Hinojosa v. United States Dep't Of
| Decision Date | 23 December 2010 |
| Docket Number | CIVIL ACTION NO. H-10-437 |
| Parties | RENE MURILLO HINOJOSA, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Respondents. |
| Court | U.S. District Court — Southern District of Texas |
The petitioner, Rene Murillo Hinojosa, is a Colombian citizen who first came to the United States in 1987 and has been married to a United States citizen since 1989. Murillo faces removal on the basis of illegal entry, a 1988 cocaine offense, and repeated reentry. Murillo contends that in 1997, the Immigration and Naturalization Service granted him a waiver of the criminal conviction as a basis for inadmissibility to the United States. Murillo applied for adjustment of his status to that of legal permanent resident. There was no action on his application until 2002, when the United States Citizen and Immigration Service (USCIS)1 denied the application. The denial was based on a change in the law that made aliens convicted of cocaine and other drug offenses ineligible for a waiver. Murillo asserts that he moved for reconsideration in 2008 and, after no action on his motion, filed this petition for a writ of mandamus in February 2010. Murillo seeks an order requiring the "USCIS District Director to adjudicate the motion to reconsider by acting on the application foradjustment in light of the granted waiver." (Docket Entry No. 1 at 2). Murillo asks this court to enforce the waiver he contends he was granted over a decade ago. He asserts that to permit the United States to continue to refuse to act on his motion for reconsideration of the application to adjust status to permanent legal resident, and to deny his application on the basis of an 18-year-old conviction that resulted in a deferred adjudication because of a recent change in immigration law, is unlawful and unfair. (Docket Entry No. 9, 11).
In response, the government asserts that this court is simply the wrong place for Murillo to turn for the relief he seeks. The government points out that in April 2010, the Department of Homeland Security began removal proceedings against Murillo, which are pending. The government contends that those proceedings are the necessary and proper place for Murillo to present his grounds for waiver and, if those grounds are rejected, to seek judicial review in the United States Court of Appeals. The government contends that until that occurs, Murillo has failed to exhaust his administrative remedies and that this court lacks subject matter jurisdiction to review the agency's denial of the adjustment application. (Docket Entry No. 4 at 10-15). The government also contends that there is no basis for a mandamus writ to issue because the decision is not ministerial and that under current law, the cocaine offense provides a basis for the USCIS decision that Murillo challenges. (Id. at 15-18). The government moved to dismiss or in the alternative for summary judgment.
In response, Murillo acknowledged that he may raise his arguments for adjustment of status — the government's 1997 waiver of the criminal conviction as a basis for inadmissibility and his long marriage to a citizen — in the removal proceeding. He asked this court to abate this mandamus suit until those proceedings concluded and then review the result. (Docket Entry No. 9).
The government responded to the request for abatement by pointing out that the only court statutorily authorized to review the decision of the immigration court is the United States Court of Appeals for the Fifth Circuit, making dismissal rather than abatement appropriate. (Docket Entry No. 10). In an additional reply, Murillo argued that there is no requirement for exhaustion because the removal proceedings were not initiated until after the petition was filed and because the removal decision will be based on current law, which has changed to preclude the waiver Murillo previously received. Murillo argues that because the Immigration Court must apply current law, and that will likely result in his removal, there is no basis to require him to obtain that result before suing in federal court. Murillo does not address whether this district court, as opposed to the Fifth Circuit Court of Appeals, is authorized to conduct the review he seeks. Murillo appears to continue to request abatement while making it clear that he vigorously opposes dismissal with prejudice. (See Surreplies to Motion to Dismiss or in the Alternative For Summary Judgment, Docket Entry No. 11, 12).
Based on the petition, the motion and responses, the record, and the applicable law, this court grants the respondents' motion to dismiss for lack of subject matter jurisdiction and dismisses this case, without prejudice. The reasons are set out below.
Murillo is a Colombian citizen who unlawfully entered the United States in August 1987. He received a deferred adjudication in Texas state court in May 1988 for the state felony offense of criminal conspiracy to deliver cocaine. On June 6, 1988, an immigration judge ordered him deported to Colombia. Murillo illegally reentered the United States in April 1989 and was deported a second time in June of that year. He returned the following month.
