Sanchez v. McAleenan

1

ALYSE SANCHEZ, et al., Plaintiffs-Petitioners, v. KEVIN MCALEENAN.,^[1] et al., Defendants-Respondents.

Civil Action No. GLR-19-1728

United States District Court, D. Maryland

March 25, 2024

Member Case: GLR-18-3548

MEMORANDUM OPINION

GEORGE L. RUSSELL, III UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on Defendants-Respondents' Motion for Summary Judgment, (ECF No. 72), and Plaintiffs-Petitioners' Cross-Motion for Summary Judgment, (ECF No. 104). The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2023).^[2] For the reasons outlined below, the Court will grant in part and deny in part Defendants-Respondents' Motion and grant in part and deny in part Plaintiffs-Petitioners' Cross-Motion.

I. BACKGROUND

A. Legal Background

An alien “who has been ordered removed” is inadmissible for reentry to the United States for five, ten, or twenty years from the date of departure or removal, depending on whether the alien is removed upon arrival, is removed after arrival, has already been removed once before, or has been convicted of an aggravated felony.^[3] 8 U.S.C. § 1182(a)(9)(A)(i)-(ii); 8 C.F.R. 212.2(a). An alien who remains “inadmissible” is ineligible to receive a visa to be admitted to the United States as a lawful permanent resident. 8 U.S.C. § 1182(a). This inadmissibility may be waived by the Secretary of Homeland Security's consent to reapply for admission, id. at (a)(9)(A)(iii), but the waiver application process can take well over a year. 78 Fed.Reg. 536-01, 536 (Jan. 3, 2013). Prior to 2013, an alien who wanted to seek lawful permanent resident status and apply for this waiver of admissibility was first required to depart from the United States. Id. at 54142.

In 2013, recognizing that undocumented immediate family members of citizens who were living in the United States were choosing to forego applying for visas rather than be separated from their families for at least a year, and potentially longer, DHS promulgated a rule “to allow certain immediate relatives of U.S. Citizens who are physically present in the United States to request provisional unlawful presence waivers prior to departing from the United States for consular processing of their immigrant visa applications.” Id. at 536 (“[M]any immediate relatives who may qualify for an immigrant visa are reluctant to proceed abroad to seek an immigrant visa.”). The rule was expressly promulgated to “significantly reduce the time that U.S. citizens are separated from their immediate relatives,” id., and to “encourage immediate relatives who are unlawfully present to initiate actions to obtain an immigrant visa to become [lawful permanent residents]. . . .” id. at 568. In 2016, DHS promulgated another rule extending eligibility for these provisional unlawful presence waivers to aliens with final removal orders. 81 Fed.Reg. 50244 (July 29, 2016).

The process to apply for provisional unlawful presence waivers first requires the United States citizen spouse to file a Form I-130 to petition for immediate relative status on behalf of their alien spouse so that the alien spouse may immigrate to the United States. 8 C.F.R. § 212.7(e) (3) (vi); 8 U.S.C. § 1182(a)(9)(B)(v); see also Roland v. U.S. Citizenship & Immigr. Servs., 850 F.3d 625, 629 (4th Cir. 2017). As part of this step, the applicants are often required to attend an interview to determine whether the United States citizen and the alien spouse have a bona fide marriage. See 8 U.S.C. § 1153(f), § 1154(a)(1). Second, after the Form I-130 is approved, the individual must file a Form I-212, which requests a waiver of inadmissibility and, under 8 C.F.R. § 212.2(j), can be conditionally approved while the individual remains in the United States. 78 Fed.Reg. 53601 at 547-48. Third, once the I-212 is conditionally approved, the individual must complete Form I-601A, an application for a provisional unlawful presence waiver. Id.; see also 8 C.F.R. § 212.7(e)(4)(iv). Fourth, once the waiver is approved, the individual departs from the United States to obtain the immigrant visa, executing the prior removal order, and appears at an immigrant visa interview at a United Sates consulate. See 8 C.F.R. §212.7(e)(12),(e) (3) (V). Finally, the individual may return to the United States with the immigrant visa and upon admission become a Lawful Permanent Resident. See 8 C.F.R. § 212.7(e)(12)(i).

