Suero v. U.S. Dep't of Homeland Sec.
| Decision Date | 10 April 2019 |
| Docket Number | 18 Civ. 4992 (PAE) |
| Parties | JOSE VALENTIN PINEDA SUERO, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY; KEVIN K. McALEENAN, in his official capacity as Acting Secretary; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; L. FRANCIS CISSNA, in his official capacity as Director; THOMAS CIOPPA, in his official capacity as Director of the New York District Office, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Jose Valentin Pineda Suero ("Pineda") brings this action against the U.S. Department of Homeland Security ("DHS"), DHS Acting Secretary Kevin K. McAleenan, U.S. Citizenship and Immigration Services ("USCIS"), and related officials (collectively "defendants") seeking review, under the Administrative Procedures Act ("APA"), 5 U.S.C. § 551, et seq., and the Mandamus Act, 28 U.S.C. § 1361, of defendants' denial of his Form I-485 application to register permanent residence or adjust his status. Pending now is defendants' motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court grants the motion to dismiss.
Pineda is a citizen of the Dominican Republic residing in the Bronx, New York. Compl. ¶¶ 5, 11. On September 17, 2000, Pineda was discovered by an immigration inspector on board a cruise ship at the Port of Miami, Florida. Id. ¶ 12. At that time, he was deemed a stowaway. Id. Pineda was not admitted into the United States. Instead, he was detained and questioned by immigration officers. Id. ¶¶ 13-14.
Thereafter, Pineda alleged a fear of being returned to the Dominican Republic. On November 8, 2000, he was again questioned by immigration officers, who determined that Pineda had a credible fear of persecution if returned to the Dominican Republic. Id. ¶¶ 15-16. Pineda was then placed into asylum-only proceedings before an immigration court in Miami and was paroled into the United States. Id. ¶¶ 16-17. Pineda applied for asylum before an immigration judge but his application was denied. Id ¶ 18. After this denial, Pineda remained present in the United States. Id. ¶ 19.
On April 27, 2001, Pineda's brother, Alberto Pineda, a United States citizen, filed a "Petition for Alien Relative," Form I-130, on Pineda's behalf. Id. ¶¶ 20-21. On November 5, 2009, the petition was approved. Id. ¶ 22. On July 22, 2013, Pineda filed an Application to Register Permanent Residence or Adjust Status, Form I-485 (the "Application"), with USCIS.Id. ¶ 23. On November 15, 2013, USCIS denied the Application "due to a finding that [Pineda] was statutorily ineligible for adjustment of status in the United States." Id. ¶ 24. USCIS based this determination on Immigration and Nationality Act ("INA") § 212(a)(6)(C)(ii), due to a "false claim of United States Citizenship." Id. On December 5, 2013, Pineda filed a motion to reconsider the denial of his Application, Form I-290B. Id. ¶ 25. On October 5, 2015, USCIS denied that motion. Id.
On February 2, 2017, Pineda filed an action in this District under the APA seeking de novo review of USCIS's November 15, 2013 denial of the I-485 Applications and the subsequent motion to reconsider. Id. ¶ 26. On March 28, 2017, the parties stipulated to withdraw that action pursuant to an agreement that USCIS would sua sponte reopen the I-485 Application and re-adjudicate the application. Id. ¶ 27.
Pursuant to that agreement, USCIS reopened the Application. Id ¶ 28. However, on April 6, 2017, USCIS again denied the Application. In contrast to its November 15, 2013 denial, USCIS no longer found that Pineda was statutorily ineligible for adjustment of status under INA § 212(a)(6)(C)(ii). Id. ¶ 30. Instead, USCIS determined that Pineda is a stowaway, writing:
[Y]ou were apprehended by the former Immigration and Naturalization Service on board Carnival Cruise Lines M/V Paradise on September 17, 2000, as a stowaway . . . . On February 2, 2002, you were paroled from custody while your Asylum Only Proceedings were pending . . . . Despite your parole from custody, you remain a stowaway.
