Tsimmer v. Gantner, 06 Civ. 7867(CM).
| Decision Date | 22 April 2008 |
| Docket Number | No. 06 Civ. 7867(CM).,06 Civ. 7867(CM). |
| Citation | 550 F.Supp.2d 438 |
| Parties | Leo TSIMMER, Plaintiff, v. Mary Ann GANTNER, New York District Director of the United States Citizenship and Immigration Services ("USCIS"); Ruth A. Dorochoff, Chicago District Director, USCIS; Kay Leopole, Officer-in-Charge Milwaukee Sub-Office, USCIS; Michael Chertoff, Secretary of Department of Homeland Security; Emilio T Gonzalez, Director of USCIS, Department of Homeland Security; and U.S. Citizenship and Immigration Services, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Matthew Guadagno, David Kim, Bretz & Coven, LLP, New York, NY, for Plaintiff.
James Loprest, Sp. Asst. U.S. Attorney, S.D.N.Y., New York, NY, for Defendants.
DECISION AND ORDER GRANTING THE GOVERNMENT'S MOTION TO DISMISS
Defendants Mary Ann Gantner, District Director of the New York District of United States Citizenship and Immigration Services ("CIS");1 Ruth A. Dorochoff, District Director of the CIS's Chicago District; Kay Leopole, Officer-in-Charge of the CIS's Milwaukee Sub-Office; Michael Chertoff, United States Secretary of Homeland Security; Emilio T. Gonzalez, Director of the CIS; the Department of Homeland Security; and the CIS (collectively, "defendants" or "Government"), have moved to dismiss the complaint of plaintiff Leo Tsimmer, A # 29-449-695 ("plaintiff or "Tsimmer") pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure because: (1) the complaint is barred by a decision of the United States Court of Appeals for the Second Circuit in another case of plaintiff s; (2) the complaint is barred by the doctrine of collateral estoppel; (3) the complaint is res judicata; (4) the Court lacks subject matter jurisdiction to consider the complaint; and (5) the complaint fails to state a claim upon which the Court may grant relief. This action is the latest in a long line of attempts by plaintiff to forestall his lawful exclusion from the country. He has not yet won a round, but he has managed, by his constant litigating, to forestall his deportation.
Because the court lacks subject matter jurisdiction over the claims asserted, the case is dismissed. If I had jurisdiction to consider the merits, I would conclude that the plaintiffs claims are barred by res judicata and collateral estoppel.
Tsimmer is a 39-year-old native and citizen of Russia. Record at 283.2 On December 18, 1989, he married Bonnie Jean Verhunce ("Verhunce"), a United States citizen, in Madison, Wisconsin, where he was a student. Id. at 284. Based on that marriage, the INS granted Tsimmer the status of a conditional lawful resident of the United States, with an expiration date of April 23, 1992. Id. at 281.3
On or about March 17, 1992, the INS was contacted by Kelly Hayes ("Hayes") regarding Tsimmer. Id. at 276-77. Hayes gave the INS a sworn statement, see id. at 276-79, in which she stated that her roommate, Lisa Christopher, was Tsimmer's paramour. Id. at 276. Hayes stated that Tsimmer's relationship with Verhunce was not a "true marriage" and that Verhunce "had only married [Tsimmer] to help him gain U.S. residency." Id. at 279.
On or about April 17, 1992 — six days before the expiration of Tsimmer's conditional resident status — Tsimmer and Verhunce filed a joint 1-751 petition to remove the condition. Id. at 40-41; 283-84, At first, the INS rejected the 1-751 petition because Tsimmer and Verhunce had failed to remit the correct filing fee, see id. at 37-38; see also 8 C.F.R. 216.4(a) (1992); however, Tsimmer and Verhunce later filed the petition with the correct fee on April 29, 1992 — one week past the statutory deadline, see Record at 40. On August 31, 1992, the INS interviewed Tsimmer and Verhunce at its Milwaukee offices in connection with the petition, at which time they claimed to live at the same Madison address. Id. at 262, 276. However, because Tsimmer and Verhunce provided little documentary evidence that their marriage was bona fide — and because of Hayes's earlier communication — the INS determined to investigate their claims further. See id. at 262, 276-77.4
In response to an INS inquiry, the Wisconsin Department of Transportation informed the INS that its records showed different Madison addresses for Verhunce and Tsimmer. See Record at 262-63. When INS agents visited the first address, in August 1995, an individual claiming to be the landlady of the premises informed them that Verhunce was a tenant but that Tsimmer had never lived there. Id. The landlady also told the agents Verhunce had been in a romantic relationship with a man other than Tsimmer for the previous three years. Id. When the INS agents visited the other Madison address, they discovered Verhunce living there; she informed the agents that she and Tsimmer had separated approximately three years earlier. Id. at 263. Verhunce also told the agents that, contrary to their statements at the August 1992 interview, she and Tsimmer had not been living together at the same address at that time. Id. Verhunce told the agents Tsimmer was "living in Moscow," but was unable to provide an address for him. Id.5
On March 28, 1996, the District Director of the INS's Chicago district office issued a decision denying the 1-751 petition. Record 250-54.6 The District Director pointed to the dearth of evidence indicating that the marriage between Verhunce and Tsimmer was bona fide: he also summarized the statements given to the INS by Verhunce, Hayes, and the landlady, and noted that Verhunce and Tsimmer were getting divorced. Id. at 250-52. The "substantial derogatory information" convinced the District Director that Tsimmer and Verhunce "were involved in a marriage of convenience for the purpose of obtaining immigration benefits" for Tsimmer. Id. at 253. Upon denying the petition, the INS referred Tsimmer to the Immigration Court in Chicago for the commencement of an administrative proceeding to exclude and deport Tsimmer from the United States. Id.
On March 28, 1996, the INS issued Tsimmer a Notice to Applicant for Admission Detained for Hearing Before Immigration Judge ("IJ"). Record at 290. The notice charged Tsimmer with being excludable from the United States pursuant to INA §§ 212(a)(5)(A)(i), 212(a)(6)(C), and 212(a)(7)(A)(i)(I), respectively, as an alien: (1) seeking admission to the country for the purposes of performing skilled or unskilled labor; (2) who committed fraud to secure an immigration benefit; and (3) seeking to enter the United States without a valid or unexpired immigrant visa. Id. at 290; see also 8 U.S.C. §§ 1182(a)(5)(A)(i), 1182(a)(6)(C), & 1182(a)(7)(A)(i)(I).
On April 8, 1997, after a number of adjournments, see Record at 240, 245-48, Tsimmer's exclusion hearing commenced before an IJ in New York.7 Tsimmer conceded service of the INS's charging document and denied its charges. Id. at 241-42. On or about September 8, 1996, Tsimmer filed a motion with the IJ to terminate his exclusion proceeding or, in the alternative, to reconsider, and grant, his 1-751 petition. Id. at 118-22.
On December 3, 1998, the IJ issued an order denying the motion and ordering Tsimmer excluded from the United States. Id. at 88-97 (Exclusion Proceedings, In re Tsimmer, No. A29-449-695 (Dec. 3, 1998)). The IJ held the INS had not met its burden to demonstrate Tsimmer was excludable for fraud, and dismissed that charge; however, the IJ held the INS had met its burden to demonstrate Tsimmer's excludability under the two remaining charges. Id. at 95-96. The IJ held that Tsimmer was not assisted by the Supreme Court's decision in Rosenberg v. Fleuti, 374 U.S. 449, 460, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963) (), because that decision's holding was inapplicable to conditional permanent residents, like Tsimmer. Id. at 91-92. Finally, the IJ rejected Tsimmer's request for review of his 1-751 petition, holding that the regulations did not make such review available to aliens in exclusion proceedings. Id. at 94-95. The IJ certified his decision to the BIA for its review. Id. at 97.
On July 15, 2002, the BIA issued a decision directing that Tsimmer be excluded from the United States, but for different reasons than the IJ. See Record at 80-82 (Termination of Proceedings, In re Tsimmer, No. A29-499-695 (July 12, 2002)). Unlike the I J, the BIA held that Tsimmer's status as a conditional lawful resident expired by operation of law on April 23, 1992, when Tsimmer and Verhunce failed to file a timely 1-751 petition. Id. at 81. The BIA further held that Tsimmer's conditional resident status was not restored by the INS District Director's late consideration of the petition. Id. (citing 8 C.F.R. § 216.4(a) (6) (1994)). In light of the expiration of Tsimmer's status in 1992, the BIA held he could not have reentered the United States after foreign travel absent a grant of advance parole — and that, therefore, the INS properly placed him into an exclusion proceeding (as opposed to a deportation proceeding) when he attempted to reenter the country upon his return from Russia in July 1995. Id. at 81-82. Finally, the BIA held (as had the IJ) that Tsimmer, as an excludable alien, was not entitled to challenge the INS's determination that his marriage to Verhunce was not bona fide. Id.
On or about August 13, 2002, Tsimmer filed a motion with the BIA to vacate its July 15, 2002 decision and reopen his exclusion proceeding. Record at 6; see also 7-31 (supporting declarations), 32-79 (exhibits). In the motion, Tsimmer argued that the BIA had erred by failing to hold that the INS was estopped from excluding him because it had engaged in "affirmative misconduct" by incorrectly advising him to seek...
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