On September 20, 1990, Murillo filed an Application for Permission to Reapply for Admission Into the United States After Deportation or Removal, Form I-212, seeking to join his United States citizen wife, whom Murillo had married in 1989. The INS district director denied Murillo's application for adjustment of status on August 30, 1991 on a finding that he remained inadmissible under 8 U.S.C. §1182(a)(2) because of his 1988 deferred adjudication for the cocaine offense. On February 9, 1993, the Administrative Appeals Office withdrew the decision and remanded to the district director for entry of a new decision. On April 25, 1997, the INS approved the Form I-212 after finding that Murillo's deferred adjudication did not make him inadmissible because it did not constitute a "conviction" for immigration purposes. The INS also found that Murillo was not inadmissible under 8 U.S.C. §1182(a)(2)(C), because the facts underlying his drug offense did not provide the agency reason to believe that he had engaged in drug trafficking.
On January 24, 1996, Murillo filed an Application to Register Permanent Residence or Adjust Status, Form I-485, based upon an approved relative petition submitted by his United States citizen wife. In June 1996, Murillo was granted advance parole to travel outside the United States while his Form I-485 was pending adjudication. He was paroled into the United States on his return on June 23, 1996, making him an "arriving alien" under 8 C.F.R. §§1.1(q), 1001.1(q).
Murillo asserts that the USCIS denied the Form I-485 on November 5, 2002, finding that Murillo was inadmissible under 8 U.S.C. §1182(a)(2)(A)(i)(II) because of his controlled substance violation. In 1996, the Immigration and Nationality Act was amended to add a new statutory definition of "conviction." Section 322 of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA"), Pub.L.No. 104-208, Div. C, 110 Stat. 3009-546 (1996), added §101(48)(A) to the INA, 8 U.S.C. § 1101(a)(43)(A). The new statutory definition of "conviction" applied to the "convictions and sentences entered before, on or after the date of the enactment of[IIRIRA]." IIRIRA § 322(c) (emphasis added). Before the change, courts had held that a deferred adjudication under Texas law did not constitute a conviction for immigration purposes. SeeMartinez-Montoya v. INS, 904 F.2d 1018 (5th Cir. 1990). The statute superseded this case law. SeeMoosa v. INS, 171 F.3d 994, 1007-08 (5th Cir. 1999) ().
Murillo filed this suit in February 2010. He challenged the USCIS's 2002 denial of his application for adjustment of status and maintained that the USCIS had failed to act on a motion to reconsider he filed with the agency in 2008. Murillo sought a writ of mandamus to require the USCIS to act on the reconsideration motion to give "full faith and credit" to the 1997 decision waiving the criminal conviction as a basis for inadmissibility. (Docket Entry No. 1).
On April 13, 2010, the DHS began removal proceedings against Murillo. The respondents moved to dismiss or for summary judgment on the basis that in the removal proceedings, Murillo will be able to raise the arguments for waiver and the results will be reviewable by the Fifth Circuit Court of Appeals. The respondents contend that the USCIS has found no evidence that Murillo filed an application for a waiver of ground of inadmissibility, a Form I-601, which is used to request a §212(h) waiver. The respondents also contend that they have been unable to find the 2008 USCIS decision on the Form I-485 or a 2008 motion for reconsideration, as Murillo maintains. (Docket Entry No. 4, Ex. 16, Declaration of USCIS Associate Regional Counsel Pauline Appelbaum, ¶¶2 5.).
A party may invoke Federal Rule of Civil Procedure 12(b)(1) to challenge a district court'ssubject matter jurisdiction. The party who invokes federal court jurisdiction bears the burden of showing that jurisdiction is proper. Dow Agrosciences, LLC v. Bates, 332 F.3d 323, 326 (5th Cir. 2003). When a court determines it lacks jurisdiction over an action, it must either dismiss the action or, in the interests of justice, transfer it to a court of proper jurisdiction. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988) (mentioning both options); 28 U.S.C. §1631 (); FED. R. CIV. P. 12(h)(3) (). A transfer to the court of appeals is permissible under 28 U.S.C. §1631 when that court "would have been able to exercise jurisdiction on the...
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