United States District Court, D. Massachusetts
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.
MEMORANDUM AND ORDER
PROCEDURAL HISTORY ........................................ 4
THE PROVISIONAL WAIVER REGULATIONS ........................ 6
MOTION TO DISMISS STANDARD...........................10
THE MERITS OF THE MOTION TO DISMISS......................28
PETITIONERS' DETENTION CLAIMS
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.
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.
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
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.
have moved for a preliminary injunction. They also seek
certification to represent a class of similarly situated
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
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.
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.
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.
April 13, 2018, the court ordered respondents not to remove
any of the named alien petitioners from Massachusetts while
this case is pending. ICE has directed its officers to obey this
Order. See Resp. Opp. to Mot. for Clarification
(Docket No. 38).
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
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.
THE PROVISIONAL WAIVER REGULATIONS
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).
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) .
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.
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.
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.
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.
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.
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)
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).
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 ...