Rubio Hernandez v. United States Citizenship & Immigration Servs.
| Docket Number | C22-904 MJP |
| Decision Date | 07 November 2023 |
| Parties | FELIX RUBIO HERNANDEZ, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, ALEJANDRO MAYORKAS, AND UR M. JADDOU, Defendants. |
| Court | U.S. District Court — Western District of Washington |
This matter comes before the Court on the Parties' Cross-Motions for Summary Judgment. (Dkt. Nos. 23, 25.) Having reviewed the Motions, the Responses and Replies (Dkt Nos. 26, 27), and all supporting materials, and having held oral argument on October 31, 2023, the Court GRANTS Plaintiff's Motion and DENIES Defendants' Motion. The Court VACATES the Agency's decision and REMANDS this matter for further review consistent with this Order.
Plaintiff Felix Rubio Hernandez appeals the Defendant United States Citizenship and Immigration Services' (USCIS) denial of his discretionary request to have his immigration status changed from U nonimmigrant status (U Visa) to “lawful permanent resident” under 8 U.S.C. § 1255(m) (the “Application”). Rubio brings claims under the Administrative Procedures Act that USCIS's Administrative Appeals Office (AAO) acted arbitrarily and capriciously in denying his Application. He argues that the AAO committed legal error by: (1) improperly considering and weighing the fact of certain prior arrests in finding Rubio's “criminal history” outweighed the positive equities in support of his Application, (2) faulting Rubio for the absence of arrest records where no such records exist, and (3) taking inconsistent positions as between his Application and U Visa application.
The Court reviews the relevant statutory framework, Rubio's existing immigration status, the administrative process affecting his Application, and the AAO's decision on his Application.
Congress created “U” nonimmigrant classification, commonly known as the “U visa,” to protect noncitizen victims of serious crimes and to increase public safety by encouraging those noncitizens to report such crimes to law enforcement officers and to assist in the prosecution of such crimes. See Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386, 114 Stat 1464 (2000), codified at §§ 101(a)(15)(U), 214(p), and 245(m) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101(a)(15)(U), 1184(p), and 1255(m).
To obtain a U visa, the applicant must satisfy several criteria. See 8 U.S.C. §§ 1101(a)(15)(U), 1184(p)(1); 8 C.F.R. § 214.14(b). The U visa applicant must also either be admissible to the United States or be granted a waiver for any ground of inadmissibility that pertains to them. See 8 U.S.C. § 1184(a)(1); 8 C.F.R. § 214.1(a)(3)(i). Congress enacted a specific inadmissibility waiver for those seeking a U visa, making nearly any ground of inadmissibility waivable “in the Attorney General's discretion . . . if the Secretary of Homeland Security considers it to be in the public or national interest.” 8 U.S.C. § 1182(d)(14); see also 8 C.F.R. § 212.17(b).
In creating the U visa, Congress also provided a pathway to permanent residence for victims of violent crime. See VTVPA § 1513(a)(2)(C), 114 Stat. at 1534. To be eligible for adjustment of status, a U visa holder must meet two statutory requirements. First, the applicant must demonstrate three years of continuous physical presence in the United States since being admitted as a U nonimmigrant. 8 U.S.C. § 1255(m)(1)(A). Second, the applicant must establish that their “continued presence in the United States is justified on humanitarian grounds, to ensure family unity, or otherwise in the public interest.” 8 U.S.C. § 1255(m)(1)(B); see also 8 C.F.R. § 245.24(b)(6), (d)(10). Regulations implementing the U visa pathway to permanent residence also require the applicant to “show[] that discretion should be exercised in his or her favor.” 8 C.F.R. § 245.24(d)(11). In exercising its discretion, USCIS (a component of the Department of Homeland Security (DHS)) may “take into account all factors, including acts that would otherwise render the applicant inadmissible,” and weigh an applicant's “adverse factors” against “mitigating equities.” Id. USCIS will generally deny an application “in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drug-related crimes, or where there are security- or terrorism-related concerns.” Id.
Rubio is a native and citizen of Mexico who has resided in the United States for over thirty years, where he has been employed and paid taxes. (Compl. ¶ 21 (Dkt. No. 1); Answer ¶ 21 (Dkt. No. 21); USAO000550.[1]) Rubio also has children and grandchildren who are American citizens. (See USAO000432-433.) In 2011, Rubio's ex-wife and her cousin assaulted Rubio, causing significant trauma. (USAO000560.) After assisting the Snohomish County Sherriff's Office and Prosecutor's Office in prosecuting the attackers, Rubio became eligible to apply for U nonimmigrant status. (USAO000559-62.) In October 2012, he applied for a U Visa and requested a waiver of admissibility. (Compl. ¶ 24; USAO000550, USAO000712-13, USAO000744-45.)
