Hernandez v. United States Citizenship & Immigration Servs.

ORDER DENYING MOTION TO DISMISS

MARSHA J. PECHMAN, UNITED STATES SENIOR DISTRICT JUDGE

This matter comes before the Court on Defendants' Motion to Dismiss. (Dkt. No. 7.) Having reviewed the Motion, Plaintiff's Opposition (Dkt. No. 8), the Reply (Dkt. No. 12), and all supporting materials, the Court DENIES the Motion.

BACKGROUND

Plaintiff Felix Rubio Hernandez challenges the denial of his application for an adjustment of status from a U nonimmigrant visa holder to a lawful permanent resident. He pursues one claim under the Administrative Procedures Act (APA) and asks the Court to declare unlawful

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and set aside Defendants' decision on his application and remand the matter with instructions to re-adjudicate the application without considering certain inadmissible evidence.

Defendants U.S. Citizenship and Immigration Services (USCIS), Alejandro Mayorkas, and Ur M. Jaddou, move to dismiss Rubio Hernandez's complaint under Rule 12(b)(1) for lack of subject matter jurisdiction. Defendants argue that a provision in the Immigration and Naturalization Act (INA) strips the Court of subject matter jurisdiction over the claim. See 8 U.S.C. § 1252(a)(2)(B)(i). They also argue that the agency decision is unreviewable because there is no meaningful standard against which to measure Rubio Hernandez's APA claim. To situate these arguments, the Court reviews the statutory background and then the relevant factual background.

A. Statutory Background

Congress created “U” nonimmigrant classification, commonly known as the “U visa,” to protect noncitizen victims of serious crimes and to increase public safety by encouraging those noncitizens to report such crimes to law enforcement officers and to assist in the prosecution of such crimes. See Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub.L. 106-386, 114 Stat. 1464 (2000), codified at §§ 101(a)(15)(U), 214(p), and 245(m) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101(a)(15)(U), 1184(p), and 1255(m).

To obtain a U visa, the applicant must satisfy several criteria. See 8 U.S.C. §§ 1101(a)(15)(U), 1184(p)(1); 8 C.F.R. § 214.14(b). The U visa applicant must also either be admissible to the United States or be granted a waiver for any ground of inadmissibility that pertains to them. See 8 U.S.C. § 1184(a)(1); 8 C.F.R. § 214.1(a)(3)(i). Congress enacted a specific inadmissibility waiver for those seeking a U visa, making nearly any ground of inadmissibility waivable “in the Attorney General's discretion . . . if the Secretary of Homeland

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Security considers it to be in the public or national interest.” 8 U.S.C. § 1182(d)(14); see also 8 C.F.R. § 212.17(b).

In creating the U visa, Congress also provided a pathway to permanent residence for victims of violent crime. See VTVPA § 1513(a)(2)(C), 114 Stat. at 1534. To be eligible for adjustment of status, a U visa holder must meet two statutory requirements. First, the applicant must demonstrate three years of continuous physical presence in the United States since being admitted as a U nonimmigrant. 8 U.S.C. § 1255(m)(1)(A). Second, the applicant must establish that their “continued presence in the United States is justified on humanitarian grounds, to ensure family unity, or otherwise in the public interest.” 8 U.S.C. § 1255(m)(1)(B); see also 8 C.F.R. § 245.24(b)(6), (d)(10). Regulations implementing the U visa pathway to permanent residence also require the applicant to “show[] that discretion should be exercised in his or her favor.” 8 C.F.R. § 245.24(d)(11). In exercising its discretion, USCIS (a component of the Department of Homeland Security (DHS)) may “take into account all factors, including acts that would otherwise render the applicant inadmissible,” and weigh an applicant's “adverse factors” against “mitigating equities.” Id. USCIS will generally deny an application “in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drug-related crimes, or where there are security- or terrorism-related concerns.” Id.

B. Factual Background

Rubio Hernandez's APA claim challenges the denial of his application for permanent residency under 8 U.S.C. § 1255(m). Before reviewing the application and denial, the Court considers facts related to Rubio Hernandez's U visa application.

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Rubio Hernandez sought and obtained U nonimmigrant status “after suffering domestic violence and assault, and assisting law enforcement with the investigation and prosecution of those crimes.” (Compl. ¶¶ 1 25.) As part of his U visa application, Rubio Hernandez provided evidence regarding his criminal history, including: (1) his 1991 petty theft conviction; (2) his arrest for simple assault in 2001, where the charge was dismissed; and (3) an arrest for simple assault in 2004, for which he was later found not guilty. (Id. ¶ 24.) USCIS approved Rubio Hernandez's request for a waiver of inadmissibility on October 20, 2014, thus finding his admission as a U nonimmigrant “to be in the public or national interest.” (Id. ¶ 25.) And Rubio Hernandez's U nonimmigrant status became valid from October 1, 2014 to September 30, 2018. (Id.)

In October 2017, Rubio Hernandez applied to the USCIS for a U-based adjustment in status to become a legal permanent resident. (Id. ¶¶ 2, 26.) In December 2018, USCIS asked for additional evidence about Rubio Hernandez' criminal history from 1991 through 2013. (Id. ¶ 27.) The request sought “police reports, court records, evidence of sentence completion, and an explanatory affidavit regarding”: (1) a 1991 arrest and conviction for petty theft; (2) a 2000 arrest for driving under the influence; (3) a 2001 arrest for driving with a suspended license; (4) a 2004 arrest for assault in the fourth degree for which Rubio Hernandez was found not guilty; (5) a 2005 arrest by U.S. Customs and Border Protection; (6) a 2013 fourth degree assault arrest and conviction; and (7) a 2013 criminal trespass case that was dismissed. (Id.) The request also sought “an explanation as to why Mr. Rubio Hernandez did not disclose all of his arrests” with his application to become a legal permanent resident. (Id.) Rubio Hernandez provided the requested information to the extent that it was available. (Id. ¶ 28.) He provided records demonstrating: “(1) his 2012 arrest by CBP resulted in no criminal convictions but placed him in

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removal proceedings, which were later dismissed by an immigration judge in 2016; (2) he was found not guilty of the 2004 assault arrest; (3) the charges for his 2001 fourth degree assault arrest were dismissed, and (4) his arrest for criminal trespass in August 2013 did not result in any filed charges.” (Id.) Rubio Hernandez “also asserted that police reports are not part of the record of conviction and should not be requested because of the reports' inherent unreliability” and “that no further records were available in relation to his 1991 arrest and conviction[.]” (Id.) He also submitted “additional records for his 2000 arrest for a DUI (which resulted in a conviction for negligent driving) and for his 2013 fourth degree assault arrest and conviction.” (Id.)

In May 2019, USCIS issued a Notice of Intent to Deny (NOID) the petition. (Compl. ¶ 29.) USCIS faulted Rubio Hernandez for failing to provide police reports related to five arrests in 2000, 2001, 2004, and 2013 “even though three of the charges were either dismissed or resulted in a finding of not guilty.” (Id.) USCIS reasoned that Rubio Hernandez's history of “Petty theft, arrests for Assault, and Negligent Driving poses a significant risk to the safety and property of others.” (Id. ¶ 30.) USCIS also explained that it did not have sufficient evidence that discretion was warranted to approve the petition given the prior arrests and convictions. (Id. ¶ 32.) Rubio Hernandez then timely responded to the NOID. (Compl. ¶ 33.) He explained the absence of records related to three of the arrests and provided the police report for his 2013 arrest for fourth degree assault and criminal trespass. (Id.) These records showed the criminal trespass charge was dismissed with prejudice. (Id.)

On December 16, 2020, USCIS denied the application. (Compl. ¶¶ 34-38.) USCIS reasoned that it was improper to exercise its discretion given its concerns about certain incomplete or redacted arrest records, a missing police report, and the absence of an explanation about a 2004 arrest for which Rubio Hernandez was found not guilty. (Id. ¶¶ 35-37.) “USCIS

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determined that it was ‘unable to comprehensively weigh the positive equities in this case against [the] negative factors.'” (Id. ¶ 38 (quotation in original).) USCIS denied the application “explaining that Mr. Rubio did not establish his adjustment was warranted on humanitarian grounds, to ensure family unity, or in the public interest, as required by 8 U.S.C. § 1225(m)(1)(B).” (Id.)

Rubio Hernandez then appealed to the agency's Administrative Appeals Office (AAO). (Compl. ¶ 39.) He argued that USCIS erred in requiring him to submit police records that did not exist, and that the decision was arbitrary and capricious in balancing the equities and concluding that he did not submit sufficient documentary evidence to support the adjustment of status. (Id.) On December 17, 2021, the AAO dismissed the appeal, noting that the positive equities did not outweigh his criminal history. (Id. ¶ 40.) The AAO noted its concern that the arrests for assault in 2001, 2004, and 2013 were “violent in nature.” (Id. ¶ 41.) The AAO also faulted Rubio Hernandez for not providing sufficient information about his 2000, 2001, and 2004 arrests. (I...