Ricart Gonzalez v. Dibbins
| Decision Date | 02 August 2021 |
| Docket Number | 3:20-cv-1871 (SRU) |
| Court | U.S. District Court — District of Connecticut |
| Parties | WADYS RAFAEL RICART GONZALEZ, Plaintiff, v. SUSAN DIBBINS, et al., Defendants. |
RULING ON MOTION TO DISMISS
Wadys Rafael Ricart Gonzalez, a citizen and national of the Dominican Republic, filed this single-count suit against Susan Dibbins, in her official capacity as Chief Administrative Appeals Office of the U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (“USCIS”); L. Francis Cissna, in his official capacity as Senior Official Performing the Duties of Director of USCIS;[1] Chad Wolf, in his official capacity as Secretary, U.S. Department of Homeland Security;[2] Loren K. Miller, in his official capacity as Director of the Nebraska Service Center of USCIS; United States Department of Homeland Security; and USCIS (collectively, “Defendants”). Ricart Gonzalez challenges the denial by USCIS's Administrative Appeals Office (“AAO”) of his appeal from the denial by the USCIS Nebraska Processing Center's Field Director of his Form I-601, Application for Waiver of Grounds of Inadmissibility, which Ricart Gonzalez filed pursuant to 8 U.S.C. § 1182(h).
Defendants filed a motion to dismiss the complaint on Rule 12(b)(1) grounds, arguing that Congress has explicitly barred district courts from review of section 1182(h) waiver decisions in two provisions of the Immigration and Nationality Act (INA)-that is, 8 U.S.C. §§ 1182(h) and 1252(a)(2)(B)(i)-and as a result there is no subject matter jurisdiction to adjudicate Ricart Gonzalez's complaint. Opposing the motion, Ricart Gonzalez argues that an exception to the INA's jurisdictional bar applies or alternatively that the instant case should be transferred to the Second Circuit Court of Appeals. For the reasons that follow, I grant the motion to dismiss.
A. Federal Rule of Civil Procedure 12(b)(1)
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110 113 (2d Cir. 2000). A party that moves to dismiss for lack of subject matter jurisdiction “may refer to evidence outside the pleadings.” Id. (quoting Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)). To survive a motion brought under Rule 12(b)(1), a plaintiff “has the burden of proving by a preponderance of the evidence that [subject matter jurisdiction] exists.” Id. (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996)).
Ricart Gonzalez, a national and citizen of the Dominican Republic, is the beneficiary of an approved I-130 Petition for Alien Relative filed by his U.S. citizen father. Compl., Doc. No. 1, at ¶ 19. On August 22, 2017, Ricart Gonzalez attended an Immigrant Visa interview at the U.S. Consulate in Santo Domingo and was informed that he was inadmissible to the United States under section 1182(a)(2)(A)(i)(I) of the INA for having been convicted of a crime involving moral turpitude and under section 1182(a)(9)(A)(ii)(c) for having been removed from the United States after committing an aggravated felony. See Id. Ricart Gonzalez was previously convicted in Stamford, Connecticut on December 24, 1998 of Second Degree Assault and Sixth Degree Larceny in violation of Connecticut General Statutes §§ 53a-60 and 53a-125(b). Id. at ¶ 20.
The INA, however, allows individuals found inadmissible under section 1182(a)(2)(A) to apply for a discretionary waiver under section 1182(h) if, among other things, “the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son or daughter of such alien.” 8 U.S.C. § 1182(h)(1)(B) (). Ricart Gonzalez thereafter filed an Application for Waiver of Grounds of Inadmissibility on Form I-601 pursuant to section 1182(h), which was received by USCIS on March 16, 2018. See Compl., Doc. No. 1, at ¶ 21; Ex. C, Doc. No. 1, at 20. On February 27, 2019, USCIS issued a Request for Evidence (“RFE”) asking Ricart Gonzalez to provide evidence that his qualifying relatives would experience extreme hardship and that he warrants a favorable exercise of discretion. See Ex. E, Doc. No. 1, at 23. USCIS further requested evidence of an “extraordinary circumstance” that would justify a waiver of inadmissibility. Id. That additional requirement was imposed because USCIS “determined that the crime of assault is considered to be a violent or dangerous crime.”[4] Id.
