Courts are not barred from Judicial Review of I-130 Petition

Ayanbadejo v. Chertoff [2/26/08, ___ F.3d ___]

United States Court of Appeals for the Fifth Circuit

No. 06-20866

JOHN AYANBADEJO; FELICIA AYANBADEJO
Plaintiff-Appellant,

v.

MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY ET AL.
Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas

Before WIENER, BARKSDALE, and DENNIS, Circuit Judges. PER CURIAM:

Plaintiffs-Appellants John Ayanbadejo and Felicia Malveaux Ayanbadejo filed this action against Defendants-Appellees Michael Chertoff, in his official capacity as Secretary of the Department of Homeland Security ("DHS"), and District Director Sharon A. Hudson of the United States Citizenship and Immigration Services ("USCIS"), which is part of DHS, and that agency, seeking declaratory, injunctive, and mandamus relief from adverse immigration decisions by these officials. As the district court incorrectly concluded that it lacked subject matter jurisdiction to review the denial of Felicia's I-130 visa petition, we reverse the decision of the district court granting the government's motion to dismiss and remand for a new trial.


Plaintiff husband, a native and citizen of Nigeria, entered the U.S. as a nonimmigrant visitor and married his U.S. citizen wife shortly thereafter. Plaintiff wife submitted an I-130 petition and Plaintiff husband filed an accompanying application for adjustment of status. USCIS denied the I-130 petition and I-485 application after an investigation raised doubts about the validity of the marriage. The BIA affirmed without opinion. Plaintiffs filed a complaint in district court, and a subsequent motion to amend their complaint to allege that (1) they were denied the right to a full and fair hearing before CIS and the BIA; (2) their rights under FOIA were violated when they did not receive their immigration documents within 30 days of filing a request; and (3) their rights under the International Covenant on Civil and Political Rights were violated by CIS and the BIA. The district court found no constitutional violations with respect to the agency's determinations regarding the validity of Plaintiffs' marriage. In addition, the district court found the FOIA claim moot and found no cognizable action with regard to Plaintiffs' claim under the ICCPR. The court denied the motion to amend the complaint and ultimately granted the government's motion to dismiss for lack of subject matter jurisdiction, finding that CIS's denials of the I-130 and I-485 were within its discretion and were therefore, not subject to judicial review.

On appeal, the court addressed an issue of first impression in the Fifth Circuit: whether the district court has subject matter jurisdiction to review the denial of an I-130 petition and an I-485 application. Under INA §242(a)(2)(B)(ii), "no court shall have jurisdiction to review…any other decision or action of the Attorney General or Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or Secretary of Homeland Security…." In Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005), the court interpreted this provision to mean that courts are precluded from reviewing those decisions "specified in the statute" to be discretionary. Zhao emphasized that the language in §242(a)(2)(B) was meant to "delineate definitively which types of decisions are discretionary, and thus nonreviewable by a court." While §242(a)(2)(B)(i) explicitly points to "any judgment regarding the granting of relief under…section [245]" as discretionary, INA §204(a)(1)(A)(i), which governs I-130 petitions, is not mentioned in §242(a)(2)(B)(i). Therefore, the court concluded that the district court properly found that it lacked jurisdiction to review the denial of Plaintiff husband's I-485 application, but incorrectly concluded that it did not have subject matter jurisdiction over the denial of Plaintiff wife's I-130 petition. The court also found that the district court did not err in denying Plaintiffs' motion to amend their complaint to add the FOIA and ICCPR claims.
OPINION

I. Facts and Proceedings

John, a citizen of Nigeria, met Felicia, a United States citizen residing in Beaumont, Texas, during a visit to the United States on a tourist visa in December 1996. The couple married on February 10, 1997. Less than a month after their marriage, Felicia filed a Form I-130 "Petition for Alien Relative" to have John classified as an "immediate relative." 1

See 8 U.S.C. § 1154(a)(1)(A)(i) (providing that "any citizen of the United States claiming that an alien is entitled to . . . an immediate relative status . . . may file a petition with the Attorney General for such classification"); 8 U.S.C. § 1151(b)(2)(A)(i) (defining "immediate relative" to include citizen's spouse).
John subsequently filed a Form I-485 "Application to Register Permanent Residence or Adjust Status" to become a lawful permanent resident. 2

See 8 U.S.C. § 1255(a) (providing that Attorney General may, "in his discretion," adjust alien's status to legal permanent resident).

On December 5, 2000, after an investigation by the USCIS raised doubts about the validity of the Ayanbadejos' marriage, the USCIS issued a notice of intent to deny Felicia's I-130 petition and John's I-485 application. 3

In its notice, USCIS stated that Felicia acknowledged that she lived in Beaumont, Texas while John lived in New York and New Jersey, and that she had not visited John. John provided evidence that he had flown to Houston, Texas, where some of his relatives live, but provided no evidence that he had visited Felicia. The couple also failed to provide sufficient documentation that they shared financial accounts.
On April 17, 2001, Felicia filed a second I-130 petition seeking an immediate relative visa for John, and John filed a second I-485 application requesting adjustment of his status. On June 26, 2002, the USCIS issued a notice of intent to deny Felicia's second I-130 petition on the same ground as its previous notice of intent to deny - that the Ayanbadejos' union was not bona fide but was a sham marriage, entered into solely for immigration purposes. Felicia filed a response to USCIS's notice with additional documentation. Unpersuaded, on October 9, 2002, the USCIS issued a notice of denial of the Felicia's I-130 petition and John's I-485 application.

