Araujo Perez v. Blinken

569 F.Supp.3d 539

David Jesus ARAUJO PEREZ, Vanessa Carolina Vasquez De Araujo, Juan David Araujo Vasquez, Plaintiffs,

v.Antony J. BLINKEN, U.S. Secretary of State, U.S. Department of State; Alejandro Nicholas Mayorkas, U.S. Secretary of Homeland Security, Department of Homeland Security ; Ur M. Jaddou, Director, U.S. Citizenship and Immigration Services ; Wallace L. Carroll, Field Office Director, U.S. Citizenship and Immigration Services, Houston Field Office Defendants.

Civil Action No. H-21-3143

United States District Court, S.D. Texas, Houston Division.

Signed November 1, 2021

Roberto Eduardo Quijano, Law Office of Hector J. Lopez, Houston, TX, for Plaintiffs.

Ariel Nicole Wiley, US Attorney's Office, Houston, TX, for Defendants.

MEMORANDUM AND OPINION

Lee H. Rosenthal, Chief United States District Judge

David Jesus Araujo Perez; his wife, Vanessa Carolina Vasquez de Araujo; and his son, Juan David Araujo Vasquez, are natives and citizens of Venezuela. (Docket Entry No. 1, at 5). The family arrived in the United States on nonimmigrant visitor visas on January 13, 2016. They were authorized to remain in the United States under nonimmigrant visitor status until July 12, 2016. (Id. , at 11; Docket Entry No. 2, at 6). Before their visitor status expired, Araujo Perez applied for asylum in the United States for himself and derivatively for his wife and son. (Id. ). The family's visitor status expired on July 12, 2016, but they remained in the United States. As asylum applicants, they were not subject to removal during the pendency of their asylum application. (Docket Entry No. 2, at 9). Their asylum application "remains ‘pending’ and unadjudicated at the local USCIS asylum office." (Docket Entry No. 1, at 11). It has been pending since 2016.

Nearly four years after entering the United States, on June 6, 2020, with the asylum application still pending, Araujo Perez was "notified by the United States Department of State that he was selected for further processing in the Diversity Immigrant Visa Program" for Fiscal Year 2021. That fiscal year ran from October 1, 2020 to September 30, 2021. (Docket Entry No. 1, at 11). "[T]o qualify as a [Diversity Visa] immigrant ... an applicant must be granted adjustment of status during the fiscal year for which he or she was selected." (Docket Entry No. 2-1, at 5). Araujo Perez "informed the United States Department of State of his intent to apply for adjustment of status with [the United States Citizenship and Immigration Services (USCIS)]," and "[o]n March 25, 2021, [he] filed [the] Form I-485 [for adjustment of status] with USCIS based on being selected under the Diversity Visa (DV) lottery for FY 2021." (Docket Entry No. 1, at 11).

On June 14, 2021, the USCIS interviewed Araujo Perez to determine his eligibility to adjust status. (Id. ). The next day, the USCIS denied his application to adjust status "because he [was] not in lawful immigration status on the date of filing his Form I-485," and he had "failed to maintain lawful status since ... his entr[y] into the United States." (Docket Entry No. 2, at 1).

Araujo Perez timely filed a Form I-290B Notice of Appeal of Motion, asking the USCIS to reconsider its decision denying his application to adjust status. (Docket Entry No. 1, at 12). On September 17, 2021, the USCIS denied the motion to reconsider. (Id. ). Ten days later, on September 27, 2021, Araujo Perez filed this action under the Administrative Procedure Act, (Docket Entry No. 1), asking this court to enter a temporary restraining order, or alternatively a preliminary injunction, requiring the defendants "to reserve diversity visa numbers [for Araujo Perez and his family] pending final resolution of this matter and to renew any Fiscal Year 2021 diversity visas that expire after the end of the fiscal year as necessary to permit the visa recipients to have a reasonable opportunity to adjust status." (Docket Entry No. 1, at 3). The defendants are officials of the U.S. Department of State, Department of Homeland Security, USCIS, and the Houston field office of the USCIS.

The defendants moved to dismiss Araujo Perez's complaint under Federal Rule of Civil Procedure 12(b)(6) on September 30, 2021. (Docket Entry No. 2). The next day, the defendants supplemented their motion to dismiss, arguing that dismissal was required because the case had become moot at 11:59 p.m. on September 30, 2021, when the fiscal year during which a diversity visa could issue ended. (Docket Entry No. 4). The court heard argument on the motions on October 4, 2021. At the hearing, the court denied the plaintiffs' request for a temporary restraining order and took under advisement the plaintiffs' motion for a preliminary injunction and the defendants' motion to dismiss. (Docket Entry No. 5). Following the hearing, the plaintiffs responded to the motion to dismiss, and the defendants replied. (Docket Entries Nos. 6, 7). Based on the motion, the briefs, the arguments, and the applicable law, the court now denies the plaintiffs' motion for a preliminary injunction, Docket Entry No. 1, and grants the defendants' motion to dismiss, Docket Entries Nos. 2 and 4. The reasons are stated below.

