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Jimenez v. Nielsen

United States District Court, D. Massachusetts

September 21, 2018

LILIAN PAHOLA CALDERON JIMENEZ AND LUIS GORDILLO, ET AL., individually and on behalf of all others similarly situated, Petitioner-Plaintiffs,
KIRSTJEN M. NIELSEN, ET AL., Respondent-Defendants.


          WOLF, D.J.

         I. SUMMARY...................................................2

         II. PROCEDURAL HISTORY ........................................ 4

         III. THE PROVISIONAL WAIVER REGULATIONS ........................ 6

         IV. THE MOTION TO DISMISS STANDARD...........................10

         V. THE FACTS................................................12

         VI. JURSIDICTION.............................................16

         VII. THE MERITS OF THE MOTION TO DISMISS......................28

         VIII. PETITIONERS' DETENTION CLAIMS ............................ 42

         IX. ORDER....................................................48

         This Memorandum is based upon the transcript of the decision rendered orally on August 23, 2018. This Memorandum: adds a summary, some discussion, and citations; deletes some colloquy; and clarifies some language.

         I. SUMMARY

         Petitioners are unauthorized aliens in various stages of the process of seeking to become Lawful Permanent Residents, and their spouses, who are United States citizens. Among other things, petitioners claim that Immigration and Customs Enforcement ("ICE")/ an agency of the Department of Homeland Security ("DHS"), is attempting to remove the alien petitioners from the United States in violation of regulations permitting them to apply for provisional waivers of their inadmissibility.

         More specifically, petitioners claim that ICE's attempts to remove the aliens before they can pursue and receive a decision on their applications for provisional waivers violates the Immigration and Nationality Act ("INA"), 8 C.F.R. §212.7, and the Due Process Clause of the Fifth Amendment. In particular, they allege that §212.7 gives the aliens a liberty interest in remaining with their families in the United States while they pursue their applications for provisional waivers with Citizenship and Immigration Services ("CIS"), another agency of DHS. They also allege that the Constitution provides the United States citizen petitioners with a liberty interest in living with their spouses in the United States while their provisional waiver applications are being decided. They claim that ICE is unlawfully depriving them of those liberty interests by attempting to deport the alien petitioners based solely on their final orders of removal and without considering whether they should be allowed to pursue provisional waivers.

         Petitioners also assert that ICE's actions are "arbitrary and capricious" under the Administrative Procedures Act ("APA"), 5 U.S.C. §706(2) (A). Finally, petitioners alleged that ICE is unlawfully targeting them for deportation on the basis of their race in violation of their constitutional right to Equal Protection.

         Petitioners have moved for a preliminary injunction. They also seek certification to represent a class of similarly situated individuals.

         Respondents have moved to dismiss on multiple grounds. Respondents assert that three provisions of the REAL ID Act, which amended 8 U.S.C. §1252, deprive this court of jurisdiction over this case. With regard to the merits, respondents argue that petitioners fail to state any claim on which relief can be granted.

         For the reasons explained in this Memorandum, the respondents* motion to dismiss is being denied. The court finds that it has jurisdiction concerning the petitioners' claims and that petitioners have stated a claim upon which relief can be granted. More specifically, contrary to respondents' contention, 8 U.S.C. §§1252(a)(5) and 1252(b)(9) do not divest the court of jurisdiction in this case because there is not a means to have the issues presented decided by a court of appeals. 8 U.S.C. §1252(g) would strip this court of jurisdiction over petitioners' claims if allowed to operate. However, the Suspension Clause of the Constitution guarantees petitioners review of their claims in some federal court, and because those claims cannot be presented to a court of appeals, this court has jurisdiction.

         In addition, petitioners have stated a plausible claim that they are being deprived of their right to procedural due process. The court finds that ICE may only remove petitioners after considering the fact that they are pursuing those waivers and the policies codified in the provisional waiver regulations. The court is reserving judgment on the viability of petitioners' other claims regarding removal, including their APA and Equal Protection claims. The court has previously decided petitioners' claims concerning detention. See Jimenez v. Cronen, 317 F.Supp.3d 626 (D. Mass. 2018), and now finds they are not moot. Petitioners' motions for a preliminary injunction and for class certification will be addressed in future proceedings.


         Petitioners filed their Petition for Writ of Habeas Corpus on February 5, 2018. On April 10, 2018, the petitioners filed an Amended Complaint and Petition for Writ of Habeas Corpus.

         On April 13, 2018, the court ordered respondents not to remove any of the named alien petitioners from Massachusetts while this case is pending.[1] ICE has directed its officers to obey this Order. See Resp. Opp. to Mot. for Clarification (Docket No. 38).

         On April 23, 2018, respondents filed their Motion to Dismiss the Amended Complaint, which petitioners opposed. On May 8, 2018, the court issued an oral decision regarding the petitioners' detention claims. See May 8, 2018 Tr. (Docket. No. 73); May 8, 2018 Order (Docket No. 66). On June 11, 2018, the court issued a Memorandum amplifying that decision. See Jimenez, 317 F.Supp.3d 626. In that Memorandum, the court explained that it had jurisdiction to consider claims by aliens that ICE violated the statute and regulations governing detention and removal, as well as the Due Process Clause, by detaining the aliens for more than three months without an opportunity to be heard. Id. at 637. The court also held that ICE had failed to follow its regulations with respect to the two aliens whose detention was then at issue, Eduardo Junqueira and Lucimar De Souza. Id. at 647-52. The court concluded that the most appropriate remedy for ICE's violation of their rights to due process would be an exercise of its equitable authority to decide promptly itself whether each should be released. Id. at 656-68. However, on May 8, 2018, after the court's oral ruling, ICE released Junqueira and De Souza. ICE subsequently released approximately 20 other aliens that it determined were being improperly detained. Id. at 658.

