Karr v. Meade
| Decision Date | 22 March 2020 |
| Docket Number | Case Number: 20-60348-CIV-MORENO |
| Citation | 447 F.Supp.3d 1293 |
| Parties | Adolfo KARR, Ian Karr, Liliana Cohen, Luis Fernando Escobar, Piedad del Carmen Marulanda, Valdirene Vasquez a/k/a Valdirene Moeira Da Silva, Zachary Vasquez, Maria Reyes, and Michael Lyn, Petitioners, v. Michael W. MEADE, Field Office Director, Miami Field Office, U.S. Immigration and Customs Enforcement, et al., Respondents. |
| Court | U.S. District Court — Southern District of Florida |
Mark Andrew Prada, Anthony Richard Dominguez, Prada Urizar, PLLC, Miami, FL, for Petitioners.
Dexter Lee, Natalie Diaz, United States Attorney's Office, Miami, FL, Noticing 2241/Bivens US Attorney, Noticing Ins Attorney, for Respondents.
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
THIS CAUSE came before the Court upon the Petitioners' Motion for a Preliminary Injunction (D.E. 17) and the Respondents' Motion to Dismiss (D.E. 24) .
Alien petitioners, along with their United States citizen relatives, seek an injunction of their valid orders of removal from the United States pending their provisional waiver application process. The Court does not envy Congress' task in balancing the interests of the United States in how to welcome to different degrees in its history millions of immigrants, who have contributed so much to its success as a nation. What is clear is that Congress has deprived the federal courts of jurisdiction to decide who has a legal right to remain in the United States during the pendency of the aliens' provisional waiver applications. Therefore, the request for an injunction is denied and the case is dismissed.
Petitioners Adolfo Karr, Liliana Cohen, Luis Fernando Escobar, Valdirene Vasquez, and Maria Reyes are subject to outstanding orders of removal from the United States. The legal validity of the removal orders is not in dispute. (See D.E. 17 at 26.) The remaining Petitioners (Ian Karr, Piedad del Carmen Marulanda, Zachary Vasquez, and Michael Lyn) are United States citizen relatives of Karr, Cohen, Escobar, Vasquez, and Reyes, who each began the "provisional waiver process" for their alien relative by filing a Form I-130 Petition for Alien Relative.
After outlining the provisional waiver application process, the Court will summarize the relevant factual backgrounds for Karr, Cohen, Escobar, Vasquez, and Reyes. The factual allegations, which are taken from the Petition for Writ of Habeas Corpus and Class Action Complaint, are accepted as true.
The provisional waiver process allows certain immigrant visa applicants who are relatives of United States citizens or lawful permanent residents to request a provisional waiver of the unlawful presence grounds of inadmissibility under the Immigration and Nationality Act. The regulations governing provisional unlawful presence waivers of inadmissibility are established in 8 C.F.R. Section 212.7(e).
An alien who has been ordered removed from the United States can get a provisional waiver if the alien: (1) applies for and obtains the approval of an immigrant visa petition (Form I-130 or Form I-140); (2) applies for and is granted permission to reapply for admission into the United States after deportation or removal (Form I-212); (3) applies for and is granted a provisional unlawful presence waiver (Form I-601A); and (4) leaves the United States for consular processing abroad. See 8 C.F.R. § 212.7(e) (effective Aug. 29, 2016); See also Expansion of Provisional Unlawful Presence Waivers of Inadmissibility, 81 Fed. Reg. 50244, 2016 WL 4037178 (July 29, 2016) (codified at 8 C.F.R. §§ 103, 212).
For background, prior to 2013, "aliens undergoing consular processing of their immediate relative visas [could not] apply for an unlawful presence waiver until the consular officer determine[d] that they [were] inadmissible during their immigrant visa interviews." See Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 536, 565, 2013 WL 24532 (Jan. 3, 2013). Under that process, the "unlawful presence waiver process require[d] these immediate relatives to remain abroad until [United States Citizenship and Immigration Services] adjudicate[d] the waiver." Id. Because the lengthy processing times could take over a year, United States citizens could have been "separated from their immediate relative family members for prolonged periods resulting in financial, emotional, and humanitarian hardships." Id.
