Rotschild v. Napolitano

• Decision Date: 22 August 2011
• Docket Number: Civil No. 10-5404 (JBS/JS)
• Parties: JITKA ROTSCHILD, Plaintiff, v. JANET NAPOLITANO, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

JITKA ROTSCHILD, Plaintiff,
v.
JANET NAPOLITANO, et al., Defendants.

Civil No. 10-5404 (JBS/JS)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Dated: August 22, 2011

HON. JEROME B. SIMANDLE

OPINION

APPEARANCES:

Jeffrey T. Kampf, Esq.
JAY AND KAMPF
339 Bloomfield Avenue
Caldwell, NJ 07006
Counsel for Plaintiff

Jennifer A. Bowen, Trial Attorney
U.S. DEPARTMENT OF JUSTICE
Office of Immigration Litigation
District Court Section
Ben Franklin Station
Washington, DC 20005

-and-

Paul J. Fishman
United States Attorney
By: Jordan Milowe Anger
Assistant U.S. Attorney
OFFICE OF THE U.S. ATTORNEY
970 Broad Street
7th Floor
Newark, NJ 07102
Counsel for Defendants

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SIMANDLE, District Judge:

I. INTRODUCTION

This case involves a petition for judicial review of the denial of Plaintiff's application for naturalization. Plaintiff also seeks a declaratory judgment barring the rescission or invalidation of her lawful permanent resident status, and finding that she has been and continues to be a lawful permanent resident of the United States. The matter is before the Court on Defendants' motion to dismiss and, in the alternative, for summary judgment. [Docket Item 6.]¹ The principal issues are whether Plaintiff sufficiently alleges and adduces evidence that she was lawfully admitted, and whether Plaintiff's claim for declaratory judgment is ripe.

II. BACKGROUND

In the American immigration and citizenship system, individuals can be lawfully present in the United States under a number of possible statuses. A non-citizen can be paroled into the country at the discretion of the Attorney General without formal admission or immigration status on a temporary basis. 8 U.S.C. § 1182(d)(5). A non-citizen can receive a nonimmigrant

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visa, permitting the individual to seek entry into the country for temporary travel, work, or study, among other categories. 8 U.S.C. § 1201; 8 U.S.C. § 1101(a)(15). A non-citizen can also become a lawful permanent resident (LPR), with permission to remain indefinitely, on the basis of certain family relationships, among other bases. 8 U.S.C. § 1151; 8 U.S.C. 1153(a). And, ultimately, a non-citizen can apply for naturalization to become a United States citizen.

Plaintiff, Jitka Rotschild, was born in what was then Czechoslovakia and is a citizen of the Czech Republic who entered the United States on a nonimmigrant visa on or about March 19, 1992, with permission to remain for one year. Compl. ¶ 8; Defs.' Ex. J ("USCIS Denial of Naturalization") 2-3. Two years later, Plaintiff married Tomas Rotschild who, at the time, was a lawful permanent resident of the United States. Compl. ¶ 8. A citizen or lawful permanent resident may petition for official recognition of a relationship to a nonimmigrant spouse, 8 U.S.C. § 1154(a)(1)(B), which if granted provides the spouse a basis for petitioning for lawful permanent resident status. After their marriage, Mr. Rotschild filed a petition to classify Plaintiff as his immediate relative. Compl. ¶ 8.² This petition was

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approved, and Plaintiff was placed in line for a visa number.

On January 28, 1998, Plaintiff submitted an application to adjust her status to that of an LPR, a procedure permitting an individual to change immigration status while remaining in the United States. Compl. ¶ 11.³ At the time her application to adjust status was filed, Plaintiff characterized her status as "out of status" because she had stayed beyond the one-year period authorized by her classification status. Defs.' Ex. C ("Pl.'s I-485 application to adjust status").