I. Background

Under the Immigration and Nationality Act, Congress provided that up to 55,000 diversity visas may be issued "each fiscal year to foreign nationals that hail from countries with historically low levels of immigration to the United States." Nishihata v. Blinken , No. 21-2173, 2021 WL 4476750, at *1 (D.D.C. Sept. 30, 2021) (citations omitted); 8 U.S.C. §§ 1151(e), 1153(c). "Millions of hopefuls enter a lottery for the chance to apply for one of the 55,000 allotted diversity visas." Id. (quoting Filazapovich v. Dep't of State , No. 21-cv-943, 2021 WL 4127726, at *2 (D.D.C. Sept. 9, 2021) ). "The winners of the lottery ‘submit an application and various documents to be eligible for a visa number,’ " id. (quoting Almaqrami v. Pompeo , 933 F.3d 774, 776–77 (D.C. Cir. 2019) ), but "each diversity visa selectee is not guaranteed a diversity visa because more lottery winners and beneficiaries [are] selected than there are available diversity visas." Filazapovich v. Dep't of State , No. 21-2228, 2021 WL 4476844, at *5 (D.D.C. September 30, 2021). "By law, diversity visas must be awarded before midnight on the last day of the fiscal year for which an applicant was selected to apply." Ermuraki v. Renaud , 987 F.3d 384, 385 (5th Cir. 2021) (citing 8 U.S.C. § 1154(a)(1)(I)(ii)(II) ; 22 C.F.R. § 42.33(f) ).

Araujo Perez was selected to apply for a diversity visa for fiscal year 2021. On March 25, 2021, he applied for the visa and for adjustment of status for himself and, derivatively, his wife and son. The USCIS interviewed Araujo Perez and denied him adjustment of status. (Docket Entry No. 1, at 11). The fiscal year for issuance of the diversity visa which Araujo Perez had been invited to apply expired at 11:59 p.m. on September 30, 2021. (Id. , at 3; Docket Entry No. 4, at 1).

Under 8 U.S.C. § 1255(c)(2), adjustment of status cannot be granted to an applicant (1) "who is in unlawful immigration status on the date of filing the application for adjustment of status" or (2) "who has failed (other than through no fault of his own or for technical reasons) to maintain a lawful status since entry into the United States." On June 15, 2021, the USCIS issued a six-page decision letter, denying Araujo Perez's application for adjustment of status because he was not in, and had not maintained, "lawful immigration status." (Docket Entry 2-1, at 2, 5). In the June 15, 2021 denial decision, the USCIS cited a Department of Homeland Security regulation that defines "lawful immigration status" as "limited to six categories":

(i) In lawful permanent resident status; (ii) An alien admitted to the United States in nonimmigrant status as defined in section 101(a)(15) of the Act, whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of this chapter; (iii) In refugee status under section 207 of the Act, such status not having been revoked; (iv) In asylee status under section 208 of the Act, such status not having been revoked; (v) In parole status which has not been expired, been revoked or terminated; or (vi) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989) and files an application for adjustment of status on or before October 17, 1991.

8 C.F.R. § 245(d)(1); Docket Entry No. 2-1, at 5.

The USCIS determined that Araujo Perez did not fit into any of these categories of lawful status. First, Araujo Perez's lawful nonimmigrant status under his six-month visitor visa had expired in July 2016, and Araujo Perez had not filed to extend or change his lawful nonimmigrant status. (Docket Entry 2-1, at 7). Araujo Perez's asylum filing "prior to the expiration of [his visitor] nonimmigrant status" was not "an effective extension of that lawful nonimmigrant status." (Id. , at 5). Second, Araujo Perez was not "[i]n asylee status." (Id. ). In the June 15, 2021, denial letter, the USCIS noted that the definition of asylee status under 8 C.F.R. § 245.1(d)(1) "clearly excludes applicants for asylum (not those who have been granted refugee or asylee status within the scope of the INA)." (Id. ).

In its decision, the USCIS also determined that Araujo Perez did not have a "technical reason" for failing to maintain lawful status since his entry to the United States. The USCIS noted that Araujo Perez's attorney had "assert[ed] that [Araujo Perez] [was] statutorily eligible to adjust status" based on the Board of Immigration Appeals decision in Matter of L-K , 23 I. & N. Dec. 677 (BIA 2004). The USCIS stated that it had reviewed the decision and determined that it "did not specifically address [Araujo Perez's] situation." (Id. , at 6). The USCIS also stated that "the examples of a ‘technical violation’ listed in 8 CFR 245.1(d)(2)(ii) through (iv) make it apparent...