Vargas-Ortiz v. McCarthy, Case No. 1:14-cv-00393-CWD

CourtUnited States District Courts. 9th Circuit. District of Idaho
PartiesROSALBA VARGAS-ORTIZ, Plaintiff, v. John MCCARTHY, Boise Field Office Director of United States Citizenship and Immigration Services; KRISTI BARROWS, District Director of the United States Citizenship and Immigration Services; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendants.
Docket NumberCase No. 1:14-cv-00393-CWD
Decision Date22 February 2016

John MCCARTHY, Boise Field Office Director of United States Citizenship
and Immigration Services; KRISTI BARROWS, District Director of the United States Citizenship
and Immigration Services; UNITED STATES CITIZENSHIP

Case No. 1:14-cv-00393-CWD


February 22, 2016



Plaintiff Rosalba Vargas-Ortiz is an immigrant from Mexico who arrived in the United States in 1983 at the age of eighteen. Vargas contends she was accorded temporary resident status, and that she lawfully renewed her status and became a lawful permanent resident, pursuant to the Special Agricultural Work (SAW) program.

Vargas filed this action on September 17, 2014, seeking declaratory and mandamus relief requiring Defendants to issue her a replacement lawful permanent

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resident card under 8 U.S.C. § 1304(d). Defendants (collectively referred to as the Government) are the heads of the various agencies responsible for processing Vargas's I-90 application. The Government contends it has no record of Vargas's application for temporary resident status, and that Vargas has been residing in the United States unlawfully for over 25 years because, absent an initial application, Vargas never attained temporary resident status.

The parties filed cross motions for summary judgment; the Court conducted a hearing on January 12, 2016, taking the motions under advisement at that time. On January 22, 2016, Vargas filed leave to submit supplemental authority, which request the Court granted; the Court allowed the Government to respond. The Government filed an objection to the Court's consideration of a Homeland Security Memorandum attached to the motion (Dkt. 57-1), and requested the Court strike a portion of page three because the motion exceeds the word limit under Fed. R. App. P. 28(j). Vargas submitted a reply.

The matter is now fully briefed and ripe for the Court's consideration.1 Having considered the record, the pleadings, relevant authority, and being fully advised, the Court will grant Vargas's motion and deny the Government's motion.

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The following facts are taken from the certified administrative record filed under seal on August 28, 2015, and supplemented on September 28, 2015. (Dkt. 38, 43.)

Rosalba Vargas Ambriz, now Rosalba Vargas-Ortiz, was born on February 16, 1965, in Coneneo, Michoacan, Mexico. Vargas entered the United States on April 13, 1983, at the age of eighteen, on foot via Tijuana. Vargas sought employment and worked sorting fruit for Suma, in Sanger, a small town near Fresno, California.

Vargas states that, "in 1985 or 1986," she was given some papers by the contractor who obtained the fruit picking job for her. The papers consisted of a yellow form with two pages that she filled out and submitted to obtain a temporary resident card. Vargas contends she was residing in Sanger, California, at the time, and the paperwork was processed at the immigration office in Fresno, California. Vargas states she received her temporary resident card in person, at the Fresno immigration office.

Vargas was issued a Temporary Resident Card on June 3, 1988, under Alien Number A090-422-457, bearing the name "Maria Rosalva Vargas," a date of birth of February 3, 1965, and an expiration date of June 3, 1992. (Dkt. 38-1 at 48.) The card displays Vargas's photograph and fingerprint. Vargas signed the card, "Ma Rosalba." Vargas contends she informed immigration officials that the card contained an incorrect name and date of birth, but she was assured there was no problem because she had a valid Alien Number. The Government does not dispute that the photograph and fingerprint are Vargas's, and that the card is authentic.

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Vargas later moved to Idaho. Before the card was set to expire on June 3, 1992, Vargas visited the immigration office in Boise to renew her card. She filled out Form I-90, Application to Replace Alien Registration Card, and she received a "Customer's receipt" in the amount of $70.00. The customer receipt stated the payment was from "Rosalba Vargas." Vargas indicates she wrote her name correctly on Form I-90, and she wrote her correct date of birth.2

Official Receipt Number LIN-92-217-51191, dated July 30, 1992, indicates an amount received of $70.00, and acknowledges receipt of Vargas' I-90 application. The receipt bore the name, "Maria G. Bueno de Vargas," and it was mailed to Vargas's post office box address in Grand View, Idaho. (Dkt. 38-1 at 59.) The receipt notice indicated it would take 30 - 60 days to process Vargas's application, and Vargas would receive written notification once a decision was made.

