. On December 1, 1997, Harris withdrew the I-130 petition filed on Ginters' behalf, leading the INS to deny Ginters' application for adjustment to permanent resident status on the same day. Id. at 21, 26, 30. Then, on February 9, 1998, the INS issued a Notice to Appear ("NOA") to Ginters, charging him as subject to removal for overstaying his visa. Id. at 2. At a hearing on July 7, 1998, Ginters admitted the factual allegations in the NOA and conceded removability. Id. at 50.

B. Ginters' Marriage to Rochelle Ginters and Second I-130 Petition

Ginters first met Rochelle through their shared church on December 31, 1997. Rochelle Aff. [Civ. No. 06-638, Docket No. 3] at 1. Ginters married Rochelle on May 9, 1998, two months after divorcing Harris. Id. at 2. Ginters and Rochelle have now been married for almost eight years, and have three daughters together, as well as two sons from Rochelle's previous relationships. Id. at 3. Rochelle's two sons have legally changed their last names to Ginters. Id. Ginters and Rochelle jointly operate a residential cleaning business called Whiter Than Snow: Ginters cleans homes while Rochelle schedules appointments and manages paperwork associated with the business. Id. Rochelle is disabled by pars planitis, a chronic ocular inflammation that causes major vision loss, and has been hospitalized in the past for depression, which has resulted in her increased dependence on Ginters. Id.

On June 10, 1998, Rochelle filed her first I-130 petition on Ginters' behalf. Admin. Rec. at 17. On April 27, 1999, the INS sent Rochelle a Notice of Intent to Deny ("NOID") her I-130 petition on the ground that Ginters' first marriage to Harris had been a sham marriage entered into for the purpose of circumventing the immigration laws, thereby precluding approval of the petition filed by Rochelle under section 204(c) of the Immigration and Nationality Act ("INA"). Id. On May 27, 1999, Ginters and Rochelle sought to attack the INS's determination by filing both a motion to reopen the I-130 petition with the INS and an appeal of the INS's denial of the I-130 petition to the Board of Immigration Appeals ("BIA"). In support of the motion to reopen, Ginters and Rochelle filed affidavits and statements from friends attesting to the bona fide nature of Ginters' marriage to Harris. The INS declined the motion to reopen on the same day it was filed, and on March 24, 2000, the BIA dismissed Ginters and Rochelle's appeal. Id. at 44. Ginters and Rochelle did not appeal the adverse decision to any court and the denial of the I-130 petition has stood unchallenged for the past six years.

C. Asylum Application and Removal Order

On September 22, 1998, a few months after Rochelle filed her first I-130 petition, Ginters filed an application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT") alleging a "justified fear of a clear probability of persecution" if he was deported to Latvia based on his "membership in the Russian speaking minority." Id. at 4-15. He also alleged a fear of being subject to military service where he would be exposed "to a far greater risk of violence." Id. at 6. On May 20, 2002, an Immigration Judge ("IJ") denied Ginters' asylum application, withholding of removal, and relief under the CAT, noting that Ginters had not "demonstrated a well-founded fear of future persecution, or a clear probability of such persecution .... it is well-recognized that it is not persecution for a country to require military service."⁴ Id. at 58. The IJ did grant Ginters the privilege of voluntarily departing the United States on or before July 20, 2002. Id. at 59.

Ginters appealed the IJ's decision, and on December 8, 2003, the BIA affirmed the IJ without opinion. Id. at 61. The BIA granted Ginters voluntary departure within thirty days from the date of the order. Id. Ginters appealed to the Eighth Circuit, and on November 3, 2005, the Eighth Circuit denied Ginters' petition for review of the BIA and the IJ's denial of his asylum application, withholding of removal, and relief under the CAT, holding that "a reasonable fact-finder could conclude that Ginters . . . failed to establish it is more likely than not he would be persecuted if he returned to Latvia."⁵ Id. at 65. On December 27, 2005, the Eighth Circuit issued its mandate. Id. at 67.

On January 17, 2006, a warrant of removal/deportation was issued for Ginters, and on January 23, 2006, the INS issued a "surrender notice" to Ginters, directing him to report to an immigration officer on February 6, 2006 for deportation. Id. at 70, 72. On February 6, 2006, Ginters reported to the INS and was taken into custody. Id. at 75. On the same day, he filed an application for a stay of deportation or removal with the INS, which was denied. Id. at 69, 75.

D. Harris' Recantation and the Instant Litigation

On February 16, 2006, Ginters filed his habeas petition and Motion for a TRO with this Court. The next day, Harris filed an affidavit, recanting her former statements regarding her sham marriage to Ginters. Harris Aff. [Civ. No. 06-638, Docket No. 15]. Harris stated that her previous letters about Ginters marrying her for the sole purpose of remaining in the United States were written out of "anger, confusion, broken heart and a determination to hurt [Ginters] as much as I felt he had hurt me, by walking away from our marriage." Id. at 2. She also stated "categorically that [Ginters] cared about me and did not marry me simply to obtain a green card." Id. at 13. On February 20, 2006, Rochelle filed a second I-130 petition on Ginters' behalf, premised on Harris' affidavit evincing her change of heart. Ginters Supp. Mem. of Law [Civ. No. 06-638, Docket No. 24] at 1.

The Court heard oral argument on this matter on February 24, 2006. At oral argument, the government asserted that it has obtained travel documents for Ginters and is prepared to deport him. See also Admin. Rec. at 78. The Court took the matter under advisement after the government agreed not to deport Ginters while the instant litigation is pending. The parties requested supplemental briefing on jurisdiction. Ginters filed a lengthy supplemental brief on ...