Otero v. Johnson
Decision Date | 02 November 2016 |
Docket Number | No. CIV 16-090-TUC-CKJ,CIV 16-090-TUC-CKJ |
Parties | Carmen Figueroa Otero, Plaintiff, v. Jeh Johnson, Secretary for the Department of Homeland Security, et al., Defendants. |
Court | U.S. District Court — District of Arizona |
Pending before the Court is the Motion for Preliminary Injunction and/or Temporary Restraining Order (Doc. 25) filed by Plaintiff Carmen Figueroa Otero ("Otero"). A response has been filed (Doc. 27). The parties presented argument on October 26, 2016, and the Court took the matter under advisement. In light of the scheduled interview of Otero, on October 27, 2016, this Court issued a summary (Doc. 29) Order granting the request for Temporary Restraining Order and setting this matter for hearing on the request for Preliminary Injunction.1 The summary Order informed the parties a more detailed order would follow. This is that Order. Additionally, this Order modifies the specific injunctive relief ordered in its summary Order (Doc. 29).
Additionally, as the issues presented in the Motion to Dismiss (Doc. 17) and the Motion for Leave to File Second Amended Complaint (Doc. 18) are so interrelated to theissues presented in the Motion for Preliminary Injunction and/or Temporary Restraining Order (Doc. 25), the Court finds it is appropriate to also address these pending motions herein.
On February 16, 2016, Otero filed a Complaint for Declaratory and Injunctive Relief against Jeh Johnson, Secretary for the Department of Homeland Security, Leon Rodriguez, Director for the United States Citizenship and Immigration Services ("CIS"), John Kramer, District Court Director for the Phoenix CIS, Julie Hashimoto, Director for the Tucson Field Office of CIS (collectively, "Defendants"). Otero alleges she believed in good faith she was a U.S. citizen until approximately May 2013. She further alleges she should be granted classification as an "immediate relative" of her husband, Mr. Alberto Otero, who is a U.S. citizen and resident of Marana, Arizona. An "immediate relative" of a U.S. citizen is instantly "eligible to receive an immigrant visa," as long as she can demonstrate she "was inspected and admitted or paroled into the United States." See INA § 201(b), 8 U.S.C. § 1151(b); INA § 245(a), 8 U.S.C. 1255(a).
The United States Department of Homeland Security ("DHS"), Citizenship and Immigration Services, Tucson Field Office ("TFO"), denied Otero's application on September 28, 2015, stating it was denying the application because Otero had not been "inspected and admitted or paroled into the United States," because she had used her improperly-issued U.S. passport to gain entry into the country as a U.S. citizen in May 2013. The decision denying the application states, inter alia:
Motion for Leave to File Second Amended Complaint, Exhibit I, Attachment 1 (Doc. 18-10) (emphasis added).2
Otero requested the matter be reopened or reconsidered on October 16, 2015. Defendants denied Otero's request on December 18, 2015. That decision states inter alia:
Inspection of Persons applying for admission which states:
Motion for Leave to File Second Amended Complaint, Exhibit J (Doc. 18-11).
On June 15, 2016, Defendants issued a decision that states:
Motion for Leave to File Second Amended Complaint, Exhibit K (Doc. 18-12). Otero asserts Defendants had scheduled a re-interview of her for October 28, 2016. Otero asserts:
Subjecting Ms. Figueroa Otero to another interview on the subject of whether she made a knowing false claim to citizenship would transform questioning into interrogation, and would change the nature of the administrative proceedings from non-adversarial to adversarial, which is prohibited. See, e.g., USCIS Adjudicator's Field Manual ("AFM"), Chapter 15.1(a) (2014) (); see also id., Chapter 15.4(a) ."
Proposed SAC (Doc. 24-1), p. 14 (emphasis removed).
Otero requests this Court reverse the agency decision not to reopen or reconsider itsdenial of Otero's adjustment of status application,3 order Defendants to grant Otero's adjustment of status application, and retain jurisdiction during the adjudication of the adjustment of status application in order to ensure compliance with the Court's orders.
An Amended Complaint (Doc. 10) was filed. The amendment substituted Al Gallmann for Jon Kramer as a defendant.
On June 17, 2016, a Motion to Dismiss Case (Doc. 17) was filed. Defendants assert CIS vacated the challenged denial and reopened Otero's I-485 application. Defendants assert that, because CIS's action is no longer final, it cannot provide the basis for subject matter jurisdiction under the Administrate Procedures Act ("APA"), 5 U.S.C. §§ 501, et seq. Defendants also assert the...
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