De Gutierrez v. Barr
| Decision Date | 28 September 2020 |
| Docket Number | Civil No. 19-2495 (JRT-KMM) |
| Parties | Sandra HERNANDEZ DE GUTIERREZ & Heberth Gutierrez, Plaintiffs, v. William P. BARR, United States Attorney General; Kevin McAleenan, Acting Secretary, Department of Homeland Security; Kenneth Cuccinelli, Acting Director, U.S. Citizenship and Immigration Services; Donald Neufeld, Associate Director, Service Center Operations, U.S. Citizenship and Immigration Services; Robert Cowan, Director, National Benefits Center, U.S. Citizenship and Immigration Services; Leslie Tritten, Director, St. Paul Field Office, U.S. Citizenship and Immigration Services; U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, Defendants. |
| Court | U.S. District Court — District of Minnesota |
Brittany S. Bakken, David L. Wilson, and Kelsey Friberg, WILSON LAW GROUP, 3019 Minnehaha Avenue, Suite 200, Minneapolis, MN 55406, for plaintiffs.
P. Angel Martinez, DEPARTMENT OF JUSTICE, CIVIL DIVISION, Office of Immigration Litigation, District C, P.O. Box 868, Ben Franklin Station, Washington, DC 20044, for defendants.
AMENDED MEMORANDUM OPINION AND ORDER
This case presents the novel question of whether the Temporary Protected Status ("TPS") statute, 8 U.S.C. § 1254a, allows a person who initially entered the country without inspection but was later granted TPS to adjust their status to lawful permanent resident pursuant to 8 U.S.C. 1255. Because the plain language of the statute makes clear that (1) a grant of TPS qualifies as an "admission" and (2) such an admission qualifies as a new entry, the Court will answer the question in the affirmative. Accordingly, the Court will grant Plaintiffs’ Motion for Summary Judgment and deny Defendants’ Motion for Summary Judgment. Additionally, the Court will grant Defendants’ Motion to Dismiss Plaintiffs’ declaratory judgment claim because it is redundant of Plaintiffs’ APA claim.
I. UNDISPUTED FACTS
The relevant facts are not in dispute and are summarized briefly here. Plaintiffs Sandra Hernandez de Gutierrez and Heberth Gutierrez are a married couple and citizens of El Salvador. (Compl. ¶¶ 1, 4, 7, Sept. 11, 2019, Docket No. 1.) In 1990, Plaintiffs entered the United States without inspection. (Id. ¶¶ 45, 68.) In 2001, the Attorney General designated El Salvador for the TPS program under 8 U.S.C. § 1254a(b) after the country experienced a significant earthquake. See Designation of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg. 14,214 (March 9, 2001).
In 2003, Plaintiffs applied for and, after a rigorous review by Defendants, were granted TPS under § 1254a(c). (Compl. ¶¶ 51–52, 68.) Since that time, Plaintiffs have consistently renewed their TPS as required, and Plaintiff Hernandez de Gutierrez was paroled into the United States in 2011 following a brief foreign trip. (Id. ¶¶ 52–53, 68.)
In 2004, Plaintiff Hernandez de Gutierrez's mother, a U.S. citizen, filed a Petition for Alien Relative (I-130) visa listing Plaintiff Hernandez de Gutierrez as the primary beneficiary and Plaintiff Gutierrez as a secondary beneficiary. (Id. ¶ 54.) United States Citizenship and Immigration Services ("USCIS") approved the I-130 petition in 2004, but a visa number did not become available until June 2016. (Id. ¶ 55.)
In late 2016, based on the approved I-130 petition and the availability of a visa, Plaintiffs submitted applications to USCIS to adjust their immigration statuses from TPS to lawful permanent residents under § 1255. (Id. ¶¶ 54, 56, 70.)
In December 2017, USCIS denied Plaintiff Gutierrez's application for two reasons: first, USCIS stated that Mr. Gutierrez was not "admitted" because a grant of TPS did not qualify as an admission as required under § 1255(a) ; and second, even if a grant of TPS was an admission, Mr. Gutierrez was still ineligible to adjust his status pursuant to § 1255(c)(2) ’s requirement to "continuously maintain lawful status" since his entry into the United States. USCIS came to this conclusion by measuring Plaintiff Gutierrez's entry from 1990, not from his grant of TPS in 2003. ( Id. ) The Administrative Appeals Office ("AAO") affirmed the USCIS decision. ( Id. Ex. D); Matter of H-H-G- , 27 I. & N. Dec. 617 (AAO 2019).
