Rivera v. U.S. Citizenship & Immigration Servs.

• Decision Date: 12 August 2020
• Docket Number: 19 Civ. 3101 (KPF)
• Parties: EDWIN RIVERA, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, ROBERTO LEBRON, Assistant Attorney General, THOMAS CIOPPA, District Director, United States Citizenship and Immigration Services, NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, OFFICE OF LEGAL ACCESS PROGRAMS, and STEVEN LANG, Program Director (AAG), Defendants.
• Court: U.S. District Court — Southern District of New York

EDWIN RIVERA, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, ROBERTO LEBRON,Assistant Attorney General, THOMAS CIOPPA, District Director, United States Citizenship andImmigration Services, NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL,DEPARTMENT OF JUSTICE, OFFICE OF LEGAL ACCESS PROGRAMS, and STEVEN LANG,Program Director (AAG), Defendants.

19 Civ. 3101 (KPF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 12, 2020

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:

Plaintiff Edwin Rivera instituted this action against United States Citizenship and Immigration Services ("USCIS"), Thomas Cioppa, the former New York District Director of USCIS,¹ and Steven Lang, Program Director for the Department of Justice's Office of Legal Access Programs ("OLAP") (collectively, the "Federal Defendants"), as well as the New York State Office of the Attorney General (the "OAG") and Assistant Attorney General ("AAG") Roberto Lebron (collectively, the "State Defendants"). Plaintiff alleges a litany of claims arising out of: (i) New York State court proceedings in which he wasbarred from providing immigration services; (ii) the denial of his application to become accredited to represent clients in immigration proceedings; and (iii) the denial of certain immigrant petitions he sponsored. For the many independent reasons set forth in the remainder of this Opinion, Plaintiff's claims are dismissed in their entirety.

BACKGROUND²

A. Factual Background

1. Plaintiff's Directorship of Homeward Bound Program for Children, Inc.

For purposes of these motions, the Court accepts as true the well-pleaded allegations of the Second Amended Complaint. Plaintiff Edwin Rivera is the director of a non-profit religious organization known as the Homeward Bound Program for Children, Inc. ("HBP"). (SAC 1, 5, 16, 18, 38). According to Plaintiff, HBP is organized under Section 501(c)(3) of the Internal Revenue Code and operates from an office located in the Bronx, New York. (Id. at 7, 15-16, 38). Out of its Bronx office, HBP holds religious services, raises funds byselling accounting services, and provides services for community members that include "writing letters and filling out forms for immigration offices and for school." (Id. at 15-16). In his capacity as HBP Director, Plaintiff has assisted in the preparation of several immigration-related forms, several of which have been denied by USCIS and OLAP. (See id. at 4, 7, 20, 24, 25). Those denials are at the heart of this lawsuit.

2. Plaintiff's Submission of Applications and Petitions to USCIS

On October 13, 2017,³ Plaintiff submitted a Form EOIR-31 application to USCIS seeking to have HBP recognized as an organization authorized to represent individuals in U.S. immigration courts through an accredited representative, and a Form EOIR-31A application to have Plaintiff recognized as such an accredited representative. (SAC 7, 26-27; id. at Ex. 9; Pl. Aff. ¶ 16). On December 15, 2017, OLAP denied both applications.⁴ (SAC 24-27; id. at Ex. 9; Pl. Aff. ¶ 16).

Plaintiff similarly claims that on March 23, 2018, he submitted Form I-360 petitions to USCIS on behalf of three "members" of HBP, seeking to have them classified as Special Immigrant Religious Workers under the Immigration and Nationality Act (the "INA"). (SAC 6-7, 19-20; id. at Ex. 8, 9, 18).⁵ Heclaims that USCIS denied the HBP members' Form I-360 petitions and then denied an appeal by one such member from the initial denial of her petition. (SAC 19; id. at Ex. 8, 18).

3. The State Defendants' Alleged Involvement in the Denial of Plaintiff's Applications and Petitions to USCIS

According to Plaintiff, the State Defendants unlawfully caused the denial of the EOIR-31 and EOIR-31A applications that he submitted to USCIS on behalf of HBP and himself, as well as the Form I-360 petitions he submitted on behalf of the three HBP members. (SAC 19-20; Pl. Aff. ¶ 16). In particular, Plaintiff claims that USCIS's recommendation that the applications be denied and OLAP's and USCIS's decisions to deny the applications and petitions improperly relied on factual findings and legal conclusions that had been set forth in a May 6, 2005 decision and order (Diamond Decl., Ex. F (the "May 6, 2005 Order")), and an October 19, 2005 judgment and order (id. at Ex. G (the "October 19, 2005 Judgment")), both of which had been issued in connection with a 2004 civil proceeding that AAG Lebron successfully prosecuted against Plaintiff in New York State Supreme Court, Bronx County. See People v. Rivera, Index No. 1576/2004 (Sup. Ct. Bronx Cty.) ("People v. Rivera" or the "State Court Proceeding"). (SAC 13, 44 (referencing May 6, 2005 Order); Pl. Aff. ¶¶ 16-17 (referencing May 6, 2005 Order and October 19, 2005 Judgment)).Because of its centrality to Plaintiff's claims, the State Court Proceeding is discussed in some detail herein.