B. Factual Background

As more fully outlined in this Court's May 2, 2019 Memorandum Opinion, (Lin et al. v. Nielsen et al., [“Lin”], GLR-18-3548, May 2, 2019 Mem. Op. at 3-4, ECF No. 26), and February 7, 2020 Memorandum Opinion, (Sanchez et al. v. McAleenan et al., [“Sanchez”], GLR-19-1728, Feb. 7, 2020 Mem. Op. at 4-8, ECF No. 28), named Plaintiffs-Petitioners Alyse Sanchez, Elmer Onan Sanchez, Jean Claude Eyeghe-Nana, Amira Abbas Abdalla, Theresa Rodriguez Pena, Misael Rodriguez Pena, Olivia Aldana Martinez, Jose Carlos Aldana Martinez, Tatyana Murithi, Mwiti Murithi, Bibiana Ndula, Eric Ndula, Wanrong Lin, and Hui Fang Dong (collectively, “Plaintiffs”) are five married couples- each comprising one American citizen and one noncitizen with a final order of removal- who applied for provisional unlawful presence waivers only for Immigration and Customs Enforcement (“ICE”) to detain the noncitizen spouse at the required I-130 interview or who chose not to attend the waiver interview out of fear that the noncitizen spouse would be detained at the interview. (Lin, Compl. ¶¶ 28, 31-32, ECF No. 1; Sanchez, Am. Compl., ¶¶ 39-87, ECF No. 6). Additionally, on September 30, 2020, this Court granted Plaintiffs' Motion for Class Certification, certifying a class defined as any American citizen and his or her noncitizen spouse who:

(1) has a final order of removal and has not departed the United States under that order; (2) is the beneficiary of a pending or approved I-130, Petition for Alien Relative, filed by the American citizen spouse; (3) is not “ineligible” for a provisional waiver under 8 C.F.R. § 212.7(e)(4)(i) or (vi); and (4) is within the jurisdiction of the Baltimore ICE-ERO field office (i.e., the state of Maryland).

(Sanchez, Sept. 30, 2020 Order at 1, ECF No. 53).

Defendants-Respondents (“Defendants”) are the Acting Secretary of Homeland Security, the Acting Director of ICE, and the Director of ICE's Maryland Field Office. (Lin, Compl. ¶¶ 11-13; Sanchez, Am. Compl. ¶¶ 22-24). On behalf of themselves and a class of all others similarly situated, Plaintiffs challenge ICE's practice of detaining noncitizens who come to the United States Customs and Immigration Services (“USCIS”) for their waiver interview on the grounds that the practice violates the Immigration and Nationality Act (“INA”) (Lin, Counts I, V; Sanchez, Count I), the Due Process Clause (Lin, Counts II, VI; Sanchez, Count II), the Administrative Procedure Act (“APA”) (Lin, Count III; Sanchez, Count III), and the Suspension Clause^[4] (Lin, Count IV; Sanchez, Count IV). (Lin, Compl. ¶¶ 43-63; Sanchez, Am. Compl. ¶¶ 95-112).

C. Procedural History

Plaintiffs-Petitioners Lin and Dong filed a Complaint in this Court on November 19, 2018 (Lin, ECF No. 1). The Court granted a preliminary injunction on May 2, 2019 enjoining Defendants from removing Lin from the United States pending further proceedings. (Lin, May 2, 2019 Order at 1, ECF No. 27). Plaintiffs-Petitioners Sanchez and Sanchez Hernandez filed a Complaint in this Court on June 13, 2019. (Sanchez, ECF No. 1). On August 5, 2019, the Sanchez Plaintiffs filed an Amended Complaint adding the remaining named Plaintiffs-Petitioners and a proposed class of any United States citizen and his or her noncitizen spouse who “(1) has a final order of removal and has not departed the United States under that order; (2) is the beneficiary of a pending or approved I-130 petition filed by the United States citizen spouse; (3) is not ‘ineligible' for a provisional waiver under 8 C.F.R. § 212.7(e)(4)(i) or (iv)”; and (4) is within the jurisdiction of the state of Maryland. (Sanchez, ECF No. 6).

On February 7, 2020, this Court issued a Memorandum Opinion and Order granting the Sanchez Plaintiffs' Motion for Preliminary Injunction, (Sanchez, ECF No. 7), and denying Defendants' Motion to Dismiss, (Sanchez, ECF No. 15). (Sanchez, ECF Nos. 28, 29). That Order (1) preliminarily enjoined and prohibited Defendants from arresting, detaining, or removing all noncitizen Plaintiffs and noncitizen members of the class, and (2) instructed Defendants to release from custody all noncitizen Plaintiffs and noncitizen members of the class, including release from orders of supervision and immigration detention. (Sanchez, Feb. 7, 2020 Order at 1, ECF No. 29). On June 19, 2020, the Court granted a consent motion to consolidate the Lin and Sanchez cases. (Lin, ECF No. 51). On September 30, 2020, this Court granted Plaintiffs' Motion for Class Certification, certifying a class defined as any American citizen and his or her noncitizen spouse who:

(1) has a final order of removal and has not departed the United States under that order; (2) is the beneficiary of a pending or approved I-130, