Giombetti v. Wolf

THOMAS GIOMBETTI and MAYRA GIOMBETTI Plaintiffs, v. CHAD F. WOLF, Acting Secretary of U.S. Department of Homeland Security;U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CITIZENSHIP & IMMIGRATION SERVICES;LESLIE TRITTEN, Minneapolis Field Office Director of USCIS;and EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, Defendants.

Civil No. 20-873 (JRT/ECW)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

May 11, 2020

MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION TO DISMISS AND DENYING INJUNCTIVE RELIEF

Nicholas Ratkowski, CONTRERAS & METELSKA, P.A., 200 University Avenue West, Suite 200, Saint Paul, MN 55103, for plaintiffs.

Erin M. Secord, UNITED STATES ATTORNEY'S OFFICE, 300 South Fourth Street, Suite 600, Minneapolis MN 55415, for defendants.

Plaintiff Mayra Giombetti and her husband Thomas Giombetti seek to adjust Mayra Giombetti's immigration status. As part of the process, Giombetti intends to file a provisional unlawful presence waiver. However, in order to be eligible for such a waiver, Giombetti must not be in active removal proceedings. Although Giombetti's first set of immigration paperwork was approved by the US Citizenship and Immigration Services in January 2019, it was not sent to its next destination—the National Visa Center—until April 2020. Defendants sent the approved form to the National Visa Center on the same day they filed a motion in immigration court seeking to recalendar Giombetti's removal proceedings, which had previously been administratively closed. Once these proceedings are recalendared, Giombetti will no longer be eligible to apply for the waiver.

Giombetti seeks injunctive relief, first to cancel or otherwise prevent the Motion to Reopen from being considered by the immigration court, and second, to require Defendants to review and adjudicate her waiver application as if it had been filed prior to the recalendaring of her removal proceedings. Defendants filed a Motion to Dismiss, arguing that the Court has no jurisdiction to consider Giombetti's claims.

Because Giombetti's claims relating to Defendants' filing of a Motion to Recalendar arise out of a decision or action to commence removal proceedings, 8 U.S.C. § 1252 strips the Court of jurisdiction, and the Court will grant in part Defendants' Motion to Dismiss as to those claims. However, because neither mootness nor 8 U.S.C. § 1252 bar Giombetti's claims regarding Defendants' delay in forwarding Giombetti's files to NVC, the Court will deny Defendant's Motion as to those claims. Furthermore, in part because the Court lacks jurisdiction, and in part because Giombetti has not shown imminent irreparable harm, the Court will deny Giombetti's Motion for Temporary Restraining Order without prejudice. Instead, the Court urges Giombetti to file her waiver application as soon as possible, and to notify the Court once she has done so.

BACKGROUND

I. GIOMBETTI'S I-130 FORM

Plaintiff Mayra Giombetti is a citizen of Mexico who married Plaintiff Thomas Giombetti, a U.S. citizen, in July 2017. (Am. Compl. ¶¶ 15-16, April 8, 2020, Docket No. 15.) They currently reside in Minnesota. (Id. ¶ 14.) In November 2017, as a first step toward adjusting Giombetti's status and obtaining Legal Permanent Resident status, Plaintiffs submitted a form I-130 Petition for Alien Relative. (Id. ¶ 17.) In the form, Plaintiffs indicated that although Giombetti resides in the US, she intended to apply for an immigrant visa from Mexico because she is ineligible to adjust her immigration status from within the United States. (Id. ¶¶ 19-21, 32, 37-39.) The Minneapolis Field Office of the US Citizenship and Immigration Services ("USCIS") approved the I-130 Form on January 3, 2019. (Id. ¶ 22.)

The next step for the approved files was the U.S. Department of State National Visa Center ("NVC"), which processes all approved immigrant visa petitions that require consular action and determines which consular post is the appropriate consulate to complete visa processing. (Id. ¶ 24.) The NVC would then forward the approved petition to that consulate. (Id.)

Giombetti alleges that USCIS should have sent the paperwork to NVC automatically, for free, and within six weeks of approval. (Id. ¶¶ 29-30.) USCIS did not send the paperwork to NVS within six weeks. It appears that neither USCIS nor Giombettidid anything for approximately seven months. In late August 2019, Giombetti began a months-long series of back and forth communications with USCIS and NVC as to the status of the files. (Id. ¶¶ 31-38.) Eventually, after confusion about whether USCIS had sent the files and whether NVC had received them, USCIS told Giombetti on April 2, 2020 that it would not forward the file because "Plaintiffs' filled out boxes 11.a - 11.h on the Form I-130 (evidencing that Mrs. Giombetti is currently in the United States)." (Id. ¶ 39.)

On April 3, 2020, after being notified that Giombetti would file her initial Complaint that day, USCIS forwarded the paperwork to NVC. (Declaration of Shauna Harrison ("Harrison Decl.") ¶ 5, April 22, 2020, Docket No. 25.) The NVC received Ms. Giombetti's file on April 8, 2020. (Id. ¶ 6.) As of May 4, 2020, Giombetti had not filed the waiver paperwork, and counsel represented at oral argument that Plaintiffs were still in the process of preparing the application.

II. GIOMBETTI'S IMMIGRATION STATUS

Giombetti is currently in removal proceedings, which are administratively closed. (Am. Comp. ¶ 41.) In order to adjust her status to Legal Permanent Resident, she intends to go to Mexico and complete her immigration process there. However, because Giombetti is unlawfully present in the United States, if she leaves the country for Mexico she will be barred from reentry for 10 years. (Id. ¶ 59.) In order to prevent the 10-year bar, Giombetti intends to apply for a provisional unlawful presence waiver, which will allow her to bypass the 10-year bar. (Id.) She was unable to apply for this waiver untilUSCIS sent her file to NVC. However, she now faces a time crunch because she will be unable to submit a waiver application once her removal proceedings are recalendared. (Id. ¶ 47.) She needs only to file her waiver application, not have it adjudicated, before her removal proceedings are recalendared. (Mem. in Support of Second Mot. for Temp. Restraining Order at 39, April 8, 2020, Docket No. 19.)

Giombetti's initial Complaint and First Motion for Temporary Restraining Order sought to enjoin the government from filing any motion to recalendar Giombetti's removal proceedings. (See First Mot. for TRO at 1, April 3, 2020, Docket No. 5.) Before filing his Motion, Giombetti shared it with Defendants, in an apparent misreading of Local Rule 7.1, which requires a meet and confer prior to filing motions other than a temporary restraining order. See Local Rules 7.1(a).

That day, Defendants filed a Motion to Recalendar Giombetti's removal proceedings. (Am. Compl. ¶ 72.) It is not clear whether Defendants had been formally served when they filed the Motion.¹ The parties agree that the Immigration Court will grant the Motion to Recalendar once it hears the motion; however, because of the current coronavirus pandemic, immigration courts are not hearing motions in cases with non-detained immigrants. At oral argument, the parties agreed that the Immigration Courtwould not consider the Motion to Recalendar until late May, and that sometime in June appeared more likely.

ANALYSIS

I. MOTION TO DISMISS UNDER RULE 12(b)(1)

A. Standard of Review

"Dismissal for lack of subject matter jurisdiction will not be granted lightly. Dismissal is proper, however, when a facial attack on a complaint's alleged basis for subject matter jurisdiction shows there is no basis for jurisdiction." Wheeler v. St. Louis Sw. Ry., 90 F.3d 327, 329 (8^th Cir. 1996) (citation omitted). It is the burden of the party asserting jurisdiction to prove by a preponderance of the evidence that jurisdiction exists. V S Ltd. P'ship v. Dep't of Hous. and Urban Dev., 235 F.3d 1109, 1112 (8^th Cir. 2000).

In resolving a motion to dismiss under Rule 12(b)(1), the Court may consider evidence extrinsic to the complaint without converting the motion into one for summary judgment. See Osborn v. United States, 918 F.2d 724, 729-30 (8^th Cir. 1990). It may also make "factual determinations about the availability of . . . relief" in considering a jurisdictional challenge under Rule 12(b)(1). Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8^th Cir. 2002).

B. Jurisdictional Bar in 8 U.S.C. § 1252(g)

1. Applicable Law

8 U.S.C. § 1252, which deals with judicial review of orders of removal, states in relevant part, that "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter." 8 U.S.C. § 1252(g).

In 2017, the Eighth Circuit clarified the statute, noting that "[i]n light of legislation transferring functions of the former Immigration and Naturalization Service to the Department of Homeland Security, 6 U.S.C. §§ 202, 251, 557, the statutory reference to 'Attorney General' now means the Secretary of the Department of Homeland Security." Silva v. United States, 866 F.3d 938, 940 n. 2 (8^th Cir. 2017) (citing Elgharib v. Napolitano, 600 F.3d 597, 606-07 (6^th Cir. 2010)). Thus, as for those functions which were transferred from the former Immigration and Naturalization Service to the Department of Homeland Security, 8 U.S.C. § 1252's jurisdictional bar was also transferred. Presumably, then, for those functions which have remained with the Attorney General (i.e., those performed by the EOIR), the jurisdictional bar remains applicable.²

The Eighth Circuit has found that "arising from a decision or action" means that it is "connected directly and immediately." Silva v. United States, 866 F.3d 938, 940 (8^th Cir. 2017) (quoting Humphries v. Various Fed. USINS Emps., 164 F.3d 936, 943...