When the USCIS denied the Ayanbadejos' I-130 petition and I-485 application based on its finding that their marriage was entered into for the purposes of circumventing immigration laws, the Ayanbadejos filed an appeal with the Board of Immigration Appeals ("BIA") of the United States Department of Justice. On June 16, 2005, the BIA affirmed the USCIS's decision without a written order. John subsequently filed a petition for review of the BIA's decision with us, which we dismissed for lack of jurisdiction.

The Ayanbadejos then filed a complaint in district court. The government filed a motion to dismiss for lack of subject matter jurisdiction, 4

See FED. R. CIV. P. 12(b)(1).
arguing that the REAL ID Act of 2005, codified at 8 U.S.C. § 1252(a)(2)(B), eliminated the district court's right to review the Ayanbadejos' I-130 petition and I-485 application.

The Ayanbadejos filed a motion to amend their complaint, in which they alleged that: (1) their constitutional rights had been violated when they were denied a full and fair hearing before the USCIS and BIA; (2) their rights under the Freedom of Information Act ("FOIA") had been violated when they requested, but did not receive, their immigration records within 30 days of filing a request, as required by FOIA; and (3) their rights under the International Covenant on Civil and Political Rights ("ICCPR") were violated by the errors and omissions of the USCIS and BIA.

The district court held that: (1) the immigration decisions involving the Ayanbadejos did not violate their constitutional rights because the correct standards were employed in determining that the couple failed to provide sufficient evidence that their marriage was bona fide; (2) the USCIS's denials of Felicia's I-130 petition and John's I-485 application were within its discretion and therefore not subject to judicial review; (3) the Ayanbadejos' FOIA claim was moot because the records they requested had been produced; and (4) their claim under the ICCPR did not present a cognizable cause of action. For these reasons, the court denied the Ayanbadejos' motion to amend their complaint to present their FOIA and ICCPR claims, and granted the government's motion to dismiss for lack of subject matter jurisdiction. The Ayanbadejos filed a motion for new trial, which the district court denied. The Ayanbadejos then timely filed a notice of appeal.

II. Standard of Review

We review de novo the district court's grant of a motion to dismiss under Rule 12(b)(1). 5

Premiere Network Servs., Inc. v. SBC Commc'ns, Inc., 440 F.3d 683, 687 (5th Cir. 2006); Crockett v. R.J. Reynolds Tobacco, 436 F.3d 529 (5th Cir. 2006).
We review the district court's decision to grant or deny a motion to amend for abuse of discretion. 6

Briddle v. Scott, 63 F.3d 364, 379 (5th Cir. 1995).

III. Analysis

The Ayanbadejos raise three issues on appeal: (1) whether the district court erred in granting the government's motion to dismiss for lack of subject matter jurisdiction because § 1252(a)(2)(B) precluded its review of the Ayanbadejos' I-130 petition and I-485 application; (2) whether the court erred in denying the Ayanbadejos' motion to amend their complaint to include their FOIA and ICCPR claims; and (3) whether the court erred in denying the Ayanbadejos' motion for a new trial. Issues Two and Three are without merit, but our analysis of Issue One, which presents a matter of first impression, leads us to conclude that the district court did, in fact, have subject matter jurisdiction to review Felicia's I-485 petition, requiring us to reverse the district court's ruling and remand to the district court for a new trial.

A. Subject Matter Jurisdiction

The Ayanbadejos contend that the district court incorrectly concluded that § 1252(a)(2)(B) divested it of the jurisdiction to hear their claims. We agree with the Ayanbadejos, at least in part. Our decision in Zhao v. Gonzales, 7

404 F.3d 295 (5th Cir. 2005).
which provides a clear and consistent roadmap for interpreting §1252(a)(2)(B), is directly applicable to the instant case, and leads us to conclude that, although the district court did not have jurisdiction to review the determinations made with respect to John's I-485 application, the court did have jurisdiction to review the determinations made with respect to Felicia's I-130 petition.

First, the district court correctly held that, under § 1252(a)(2)(B), it did not have jurisdiction to review the decisions to deny John's I-485 application because these determinations were "in the discretion of" immigration officials acting under authority of the Attorney General. Section 1252(a)(2)(B)(ii) provides that "no court shall have jurisdiction to review . . . any other decision or action of the Attorney General or Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security . . . ." 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added).
In Zhao, we interpreted this language to mean that courts are precluded from reviewing those decisions "specified in the statute" to be discretionary. Zhao, 404 F.3d at 303 ( "One might mistakenly read § 1252(a)(2)(B)(ii) as stripping us of the authority to review any discretionary immigration decision. That reading, however, is incorrect, because § 1252(a)(2)(B)(ii) strips us only of jurisdiction to review discretionary authority that is specified in the statute."). Section 1252(a)(2)(B)(i) explicitly places "any judgment regarding the granting of relief under . . . section 1255," which provides the statutory authority for I-485 applications, in this category of discretionary decisions that no courts have jurisdiction to review. The law makes clear that we and the district court lack jurisdiction over determinations made with respect to an I-485 application for permanent resident status under § 1255. 10

Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006) ("[W]e join a number of our sister circuits in holding that we lack jurisdiction over petitions for review concerning the discretionary denial of relief under 8 U.S.C. § 1255."). The district court thus correctly held that it lacked jurisdiction to review the denial of John's I-485 application. 11

Under § 1252(a)(2)(D), "constitutional claims or questions of law" related to any claim for relief under § 1252(a)(2)(B) are exempted from the category of non-reviewable decisions left to the discretion of the Attorney General. Although the Ayanbadejos argue that the USCIS's basis for refusing to adjust John's status was a legal conclusion that a non-viable marriage precluded the change-in-status John requested, the USCIS's predicate determination of whether the Ayanbadejos had a bona fide marriage was a question of fact, not law, and therefore does not qualify for the § 1252(a)(2)(D) exception to the § 1252(a)(2)(B) jurisdiction stripping provision.