In January 2018, USCIS also denied Plaintiff Hernandez de Gutierrez's adjustment application, finding that her parole in 2011 satisfied the threshold requirements of § 1255(a), but that she likewise failed to meet § 1255(c)(2) ’s requirement based on her 1990 entry without inspection. (Compl. Ex. A.) The AAO affirmed. (Id. Ex. B.); Matter of S-E-H-D-G , No. 1314528, 2019 WL 4597055 (AAO Aug. 27, 2019).
On September 11, 2019, Plaintiffs filed this action seeking review of the AAO decision under the Administrative Procedure Act ("APA") and a declaratory judgment that TPS approval granted Plaintiffs lawful status as nonimmigrants for all purposes of a status adjustment under § 1255. (Compl. ¶¶ 88–100.)
On November 18, 2019, Defendants filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on Plaintiffs’ declaratory judgment claim, arguing it is redundant of their APA claim, and for Summary Judgment pursuant to Fed. R. Civ. P. 56 on Plaintiffs’ APA claim. (Docket No. 7.)
On January 6, 2020, Plaintiffs filed a cross Motion for Summary Judgment on the APA claim. (Docket No. 17.)
Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The parties agree that there are no facts in dispute and that the only question is a legal one: whether Plaintiffs are eligible for adjustment of status to lawful permanent residents. Specifically, the parties dispute whether TPS qualifies as an "admission" for § 1255 purposes and whether plaintiffs are statutorily ineligible for a status change pursuant to § 1255(c)(2) ’s requirement to continuously maintain lawful status post-entry.
The APA authorizes judicial review of an agency's interpretation of a statute to determine whether the interpretation is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
To this end, the Court must engage in a two-step analysis pursuant to Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). At the first step, the Court must determine "whether Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. If the statute's language is clear, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842–43, 104 S.Ct. 2778.1
If the statute is "genuinely ambiguous" the Court must proceed to the second step and determine whether the agency's interpretation "is based on a permissible construction of the statute." Chevron , 467 U.S. at 843, 104 S.Ct. 2778. That is, if the statute is ambiguous, the agency's interpretation of the statute will govern if it is reasonable. Entergy Corp. v. Riverkeeper, Inc. , 556 U.S. 208, 218, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009). A statute will only be ambiguous if, after "exhaust[ing] all the ‘traditional tools’ of construction," including examining "the text, structure, history, and purpose," of the statute, the Court finds that the statute is still open to more than one reasonable interpretation. Kisor v. Wilkie , ––– U.S. ––––, 139 S. Ct. 2400, 2415, 204 L.Ed.2d 841 (2019) (). An agency's interpretation will only be deemed reasonable if it falls within the "zone of ambiguity" identified by the Court using all the tools of statutory construction. Id. at 2416.
TPS is a form of humanitarian relief that the Secretary of Homeland Security may grant to foreign nationals present in the United States. See 8 U.S.C. §§ 1254a(a)(1)(A), (b)(1). TPS protects such persons from removal while dangerous conditions persist in their home country. See id. § 1254a(a)(1)(A).
To be eligible for TPS, a person must show that (1) they are a national of a state designated for TPS; (2) have been continuously physically present in the U.S. since the effective date of the most recent designation; (3) have continuously resided in the U.S. since a date that the Attorney General designates; (4) are "admissible as an immigrant"; and (5) have not been convicted of certain crimes. See id. §§ 1254a(c)(1)(A)(i)-(iii), 1254a(c)(2)(B).
TPS confers certain benefits on recipients, including that "[d]uring a period in which an alien is granted [TPS] ... for purposes of adjustment of status under [ 8 U.S.C. § 1255 to lawful permanent resident] and change of status under [ 8 U.S.C. § 1258 ] of this title, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant." 8 U.S.C. § 1254a(f)(4).
Section 1255 of Title 8 of the United States Code is entitled "[a]djustment of status of nonimmigrant to that of person admitted for permanent residence." Id. § 1255. Section 1255(a) provides that an adjustment of status to "lawful permanent resident" is available to "an alien who was inspected and admitted or paroled into the United States" if: "(1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed." Id. § 1255(a).
A person who satisfies § 1255(a) ’s requirements may nonetheless be barred from adjusting...
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IMMIGRATION LAW - TEMPORARY PROTECTED STATUS: DETERMINING ELIGIBILITY TO APPLY FOR LAWFUL PERMANENT RESIDENT STATUS - VELASQUEZ V. BARR.
...that it could not be ascribed to a difference in view or the product of agency expertise. Id. See also De Gutierrez v. Barr, 489 F. Supp. 3d 899 (D. Minn. Sept. 28, 2020) (reviewing decision issued by USCIS's Administrative Appeals Office). This case involved citizens of El Salvador who ent......