Patel v. Barr, CV-20-00229-PHX-DLR (DMF)

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
Writing for the CourtHonorable Deborah M Fine United States Magistrate Judge
PartiesVeenaben Dhirubhai Patel, et al., Petitioners, v. William P. Barr, et al., Respondents.
Docket NumberCV-20-00229-PHX-DLR (DMF)
Decision Date09 September 2020

Veenaben Dhirubhai Patel, et al., Petitioners,

William P. Barr, et al., Respondents.

No. CV-20-00229-PHX-DLR (DMF)

United States District Court, D. Arizona

September 9, 2020


Honorable Deborah M Fine United States Magistrate Judge

Pending before the Court is the First Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief (“First Amended Petition”) filed by Veenaben Dhirubhai Patel and Ajay Ramabhai Patel, husband and wife (“Petitioners”). (Doc. 25) Petitioners filed an initial petition for writ of habeas corpus on January 30, 2020, arguing Respondents arbitrarily and capriciously denied their applications for adjustment of status to the status of lawful permanent residents. (Doc. 1)[1] Additionally, Petitioners sought injunctive and declaratory relief requiring Respondents to rule on their renewed applications for adjustment of status and to enjoin their removal pending consideration of such applications. (Doc. 2) On January 31, 2020, the Court granted Petitioners' Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. 2) to the extent that


Respondents were enjoined from removing Petitioners pending resolution of Petitioners' motion for preliminary injunction. (Doc. 6 at 2)

Petitioners filed the First Amended Petition on April 3, 2020, alleging nineteen grounds for relief. (Doc. 25) In an order filed on April 8, 2020, the Court permitted Petitioners to add respondents named in the First Amended Petition, denied without prejudice Petitioners' motion for preliminary injunction but ordered the stay of removal to continue pending further court order, and dismissed without prejudice Petitioners' Grounds Five through Eight, which the Court permitted Petitioners to present in a new petition filed in a separate action. (Doc. 28) Grounds Five through Eight alleged violations of Petitioners' constitutional rights related to their detention and issues presented by the COVID-19 pandemic, which Petitioners have filed and are now pending under case number CV-20-00709-PHX-DLR (DMF). Respondents filed their response in the instant action on May 22, 2020 (Doc. 42), and Petitioners filed a reply on June 8, 2020. (Doc. 44)

Petitioner Ajay Ramabhai Patel notified the Court he had been released from custody by Respondent Immigration and Customs Enforcement (“ICE”) on April 15, 2020, under an order of supervision. (Doc. 37) Subsequently, on July 5, 2020, Petitioner Veenaben Dhirubhai Patel notified the Court that ICE had also released her from custody under an order of supervision pursuant to the Court's June 30, 2020, order (Doc. 53 in CV-20-00709)[2]. (Doc. 48)

As is discussed below, after briefing in this case was completed, Respondents filed a notice of supplemental authority (Doc. 49) to which the undersigned permitted a response (Doc. 51). Petitioners filed a response. (Doc. 52) Petitioners subsequently also filed a notice of supplemental authority. (Doc. 53)

This matter is on referral to the undersigned United States Magistrate Judge for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 28) For the reasons set forth below, the


undersigned Magistrate Judge recommends that Petitioners' Counts One through Four of the Amended Petition be dismissed as moot; that Counts Nine through Eleven, Thirteen through Fifteen, and Seventeen be dismissed without prejudice for lack of jurisdiction; that Counts Twelve, Sixteen, and Eighteen be denied; and that the Court's existing January 31, 2020, stay of removal (Docs. 6, 28) remain in effect for 30 days following entry of judgment to permit Petitioners to file a petition for review if they so choose.


A. Petitioners and the United States

Petitioners are citizens of the United Kingdom who entered the United States under the Visa Waiver Program on February 22, 1994. (Doc. 25 at 31, ¶ 93) Petitioners remained in the United States after their authorized stay of 90 days had expired, and on March 3, 2009, they were referred for removal proceedings.[3] (Id. at 31-32, ¶¶ 93, 97) On December 7, 2010, an Immigration Judge found Petitioners ineligible for relief from removal and administrative removal orders were entered against them. (Id. at 32, ¶ 97; Doc. 25-8 at 2-4) The same day, Petitioners were issued orders of supervision by ICE, which permitted Petitioners “to remain free from custody, continue residing in the United States, and obtain work authorization.” (Doc. 25 at 33, ¶ 99; Doc. 25-1 at 1; Doc. 25-2 at 2) On July 6, 2012, the Board of Immigration Appeals affirmed the Immigration Judge's decision. (Doc. 25-8 at 2-4)

Almost five years later, in March 2017, ICE issued warrants for Petitioners' removal. (Doc. 25 at 33, ¶ 101) Petitioners then filed petitions for review with the Ninth Circuit Court of Appeals, and their removal was temporarily stayed by that court. (Id., ¶ 102) On January 26, 2018, Petitioners also filed applications for adjustment of status with United States Citizenship and Immigration Services (“USCIS”). (Docs. 25-3; 25-4) On March 29, 2018, Petitioners' consolidated petitions for review of the removal order were


dismissed by the Ninth Circuit after Petitioners failed to timely comply with the Ninth Circuit's order to show cause why the petition for review should not be dismissed for lack of jurisdiction because the petition for review was untimely filed. (Doc. 18-2 at 20-22)

On April 6, 2018, ICE issued bag and baggage letters directing Petitioners to surrender themselves for removal. (Doc. 25 at 35, ¶¶ 106, 107) In response, Petitioners submitted a request to withdraw their administrative removal orders. (Id., ¶ 108) ICE denied the request but Petitioners say that ICE advised Petitioners that they “would be permitted to pursue their adjustment of status applications in the United States and would not be taken into custody.” (Id. at 36, ¶ 109)

On September 25, 2019, USCIS denied Petitioners' applications for adjustment of status. (Id., ¶¶ 110, 111) “USCIS stated that it denied the applications based on [its] discretion because its policy dictates such a determination when ICE does not rescind or withdraw its administrative order of removal.” (Id., ¶ 111; Doc. 18-2 at 33-36) In January 2020, ICE again issued bag and baggage letters for Petitioners' removal. (Id. at 36-37, ¶¶ 112, 113) Petitioners filed new applications for adjustment of status along with Forms I-212 for waivers of removal on January 30, 2020. (Id. at 37, 114) They filed the initial Petition in this action the same day, and on January 31, 2020, Petitioners' removal was stayed by this Court. (Doc. 6)

On February 10, 2020, during a scheduled check-in appointment, Petitioners were taken into ICE custody; Mr. Patel was detained at the CoreCivic La Palma Correctional Center and Mrs. Patel was detained at the Eloy Detention Center, both located in Eloy, Arizona. (Doc. 25 at 37, ¶ 117; Docs. 37, 48) Mr. Patel and Mrs. Patel were subsequently released from custody under orders of supervision on April 15, 2020, and June 30, 2020, respectively. (Docs. 37, 48)

B. The Visa Waiver Program

The Visa Waiver Program (“VWP”), through which Petitioners legally entered the United States, provided for citizens of participating countries to enter as tourists without visas for up to 90 days. Momeni v. Chertoff, 521 F.3d 1094, 1095 (9th Cir. 2008). The


VWP requires that before receiving a visa waiver, participants must agree to a no-contest clause under which they waive the right “to contest, other than on the basis of an application for asylum, any action for removal of the alien.” 8 U.S.C. § 1187(b)(2). The Ninth Circuit has characterized the waiver of the alien's right to contest a removal action as the “linchpin” of the VWP, which “assures that a person who comes here with a VWP visa will leave on time and will not raise a host of legal and factual claims to impede his removal if he overstays.” Handa v. Clark, 401 F.3d 1129, 1135 (9th Cir. 2005).

On November 14, 2013, the USCIS issued a policy memorandum addressing “Adjudication of Adjustment of Status Applications for Individuals Admitted to the United States Under the Visa Waiver Program.” (Doc. 18-2 at 38-42 (“PM-602-0093” or “the PM”)) PM-602-0093 instructs that INA § 245(c)(4), 8 U.S.C. § 1255(c)(4) generally renders VWP aliens “ineligible to adjust status to that of a person admitted for permanent residence[, ]” but recognizes an exception for immediate relatives[4] of U.S. citizens. (Id. at 39) The PM observes that the:

U.S. Immigration and Customs Enforcement (ICE) has authority to order the removal of a VWP overstay, including an immediate relative, under INA section 217(b) and 8 CFR 217.4(b). Numerous courts of appeals agree that, generally, a VWP overstay may not contest a removal action on the basis that he or she has filed Form I-485.[5] However, these cases concern only the individual's inability to contest removal. They do not address whether the Department of Homeland Security (DHS) can, as a matter of discretion, decline to seek the individual's removal and grant adjustment if the individual is eligible. Nor do these decisions preclude a VWP overstay who is not subject to a removal order from filing a Form I-485 with USCIS.
Whether to grant adjustment to an eligible applicant is a matter entrusted to DHS discretion. USCIS exercises this discretion on behalf of DHS.

(Id.) The PM's guidance further provides that:

USCIS field offices shall adjudicate adjustment of status cases filed by immediate relatives of U.S. citizens who were last admitted to the United States under the VWP, in accordance with section 245 of the INA. This includes cases where Form I-485 was filed after the 90-day period of admission. Adjudication shall occur prior to referral to ICE

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