Jane Doe v. Pompeo

• Decision Date: 01 April 2020
• Docket Number: Case No. 1:20-cv-00065 (TNM)
• Citation: 451 F.Supp.3d 100
• Parties: Jane DOE, et al., Plaintiffs, v. Mike POMPEO, et al., Defendants.
• Court: U.S. District Court — District of Columbia

451 F.Supp.3d 100

Jane DOE, et al., Plaintiffs,

v.Mike POMPEO, et al., Defendants.

Case No. 1:20-cv-00065 (TNM)

United States District Court, District of Columbia.

Signed April 1, 2020

Michael E. Piston, Piston & Carpenter, P.C., New York, NY, for Plaintiffs.

April Denise Seabrook, Robert Aaron Caplen, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

Jane Doe and her children are trying to escape her abusive husband in Iran. They became Green Card holders in 2013, but he has secreted their Cards since the family returned to Iran in 2015. They ask the Court to order the Government to provide them authorization to travel to a port of entry, where they could have an admissibility hearing. They acknowledge that the Government has procedures in place for obtaining this sort of authorization. They contend, however, that none of the available procedures would afford them due process. And they claim that, as permanent residents, they have a constitutional right to due process before the Government can deny them admission.

The Court finds, however, that Doe and her children do not have this constitutional right, given how long they have been outside the United States. Thus, while the Court is mindful of the hardships that Doe and her children face, it cannot grant the relief that they seek. The Court will enter judgment for the Government.

I.

A.

Before turning to the facts of this case, a brief review of the relevant statutory framework is in order. Under federal law and regulations, a Green Card confers certain limited privileges. Green Card holders are aliens who have been "lawfully admitted for permanent residence." 8 U.S.C. § 1101(a)(20). This means "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. " Id. (emphasis added). So the very definition of "permanent" residence contemplates that this status is not necessarily permanent—it can change. One way it changes is if a Green Card holder stops living in the United States, i.e. , departs the country "for more than a ‘temporary visit abroad.’ " United States v. Yakou , 428 F.3d 241, 248–49 (D.C. Cir. 2005) (quoting 8 U.S.C. § 1101(a)(27)(A) ).

And while Green Card holders can generally come and go from the country more readily than nonresident aliens, there are restrictions. As a default rule, when Green Card holders travel abroad and then return, they are "not ... regarded as seeking an admission into the United States," so they can reenter without undergoing "inspection and authorization by an immigration officer." 8 U.S.C. § 1101(a)(13)(A), (C). But there are several exceptions. For example, they must go through this process if they have "abandoned or relinquished" their permanent resident status. Id. § 1101(a)(13)(C)(i). So too if they were abroad "for a continuous period in excess of 180 days." Id. § 1101(a)(13)(C)(ii).

Green Card holders seeking admission typically must present one of several documents. 8 C.F.R. § 211.1(a). An unexpired Green Card counts, but only if the holder "is seeking readmission after a temporary absence of less than 1 year." Id. § 211.1(a)(2). Another option is a "Form I-327, Permit to Reenter," id. § 211.1(a)(3), which is valid for up to two years, see 9 Foreign Affairs Manual ("FAM") § 202.2-4(D)(2)(a)(1).¹ Applicants for these reentry permits must be "physically present in the United States." Id. § 202.2-4(D)(2)(a)(2). So resident aliens who know they will be abroad for longer than a year will typically apply for a reentry permit before departing. If they do not, or if they end up abroad for more than two years, they will generally need "[a] valid, unexpired immigrant visa" to reenter the United States. 8 C.F.R. § 211.1(a)(1). Green Card holders in this situation may be eligible for a special type of immigrant visa called the SB-1 returning resident visa.²

Green Card holders can obtain this visa if, despite being abroad for more than a year, they are still "returning from a temporary visit abroad." 8 U.S.C. § 1101(a)(27)(A) ; see 22 C.F.R. § 42.22(a) ; 9 FAM § 502.7-2. If a visit abroad was temporary, the Green Card holder does not lose her permanent resident status under 8 U.S.C. § 1101(a)(20) by her absence. See Yakou , 428 F.3d at 248, 250. So the SB-1 visa process tries to identify Green Card holders whose absence from the United States has not changed their permanent resident status under § 1101(a)(20).

Regulations elaborate on who is eligible for an SB-1 visa. A consular officer must be "satisfied from the evidence presented" that the alien "departed from the United States with the intention of returning and has not abandoned this intention."

22 C.F.R. § 42.22(a)(2). More, the officer must be satisfied that "if the stay abroad was protracted, this was caused by reasons beyond the alien's control and for which the alien was not responsible." Id. § 42.22(a)(3).