Felicia's I-130 petition is a different story. Even though all judgments regarding relief under § 1255, including reviews of I-485 applications, are specifically categorized as discretionary and non-reviewable by § 1252(a)(2)(B)(i), I-130 petitions are authorized by § 1154 (a)(1)(A)(i), not § 1255, and are not mentioned in § 1252(a)(2)(B)(i). We have not explicitly determined whether district courts have jurisdiction to review the denial of I-130 petitions, but in Zhao we reasoned that Congress included the phrase "specified under this subchapter" in §1252(a)(2)(B)(ii) for the purpose of precisely identifying which discretionary decisions are beyond judicial review. 12

Zhao, 404 F.3d at 303 ("The statutory language is uncharacteristically pellucid on this score; it does not allude generally to 'discretionary authority' or to 'discretionary authority exercised under this statute,' but specifically to 'authority for which is specified under this subchapter to be in the discretion of the Attorney General.'"). Zhao emphasizes that this language was meant to delineate definitively which types of decisions are discretionary, and thus non-reviewable, by a court. 13

Id
The language of other federal regulations addressing I-130 petitions might lead one to infer that I-130 determinations are discretionary, and thus non-reviewable, 14

ee 8 U.S.C. § 1154(b), which authorizes I-130 petitions ("After an investigation of the facts in each case . . . the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative specified in section 1151(b) . . . approve the petition . . . .") (emphasis added); 8 U.S.C. § 1154(c) ("[N]o petition shall be approved if . . . the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.") (emphasis added). The use of the word "shall" in these regulations indicates that the approval or disapproval of the petition may not be discretionary. Cf. 8 C.F.R. § 204.2(a)(1)(ii) (providing that to deny I-130 petition based on sham marriage, there must be "substantial and probative evidence" of immigrant's attempt or conspiracy to enter into marriage to evade immigration laws - arguably, a discretionary determination).
but, following Zhoa, we decline to abdicate our jurisdiction based on any such extra-statutory authority. 15

Zhoa, 404 F.3d 303 ("In ruling on Zhao's motion, however, the BIA exercised no such statutorily delineated discretion; that discretion instead derived from regulations promulgated by the Attorney General.").
Categorizing I-130 petition determinations as discretionary based on authority found in an implementing regulation would contradict the plain statutory language of §1252(a)(2)(B)(ii), which specifies that courts are only stripped of authority to review decisions designated as discretionary by the statute. Section 1252(a)(2)(B)(i) simply does not include I-130 petition determinations in the discretionary category that expressly includes determinations of I-485 applications. Following our clear precedent in Zhao, our inquiry need not go any further. Determinations regarding the validity of marriage for I-130 petition purposes are not discretionary within the meaning of §1252(a)(2)(B), and thus are subject to review by courts. 16

Cf. Yerkovich v. Ashcroft, 381 F.3d 990, 994 (10th Cir. 2004) (stating that "the jurisdictional bar in § 1252(a)(2)(B)(ii) applies only to acts over which a statute gives the Attorney General pure discretion unguided by legal standards or statutory guidelines") (internal quotations omitted); Onyinkwa v. Ashcroft, 376 F.3d 797, 799-800 (8th Cir. 2004); Ginters v. Cangemi, 419 F. Supp.2d 1124, 1130 (district court determined that, pursuant to § 1252(a)(2)(B)(ii), it lacked jurisdiction to review denial of I-130 petition because determination whether petitioner had entered into sham marriage was discretionary decision).
The district court incorrectly concluded that it did not have subject matter jurisdiction to review Felicia's I-130 petition.

B. FOIA, ICCPR Claims

The district court did not err in denying the Ayanbadejos' motion to amend their complaint to add their FOIA and ICCPR claims. "A party may amend its pleading once as a matter of course" at any time before a responsive pleading is served and, thereafter, only by leave of the court or written consent of the adverse party. 17

FED. R. CIV. P. 5(a).
Courts are instructed to grant leave to amend freely "when justice so requires." 18

Id.
Although the Ayanbadejos argue that the district court erred in dismissing their FOIA claim as moot, the USCIS did produce the Ayanbadejos' immigration record to their counsel pursuant to their FOIA request, making this claim moot. The district court did not abuse its discretion in denying the Ayanbadejos' motion to amend their complaint to add their FOIA claim. 19

See Avatar Exploration, Inc. v. Chevron, 933 F.2d 314, 321 (5th Cir. 1991) (district court may properly deny motion to amend when amendment would be futile, would cause undue delay, or is in bad faith).

The Ayanbadejos also assert that the acts of the USCIS and BIA are continuous violations of the ICCPR, but the Supreme Court has explicitly held that this treaty does not create obligations enforceable in federal courts. 20

Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004).
The district court did not abuse its discretion in denying the Ayanbadejos' motion to amend their complaint to add a claim under the ICCPR. 21

See Avatar, 933 F.2d at 321.

The Ayanbadejos contend that the district court erred in denying their motion for a new trial. 22

See FED. R. CIV. P. 59(e).
Specifically, they assert that, because the USCIS did not transmit their brief containing new evidence to the BIA, their due process rights were violated. The record does not support this claim. On April 18, 2005, the DHS filed a motion with the BIA to dismiss the appeal because the Ayanbadejos new brief was filed with the wrong administrative case number and the DHS did not have a copy of the brief. This motion was served on the Ayanbadejos' counsel on the same day that it was filed, so the Ayanbadejos should have known there was a problem with their brief at that time. They could have resolved the problem prior to the BIA's affirmance of the decision of the USCIS on June 16, 2005. The record also reflects that the Ayanbadejos' immigration records were made available to them on August 29, 2006, almost a month before the district court granted the motion to dismiss on September 21, 2006. The Ayanbadejos therefore had access to their records prior to the district court's ruling and could have raised this claim prior to the court's dismissal of their complaint.

