Ginters v. Frazier

• Decision Date: 05 August 2010
• Docket Number: No. 09-1653.,09-1653.
• Parties: Viktors GINTERS; Rochelle Ginters, Plaintiffs-Appellants, v. Denise FRAZIER, District Director, Citizenship and Immigration Services; Eduardo Aguirre, Director, Citizenship & Immigration Services; Janet Napolitano, Secretary, Department of Homeland Security; Eric H. Holder, Jr., United States Attorney General, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

614 F.3d 822

Viktors GINTERS; Rochelle Ginters, Plaintiffs-Appellants,

v.Denise FRAZIER, District Director, Citizenship and Immigration Services; Eduardo Aguirre, Director, Citizenship & Immigration Services; Janet Napolitano, Secretary, Department of Homeland Security; Eric H. Holder, Jr., United States Attorney General, Defendants-Appellees.

No. 09-1653.

United States Court of Appeals,Eighth Circuit.

Submitted: Dec. 15, 2009.

Filed: Aug. 5, 2010.

Dyan Williams, argued, Minneapolis, MN (Herbert Igbanugo, on the brief), for Appellant.

Friedrich Anson, Paul Siekert, AUSA, argued, Minneapolis, MN, for Appellee.

Before BYE, BEAM, and COLLOTON, Circuit Judges.

BYE, Circuit Judge.

Rochelle and Viktors Ginters ¹ brought an action for declaratory judgment asking the district court to declare unlawful the United States Citizenship and Immigration Service's (USCIS) denial of an I-130 Petition for Alien Relative and asking the district court to provide appropriate injunctive relief. The Ginters appeal the district court's grant of a motion to dismiss their complaint for lack of subject matter jurisdiction. We reverse and remand to the district court for further proceedings.

I

Viktors, a citizen of Latvia, entered the United States on a B-2 visitor's visa on October 28, 1995. He married Denise Harris, a United States citizen, on September 21, 1996, shortly before his visa expired. Harris filed an I-130 Petition for Alien Relative on Viktors's behalf. Viktors petitioned for adjustment of status based on that I-130. Harris subsequently withdrew her petition, alleging in a letter that Viktors had married her for immigration purposes and saying their marriage had never been consummated. As a result of the letter, and of the withdrawal of the I-130, the government denied Viktors's petition for adjustment of status and placed him in removal proceedings on February 9, 1998. On March 16, 1998, Viktors and Harris divorced. On May 9, 1998, Viktors married his current wife Rochelle, who is also a United States citizen.

On June 10, 1998, Rochelle filed a new I-130 on behalf of Viktors. USCIS notified the Ginters of the agency's intent to deny the I-130 petition, whereupon Viktors requested asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The Ginters also supplemented the record in the new I-130 proceeding with more evidence that their marriage was bona fide. USCIS denied the I-130 petition for alien relative on April 27, 1999, on the basis that Viktors had previously entered into a fraudulent marriage for immigration purposes and was consequently ineligible for a visa number. The Ginters filed a motion to reopen the proceedings, which was denied, and an appeal to the Board of Immigration Appeals (BIA), which was dismissed. An immigration judge (IJ) denied Viktors asylum, withholding of removal, and CAT relief on May 20, 2002, but granted voluntary departure. Viktors appealed the IJ's decision to the BIA, which affirmed. Viktors filed a petition for review, which this court denied.

On February 16, 2006, Viktors filed a habeas petition and a motion for a temporary restraining order in the district court, attacking USCIS's denial of Rochelle's I-130 petition. In addition, on February 21, 2006, Rochelle filed a second I-130 petition, which is the subject of the instant appeal. On March 2, 2006, Viktors filed a request for declaratory judgment, which was consolidated with the habeas petition and the motion for a temporary restraining order. See Ginters v. Cangemi, 419 F.Supp.2d 1124 (D.Minn.2006) ( Ginters I ). The district court dismissed the request for declaratory judgment and the motion for a temporary restraining order on March 7, 2006, and transferred the habeas petition to this court, which classified it as a petition for review and dismissed it on July 28, 2006, for lack of jurisdiction. See Ginters v. Gonzales, No. 06-1673, 2006 WL 3371648 (8th Cir. July 28, 2006). Viktors was removed to Latvia in March of 2006.

USCIS investigated the basis for Rochelle's second I-130, which contained a sworn statement by Harris that her letter accusing Viktors of fraud in their marriage was written in anger. In the statement, Harris retracted many of her earlier accusations. USCIS denied the I-130, reaffirming its finding that Viktors had entered into his first marriage for immigration purposes and was therefore ineligible for a visa priority date based on his marriage to Rochelle. Rochelle appealed to the BIA, which affirmed the agency's decision.