Vargas later received a Lawful Permanent Resident Card.3 The LPR Card issued by the Government had the name "Bueno de Vargas, Maria Guadalup," under Alien Number A-090-422-457, and had an expiration date of February 3, 2003. The card bore Vargas's photograph and fingerprint, but the same incorrect date of birth of February 3, 1965, as on her Temporary Resident Card. The card indicated a "temporary resident adjustment date" of June 3, 1987. Vargas contends she received the Permanent Resident Card in person at the immigration office in Boise. She contends she pointed out the

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incorrect information, and asked the immigration office to fix the errors in her name and birthdate, but was told there was no problem because the alien number was hers and the fingerprint on the card was hers. Vargas signed the card, "Ma Rosalba Vargas" on the front, and "Rosalba Vargas" on the back. She used the name Maria because the card had Maria on it, and she thought her signature had to "match up."

When Vargas was unable to obtain unemployment benefits in 2002 because of the name and date of birth errors on her card, Vargas visited the Boise immigration office to inquire again about the errors on her card. At that time, the Boise immigration office took Vargas's card and issued her a temporary card extending her existing card for 90 days.4 Vargas was informed that an investigation would ensue, and she would have a new card in three to six months. Her photograph and fingerprints were taken again at that time. The temporary card was issued on or about December 2, 2000, to "Maria Vargas," date of birth February 3, 1965, under the same Alien Number A-090-422-457, and it bore a Glenns Ferry, Idaho address. (Dkt. 38-2 at 47.)

On December 5, 2007, Vargas's attorney prepared an I-90 Application to Replace Permanent Resident Card on behalf of Vargas on the grounds her card was issued with incorrect information because of USCIS administrative error. The application was submitted on May 20, 2008, to the Nebraska Service Center. Vargas used Alien Number

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A090-422-457, and was issued Receipt Number LIN08-16951481. On December 23, 2008, the Director of the Nebraska Service Center of USCIS requested additional evidence, on the grounds that the documentation submitted was not sufficient to warrant favorable consideration of Vargas's 2008 I-90 Application. On March 10, 2009, the Nebraska Service Center requested an interview of Vargas, because it was discovered that Alien Number A090-422-457 belonged to a naturalized citizen, Maria Guadalupe de Vargas, who was born in Cuba, and then living in Miami, Florida.5

On September 10, 2009, Vargas was interviewed as part of the investigation. Vargas confirmed she never had a card (I-551) displaying her correct name and date of birth. Vargas admitted to using the name Maria and Vargas, but not "Bueno de Vargas," to apply for her social security card, because that was what her Temporary Resident Card reflected. During the interview, Vargas was informed the Alien Number she had been using belonged to a naturalized citizen in Florida by the name of Maria Guadalupe Bueno de Vargas, with a date of birth of February 3, 1965, who naturalized in 1995. Vargas denied ever having lived in Florida, or having provided false information to USCIS to obtain an immigration benefit.

On October 19, 2009, USCIS issued its notice of decision regarding Vargas's 2008 I-90 Application. The decision denied Vargas's application on the grounds that a search

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of USCIS records "show[s] that you are not a Permanent Resident of the United States. Applicant has never been in LPR6 status. Applicant has been receiving incorrect LPR cards ever since applying for Temporary Resident status in the mid 1980's." Because there was no evidence of Vargas's permanent resident status, USCIS determined Vargas was ineligible to receive a replacement Permanent Resident Card. Accordingly, the I-90 Application was denied.

As a result of the October 2009 proceedings, Vargas was issued a new Alien Number, A089-926-962, identifying her with her correct name and date of birth.7 A Record of Deportable/Inadmissible Alien prepared by an immigration service officer on October 19, 2009, indicates "Immigration Services feels she did not fraudulently obtain LPR status. Subject is removable under 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act." (Dkt. 38-2 at 14.)8

Vargas was then subjected to removal proceedings. A Notice to Appear was issued on October 19, 2009, charging Vargas under Section 212 of the Immigration and Nationality Act as inadmissible because she was an immigrant not in possession of a

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valid unexpired visa, permit, or other valid entry document. However, the Government filed a motion to dismiss the proceedings on October 18, 2010, on the grounds that the Notice to Appear was "improvidently issued," and indicated the Government no longer wished to pursue the charges. On November 8, 2010, the Immigration Court issued its order terminating the removal proceedings.

On March 5, 2013, Vargas's counsel again submitted a Form I-90 application on behalf of Vargas, under her initial Alien Number A090-422-457.9 Vargas contended her existing card had incorrect data...

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