Neto v. Thompson

• Decision Date: 10 December 2020
• Docket Number: Civ. No. 20-00618 (KM) (JBC)
• Citation: 506 F.Supp.3d 239
• Parties: Nelson Torres de Lima NETO, Plaintiff, v. John THOMPSON, District Director for U.S. Citizenship and Immigration Services (USCIS) Northeast Region, and Paulo Correia, Field Office Director of the USCIS-Newark Field Office, Defendants.
• Court: U.S. District Court — District of New Jersey

506 F.Supp.3d 239

Nelson Torres de Lima NETO, Plaintiff,

v.John THOMPSON, District Director for U.S. Citizenship and Immigration Services (USCIS) Northeast Region, and Paulo Correia, Field Office Director of the USCIS-Newark Field Office, Defendants.

Civ. No. 20-00618 (KM) (JBC)

United States District Court, D. New Jersey.

Signed December 10, 2020

Gregory Paul Copeland, Rapid Defense Network, New York, NY, for Plaintiff.

Enes Hajdarpasic, United States Attorney's Office, Newark, NJ, for Defendants.

KEVIN MCNULTY, U.S.D.J.:

Nelson Torres de Lima Neto, a non-citizen, applied to the United States Citizenship and Immigration Services (the "Service") for adjustment of his immigration status to a lawful permanent resident. The Service denied his application based on its interpretation of 8 U.S.C. § 1182(a)(9)(B)(i)(II) (which I will call "(B)(i)(II)"), a provision that renders certain aliens inadmissible and thus ineligible for adjustment of status. Neto¹ seeks review and vacatur of the Service's decision under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2), and asks for declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201. The Service moves to dismiss under Federal Rule of Civil Procedure 12(b)(6) (DE 11), and Neto both opposes and moves for summary judgment (DE 14).² For the following reasons, the Service's motion to dismiss is DENIED and Neto's motion for summary judgment is GRANTED .

I. BACKGROUND

A. Facts³

Neto, a Brazilian citizen, was lawfully admitted into the United States in 1993 on a tourist visa. (Compl. ¶¶ 11–12.) He overstayed his visa and was ordered deported in 1994. (Id. ¶¶ 13–14.) However, he did not leave the United States until 2000. (Id. ¶ 15.)

In 2002, Neto was again admitted to the United States on a tourist visa. (Id. ¶ 17.) In gaining admission, he allegedly did not disclose that he previously had been unlawfully present in the United States from 1994 to 2000. (App. 5.) He has remained in the United States since 2002. (Compl. ¶ 18.)

In 2016, Neto applied to the Service for adjustment of his status to that of a lawful permanent resident. (Id. ¶ 21.) Title 8, U.S. Code, § 1255 allows certain aliens to apply to have their status adjusted to lawful permanent residents. One precondition, however, is that the alien be "admissible to the United States." Id. § 1255(a). The Service denied Neto's application, determining that he was inadmissible. (Compl. ¶ 22.) He moved to reconsider, but the Service denied that motion as well. (Id. ¶¶ 23–24.)

In explaining both denials, the Service specified that Neto was inadmissible under (B)(i)(II), which provides that any alien who "has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States, is inadmissible." 8 U.S.C. § 1182(a)(9)(B)(i)(II). The Service explained that Neto became inadmissible under (B)(i)(II) in 2002, when he reentered the United States. (App. 3.) The Service further explained to him that "[t]he fact that the Service did not discover your inadmissibility ... at the time of your entry on May 10, 2002 does not preclude the finding of your inadmissibility at this juncture." (App. 6.)

B. Procedural History

In this action, Neto seeks judicial review under the APA and asks me to (1) hold that the Service's decision was "arbitrary, capricious, ... or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A) ; (2) issue a declaratory judgment to that effect, and (3) order the Service to reopen his application for adjustment of status and adjudicate it accordingly. (Compl., Prayer for Relief.) The Service has moved to dismiss the complaint for failure to state a claim. (Serv. MTD.)

In response, Neto filed what was styled as an "Opposition to Defendant's Motion to Dismiss and Motion for Summary Judgement for Non-Moving Party." Therein, he stated that the merits could be reached based on the Complaint and administrative record attached thereto, and so he asked the Court to "recharacterize" the Service's motion to dismiss as one for summary judgment or to grant summary judgment in his favor. (Pl. Opp. at 2.) The Service filed a reply brief that did not take issue with Neto's procedural requests. (Serv. Reply.)

II. LEGAL STANDARD

A. Summary Judgment

I will take up Neto's motion for summary judgment because (1) Neto has moved for summary judgment on his sole claim, (2) that claim is purely legal, based on the administrative record, and (3) the Service has not opposed Neto's request for summary-judgment treatment. "When a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The entire case on review is a question of law." Am. Biosci., Inc. v. Thompson , 269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal quotation marks and citation omitted). This is especially true when, as here, the "complaint, properly read, actually presents no factual allegations, but rather only arguments about the legal conclusion to be drawn about the agency action." Rempfer v. Sharfstein , 583 F.3d 860, 865 (D.C. Cir. 2009) (citation omitted). In such a case, "[a] court can fully resolve any purely legal question on a motion to dismiss, there is no inherent barrier to reaching the merits at the 12(b)(6) stage," and "there is no real distinction in this context between the question presented on a 12(b)(6) motion and a motion for summary judgment." Marshall Cnty. Health Care Auth. v. Shalala , 988 F.2d 1221, 1226 (D.C. Cir. 1993) ; cf. 5 U.S.C. § 706(2) ("To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law ...."). Accordingly, "[s]ummary judgment is the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the APA standard of review." Tomasi v. Township of Long Beach , 364 F. Supp. 3d 376, 389 (D.N.J. 2019) (citation omitted), aff'd , 796 F. App'x 766 (3d Cir. 2020).⁴

Moreover, taking up Neto's motion for summary judgment complies with the Rules. A party can move for summary judgment "at any time until 30 days after the close of all discovery," Fed. R. Civ. P. 56(b), so there is no issue with deciding summary judgment now. Further, because Neto has explicitly moved for summary judgment on the only claim in this case, this is not a case in which the court's sua sponte action could deny a party a fair opportunity to respond. See generally Wolfington v. Reconstructive Orthopaedic Assocs. II PC , 935 F.3d 187, 195–96 (3d Cir. 2019). Indeed, the Service was given notice of Neto's motion and an opportunity to respond, yet did not voice any opposition in its Reply.

Turning to the standard of review, summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "While summary judgment is the proper mechanism" for APA cases like this one, "the usual summary judgment standard does not apply" in the sense that "the district court does not need to determine whether there are disputed facts to resolve at trial" since "the administrative agency is the finder of fact." Soccer Ctrs., LLC v. Zuchowski , Civ. No. 17-1024, 2017 WL 4570290, at *4 (D.N.J. Oct. 13, 2017) (citations omitted). Instead, my task is to review the administrative record and determine whether, as a matter of law, the Service's action complied with the APA. Id. at *4–5.

B. APA

"The APA ‘sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.’ " Dep't of Homeland Sec. v. Regents of the Univ. of Cal. , ––– U.S. ––––, 140 S. Ct. 1891, 1905, 207 L.Ed.2d 353 (2020) (quoting Franklin v. Massachusetts , 505 U.S. 788, 796, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) ). The APA empowers courts to review agency actions for whether they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In doing so, courts only review the grounds invoked by the agency when it made its decision. Regents , 140 S. Ct. at 1907.

"In some [APA] cases, an agency is alleged to have acted contrary to a statutory command or prohibition .... In other APA cases, by contrast, the agency is acknowledged to have discretion under the relevant statute, but is alleged to have exercised that discretion in an arbitrary and capricious (that is, unreasonable) manner." Multicultural Media, Telecom & Internet Council v. FCC , 873 F.3d 932, 934 (D.C. Cir. 2017) (Kavanaugh, J.) (internal citations omitted). Although the Complaint and Opposition make passing references to arbitrary-and-capricious review, this case falls within the first category of APA cases, as Neto claims that the Service's denial of his application was contrary to, and based on an incorrect interpretation of, (B)(i)(II).

In APA cases, a court is often called upon to apply the " Chevron framework" and determine (1) whether the statute is ambiguous regarding the question at issue, and if so, (2) whether the agency's interpretation is reasonable. Chevron, USA, Inc. v. Nat. Res. Def. Council , 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, the Third Circuit has forgone the Chevron framework when an agency is not exercising rulemaking power delegated by Congress or employing its "expertise in the formulation of substantive policy." Sandoval v. Reno , 166 F.3d 225, 239 (3d Cir. 1999) ; see also Da Silva v. Att'y Gen. U.S. , 948 F.3d 629, 634–65 (3d Cir. 2020). Likewise, the Supreme Court has forgone Chevron analysis when the case presents a narrow question of statutory interpretation which the courts are equipped to decide, as opposed to cases in which the agency is filling a gap left by the statute. See INS v. Cardoza-Fonseca , 480 U.S. 421, 446–48, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). As the...