Id. ¶ 31. USCIS further concluded that because Pineda is a stowaway, he is inadmissible to the United States, and, therefore, ineligible for adjustment of status under INA § 245. Id. ¶¶ 31-32.
On June 8, 2019, Pineda filed the Complaint. Dkt. 3. He seeks relief from USCIS's denial of the Application, under the APA and/or the Mandamus Act. In particular, he seeks adeclaration that the denial of the Application was unlawful and an order requiring USCIS to reopen and grant the Application. On November 20, 2018, defendants timely moved to dismiss the Complaint and filed a supporting memorandum of law ("Def. Mem.") and declaration. See Dkts. 35-37. On December 4, 2018, Pineda filed his memorandum in opposition. Dkt. 38 ("Pineda Mem."). On December 11, 2018, defendants filed their reply. Dkt. 39 ("Def. Reply").
To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will only have "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). A complaint is properly dismissed, where, as a matter of law, "the allegations in a complaint, however true, could not raise a claim of entitlement to relief." Twombly, 550 U.S. at 558. Accordingly, a district court must accept as true all well-pleaded factual allegations in the complaint and draw all inferences in the plaintiff's favor. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). However, that tenet "is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. A pleading that offers only "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.
The APA directs courts to "hold unlawful and set aside" agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). An agency action is arbitrary and capricious if "the agency has relied on factorswhich Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Nat'l Res. Def. Council v. EPA, 658 F.3d 200, 215 (2d Cir. 2011). This standard is deferential, but a reviewing court's "inquiry must be 'searching and careful.'" Nat'l Audubon Soc'y v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997) (quoting Marsh v. Or. Nat'l Res. Council, 490 U.S. 360, 378 (1989)).
"[M]andamus is an extraordinary remedy, intended to aid only those parties to whom an official or agency owes a 'clear nondiscretionary duty.'" Escaler v. U.S. Citizenship & Immigration Servs., 582 F.3d 288, 292 (2d Cir. 2009) (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)). Mandamus may be awarded "only if the plaintiff proves that (1) there is a clear right to the relief sought; (2) the Government has a plainly defined and peremptory duty to perform the act in question; and (3) there is no other adequate remedy available." Benzman v. Whitman, 523 F.3d 119, 132-33 (2d Cir. 2008).
Defendants argue that Pineda fails to state a claim on which relief can be granted because USCIS's decision was lawful and committed to the agency's discretion. Specifically, defendants argue that, as a matter of law, because Pineda is a stowaway, he is statutorily ineligible to seek adjustment of status. Thus, they argue, USCIS acted lawfully in denying his Application for adjustment of status and Pineda is not entitled to APA or mandamus relief.
A brief overview of the statutory and regulatory framework is useful here. Under 8 U.S.C. § 1255(a), the Attorney General may adjust the immigration status of an alien who was "inspected and admitted or paroled into the United States" only if, inter alia, "the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence" and "an immigrant visa is immediately available to [the alien] at the time his application is filed." 8 U.S.C. § 1255(a)(2)-(3).
As to aliens who are ineligible for adjustment of status under § 1255(a), including aliens who entered the United States without inspection, § 1255(i) provides certain limited avenues for relief. Under § 1255(i), an alien may apply for adjustment of status, notwithstanding the limitations of § 1255(a), if he (1) is a beneficiary of an immigrant visa petition under 8 U.S.C. § 1154 filed on or before April 30, 2011, (2) was physically present in the United States on December 21, 2000, and (3) pays a $1,000 fee. 8 U.S.C. § 1255(i). Upon receipt of an application for adjustment of status and the required fee, the Attorney General may adjust the status of an alien who otherwise satisfies these requirements, but only if the alien "is admissible to the United States for permanent residence," and "an immigrant visa is immediately available to the alien at the time the application is filed." Id. § 1255(i)(2)(A)-(B).
Stowaways are not eligible to apply for admission to the United States. See 8 U.S.C. § 1225(a)(2) (); 8 U.S.C. § 1182(a)(6)(D) (). Under 8 U.S.C. § 1101(a)(49), a stowaway is an alien who "obtains transportation without the consent of the owner, charterer, master or person in command of any...
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