IV. Conclusion

We hold that determinations pertaining to I-130 petitions are not precluded from review by courts pursuant to § 1252(a)(2)(B)(ii). The district court did not err in denying the Ayanbadejos' motion to amend their complaint to include their FOIA and ICCPR claims or in denying the Ayanbadejos' motion for a new trial. Although the district court correctly held that the denials of John's I-485 application by the USCIS and BIA were non-reviewable, the court's holding that it did not have subject matter jurisdiction to review Felicia's I-130 petition conflicts with the plain meaning of §1252(a)(2)(B)(ii) and our decision in Zhao. The judgment of the district court is therefore REVERSED to the extent that it dismissed Felicia's I-130 petition for lack of jurisdiction and this case is REMANDED to the district court for further proceedings consistent with this opinion.

Denials of discretionary relief - § 1252(a)(2)(B)(i)

TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part V > § 1252
§ 1252(a)(2)(B)(i)
(a) Applicable provisions
(2) Matters not subject to judicial review
(B) Denials of discretionary relief
(i)
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section 1182 (h), 1182 (i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158 (a) of this title.

7th Cir: 1252(a)(2)(B)(ii) applies to motions to reconsider as well as motions to reopen

7th Cir: 1252(a)(2)(B)(ii) applies to motions to reconsider as well as motions to reopen
Thursday, 02 October 2008

Johnson v. Mukasey (7th Cir. 10/1/08)

POSNER Rovner Wood

The 7th Cir held that motions to reconsider, like motions to reopen, are covered by the bar at 1252(a)(2)(B)(ii) to judicial review.

We held in Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007), and repeated in Kucana, that the statute applies to discretionary decisions authorized by regulations that are based on and implement the Immigration and Nationality Act, as well as by the Act itself. The regulation that we cited in Kucana as satisfying these requirements, 8 C.F.R. § 1003.2(a), applies both to motions to reopen and to motions to reconsider.

Petitioner argued that BIA should have equitably tolled his time to move for reconsideration. But CtApp found that the Board hadn't misunderstood its power to permit equitable tolling - and the decision of whether to equitably toll required the application of law to fact, which is not a "pure" question of law for which review is permitted by 1252(a)(2)(D). Therefore, no jurisdiction.

Read opinion here:

Effect of Form I-130 Petitioner’s Death on Authority to Approve the Form I-130

To: FIELD LEADERSHIP
From: Mike Aytes /s/
Associate Director of Domestic Operations
U.S. Citizenship and Immigration Services
Date: November 8, 2007
Re: Effect of Form I-130 Petitioner’s Death on Authority to Approve the Form I-130
Revisions to Adjudicator’s Field Manual (AFM) Chapter 21.2
(AFM Update AD08-04)

To read copy of the Memo regarding USCIS position on I-130 Reinstatement after the death of the petitioner

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ANALIEFO ANTHONY OKOLOJI, : 3:07cv24(WWE)
Petitioner, ::
v. :
:
MICHAEL CHERTOFF, et al., :
Respondents. :

RULING ON PETITION FOR WRIT OF MANDAMUS

The petitioner, Analiefo Anthony Okoloji, has brought a petition for mandamus seeking to compel adjudication of his application for citizenship. Respondents assert that the action is moot since petitioner’s application has now been adjudicated. For the following reasons, the petition for writ of mandamus is denied.


BACKGROUND

On May 23, 2005, petitioner filed a Form N-400 application for citizenship. On October 31, 2005, petitioner was interviewed by a District Adjudication Officer concerning his eligibility for naturalization. On December 9, 2005, the United States Citizenship and Immigration Service (“USCIS”) denied the petitioner’s N-400 application on the basis of petitioner’s unpaid taxes.

On January 5, 2006, petitioner filed a Request for a N-336 Hearing on a Decision in Naturalization Proceedings. On May 19, 2006, petitioner attended a hearing on his N-336 application, at which time he was requested to provide further information. Petitioner submitted that requested information.

On January 5, 2007, petitioner filed this complaint for mandamus relief,requesting this Court to compel the respondents to adjudicate the petitioner’s Form N-400 and Form N-366 applications.

In February 2007, respondents sent petitioner a decision on his Form N-366 request for a hearing, adhering to its previous decision to deny his N-400 application for naturalization.

The decision stated:
Information submitted by you indicated that you set up a payment plan in 2003 to address the issue of these overdue taxes. While the information you submitted overcomes the allegation that back taxes were not fully addressed until 2005, it still does not indicate that the debts from 2000, 2001, and 2002 tax years were addressed timely. A review of the tax transcripts that you submitted reveals that on July 19, 2003, an “Intent to Levy Collection Due Process Notice” was issued to you. This notice was issued as a result of your failure to timely pay taxes that were owed from previous tax years. Furthermore, the tax transcripts submitted throughout the statutory period reflect that you were subject to several “failure to pay” tax penalties. Failure to pay owed taxes is an unlawful act that adversely reflects upon your moral character.

In light of the lack of evidence concerning any extenuating circumstances that would have caused petitioner’s failure to pay taxes timely, the USCIS found that plaintiff had not sustained his burden of proof to establish good moral character during the statutorily prescribed period.

DISCUSSION
Petitioner seeks judicial determination of his naturalization application and a declaration that he is entitled to be naturalized. He argues that this Court retains exclusive jurisdiction over the matter and should disregard respondents’ decision. The Court assumes for purposes of this ruling that petitioner’s reliance on §1447(b) is proper.

Petitioner has brought this mandamus action pursuant to 8 U.S.C. § 1447(b),
which provides, in relevant part1:
If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instruction, to the service to determine the matter.

Respondents set forth that the case is moot since petitioner’s application has been adjudicated. When a case is moot, this Court is divested of subject matter jurisdiction due to the lack of case or controversy. Nat’l Adver. Co. v. City of Miami, 402 F.3d 1329, 1332 (11th Cir. 2005).

Petitioner’s argument in favor of this Court’s exclusive jurisdiction relies upon United State v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004). Hovespian held that once a petitioner has filed a complaint pursuant to section 1447(b), the district court retains exclusive jurisdiction; therefore, a subsequent decision of USCIS adjudicating a petitioner’s application does not render the case moot. Id. at 1164. However, recent decisions have held that the district court and USCIS hold concurrent jurisdiction over the matter after § 1447 (b) is invoked. Al-Saleh v. Gonzales, 2007 WL 990145 (D.Utah 2007); Perry v. Gonzales, 2007 WL 293424 (D.N.J. 2007).

In this instance, denial of the mandamus petition is appropriate according to either view of § 1447(b)’s effect. If concurrent jurisdiction exists, the Court finds that the case has been adjudicated and is therefore moot. If exclusive jurisdiction is proper, petitioner has not provided this Court with any legal or evidentiary ground to find differently from the USCIS’ decision on the merits.

CONCLUSION
For the foregoing reasons, the petition for mandamus relief is DENIED. The
clerk is instructed to close this case.

Dated this 25th day of June, 2007, in Bridgeport, Connecticut.
_____________/s/_____________________
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE

TEXAS CONTROLLED SUBSTANCE CONVICTION NOT AN "AGGRAVATED FELONY"

BIA: TEXAS CONTROLLED SUBSTANCE CONVICTION NOT AN "AGGRAVATED FELONY" (MATTER OF K-V-D-)
Immigrants’ Rights Update, Vol. 13, No. 8, December 28, 1999

The Board of Immigration Appeals has issued a precedent decision finding that a Texas conviction for simple possession of a controlled substance is not an "aggravated felony" under immigration law, even though the conviction constitutes a felony under Texas law. In reaching its decision, the BIA found that it was not bound by Fifth Circuit precedent interpreting the "drug trafficking crime" element of the "aggravated felony" definition of the Immigration and Nationality Act for purposes of enhancing criminal sentences, because that precedent did not concern the implementation of immigration law. The BIA concluded that, in order to constitute a conviction for an aggravated felony under the INA, a state felony conviction involving a controlled substance offense must be for a crime that would be punishable as a felony under federal law.

The respondent in this case is a national of Vietnam who has been a lawful permanent resident of the United States since 1987. In 1992 he pled guilty to a charge of simple possession of a controlled substance, namely, less than 28 grams of cocaine. He was placed on probation, and the adjudication of the charge was deferred. However, on Dec. 2, 1997, he was sentenced to five years in prison for failing to report to his probation officer, and the deferred adjudication was nullified. Under Texas law, the respondent’s conviction for a violation of Texas Health and Safety Code section 481.115(d) is classified as a second degree felony.

The Immigration and Naturalization Service issued the respondent a notice to appear for removal proceedings, charging him with being removable both for a controlled substance conviction and an aggravated felony conviction. The immigration judge in the removal proceeding concluded that the conviction constitutes an aggravated felony, relying on the Fifth Circuit’s decisions in United States v. Hinojosa-Lopez,130 F.3d 691 (5th Cir. 1997), and United States v. Reyna-Espinosa, 117 F.3d 826 (5th Cir. 1997). Those cases concern the application of criminal sentence enhancement under the United States Sentencing Guidelines, which reference INA section 101(a)(43)(B). That section, in turn, defines "aggravated felony" (in the immigration context), and it provides that a "drug trafficking crime" is an aggravated felony.

On appeal, the BIA concluded that the above-cited Fifth Circuit decisions are not controlling in this case, because those cases concerned a completely different issue. The BIA noted that while several other circuits have also interpreted section 101(a)(43)(B) in the criminal sentence enhancement context, they have expressly noted that a different interpretation may apply in the immigration law context. See, e.g., United States v. Briones-Mata, 116 F.3d 308, 309–10 (8th Cir. 1997); United States v. Restrepo-Aguilar, 74 F.3d 361, 366 (1st Cir. 1996). Moreover, the Second Circuit, which is the only circuit that has interpreted the statute for both sentence enhancement and immigration purposes, reached different conclusions regarding what constitutes a "felony" in the two contexts. Compare United States v. Polanco, 29 F.3d 35 (2d Cir. 1994) (interpreting statute for purposes of sentence enhancement), with Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996) (following the BIA’s decision in Matter of L-G-, 21 I. & N. Dec. 89 (BIA 1995) in interpreting the statute for immigration purposes); see also United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 199{??}), cert. denied, 120 S.Ct. 191 (1999) (reaffirming and explaining the circuit’s differing interpretations in the sentence enhancement and immigration law contexts). The above-cited Fifth Circuit cases relied on the reasoning of these cases, which expressly distinguished between the sentence enhancement context and the BIA’s well established precedent in the immigration law context.

The BIA concluded that its prior decisions, most recently set forth in Matter of L-G-, continue to apply in the immigration context, notwithstanding the Fifth Circuit decisions regarding sentence enhancement. Under Matter of L-G-, a state felony conviction for a controlled substance offense constitutes a "felony" for purposes of the "aggravated felony" definition only if the offense would be punishable as a felony under federal law. The BIA noted that this interpretation serves the important policy of ensuring the uniform application of federal immigration law.