On June 3, 2019, Ricart Gonzalez filed a response to the RFE in which he argued that that USCIS had erred in concluding that a conviction under Conn. Gen. Stat. § 53a-60 is a violent or dangerous crime and had inappropriately applied the heightened standard of exceptional and extremely unusual hardship as a result. See Ex. F, Doc. No. 1, at 25. Ricart Gonzalez argued that USCIS should have applied the lower “extreme hardship” standard because the First Circuit in Phuc Minh Nguyen v. Reno, 211 F.3d 692 (1st Cir. 2000), had determined that a conviction under section 53a-60 is a crime involving moral turpitude rather than a violent or dangerous crime.[5] See Id. He additionally cited three decisions in which the AAO applied the lower “extreme hardship” standard to other violations of section 53a-60. See Id. at 26. In the alternative, Ricart Gonzalez argued that he merited a favorable exercise of discretion even under the heightened standard of proof, primarily pointing to the medical needs of his U.S. citizen parents and his younger brother's disability. See Id. at 26-27.
On July 26, 2019, USCIS Nebraska Field Office Director Loren K. Miller denied Ricart Gonzalez's application, noting that his assault conviction was violent or dangerous and that 8 C.F.R. § 212.7(d) therefore required a showing of extraordinary circumstances for a favorable exercise of discretion. See Ex. G, Doc. No. 1, at 36-37. USCIS further concluded that Ricart Gonzalez's response to the RFE did not provide evidence of any extraordinary circumstances that could support his waiver application. Id. at 37.
Ricart Gonzalez appealed USCIS's denial of his I-601 to the AAO on August 22, 2019, once again arguing that USCIS erred in concluding that his assault conviction was a violent or dangerous crime. See Ex. H, Doc. No. 1, at 41. He alternatively argued that he met the heightened standard because his qualifying relatives would suffer extremely unusual hardship if he was unable to adjust his status. Id. at 45-46.
The AAO decided Ricart Gonzalez's appeal on August 20, 2020, concluding that his assault conviction was a violent and dangerous crime and he had failed to demonstrate extraordinary circumstances that would warrant a favorable exercise of discretion. See Ex. I, Doc. No.1, at 59. The AAO rejected Ricart Gonzalez's argument that, under Phuc Minh Nguyen, a conviction under section 53a-60 was a crime involving moral turpitude and therefore not a violent or dangerous crime. Id. at 60.
Ricart Gonzalez filed the instant case on December 12, 2020 against several USCIS and Department of Homeland Security officials. See Compl., Doc. No. 1, at ¶¶ 6-11. The complaint, under count one, asserts violations of the APA, the INA, and the INA's implementing regulations (8 C.F.R. § 212.7(d) et seq.). Id. at ¶¶ 31-38. Ricart Gonzalez alleges the finding that his conviction under section 53a-60 is a violent and dangerous crime, thereby triggering the heightened standard of review, was a “clear error, arbitrary, capricious finding, not in accordance with the law.” Id. at 11.
Defendants filed a motion to dismiss the complaint on February 16, 2021, doc no. 8, which Ricart Gonzalez opposed on March 8, 2021, doc. no. 9. Defendants filed a reply on March 18, 2021. Doc No. 10. Oral argument was held July 17, 2021.
Ricart Gonzalez asserts in his complaint that this court has jurisdiction over his challenge to the decision denying his application for a section 1182(h) waiver of inadmissibility under the Administrative Procedure Act (APA) and 28 U.S.C. § 1331.[6] Compl., Doc. No. 1, at ¶ 12. Defendants in their motion to dismiss aver that the court lacks subject matter jurisdiction because sections 1182(h) and 1252(a)(2)(B)(i) of the INA bar this court from review of the denial of the section 1182(h) waiver of inadmissibility. See Doc No. 8-1, at 4. As I discuss in more detail below, I conclude that Ricart Gonzalez has not met his burden of showing that subject matter jurisdiction exists.
The INA stipulates that “[n]o court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver” under section 1182(h).[7] 8 U.S.C. § 1182(h). The INA's jurisdictional bar for review of section 1182(h) waivers is further reinforced by section 1252(a)(2)(B)(i) which insulates “any judgment regarding the granting of relief under section 1182(h)” from judicial review. See 8 U.S.C. § 1252(a)(2)(B)(i); see also Kucana v. Holder, 558 U.S. 233, 234 (2010) (...
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