Mendonca v. I.N.S., Civ.A. 98-11759-PBS.

• Decision Date: 13 January 1999
• Docket Number: No. Civ.A. 98-11759-PBS.,Civ.A. 98-11759-PBS.
• Citation: 52 F.Supp.2d 155
• Parties: Sharon MENDONCA, Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE and Board of Immigration Appeals, Defendants.
• Court: U.S. District Court — District of Massachusetts

52 F.Supp.2d 155

Sharon MENDONCA, Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE and Board of Immigration Appeals, Defendants.

No. Civ.A. 98-11759-PBS.

United States District Court, D. Massachusetts.

January 13, 1999.

Sharon Hughes Mendonca, Cambridge, MA, for Plaintiff.

Anthony W. Norwood, U.S. Department of Justice, Office of Immigration, Litigation, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

SARIS, District Judge.

INTRODUCTION

Pro se plaintiff Sharon Mendonca has filed a complaint requesting this Court to review an immigration judge's ("IJ") denial of her husband's application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255, and to enjoin his deportation. Mendonca claims that the IJ and the Board of Immigration Appeals ("BIA") failed to consider evidence of certain favorable equities in support of her husband's application (i.e., his twelve-year residency in the United States, his familial ties to a wife and daughter who are citizens, and his disability). She also seeks a court order compelling his naturalization. The government moves to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction under the "transitional" judicial review provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, Div. C, Tit. III, Subtit. A, § 309(c)(4)(E), 110 Stat. 3009-546, 3009-626 (Sept. 30, 1996), and the naturalization provisions of the INA, 8 U.S.C. § 1421(a), (c)-(d), and pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.

After hearing, the government's motion to dismiss is ALLOWED on the ground that the Court lacks jurisdiction over the plaintiff's claims.

FACTS AND PROCEDURAL HISTORY

Sharon Mendonca is a native and citizen of the United States. She brings this complaint on behalf of her husband of eight years, Crisanto Mendonca, a citizen of Cape Verde who entered the United States on July 9, 1986, as a nonimmigrant visitor. Mr. Mendonca's visa authorized him to remain in this country until January 8, 1987, but he continued to live here past its expiration date. On November 15, 1990, the INS issued an Order to Show Cause charging him with deportability for remaining in the United States for a period longer than permitted in violation of then-section 241(a)(2) of the INA, 8 U.S.C. § 1251(a)(2).¹ On November 21, 1990, Mr. Mendonca married Sharon Mendonca, with whom he had been living and with whom he now has a six-year-old daughter.

At a hearing before an IJ on February 20, 1991, Mr. Mendonca conceded deportability and was granted additional time to apply for an adjustment of status to lawful permanent resident. Section 245 of the INA authorizes the Attorney General, "in [her] discretion and under such regulations as [s]he may prescribe," to adjust an alien's status to that of "an alien lawfully admitted for permanent residence," provided that the alien satisfies certain statutory requirements. 8 U.S.C. § 1255(a). The alien must show:

(1) that he was inspected and admitted or paroled into the United States; (2) that he has made an application for ... adjustment; (3) that he is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and, (4) that an immigrant visa is immediately available to him at the time his application is filed.

Ruckbi v. INS, 159 F.3d 18, 19 (1st Cir. 1998) (paraphrasing § 1255(a)). "Once the alien has established threshold statutory eligibility, he must additionally demonstrate to the Attorney General's satisfaction that he merits relief in the exercise of discretion." Id. (citing Henry v. INS, 74 F.3d 1, 4, 7 (1st Cir.1996)).

On June 5, 1991, the IJ granted Mr. Mendonca voluntary departure on or before September 5, 1991,² but deemed his application for adjustment of status abandoned because it had not been filed. Sharon Mendonca subsequently filed a motion to reopen, which was denied on August 14, 1991. Mr. Mendonca filed a second motion to reopen, which the IJ denied on November 1, 1991, in part on the grounds that Mr. Mendonca had not provided the requisite application for adjustment of status with his motion and had failed to comply with procedural requirements regarding his ineffective assistance of counsel claim. Mr. Mendonca simultaneously sought reconsideration of that denial and appealed the matter to the BIA. The IJ denied the motion to reconsider on December 3, 1991, but vacated that decision upon learning that Mr. Mendonca had filed an appeal with the BIA. Mr. Mendonca then withdrew his appeal, and the BIA remanded the proceedings to the IJ on February 20, 1992. On the basis of a statement by the INS that it did not object to Mr. Mendonca's motion to reopen, the IJ reopened the case on March 3, 1992. Mr. Mendonca thereafter submitted to the IJ an application for adjustment of status dated June 7, 1991. Question 24 of the application asks whether the applicant has ever been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance, including traffic violations. Mr. Mendonca answered yes and in a scrawl listed dates 10/7/92, 9/16/90, 1988, and 1989. He generally described the offenses as "fighting" and stated the outcome as "dismissed."

After a hearing at which both Mr. and Mrs. Mendonca testified, the IJ denied Mr. Mendonca's application on October 27, 1992. He determined that Mr. Mendonca was statutorily eligible for adjustment of status but that he was not entitled to the relief as a matter of discretion. Although Mr. Mendonca appeared in good health and employable,³ he had an arrest record for assault and battery with a dangerous weapon, driving under the influence of alcohol, and disorderly conduct. Mr. Mendonca testified that the criminal charges against him for assault and battery had been dismissed, but did not submit any documentation to support his claim. In addition, the IJ noted that Mr. Mendonca was "extremely evasive" about his criminal history, (Tr. of Oct. 27, 1992, IJ Oral Decision at 15), admitting only after substantial questioning by the IJ and on cross-examination a number of arrests and charges that he had failed to disclose on his application.⁴ He also lied under oath about the existence in the United States of a son from a previous marriage who he claimed was living in Cape Verde. Finally, he failed to provide the IJ with federal or state income tax returns for 1990 and 1991, the two years for which he claimed he had filed them. The IJ concluded that Mr. Mendonca's marriage to a United States citizen, his relationship with his daughter, also a United States citizen, and his six-year residence in this country were insufficient to outweigh the adverse factors in his application, and he ordered Mr. Mendonca deported.⁵

Mr. Mendonca, with the assistance of counsel; appealed the IJ's decision to the BIA, which dismissed his appeal on September 24, 1997. The Board rejected Mr. Mendonca's argument that he had been given insufficient time to produce his tax returns or to produce documentary evidence to corroborate his employment history or his claims that certain criminal charges had been dismissed; the Immigration and Naturalization Service ("INS") had put Mr. Mendonca on notice of the relevant evidence a year before the hearing on his application. Noting that new evidence could only be considered if it was material and was unavailable or undiscoverable at the time of the hearing before the IJ, the Board declined to review the documentation that Mr. Mendonca submitted. It acknowledged Mr. Mendonca's family ties and length of residence in the United States but concurred with the IJ that he had failed to meet his burden to establish that he merited discretionary relief.⁶ According to the Board, Mr. Mendonca's "propensity to violate the law" and his lack of "forthright[ness]" were not outweighed by the positive equities in his case. (Sept. 24, 1997, BIA Decision at 2.)

Mr. Mendonca is not currently in physical custody.

DISCUSSION

Sharon Mendonca now asks this Court to reconsider the IJ's and the BIA's determinations that her husband is not entitled to an adjustment of status. She does not challenge the IJ's initial finding of deportability.

A. Standing

Sharon Mendonca's complaint is not styled as a petition for habeas corpus relief under 28 U.S.C. § 2241. However, the government concedes that it may have been filed in reliance on or in response to the First Circuit's decision in Goncalves v. Reno, 144 F.3d 110 (1st Cir.1998), petition for cert. filed, ___ U.S. ___, 119 S.Ct. 1140, 143 L.Ed.2d 208, 67 U.S.L.W. 3364 (1999) (No. 98-835), and I am required to construe the pleadings of pro se litigants "liberally," see, e.g., Strahan v. Coxe, 127 F.3d 155, 158 n. 1 (1st Cir.1997) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)), cert. denied, ___ U.S. ___, 119 S.Ct. 81, 142 L.Ed.2d 63 (1998); see also, e.g., Davis v. Fechtel, 150 F.3d 486, 487 (5th Cir.1998) (noting that "a court may liberally construe a pro se petitioner's pleading and treat it as a habeas corpus petition [under § 2241], where appropriate" (citing Russell v. Knight, 488 F.2d 96, 97 (5th Cir. 1973))). Therefore, I treat the complaint as a habeas petition under § 2241.

Although Mr. Mendonca is not in the physical custody of the INS, he is nonetheless "in custody" for the purposes of § 2241 because he is subject to a final order of deportation. See, e.g., Almon v. Reno, 13 F.Supp.2d 143, 144 n. 2 (D.Mass. 1998) (observing that "custody" under § 2241 "does not necessarily mean physical custody" and that "[t]he term `in custody' has been broadly construed [for purposes of the INA] to apply to situations in which an alien is not suffering any actual physical detention, ... so long as he is subject to a final order of deportation" (citing ...