4. The OAG's Prosecution of Plaintiff

Having commenced an investigation into Plaintiff in 2004, the OAG obtained the May 6, 2005 Order and the November 18, 2005 Judgment pursuant to authority provided in New York Executive Law § 63(12). In issuing the May 6, 2005 Order, a judge of the Bronx Supreme Court found that: (i) Plaintiff had engaged in deceptive acts and practices, including false advertising, while providing immigration services to the public, in violation of New York General Business Law §§ 349(a) and 350; and (ii) Plaintiff had engaged in the unlicensed practice of law by falsely holding himself out as an attorney in violation of New York Judiciary Law § 478. (May 6, 2005 Order 9-11). Additionally, the court found that in offering immigration services to the public, Plaintiff had made false representations concerning the status of unenacted federal legislation known as the Development, Relief & Education for Alien Minors Act (the "DREAM Act"),⁶ and had charged numerous immigrants seeking legal residency $1,500 dollars each to submit purported DREAM Act applications on their behalves, all of which were denied by federalimmigration authorities. (May 6, 2005 Order 4-11). Further, Plaintiff had falsely held himself out as an attorney in advertising, conversations, and written immigration applications he submitted on behalf of clients to federal immigration authorities. (Id. at 9-11). The May 6, 2005 Order directed the OAG, as petitioner, to settle an order on notice for relief. (Id.).

Pursuant to that directive, the OAG sought and obtained the November 18, 2005 Judgment, which specified several forms of injunctive relief against Plaintiff. (November 18, 2005 Judgment 1-2). Among other proscriptions, the November 18, 2015 Judgment provided that:

[Plaintiff] is enjoined and prohibited from engaging in any of the fraudulent, deceptive or illegal acts and practices alleged in the Amended Verified Petition in violation of GBL §§ 349, 350 and 130, and Judiciary Law § 478, including, but not limited to:

(a) Holding himself out to the public as being entitled to practice law without being duly licensed and admitted to practice law in the State of New York including, but not limited to, maintaining a law office in New York; advertising that he is an attorney; representing orally and in writing that he is an attorney; appearing as an attorney-at-law in a court of record; and rendering legal advice;

(b) Falsely advertising or otherwise misrepresenting any aspect of the process of adjusting immigration status, or any other service available in immigration matters;

(c) Accepting money for services which he is not legally entitled to perform, or accepting money for services which he is legally entitled to perform and then failing to perform such services;

(d) Failing to provide refunds to consumers;(e) Directly or indirectly destroying or disposing of any records pertaining to his business; [and]

(f) Conducting a business under a name other than his real name without filing a certificate providing the name or designation under which he does business with the clerk of each county [in which] the business is conducted[.]

(Id.). Other relief provisions in the November 18, 2015 Judgment directed Plaintiff to provide the OAG with a complete accounting of his consumer transactions and to pay $24,331 in restitution to the numerous consumers he had defrauded. (Id.).

Plaintiff's fraudulent conduct persisted unabated. In consequence, from late July 2008 through August 22, 2016, the OAG obtained four additional orders holding Plaintiff in criminal or civil contempt of the November 18, 2005 Judgment. (Diamond Decl., Ex. I (the "July 29, 2008 Order"); id. at Ex. J (the "July 20, 2009 Order"); id. at Ex. K (the "October 27, 2011 Order"); id. at Ex. L (the "August 22, 2016 Order")). These orders were obtained by the OAG on evidentiary showings that (i) Plaintiff was continuing to hold himself out falsely both as an individual authorized to provide immigration services and as an attorney, and (ii) Plaintiff had failed to pay the restitution previously ordered. (July 29, 2008 Order; July 20, 2009 Order; October 27, 2011 Order; August 22, 2016 Order).

In the July 29, 2008 Order, a judge of the Bronx Supreme Court held Plaintiff in criminal contempt after finding that he had continued to offer immigration services to the public while not authorized to do so by USCIS and had falsely held himself out as an attorney. (See July 29, 2008 Order 4-9).The court ordered sweeping injunctive relief against Plaintiff, including a directive "permanently enjoining him from offering immigration services of any kind in exchange for payment to any person in New York." (Id. at 1). Thereafter, in ruling on the OAG's later contempt motions, the court held that Plaintiff had violated both the November 18, 2005 Judgment and the July 29, 2008 Order by, among other things, continuing to offer immigration services to the public and holding himself out as an attorney. (See July 20, 2009 Order; October 27, 2011 Order; August 22, 2016 Order).

Pursuant to these contempt...