Generally, to travel here in the first place, a Green Card holder must have a document that qualifies her for admission. It is "unlawful for any person, including any transportation company ... to bring to the United States ... any alien who does not have a valid passport and an unexpired visa, if a visa was required under this chapter or regulations issued thereunder." 8 U.S.C. § 1323(a)(1). So if a Green Card holder has been abroad for less than a year, she should be able to board a plane back to the United States with her Green Card. See 8 C.F.R. § 211.1(a)(2). If she has been away for longer, she will likely need a reentry permit or an SB-1 visa. See id. § 211.1(a)(1), (3).

There are some other travel documents that Green Card holders can use. For example, if an alien's Green Card is lost or stolen, she could potentially receive a "boarding foil" from a consular officer and use that to travel. See 9 FAM § 202.2-5. But when she arrives at a port of entry, she would likely need to seek a waiver for not having an entry document. See 8 C.F.R. § 211.1(b)(3).

Even if a Green Card holder seeking admission does have a Green Card, a reentry permit, or an SB-1 visa, that is just the beginning. None of these documents is a sure ticket into the United States. A Green Card holder might still be inadmissible—and so subject to removal proceedings—for any number of reasons. See 8 U.S.C. §§ 1182(a), 1229a(a). For example, the Government might seek to remove a returning alien if it believes she has abandoned her permanent resident status. See, e.g. , Hana v. Gonzales , 400 F.3d 472, 474–75 (6th Cir. 2005).

The petitioner in Hana was an Iraqi woman with a Green Card. Id. at 473. Soon after receiving her Green Card, she visited Iraq for two years. Id. at 474. She returned to the United States, but then made another visit to Iraq, again returning two years later. Id. Both times she returned to the United States, she had an unexpired reentry permit. Id. But the second time, the Government "charged her with excludability under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an immigrant without a valid visa." Id. at 474–75. It believed that her two trips to Iraq were not "temporary visit[s] abroad" under § 1101(a)(27)(A), meaning that she had abandoned her permanent resident status. Id. at 475.

In short, Green Card holders must navigate restrictions on travel and admission before they can reenter the country. To be sure, none of the foregoing speaks to what is constitutionally required. That is the issue here, since Doe brings a due process claim. Perhaps the Government affords inadequate process to certain Green Card holders, including the Plaintiffs. Or perhaps the Government gives some or all Green Card holders more process than is constitutionally required. With that in mind, the Court turns to the particulars of Doe's claim.

B.

Richard Roe, Doe's husband, has abused her since they married in 2006. Mot. for Prelim. Inj. Ex. B ¶¶ 6, 10, ECF No. 6-3.³

He once broke her arm while she was pregnant. Id. ¶¶ 19, 22. He has also abused their two children. Id. ¶ 14. As a result, their daughter has exhibited aggression at school, and their son has repeatedly spoken of committing suicide. Id. ¶¶ 16–18. Doe tried to get a divorce several years ago, but she withdrew the case after an Iranian judge made clear that he would award Roe custody of their children. Id. ¶¶ 26, 28.

The family first came to the United States from Iran in 2012, id. ¶ 29, and Doe and her children became lawful permanent residents the next year, see Mot. for Prelim. Inj. Ex. A at 1–3,⁴ ECF No. 6-2. But in a colloquial sense, they were never permanent residents here. From 2012 to 2015, the family would come to the United States once a year for only a couple of weeks and then return to Iran. Mot. for Prelim. Inj. Ex. B ¶¶ 29–31. And they have not returned since. Doe says that she "wanted very much to stay in the U.S.," but Roe "forced [her] to return to Iran." Id. ¶ 32. He had control over their Green Cards "at all times." Id. ¶ 36.

After the family returned to Iran in 2015, Roe told Doe that their Green Cards had expired. Id. ¶ 37. She "had absolutely no reason to disbelieve him," so she gave up hope of returning to the United States. Id. ¶ 38. Recently, though, Doe found their Green Cards—unexpired—among Roe's possessions. Id. ¶ 39. So she purchased airline tickets. Id. ¶ 42. But when she went to retrieve the Green Cards, they were gone. Id. ¶ 44. Doe presumes that Roe took them and fears that he suspects her plan to escape. Id. ¶ 45; Compl. ¶ 4, ECF No. 1.

Doe alleged all of this in a November 2019 declaration. A little over a month later, she sued the Secretary of State, the Acting Secretary of Homeland Security, the Director of U.S. Citizenship & Immigration Services ("USCIS"), and the Consul for the U.S. Embassy in Turkey (collectively, the "Government").

Because Roe took their Green Cards, Doe and her children currently do not...