As part of his 2012 U Visa application, Rubio disclosed his prior contacts with law enforcement, which included: (1) a 1991 conviction for petty theft; (2) a 2001 arrest for domestic-violence-related assault in the fourth degree for which charges were dismissed; and (3) a 2004 arrest for domestic-violence-related assault in the fourth degree that led to a not guilty verdict. In October 2014, USCIS approved Rubio's request for the inadmissibility waiver, finding his admission as a U nonimmigrant “to be in the public or national interest.” 8 U.S.C. § 1182(d)(14); (Compl. ¶ 25; USAO000745.) USCIS granted Rubio U nonimmigrant status, making his U Visa valid from October 1, 2014, to September 30, 2018. (Compl. ¶ 25; USAO000744.)
In October 2017, Rubio applied to USCIS for a U-based adjustment in status to become a legal permanent resident (LPR). (Compl. ¶¶ 2, 26; USAO000228.) He responded USCIS's December 2018 requests for further information, producing court records and explanations about arrests from 1991, 2000, 2001, 2004, 2012, and 2013. (USAO000382-85; USAO000387-433, 000444-445.) In May 2019, USCIS issued a Notice of Intent to Deny the Application, concluding that it did not have sufficient evidence that discretion was warranted to approve the Application given Rubio's prior arrests and convictions. (Compl. ¶¶ 29, 32; USAO000460, USAO000468-69.) USCIS identified further evidence that it wished to review before finalizing its decision. (Id.) After Rubio provided all available arrest records and further evidence USCIS requested, USCIS denied Rubio's Application in December 2020. (Compl. ¶ 34; USAO__000023-32.) USCIS balanced the positive and negative factors, and found that it should not exercise discretion to adjust Rubio's status given Rubio's “criminal history and years of unlawful presence in the United States.” (USAO000031.) The USCIS concluded that “the record does not contain sufficient evidence regarding some of [Rubio's] arrests to determine the level of risk of harm [he] may pose to the public.” (Id.)
Rubio appealed the denial of his application to the Agency's Administrative Appeals Office (AAO). (Compl. ¶ 39; USAO000014-21.) He argued that USCIS erred in requiring him to submit police records that did not exist, and that the decision was both arbitrary and capricious in how it balanced the equities and in its conclusion that he did not submit sufficient documentary evidence to support the adjustment of status. (Compl. ¶ 39; USAO-000039-43.) On December 17, 2021, the AAO dismissed the appeal after its de novo review, noting that despite the positive equities, Rubio had not “demonstrated that he merits a favorable exercise of discretion to adjust his status to that of an LPR due to his criminal history.” (USAO000008.) The Court briefly reviews the administrative record the AAO had before it concerning Rubio's encounters with law enforcement from 1991, 2000, 2001, 2004, 2012, and 2013:[2]
First, Rubio provided a Ventura County Superior Court docket sheet showing in 1991 he was arrested and convicted of petty theft for which he served a two-day sentence, evidence he paid an $80 court fine, and a confirmation that the case records were destroyed in 2005 and that no further court records existed. (USAO000392-95, USAO000410; USAO000528-529.) Rubio also provided a 1991 arrest report stating Rubio “shoplifted packaged meat in Ralphs Grocery Store” and had but $1 on his person at the time of arrest. (USAO000477-478).
Second, Rubio provided a Snohomish County District Court docket sheet showing that in 2000: (a) Rubio was charged with driving under the influence, negligent driving in the first degree, and driving without a license in the third degree, (b) the DUI charge was amended to negligent driving in the first degree; (c) he pleaded guilty to negligent driving and driving with a suspended license, (d) the 90 day jail sentence was suspended provided that Rubio complied with alcohol and victim treatment programs; and (e) after not timely completing the treatment programs and paying fines, he was then brought back into court and ultimately completed the conditions and paid the fine. (USAO000396-400; see also USAO000401-405.) The docket sheet also showed that Rubio required a translator for court appearances, but there was no evidence the treatment-related conditions were explained orally or in writing to him in Spanish.
Rubio also provided...
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