Herrera v. Garland
| Decision Date | 04 November 2021 |
| Docket Number | Case No. 21-cv-02369-JSC |
| Citation | 570 F.Supp.3d 750 |
| Parties | Jose Huberto MOLINA HERRERA, Plaintiff, v. Merrick B. GARLAND, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Frank Patrick Sprouls, Law Office of Ricci & Sprouls, San Francisco, CA, for Plaintiff.
Benjamin Joseph Wolinsky, U.S. Attorney's Office Northern District of California, San Francisco, CA, for Defendants.
Re: Dkt. No. 15
Jose Huberto Molina Herrera brings claims for mandamus relief under the Administrative Procedure Act ("APA") challenging the government's denial of his application for adjustment of status.1 (Dkt. No. 1 at 1, 15.)2 Before the Court is Defendants’ motion to dismiss on the grounds that Plaintiff's application for adjustment of status was denied as a matter of discretion and such determinations are exempt from judicial review. After careful consideration of the parties’ written submissions, and having had the benefit of oral argument on October 28, 2021, the Court GRANTS Defendants’ motion to dismiss for lack of subject matter jurisdiction.
Plaintiff, a citizen of Guatemala, entered the United States unlawfully in January 2002. (Dkt. No. 1-1 at 2, 8–9.) Plaintiff was arrested in 2007 for driving without a license and was taken into the custody of U.S. Immigration and Customs Enforcement. (Id. at 10–11.) Thereafter, Plaintiff filed for asylum and applied for withholding of removal. (Id. ) During Plaintiff's removal proceedings he was questioned and testified with the aid of an official interpreter regarding his fears about returning to Guatemala. (Id. at 194–96.) Plaintiff testified that he moved from his hometown to a city in Guatemala at 16 years of age after he was accused of murdering his neighbor's son.3 (Id. ) According to the removal proceedings transcript, the issue was resolved when Plaintiff "got an attorney and [ ] went to the higher courts in Guatemala, and everything turned out fine." (Id. at 195–96.) The Immigration Judge later stated that Plaintiff was "persecuted [sic], but was found not guilty, and the case was dismissed." (Id. at 14.) Plaintiff's asylum application was "pretermited [sic] because of the one-year bar" requiring asylum applications to be filed within one year after entry into the U.S. (Id. at 11.) Plaintiff's application for withholding of removal was denied and the Immigration Judge granted Plaintiff voluntary departure until January 15, 2010. (Id. at 14.)
Plaintiff appealed the Immigration Judge's removal decision to the Board of Immigration Appeals ("BIA"). (Id. at 34.) The BIA remanded the case to the Immigration Court and a new hearing was scheduled for July 2012. (Id. ) On January 31, 2012, Plaintiff was the victim of a robbery and attempted murder at his place of work. (Id. at 53.) After the incident, Plaintiff petitioned for U nonimmigrant status under Section 1255(m), which grants status and employment authorization for up to four year for victims of qualifying crimes who cooperate with law enforcement in the investigation or prosecution of those crimes. (Id. at 47–51); see also Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (codified at 8 U.S.C. § 1101(a)(15)(U) ). Plaintiff's petition for U nonimmigrant status was approved and the Immigration Judge handling Plaintiff's removal order granted Plaintiff's motion to administratively close the removal proceedings and later terminated the proceedings. (Dkt. No. 1-1 at 102, 109, 105.)