         On August 20 and 21, 2018, the court held hearings on petitioners' claims concerning removal, as well as respondents' argument that their detention claims are now moot. On August 23, 2018, the court denied the motion to dismiss these claims in an oral decision, which this Memorandum memorializes and amplifies.


         At the heart of petitioners' procedural due process claims are regulations that give CIS the discretion to permit certain aliens with final orders of removal or deportation to remain in the United States with their United States citizen spouses, and often their citizen children, while seeking a discretionary decision by CIS that, if granted, would make him or her a Lawful Permanent Resident after departing the United States briefly. See 8 C.F.R. §212.7(e); Expansion of Provisional Unlawful Presence Waivers of Inadmissibility, 81 Fed. Reg. 50244 (July 29, 2016); Provisional Unlawful Presence Waivers of Inadmissibility-for Certain Immediate Relatives, 78 Fed. Reg. 536 (Jan. 3, 2013).

         Pursuant to 8 U.S.C. §1182(a)(9)(B)(i)(II), an alien who has been unlawfully present in the United States for at least one year and then leaves the country is barred from re-entering the United States for ten years. Pursuant to 8 U.S.C. §1182 (a) (9) (B) (i) (I), if an alien has been in the United States unlawfully for more than 180 days but less than one year and then departs, he or she is barred from re-entering the United States for three years. However, the Secretary of DHS has been given by statute the discretion to waive these unlawful presence bars if refusing to admit an alien would "result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien." 8 U.S.C. §1182 (a) (9) (B) (v) .

         The authority and responsibility to make this waiver determination was delegated to CIS. See 8 C.F.R. §212.7(e). Before 2013 an alien had to be outside the United States to apply for an unlawful presence waiver by submitting a Form 1-601. See 78 Fed. Reg. at 565. In 2013, DHS recognized that: this scheme caused a separation of United States citizen spouses, and often United States citizen children, from their husbands, their wives, and parents for a year or more; this created financial, emotional, and humanitarian hardships that the waiver process is intended to avoid; and that separating families that included at least one United States citizen was incompatible with promoting family unification, an important objective of the United States immigration laws. See id. Therefore, in 2013, DHS adopted regulations to permit unlawful aliens who were immediate relatives of United States citizens to apply while in the United States for provisional waivers of the unlawful presence bars to readmission, and to leave only briefly before being readmitted and becoming Lawful Permanent Residents upon re-entering the country. See id.

         In 2016 these regulations were amended and expanded to make unlawful aliens with final orders of removal eligible for provisional waivers. See 8 C.F.R. §212.7 (e); 81 Fed. Reg. at 50244-45. DHS explained that the 2016 regulation was promulgated to address the significant emotional and financial hardship that Congress aimed to avoid when it authorized the waiver. See id. at 50243-45.

         Under the 2016 regulations, an alien subject to a final removal order and his United States citizen spouse may follow a five-part process that allows the alien to apply to become a Lawful Permanent Resident without leaving the United States except for a brief trip to a United States consulate abroad.

         First, the United States citizen spouse may file a Form I-130, Petition For Alien Relative. See 8 C.F.R. §212.7(e) (3) (vi); 8 U.S.C. §1182(a) (9) (B) (v) . CIS may require an appearance at an interview to determine whether the United States citizen and the alien's spouse have a bona fide marriage. See 8 U.S.C. §1153(f), §1154(a)(1); Nat'1 Lawyers Guild, 1 Immigr. Law and Defense, §§4:38-39.

         Second, the alien spouse may file a Form 1-212, Permission to Reapply For Admission to the United States After Deportation Or Removal. 81 Fed. Reg. at 50245. Consistent with the 2016 regulations, aliens can file a Form 1-212 and obtain conditional approval prior to their departure from the United States if they will become subject to inadmissibility on the ground of having previously been removed or having departed with a final order of removal. See 8 C.F.R. §212.2(j); 81 Fed. Reg. at 50262.

         Third, after a Form 1-212 is conditionally approved, an application for a provisional unlawful presence waiver using a Form I-601A, Application For Provisional Unlawful Presence Waiver, may be filed. See 8 C.F.R. §212.7 (e); 81 Fed. Reg. at 50245, 50256. Fourth, after an alien obtains a provisional unlawful presence waiver, he or she must leave the United States and appear for an immigrant visa interview at a United States consulate, and the Department of State may issue an immigrant visa if no other inadmissibility ground applies. See 8 C.F.R. §212.7(e)(12), (e) (3) (v) .

         Fifth, the alien may travel to the United States with his or her immigrant visa. Upon admission to the United States, the alien becomes a Lawful Permanent Resident. See id. §212.7(e) (12) (i).

         In essence, these regulations allow an otherwise eligible individual who is the spouse of a United States citizen, and who lives in the United States unlawfully with a final order of removal outstanding, to seek to demonstrate the bona fide nature of his or her marriage, obtain the necessary waivers of inadmissibility, depart the country only briefly to obtain an immigrant visa, and then return to the United States to rejoin his or her family as a Lawful Permanent Resident. The provisional waiver application process was designed ...

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