McGuire v. Nielsen

• Decision Date: 23 March 2020
• Docket Number: No. CIV 17-1208 JB\LF,CIV 17-1208 JB\LF
• Citation: 448 F.Supp.3d 1213
• Parties: Patrick Nicholas MCGUIRE, Plaintiff, v. Kirstjen NIELSEN, Secretary, U.S. Department of Homeland Security; L. Francis Cissna, Director, U.S. Citizenship and Immigration Services; Gregory A. Richardson, Director, Texas Service Center, U.S. Citizenship and Immigration Services; John or Jane Doe, Officer XM 1009, Texas Service Center, U.S. Citizenship and Immigration Services, Defendants.
• Court: U.S. District Court — District of New Mexico

448 F.Supp.3d 1213

Patrick Nicholas MCGUIRE, Plaintiff,

v.Kirstjen NIELSEN, Secretary, U.S. Department of Homeland Security; L. Francis Cissna, Director, U.S. Citizenship and Immigration Services; Gregory A. Richardson, Director, Texas Service Center, U.S. Citizenship and Immigration Services; John or Jane Doe, Officer XM 1009, Texas Service Center, U.S. Citizenship and Immigration Services, Defendants.

No. CIV 17-1208 JB\LF

United States District Court, D. New Mexico.

Filed March 23, 2020

William J. Howard, Ranchos de Taos, New Mexico --and-- David J. Kline, Alexandria, Virginia --and-- Thomas Lynn Isaacson, Mason & Isaacson, P.A., Gallup, New Mexico, Attorneys for the Plaintiff.

John C. Anderson, United States Attorney, Erin Langenwalter Assistant United States Attorney, United States Attorney's Office, Albuquerque, New Mexico --and-- Chad. R. Readler, Assistant Attorney General, William C. Peachley, Director, Glenn Girdharry, Assistant Director, Aaron Goldsmith, Senior Litigation Counsel, Civil Division, Office of Immigration Litigation United States Department of Justice Washington, D.C., Attorneys for the Defendants.

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE THIS MATTER comes before the Court on the Defendants' Partial Motion to Dismiss Plaintiff's First Amended Complaint, filed April 25, 2018 (Doc. 29)("Partial MTD"). The Court held a hearing on September 6, 2018. The primary issues are: (i) whether Plaintiff Patrick Nicholas McGuire's allegation in the First Amended Complaint for Declaratory and Injunctive Relief, filed April 17, 2018 (Doc. 26)("Complaint"), that the United States Citizenship and Immigration Services ("Immigration Services") took longer than average to approve his Form I-360 petition¹ states a claim under the Equal Protection and Due Process Clauses of the Fifth Amendment of the Constitution of the United States of America; (ii) whether Father Patrick Nicholas McGuire's allegation that Immigration Services unreasonably delayed approving his Form I-360 states a claim upon which relief can be granted under the Administrative Procedure Act, 5 U.S.C. §§ 702 - 06 ("APA"); (iii) whether Father McGuire has stated a claim for ineffective assistance independent of § 706 APA review of his Form I-485 application² denial, because he alleges that a non-attorney employee of the Roman Catholic Diocese of Gallup, New Mexico, misadvised him whether he needed to seek an extension of his R-1 visa³ ; and (iv) whether Father McGuire has stated a claim for equitable tolling, because he alleges that the bad advice and the abnormally long time that the Defendants took to grant his Form I-360 petition caused the lapse in his lawful status. The Court concludes that the Complaint states a single claim for relief under the APA. Father McGuire's Claims for violations of the Equal Protection and Due Process Clauses, ineffective assistance, and equitable tolling stated in the Complaint provide Father McGuire's arguments why he is entitled relief under the APA and do not provide independent grounds for relief outside the APA. To the extent that the Complaint requests review of the Form I-360 application, the Court dismisses that Claim, because the Court does not have jurisdiction under Article III of the Constitution to properly grant relief on the accepted Form I-360. Accordingly, the Court grants the Partial MTD.

FACTUAL BACKGROUND

Father McGuire is a sixty-nine-year-old citizen of the United Kingdom and a Roman Catholic Priest. See Complaint ¶ 9, at 4. He entered the United States on a Special Immigrant Religious Worker visa in August, 2013, which authorized him to work for the Roman Catholic Diocese in Gallup. See Complaint ¶ 13, at 6. The Diocese's poor financial state⁴ recently led it to abandon using paid immigration attorneys and to instead give this work to Denise Lujan, a diocesan officer manager "with no formal immigration law training." Complaint ¶¶ 21, 28 at 8, 9.