In 2018, Plaintiff applied to adjust his alien status from U nonimmigrant to permanent resident. (Id. at 115.) Section 1255(m) gives United States Citizenship and Immigration Services ("USCIS"), as an agency of the Department of Homeland Security, authority to grant a U nonimmigrant's application to adjust his or her status to lawful permanent resident. 8 U.S.C. § 1255(m)(1). A U nonimmigrant requesting adjustment of status must submit evidence establishing that approval is warranted, that discretion should be exercised in the applicant's favor, and that the applicant complied with requests for assistance, if a request was made, in the investigation or prosecution of the crime under which U nonimmigrant status was granted. 8 C.F.R. §§ 245.24(d), (e). In response to Plaintiff's application, USCIS issued a "Request for Evidence," asking Plaintiff, in part, to explain his failure to disclose his "having been a defendant or the accused in a criminal proceeding." (Dkt. No. 1-1 at 145.) Plaintiff then provided USCIS with a signed statement that he was "only interrogated and investigated for murder in Guatemala and that [he] hired an attorney and [was] exonerated."4 (Id. )
After receiving Plaintiff's statement and other evidence, USCIS denied Plaintiff's application for adjustment of status on evidentiary and discretionary grounds. (Id. at 147.) First, as to discretionary grounds, USCIS found that the mitigating factors did not outweigh the negative equities. In particular, USCIS explained that "[b]eing the accused in a murder investigation raises concerns about public safety and the risk to others," and that although requested, Plaintiff did not submit evidence that supported his statement that he was exonerated. (Id. at 146.) Indeed, the USCIS noted that the "only evidence" Plaintiff submitted in support of his request that the agency exercise its discretion to adjust his status were copies of tax returns. (Id. ) The USCIS thus concluded that Plaintiff failed to meet his burden "of demonstrating that a favorable exercise of discretion is appropriate." (Id. )
Second, as to evidentiary grounds, the USCIS found that Plaintiff failed to complete his application with respect to question 25 on Form I-485 and to submit evidence of non-refusal to cooperate with law enforcement from the appropriate investigating agency, both statutory requirements. (Id. ) Plaintiff's failure to submit proper documentation was an additional reason for the denial of Plaintiff's application for adjustment of status. (Id. at 147.)
After this initial denial, Plaintiff submitted a motion to reconsider. (Id. at 156.) According to USCIS's response letter to Plaintiff's application, a motion to reconsider must include "the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy." 8 C.F.R. § 103.5(a)(3). Plaintiff must establish that the decision was "incorrect based on the evidence of record at the time of the initial decision." Id. Additionally, Plaintiff "must specify the factual and legal issues decided in error or overlooked in the initial decision or must show how a change in law materially affects the prior decision." In re O-S-G , 24 I. & N. Dec. 56, 60 (BIA 2006). In his motion, Plaintiff asserted that the government's waiver of Plaintiff's inadmissibility when granting him U nonimmigrant status, if revisited, constituted res judicata ; that "the Government is erecting an impossible barrier to the grant of relief by denying the I-485 because he cannot provide any documents from a thirty year old investigation"; and that the denial of Plaintiff's application for failure to provide documents violated due process.5 (Dkt. No. 1-1 at 157–60 (emphasis omitted).) Plaintiff's motion to reconsider included a declaration regarding the murder investigation in which he stated that he "was not guilty of murder in the criminal matter in Guatemala 30 years ago" and that it was "a mere investigation" which "never resulted in a complaint." (Id. at 162.)
USCIS denied Plaintiff's motion to reconsider, explaining that, with respect to the evidentiary basis for its original decision, Plaintiff failed to complete his application with respect to question 25 and to produce sufficient evidence of non-refusal to cooperate with law enforcement. (Id. at 165.) With respect to the discretionary basis, USCIS found that Plaintiff lacked evidence to support his claim that he had been exonerated from the murder investigation and therefore did not meet his "burden of demonstrating that a favorable exercise of discretion" was appropriate. In response to Plaintiff's attorney's argument that the agency was erecting an impossible barrier for Plaintiff by requiring him to submit evidence of exoneration from a 30-year-old investigation, USCIS noted that the record "does not contain any evidence that [Plaintiff] made any attempts to obtain evidence in support of [his] statement or obtain any criminal clearances from Guatemala" to indicate Plaintiff did not have a criminal history in the country. (Id. at 165–66.)
In a second motion to reconsider, Plaintiff argued primarily the same propositions as his first motion—that his previous U nonimmigrant status "waiver covers all grounds of inadmissibility" and that Plaintiff's declaration that he could not obtain evidence from the murder investigation should be sufficient evidence for USCIS to render a discretionary decision in favor of granting Plaintiff's application. (Id. at 180–83.) USCIS denied reconsideration a second time, for the same reasons as the initial denial. (Id. at 186.) This APA lawsuit followed.
A defendant may move to dismiss a claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The party asserting jurisdiction has the burden of establishing jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The Court may consider evidence outside the pleadings as necessary in resolving factual disputes as to jurisdiction. Ass'n of Am. Med. Colls. v. United States , 217 F.3d 770, 778 (9th Cir. 2000).
Defendants move to dismiss the APA claim on the grounds that the Court lacks subject matter jurisdiction since USCIS's denial of Plaintiff's status adjustment application was discretionary.
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