While her application to adjust status was pending, Plaintiff voluntarily departed the United States "a few times" to visit her ailing grandmother in the Czech Republic. Apparently unbeknownst to Plaintiff, these departures placed her into a category of nonimmigrants affected by an amendment to the immigration laws. The statute provides that any non-citizen who "was unlawfully present in the United States for a period of more than 180 days but less than 1 year, [and who] voluntarily

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departed the United States" before commencement of removal proceedings "and again seeks admission within 3 years of the date of such alien's departure or removal" is inadmissible. 8 U.S.C. § 1182(a)(9)(B)(i)(I). An amendment to the statute further defined unlawful presence to include "if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General . . . " 8 U.S.C. § 1182(a)(9)(B)(ii). Consequently, by voluntarily departing prior to approval of her adjustment of status application, Plaintiff was precluded from obtaining LPR status without a waiver of inadmissibility under 8 U.S.C. § 1182(a)(9)(B)(v). That provision permits the Attorney General to waive the inadmissibility created by operation of 8 U.S.C. § 1182(a)(9)(B)(i)(I) when necessary to avoid extreme hardship to a lawfully resident spouse of the inadmissible individual.

Plaintiff does not contend that she filed a written waiver application in conjunction with her adjustment of status application. Compl. ¶ 17. However, in connection with her application for permanent residence, Plaintiff appeared for an interview with an immigration officer, at which time "absolutely all of the information regarding her initial admission, her marriage to Mr. Rotschild, his I-130 application, his naturalization, and her departure and reentry on advanced parole," as well as the hardship experienced by Plaintiff and Mr.

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Rotschild, were disclosed. Id. ¶¶ 13, 12B. Plaintiff's application to adjust status was approved on April 5, 1999, and she was granted LPR status. Id. at 13; Defs.' Ex. C.⁴

On September 8, 2006, Plaintiff filed an application to naturalize as a United States citizen. Compl. at 14; Def.'s Ex. B. USCIS denied the naturalization application on September 22, 2007, citing the lack of evidence that Plaintiff received a waiver. Defs.' Ex. J. The USCIS denial stated that because there was no evidence that Plaintiff received a waiver, her adjustment of status application was "approved in error" and Plaintiff was therefore ineligible to become a naturalized citizen. Id. at 3-4. Plaintiff sought administrative review of the denial, which was denied by USCIS on April 10, 2010 on the grounds that Plaintiff was statutorily ineligible to naturalize because she had "received [her] permanent residence status unlawfully." Def.'s Ex. K (Pl.'s Form N-336 denial) at 3.

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Plaintiff filed her Complaint with this Court on October 19, 2010. [Docket Item 1.] Plaintiff seeks review of the denial of an application for naturalization, pursuant to 8 U.S.C. § 1421(c).⁵ Plaintiff also seeks declaratory judgment that USCIS cannot rescind or invalidate her LPR status, that the denial of her naturalization cannot be considered an invalidation of her LPR status, and that her LPR status is valid. Defendants make three arguments in the present motion: first, that the declaratory relief sought is unripe, requiring dismissal under Rule 12(b)(1), Fed. R. Civ. P.; second, that Plaintiff has failed to allege entitlement to naturalization because she does not allege she filed a written waiver application to obtain her LPR status, requiring dismissal under Rule 12(b)(6), Fed. R. Civ. P.; and third, that Defendants are entitled to summary judgment on the issue of waiver pursuant to Rule 56, Fed. R. Civ. P., because Plaintiff has not adduced any evidence of waiver.

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III. SUBJECT MATTER JURISDICTION

A. Standard of Review

Defendants move to dismiss Plaintiff's claim seeking declaratory judgment for lack of subject matter jurisdiction, arguing that there is no case or controversy to be resolved by declaratory judgment. The subject matter of federal courts is restricted to "cases" and controversies." U.S. Const. art. III, § 2. Among the components of whether a plaintiff has presented a case or controversy to be resolved is whether the plaintiff is properly a party to a justiciable dispute, a concept called standing, and whether the matter is properly reviewed at this time, a concept called ripeness. See Presbytery of N.J. of the Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994). To have standing, a party must present an actual or imminent injury that is fairly traceable to the challenged action of the defendant and that is likely to be redressed by the Court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). For the matter to be ripe for review, the Court must be satisfied that the issues are ready for judicial decision and that waiting for further development would work some hardship on the parties. See Abbott Laboratories v. Gardner, 387 U.S 136, 149 (1967).

In this case, as is somewhat common, the concepts of standing and ripeness overlap. That is, the question of whether Plaintiff is threatened with imminent injury (standing) is nearly

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identical to the question of whether there is hardship to the parties in withholding court consideration until there is enforcement action (ripeness). See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8 (2007) (noting the frequent overlap of these concepts). When the question of whether there is a case or controversy involves whether it is appropriate for the Court to issue declaratory judgment prior to an enforcement action, the matter is...