The BIA concluded that since the respondent’s conviction for simple possession of cocaine did not specifically indicate that he was in possession of more than five grams of cocaine base, his offense would constitute a misdemeanor under federal law. Therefore, his conviction does not constitute conviction of an "aggravated felony," and he is eligible for the relief of cancellation of removal. The BIA sustained the appeal and remanded the case to the immigration judge for further proceedings.

Matter of K-V-D-, Int. Dec. 3422 (BIA, Dec. 10, 1999).

Office of Visa Services - Consular Processing Questions

Who We Are - Office of Visa Services

The Office of Visa Services, in the Consular Affairs Bureau, Department of State provides several functions:

• We serve as liaisons with the Department of Homeland Security
• We serve as liaisons between the Department of State and embassies and consulates abroad on visa matters
• We interpret visa laws and regulations, and act as a point of contact for the public

When to Contact Us vs. Department of Homeland Security (DHS)
Defining the different roles and responsibilities of the Department of Homeland Security and the Department of State can be confusing. We hope this information will assist you:

Contact the Department of State, an embassy or consulate abroad with questions about U.S. visas, including application, the status of visa processing, and for inquiries relating to visa denial.

Visa Services, Public Inquiries can usually explain what aspects of immigration law and regulation are applicable in certain cases, and can also check the current status of a particular case, if processing has been delayed.

Department of Homeland Security is responsible for the approval of all immigrant and nonimmigrant petitions, the authorization of permission to work in the U.S. , the issuance of extensions of stay, and change or adjustment of an applicant's status while the applicant is in the U.S.

Questions about these matters should be referred to the US CIS district office having jurisdiction over the applicant's present or future place of domicile in the United States.

How to Contact Us - Office of Visa Services

Visa Information and Assistance - The recommended first source of information regarding visa matters is our internet site at http://travel.state.gov . For overview visa information see Destination USA .
Contact the Department of State, an embassy or consulate first with inquiries through the Internet at http://travel.state.gov/travel/tips/embassies/embassies_1214.html.
Contacting Visa Services - Information is available to the public by telephone at the Visa Services, Public Inquiries Division at (202) 663-1225. The telephone number provides the caller with a selection of pre-recorded information and the ability to talk to a visa specialist during business hours. Persons desiring information about a specific visa applicant are advised that immigration law provides specific prohibitions about providing case specific information to third parties. Before calling with a visa inquiry, we request that you carefully review this website and also the Embassy Consular Website abroad. NOTE: When making a visa inquiry, Public Inquiries Division prefers that you contact us by telephone or e-mail. The Public Inquiries Division is not able to accept visa inquiries by Fax.
Important Telephone Numbers and E-mail Addresses
For inquiries about visa cases and the application process call: 202-663-1225.
To e-mail the Visa Office for general information, write us at usvisa@state.gov .

For inquiries by U.S. companies and organizations needing business (B-1) visitor visa information only, e-mail: businessvisa@state.gov or call: 202-663-3198.
For inquiries about F-1 or M-1 student visas, or about J-1 exchange visitor visas, please contact our Student/Exchange Visitor Visa Center at: fmjvisas@state.gov.

For information about pending applications for Waiver of Foreign Residence Requirement, applicants should see the online J waiver status .
To reach the National Visa Center (Immigrant visa inquiries) call: 603-334-0700 or e-mail: NVCINQUIRY@state.gov.
To reach the Kentucky Consular Center (Diversity Visa inquiries) call : 606-526-7500

2d Cir says CT conviction for larceny in form of defrauding public community is a Crime Involving Moral Turpitude (CIMT)

Mendez v. Mukasey (2d Cir. 11/6/08, no. 07-1114-ag)

KATZMANN, Sack, Rakoff

Petitioner argued that her CT conviction for first degree larceny in the form of "defrauding a public community" was not a crime involving moral turpitude. The 2d Circuit reviewed the Board's determination that the crime was a CIMT de novo, according no deference to the Board's construction of state criminal statutes. See Gill v. INS, 420 F.3d 82, 89 (2d Cir. 2005). However, the court also found that the crime was a CIMT and denied the petition.

The court applied the modified categorical approach, finding that the statute under which Petitioner was convicted was divisible and thus looking to the record of conviction - which evidenced a conviction for larceny by defrauding a public community. Petitioner argued that this conviction - under Conn. Gen. Stat. 53a-119(6) - was not a CIMT because the state did not need to prove an intent to defraud in order to obtain a conviction under this particular subsection of the statute. She argued that the statutory language in 53a-119 defining larceny as "wrongfully tak[ing]" property from another "with intent to deprive" that person of the property was simply prefatory language and that a person could be convicted under (6) without either an intent to defraud or prejudice the government. The court rejected this argument, finding in accordance with an earlier decision, Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004) that the "intent to deprive" language in 53a-119 was mandatory throughout the statute's subsections. Although Abimbola did not control the case at hand as it dealt with third degree larceny, dicta in Abimbola recognized that the intent to deprive requirement also applied to first and second degree larceny.

Finally, the court rejected Petitioner's arguments that the CT Appellate Court's decision in State v. Robins vitiated the statutory requirement of intent, finding that Robins stood for the much narrower proposition that the state need not prove that a person making a fraudulent claim otherwise would not be entitled to benefits. In addition, the court found that while not every offense under the CT larceny statute constitutes a CIMT, defrauding a public community does since the temporary v. permanent taking distinction that applies to theft does not apply to offenses involving an intent to defraud. See Wala v. Mukasey, 511 F.3d 102(2d Cir. 2007).

PFR denied.

CA5 Remands Case Involving False Claim to U.S. Citizenship to Gain Admission to University

CA5 Remands Case Involving False Claim to U.S. Citizenship to Gain Admission to University (5/22/2008)
The court remanded the case to the BIA for reconsideration, in light of Theodros v. Gonzales, whether falsely claiming U.S. citizenship in order to gain admission to a private university’s part-time program is a bar to admissibility under INA §212(a)(6)(C)(ii). (Ismail v. Gonzales, 8/16/07). AILA Doc. No. 08052262.