The Ginters brought suit in district court challenging the denial of the second I-130 petition and requesting declaratory and injunctive relief. The district court dismissed the action for lack of jurisdiction, finding it was bound by the doctrine of collateral estoppel to give preclusive effect to the district court's decision in Ginters I on the issue. The district court also found the Ginters had procedurally defaulted on their claims by failing to raise them in connection with the removal proceedings and that the courts do not have jurisdiction to review USCIS's denial of an I-130 petition. This appeal followed.

II

The district court decided it was bound, under the doctrine of collateral estoppel, to abide by the court's determination in Ginters I that it lacked jurisdiction to review an I-130 petition. It nevertheless reached the question of jurisdiction substantively by determining it had no jurisdiction to review the denial of an I-130 because of the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B)(ii). Finally, it determined the claims were procedurally barred for failure to exhaust administrative remedies.

Procedural Bar

The district court found the Ginters were procedurally barred from raising these issues because they failed to request adjustment of status in connection with Viktors's removal proceedings. The government claims this failure deprived the court of the opportunity to review these issues in connection with the appeal from the removal order. However, as a matter of procedure, the denial of the I-130 could not have been raised in a removal proceeding, even had Viktors applied for adjustment of status in that proceeding. An I-130 is not filed with the immigration court but with USCIS. See 8 U.S.C. § 1154 (establishing the framework under which I-130 petitions are filed). Viktors would not have been eligible for adjustment of status until an I-130 was granted and a visa number was available for his use. See Matter of Hashmi, 24 I. & N. Dec. 785, 789-90 (BIA 2009) (discussing approval of I-130 as predicate to consideration for adjustment of status in removal proceedings). Although he could have requested adjustment pending the grant of an I-130, Rochelle's I-130 had already been denied. That decision was appealed to the BIA and affirmed. Raising the adjustment of status issue would have been futile, as the IJ would have had no ability to adjust Viktors's status without an approved I-130 petition in place, and an immigration judge has no authority to review USCIS's decision on an I-130 petition. The Ginters did not have another vehicle through which they could have requested review of the I-130 petition and their claims are not procedurally barred.

Collateral Estoppel

This court reviews a district court's determination that an issue is precluded from consideration under collateral estoppel, also called issue preclusion, de novo. Robinette v. Jones, 476 F.3d 585, 588-89 (8th Cir.2007). We have determined the doctrine of preclusion may apply to the question of subject matter jurisdiction. Gas Aggregation Servs., Inc. v. Howard Avista Energy, LLC, 458 F.3d 733, 737-38 (8th Cir.2006) (finding federal courts must give full faith and credit to state court determination of subject matter jurisdiction for purposes of preclusion); see also, Pohlmann v. Bil-Jax, Inc., 176 F.3d 1110, 1112 (8th Cir.1999) (citing for example, Deckert v. Wachovia Student Fin. Servs., 963 F.2d 816 (5th Cir.1992); Kitces v. Wood, 917 F.Supp. 338 (D.N.J.1996); 18 J.WM. MOORE ET. AL., MOORE'S FEDERAL PRACTICE § 132.03[5][c] (3d ed.1999)). Even wrongly decided questions may be precluded from reconsideration under the doctrine. Montana v. United States, 440 U.S. 147, 162, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979); see Clark v. Clark, 984 F.2d 272, 273 (8th Cir.1993) (“The doctrines of claim and issue preclusion prevent relitigation of wrong decisions just as much as right ones. Otherwise, the doctrines would have no effect and be useless.”); see also, Liberty Mut. Ins. Co. v. FAG Bearings Corp., 335 F.3d 752, 763-64 (8th Cir.2003) (listing numerous courts which have found an issue is properly precluded from consideration in a subsequent proceeding even where the preceding decision was made in error). Although this court once found the doctrine of collateral estoppel should not extend to pure questions of law, United States v. Red Feather, 541 F.2d 1275, 1278-79 (8th Cir.1976), the Supreme Court, in Montana v. United States, significantly narrowed the exception for such questions. Montana, 440 U.S. at 162-63, 99 S.Ct. 970. While the Court in Montana left room for an exception where an unmixed question of law is raised in a successive action involving substantially unrelated claims, id. at 162, 99 S.Ct. 970, neither party has argued the exception applies here.

In the Eighth Circuit, issue preclusion has five elements: (1) the party sought to be precluded in the second suit must have been a party, or in privity with a party, to the original lawsuit; (2) the issue sought to be precluded must be the same as the issue involved in the prior action; (3) the issue sought to be precluded must have been actually litigated in the prior action; (4) the issue sought to be precluded must have been determined by a valid and final judgment; and (5) the determination in the prior action must have been essential to the prior judgment.

Robinette, 476 F.3d at 589 (quoting ...