Secundino Baez v. USA
| Decision Date | 28 May 2010 |
| Docket Number | No. CV-09-662-HU.,CV-09-662-HU. |
| Citation | 715 F.Supp.2d 1165 |
| Parties | Secundino BAEZ, Plaintiff, v. UNITED STATES of America; Janet Napolitano, Secretary of Homeland Security of the United States; Alejandro Mayorkas, USCIS Director; Christina Poulos, Director, USCIS California Service Center; Eric Holder, United States Attorney General, Defendants. |
| Court | U.S. District Court — District of Oregon |
OPINION TEXT STARTS HERE
Stephen W. Manning, Jennifer M. Rotman, Jessica M. Boell, Immigrant Law Group, P.C., Portland, OR, for Plaintiff.
Tony West, Assistant Attorney General, Civil Division, David J. Kline, Director, District Court Section, Office of Immigration Litigation, Gjon Juncaj, Senior Litigation Counsel, Adam Laurence Goldman, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, District Court Section, Washington, D.C., Dwight C. Holton Acting United States Attorney, District of Oregon, James E. Cox, Jr., Assistant United States Attorney, United States Attorney's Office, District of Oregon, Portland, OR, for Defendants.
Plaintiff Secundino Baez brings this immigration action against the United States, Secretary of Homeland Security Janet Napolitano, United States Citizenship and Immigration Services (USCIS) Director Alexander Mayorkas, USCIS California Service Center Director Christina Poulos, and United States Attorney General Eric Holder.
Plaintiff's Second Amended Complaint has five claims, discussed more fully below. Defendants move to dismiss the action based on the lack of subject matter jurisdiction. Alternatively, defendants move for summary judgment on all claims. In response to defendants' motion, plaintiff voluntarily dismisses his second claim for relief. Pltf's Mem. in Sup. of Pltf's MSJ at p. 5 n. 1 (). Plaintiff moves for summary judgment on his remaining four claims.
All parties have consented to entry of final judgment by a Magistrate Judge in accordance with Federal Rule of Civil Procedure 73 and 28 U.S.C. § 636(c). For the reasons explained below, I grant defendants' motion and deny plaintiff's motion.
In 1963, plaintiff, a citizen of Cuba, entered the United States. He was about three years old. He was paroled into the United States under 8 U.S.C. § 1182(d)(5). 1 Plaintiff has remained in the United States, without interruption, for the nearly forty-seven years since his arrival here.
In 1986, plaintiff applied to adjust his status to that of a lawful permanent resident pursuant to Section 1 of the Cuban Refugee Adjustment Act of 1996(CAA). Pub.L. 89-732, 80 Stat. 1161 (1966). On February 5, 1991, plaintiff's application for adjustment of status to permanent resident was denied for failure to submit requested documentation.
In 2007, plaintiff filed a second application to adjust his status to that of a lawful permanent resident pursuant to the CAA.
On February 21, 2008, the USCIS denied plaintiff's application.
On May 3, 2008, the Department of Homeland Security issued plaintiff a Notice to Appear, charging him with being removable pursuant to 8 U.S.C. § 1182(a)(7)(A)(i). Plaintiff has had hearings before the immigration court on the following dates, all in connection with this charge of removability: November 4, 2008, March 17, 2009, April 9, 2009, June 12, 2009, and October 22, 2009.
At the time of the March 3, 2010 oral argument on the motions at issue here, counsel represented that plaintiff had had an additional hearing on February 23, 2010, at which a July 2012 date was set for a merits hearing.
In the context of the removability hearings pending before the Immigration Judge (IJ), in March 2009 plaintiff (1) filed an application for Asylum and Withholding of Removal, (2) renewed his application to adjust his status to permanent resident pursuant to the CAA, and (3) filed an application for Cancellation of Removal.
On August 31, 2009, the USCIS vacated, reopened, and reconsidered its prior decision from February 2008 regarding plaintiff's second adjustment of status application. Simultaneously, however, the USCIS notified plaintiff of its intent to deny the adjustment application because plaintiff had not clearly established eligibility for adjustment. Admin. Record (AR) at pp. 10-12. Plaintiff was given thirty days to respond to this Notice of Intent to Deny (NOID). Id. On September 29, 2009, plaintiff responded to the NOID with a six-page letter memorandum and other documents. AR at pp. 13-18. On October 14, 2009, the USCIS denied plaintiff's application. AR at pp. 4-7.
The instant action was initially filed on June 15, 2009, before the USCIS vacated, reopened, reconsidered, and re-denied plaintiff's second adjustment application. The Second Amended Complaint was filed on November 25, 2009, after the USCIS's October 14, 2009 denial of that application.
Additional facts are discussed below.
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1) addresses the court's subject matter jurisdiction. The party asserting jurisdiction bears the burden of proving that the court has subject matter jurisdiction over his claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).
A Rule 12(b)(1) motion may attack the substance of the complaint's jurisdictional allegations even though the allegations are formally sufficient. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir.2007) (); Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1996) () (internal quotation omitted). Additionally, the court may consider evidence outside the pleadings to resolve factual disputes. Robinson v. United States, 586 F.3d 683, 685 (9th Cir.2009); see also Dreier, 106 F.3d at 847 ().
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of “ ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).
“If the moving party meets its initial burden of showing ‘the absence of a material and triable issue of fact,’ ‘the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense.’ ” Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir.1991) (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir.1987)). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.
The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). All reasonable doubts as to the existence of a genuine issue of fact must be resolved against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court should view inferences drawn from the facts in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31.
If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Id.; In re Agricultural Research and Tech. Group, 916 F.2d 528, 534 (9th Cir.1990); California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987).
Plaintiff has four remaining claims. In his first claim for relief, he challenges the denial of his second application for adjustment to permanent resident status. He alleges that the denial violates the CAA, the Immigration and Nationality Act (INA), the applicable regulations and policy, and the Administrative Procedures Act. He seeks an adjudication of his permanent resident application based on the appropriate legal standard.
In his third claim for relief, plaintiff contends that defendants' denial of his second application for adjustment to permanent resident status violates the CAA, the INA, the applicable regulations and policy, and the Administrative Procedures Act because it is not based on substantial evidence. He seeks an adjudication of his permanent resident application based on the record.
In his fourth claim for relief, plaintiff contends that a 2009 ruling by the Bureau of Immigration Appeals (BIA) in Matter of Martinez-Montalvo, 24 I. & N. Dec. 778 (BIA 2009), which plaintiff asserts prohibits him from seeking an adjustment to permanent resident status in the context of his removal proceedings, violates the CAA, the INA, the applicable regulations and policy, and the Administrative Procedures Act. He seeks to present a full defense to removal, including raising an adjustment claim under the CAA, before the IJ.
In his fifth claim for relief, plaintiff contends that defendants' reliance on Martinez-Montalvo violates the CAA, the INA, the applicable...
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