Beginning in 2013, the Department of Homeland Security issued a new Final Rule that would "permit certain immediate relatives to apply for a provisional unlawful presence waiver prior to departing from the United States." Id. Thus, the new Final Rule allowed certain applicants to "get in line" for the waiver while remaining with their families in the United States. Id. The new Final Rule did not, however, "[c]onfer any legal status ... or protect an alien from being placed in removal proceedings or removed from the United States in accordance with current [Department of Homeland Security] policies governing initiation of removal proceedings and the use of prosecutorial discretion." Id. at 536. As codified, Section 212.7(e)(2)(i) clearly provided that "the decision whether to approve a provisional unlawful presence waiver application [was] discretionary and [did] not constitute a grant of a lawful immigration status or a period of stay authorized by the Secretary." See 8 C.F.R. § 212.7(e)(2)(i) (effective Mar. 4, 2013).
In 2016, the Department of Homeland Security amended Section 212.7(e) to allow individuals with final orders of removal, exclusion, or deportation to be eligible for provisional waivers if they applied for, and United States Citizenship and Immigration Services approved, a Form I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal. See Expansion of Provisional Unlawful Presence Waivers of Inadmissibility, 81 Fed. Reg. at 50245, 2016 WL 4037178 (codified at 8 C.F.R. § 212.7(e)(4)(iv) ). After the amendment, the rule still clearly provides that See § 212.7(e)(2)(i) (effective Aug. 29 2016).
Petitioners Adolfo Karr and Liliana Cohen are natives and citizens of Peru. (D.E. 1 at ¶ 42.) They entered the United States on April 10, 1996 when they were admitted on valid B1/B2 visas. Id. at ¶ 43. Although they were only authorized to stay until October 9, 1996, Karr and Cohen "overstayed their authorized stay in the United States." Id. at ¶¶ 43–44.
On January 29, 2009, more than 12 years after their authorized stay expired, the Department of Homeland Security initiated removal proceedings against Karr and Cohen by issuing them both a Notice to Appear and charging them as removable from the United States for having remained longer than permitted. Id. at ¶ 46. On November 6, 2009, the Miami Immigration Court denied Karr's and Cohen's application for cancellation of removal and ordered them removed to Peru. Id. at ¶ 47. Karr and Cohen appealed this decision to the Board of Immigration Appeals, which dismissed the appeal on June 24, 2010, making their orders of removal administratively final. Id. at ¶¶ 48–49. Karr and Cohen did not appeal this dismissal to the Eleventh Circuit. (See D.E. 24 at 2.)
On October 23, 2014, United States Immigration and Customs Enforcement ("ICE") approved Karr's Form I-246 Application for Stay of Deportation or Removal, which stayed Karr's removal for one year. (D.E. 1 at ¶ 51.) ICE then enrolled Karr into an Order of Supervision Program, which required him to periodically report to ICE and granted him work authorization in the United States. Id. Cohen was enrolled in the same program on July 17, 2013. Id. at ¶ 50.
On July 4, 2019, Karr and Cohen filed a Motion to Reopen with the Board of Immigration Appeals, asking the Board to reopen removal proceedings so they could file a Form I-485 Application to Adjust Status to Lawful Permanent Resident. Id. at ¶ 53. On November 26, 2019, the Board of Immigration Appeals denied the Motion to Reopen. Id. at ¶ 54. Karr and Cohen did not appeal this denial to the Eleventh Circuit. (See D.E. 24 at 2.)
The provisional waiver process for Karr and Cohen was initiated by their United States citizen son, Ian Karr. (D.E. 1 at ¶¶ 45, 56–58.) In June and July of 2018, Ian Karr submitted Form I-130 Petitions for Alien Relative to United States Citizenship and Immigration Services for his mother and father. Id. at ¶¶ 56–57. The I-130 Petitions for Karr and Cohen were approved in May and June of 2019, respectively. Id. at ¶¶ 59–60.
On January 16, 2020, Karr submitted his Form I-824 Application for Action on Approved Petition or Application to United States Citizenship and Immigration Services, which has the effect of sending the approved I-130 Petition to the National Visa Center so that Karr can pay the required fees and pursue his immigrant visa at the U.S. Consulate in Peru. Id. at ¶ 61.
On February 5, 2020, Karr and Cohen submitted their Form I-212 Applications for Permission to Reapply for Admission into the United States. Id. at ¶ 62. To date, a notice of receipt has only been issued for Karr's application. Id. & n.1.
Karr is pursuing the provisional waiver process to legalize his status in the United States prior to pursuing his immediate relative immigrant visa at the U.S. Consulate in Peru. Id. at ¶ 63. After paying the National Visa Center fees and his Form I-212 Application being approved, Karr asserts he will submit his Form I-601A Application for Provisional Unlawful Presence Waiver. Id. Upon Karr's return...
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