CA5 Upholds Removal of Petitioner for Falsely Claiming U.S. Citizenship to Gain Private Employment

CA5 Upholds Removal of Petitioner for Falsely Claiming U.S. Citizenship to Gain Private Employment (5/21/2008)
The court held that private sector employment is a “purpose or benefit” under the INA and that therefore, a person who falsely claims U.S. citizenship in order to gain such employment is inadmissible under INA §212(a)(6)(C)(ii)(I) and removable under INA §237(a)(3)(D)(i). (Theodros v. Gonzales, 6/25/07). AILA Doc. No. 08052167.

False claim of Citizenship on I-9 form - Cancellation of Removal

An alien who has made a false claim of citizenship may be considered a person who is not of good moral character, but the catch-all provision of section 101(f) of the Immigration and Nationality Act, 8 U.S.C. § 1101(f) (2006), does not automatically mandate such a finding.

The BIA held in Matter of Viviana Alejandra GUADARRAMA de Contreras, 24 I&N Dec. 625 (BIA 2008) that a person, who has made a false claim of United States citizenship is not statutory barred from the exercise of the discretionary relief such as cancellation of removal.
Section 101(f) of the INA provides that no person can establish good moral character if he or she is within any of certain classes enumerated in the statute. In addition, a “catch-all” provision at the end of the section states that “[t]he fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.” The Act does not, however, mandate such an outcome. See Matter of K-, 3 I&N Dec. 180, 181-82 (BIA 1949) (stating that the alien was not precluded from showing good moral character where he made a false claim of citizenship in order to keep his job); Matter of K-, 3I&N Dec. 69, 71 (BIA 1947) (stating that while the alien’s actions in misrepresenting himself as a citizen to obtain employment were not condoned, they did not preclude him from establishing good moral character).

To read full BIA opinion please visit my legal library

A legal permanent resident (LPR) or “green card” recipient is defined by immigration law as a person who has been granted lawful permanent residence in the United States. Permanent resident status confers certain rights and responsibilities. For example, LPRs may live and work permanently anywhere in the United States, own property, and attend public schools, colleges, and universities. They may also join certain branches of the Armed Forces, and apply to become U.S. citizens if they meet certain eligibility requirements. This Office of Immigration Statistics Annual Flow Report presents information obtained from applications for LPR status on the number and characteristics of persons who became LPRs in the United States during 2007.
To find number for 2007 please click here

Laredo Border Patrol Agents Seize 4 Tons of Marijuana Tractor Trailer Load of Drugs Worth $6.2 Million

Laredo Border Patrol Agents Seize 4 Tons of Marijuana
Tractor Trailer Load of Drugs Worth $6.2 Million

(Thursday, November 06, 2008)

contacts for this news release

Laredo, Texas – Border Patrol agents assigned to the Laredo North station disrupted an effort to smuggle 7,828 pounds of marijuana today.

“Our agents remain vigilant in employing all available resources to keep drug and alien smugglers from succeeding,” said Laredo Sector Chief Patrol Agent Carlos X. Carrillo.

Agents manning the checkpoint located on Interstate 35 north of Laredo conducted an immigration inspection of the driver of a tractor-trailer. A Border Patrol canine alerted agents to the trailer, indicating the possible presence of people or contraband.

The vehicle was referred for secondary inspection and examined by the Vehicle and Cargo Inspection System, which uses gamma rays to produce an image similar to an x-ray. The machine image showed several anomalies among a load of large cardboard boxes that were being transported in the cargo area.


More than 7,800 pounds of dope was seized in Laredo.


Agents opened the sealed trailer and inspected the cargo. Many of the boxes contained cellophane-wrapped bundles mixed in with other cargo. Agents removed 264 bundles from the trailer. The bundles contained marijuana with a total weight of 7,828.2 pounds and an estimated street value of $6.2 million.

The driver, the truck and the marijuana were turned over to the Drug Enforcement Administration.

The driver faces possible felony drug smuggling charges. In addition to federal charges, the driver could also face a lifetime revocation of his Commercial Driver’s License under the Texas Hold‘Em initiative.

To report suspicious activity such as drug and/or alien smuggling, contact the Laredo Sector Border Patrol toll free telephone number at 1-800-343-1994.

U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation's borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws.

USCIS Announces Adoption Policy for Hague Transition Cases Grandfathered Form I-600A Affected

USCIS Announces Adoption Policy for Hague Transition Cases
Grandfathered Form I-600A Affected

WASHINGTON –U.S. Citizenship and Immigration Services (USCIS) announced today that prospective adoptive parents already in the process of adopting a child from a country that has implemented the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention) who filed a Form I-600A, Application for Advance Processing of Orphan Petition, prior to April 1, 2008, and who have received the one time no-charge extension, may file one additional Form I-600A, and continue to proceed with their intercountry adoption through the “orphan” process. The new Form I-600A must be filed before the current approval expires, and only if the prospective adoptive parents have not yet filed the corresponding Form I-600, Petition to Classify Orphan as an Immediate Relative.



U.S. law and regulations allow individuals who began the intercountry adoption process by filing Form I-600A or Form I-600, before April 1, 2008, to continue using these pre-Hague Adoption Convention forms and procedures even if they are adopting a child from a Hague Adoption Convention country. However, depending on the time that it takes prospective adoptive parents to be matched with a child and file Form I-600, the approval of the I-600A might expire before the prospective adoptive parents are able to file Form I-600. By allowing the filing of one new Form I-600A prior to the expiration of the current approved Form I-600A, USCIS is allowing prospective adoptive parents who have been grandfathered into the pre-Hague Adoption Convention process to continue to proceed under this “orphan” process, provided the child’s home country agrees.