Father McGuire's visa was valid from July 1, 2013, to December 31, 2015. See Complaint ¶ 27, at 9. Father McGuire asked Lujan in April, 2015, whether he needed to extend his visa. See Complaint ¶ 28, at 9. Lujan told him that it was too early to apply for an extension. See Complaint ¶ 28, at 9. In fact, the Diocese could have applied to extend the visa at any time before December 31, 2015. See Complaint ¶ 27, at 9. Instead of seeking an extension, Lujan submitted an I-360 application in October, 2015; this form sought approval for Father McGuire to file an I-485, which would adjust his status from a nonimmigrant to a Special Immigrant Religious Worker. See Complaint ¶ 27, at 9. Lujan told Father McGuire that, because the Diocese had filed an I-360 application, he could lawfully remain in the United States and did not need to seek a visa extension. See Complaint ¶ 28, at 9-10. Father McGuire routinely asked Lujan for updates regarding his I-360 application. See Complaint ¶ 29, at 19. In July or August of 2016, Immigration Services requested additional information from the Diocese regarding Father McGuire's I-360 application. See Complaint ¶ 29, at 10. On October 19, 2016, after 356 days, Immigration Services approved Father McGuire's I-360 application. See Complaint ¶¶ 30, 32 at 10, 11. Five weeks later, on November 28, 2016, Father McGuire filed his I-485 application with Immigration. See Complaint ¶ 30, at 10.

Special Immigrant Religious Worker visa beneficiaries must file and have their I-360 application approved before they can file an I-485 Application. See Complaint ¶ 34, at 12 (citing 8 C.F.R. § 245.2(a)(2)(i)(B) ). The I-485 adjustment application "authorizes the applicant to remain in the United States until a decision is made on the application." Complaint ¶ 34, at 12. Section 1255(k) of title 8 of the United States Code allows a religious worker to adjust his or her status to lawful permanent resident so long as his or her failure to maintain a continuous lawful status does not exceed 180 days. See Complaint ¶ 35, at 12. Immigration Services denied Father McGuire's I-485 application in May, 2017, because he failed to maintain a lawful immigration status for the eleven months between the expiration of his visa on December 31, 2015, and his I-485 application in November, 2016. See Complaint ¶ 37, at 13.

Around the same time that Immigration Services processed Father McGuire's forms, Lujan filed two other I-360 applications for foreign priests that Immigration Services approved in less than six months. See Complaint ¶ 31, at 10. Immigration Services' website states that it processed cases in the order it received them. See Complaint ¶ 32, at 10. The website used to show that the Immigration Services center processing Father McGuire's I-360 petition processed these petitions in 174 days. The same service center now says that it processes fifty percent of petitions in four months, and ninety-three percent of applications in seven months. See Complaint ¶ 33, at 11. Immigration Services says that its goal is to process applications in six months. See Complaint ¶ 33, at 11-12.

On June 19, 2017, Father McGuire moved Immigration Services to reconsider and reopen his I-485 denial. See Complaint ¶ 38, at 13. He made one argument supporting his motion to reconsider, and two arguments supporting his motion to reopen. See Complaint ¶ 38, at 13. Immigration Services responded on October 17, 2017, and denied his motion. See Complaint ¶ 41, at 14.

PROCEDURAL BACKGROUND

The Court initially ruled on the Partial MTD on March 14, 2019. See Order, filed March 14, 2019 (Doc. 50)("Order"). In the Order, the Court stated that it would "issue a Memorandum Opinion ... at a later date more fully detailing its rationale for this decision." Order at 1 n.1. This Memorandum Opinion and Order is that promised opinion.

1. The Complaint.

Father McGuire filed the Complaint in federal court on April 17, 2018. See Complaint at 1. He states that Immigration Services approved his I-360 petition after a great delay. See Complaint ¶ 1, at 1. This delay, he argues, caused the agency to subsequently deny his I-485 application. See Complaint ¶ 1, at 2. Father McGuire argues that Immigration Services then wrongfully denied his motions to reopen and to reconsider these decisions. See Complaint ¶ 4, at 3.

Father McGuire asserts four claims. See Complaint ¶¶ 48-65, at 15-18. First, he alleges a "Violations of Duty to Timely Process Visa Petition and to Treat Plaintiff Like Similarly Situated Visa-Petition Beneficiaries," under the APA, the Due Process Clause, and the Equal Protection Clause. Complaint ¶ 50, at 17. See id. at ¶¶ 50-56, at 17-19. His second claim is for violations of the APA, 8 U.S.C. § 1255(c), and 8 C.F.R. § 245.1(d)(2). See Complaint ¶¶ 57-61, at 19-21. Father McGuire's third and fourth claims are for "Ineffective Assistance by Another." Complaint ¶ 62, at 21; Complaint ¶ 68, at 22. He asserts the third claim under the APA, 8 U.S.C. § 1255(c)(2) and (k)(2). See Complaint ¶ 62, at 21. He asserts the fourth claim under the doctrine of equitable tolling. See Complaint ¶ 68, at 22. As relief, Father McGuire seeks: (i) production of the administrative record; (ii) the Court's review of Immigration Services' Form I-360 and Form I-485 decisions; (iii) an order setting aside the Immigration Service's decisions; (iv) a declaration that Father McGuire was statutorily eligible to file the I-485 on November 28, 2016; (v) a declaration that Father McGuire has not failed to maintain lawful immigration status; (vi) a declaration that Father McGuire "has not to date accrued any ‘unlawful presence’ " under 8 U.S.C. § 1182(a)(9)(B) ; (vii) a declaration that Immigration Services violated Father McGuire's rights under the Due Process and Equal Protection Clauses; (viii) an order that Immigration Services approve Father McGuire's I-485 application; (ix) attorney's fees and costs; and (x) any other proper remedy. See Complaint ¶ 72, at 23-24.

2. The Partial...