If the Form I-600A is no longer valid, prospective adoptive parents must file a Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, with a home study which meets all of the requirements for a Hague Adoption Convention home study. Once a Form I-800A is approved, the Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative may be filed on behalf of the prospective adoptive child.

USCIS Makes Major Strides During 2008

USCIS Makes Major Strides During 2008

WASHINGTON—More than one million new citizens took the Oath of Allegiance during fiscal year 2008, just one of the significant accomplishments introduced today by U.S. Citizenship and Immigration Services (USCIS). Acting Director Jonathan Scharfen highlighted the agency’s progress throughout the past year and discussed future goals, saying the positive results are directly attributable to the USCIS workforce.

“The tremendous dedication and hard work of more than 18,000 USCIS employees and contractors has resulted in the continuous progress we’ve realized this past year,” Scharfen said. “We set aggressive goals to reduce application processing times, further cut the FBI name check backlog, and began a viable transformation process for the agency. I’m proud to say that we are achieving those goals while ensuring that national security is an essential part of our ongoing customer service improvements.”

Key accomplishments for the year include the following:

*
Completed more than 1.17 million naturalization applications, up more than 50 percent from FY07.
* Reduced naturalization application processing times to 9-10 months, down from the 16-18 months projected after the surge of applications in late FY07.
* Hired 1,600 new adjudications officers during FY08. Significantly revised and restructed the existing training curriculum and developed the BASIC training program at the USCIS Training Academy, preparing new officers to be “job-ready’ upon completion of training.
* Worked with the FBI to effectively eliminate all name checks pending more than two years and reduced the cases waiting for a name check final result from almost 350,000 in late FY07 to less than 37,000.
* Interviewed more than 100,000 refugee applicants and completed more than 47,000 asylum applications.
* Increased participation in E-Verify, the nation’s preeminent employment eligibility verification system, by 260 percent over last year, resulting in the verification of more than 10 percent of the Nation’s new hires.



During FY09, USCIS’ goal is to achieve a 20 percent reduction in processing times for the majority of key petitions and applications, in spite of having to work through an unexpected surge of applications received during FY07. The agency plans a five-month processing time for naturalization applications (N-400s) and a four-month processing time for both adjustment of status applications (I-485s) and petitions for alien workers
(I-140s).

USCIS moves into 2009 with a more aggressive agenda to improve its services to customers. The agency has awarded the Transformation Solution Architect task order to IBM, a five-year investment to improve its filing and adjudication systems. The task order is just one of the building blocks of USCIS’ overall transformation plan made possible through last year’s implementation of a new fee structure.

“We’re proud of 2008 and the milestones we’ve met,” Scharfen added. “But, much work remains. We are gearing up for 2009 with a forward-looking and robust agenda that will result in an even better immigration service for our customers and our great Nation.”

USCIS Issues TPS Registration Reminder to Eligible Hondurans, Nicaraguans and Salvadorans

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) today reminded Hondurans, Nicaraguans and Salvadorans, who are eligible for Temporary Protected Status (TPS), to file a re-registration application for TPS before the end of the re-registration period, (Dec. 1, 2008 for Hondurans and Nicaraguans, and Dec. 30, 2008 for Salvadorans).

The 18-month extension of TPS for nationals of Honduras and Nicaragua will remain in effect until July 5, 2010, and until Sept. 9, 2010 for nationals of El Salvador. Hondurans, Nicaraguans, and Salvadorans who have received TPS previously must re-register for the 18-month extension during the re-registration period. Failure to file a TPS re-registration application during the re-registration period without good cause will result in withdrawal of TPS benefits, including employment authorization and protection from removal from the U.S.

Additional Filing Tips:

• To apply for TPS re-registration you must submit both Form I-821, Application for Temporary Protected Status, and Form I-765, Application for Employment Authorization. Both forms are available online. See "Related Links" on this page or call the USCIS forms line at 1-800-870-3676.
• You must file Form I-765 regardless of whether you wish to request an Employment Authorization Document (EAD). If you are not requesting an EAD, you do not need to submit a fee for Form I-765. Also, leave the boxes under the question, “I am applying for…” blank. The filing address is listed in the Federal Register notice for each country, and in the USCIS Questions and Answers for each country’s extension.
• Submit the appropriate versions of the forms (use Form I-821 dated Oct. 17, 2007 or later and Form I-765 dated May 27, 2008 or later). USCIS will reject applications submitted using earlier editions of the forms.
• Completely fill out the forms and mark all appropriate boxes. In Part 1, of Form I-821, re-registrants should mark the box for re-registration or renewal of temporary benefits.
• Submit the appropriate fee(s) with the applications. Make the check or money order payable to the Department of Homeland Security. To request a fee waiver, you must submit a properly documented request demonstrating your inability to pay. Guidance about fee waivers is online and can be accessed on this page under "Related Links."
• If your address changes after you file your application for re-registration, you must complete and submit a change of address form (AR-11) by mail or electronically. File the Form AR-11 electronically by following the directions online. Access the directions via "Related Links" on this page. You may also mail your Form AR-11 to this address:

U.S. Citizenship and Immigration Services
Change of Address
P.O. Box 7134
London, KY 40742-7134

To facilitate processing your address change on your TPS application, you may call the USCIS National Customer Service Center at 1-800-375-5283 (TTY 1-800-767-1833) to request USCIS update your address on your application. However, you must still file a completed Form AR-11 with USCIS.

More information is available from the National Customer Service Center by calling 800-375-5283.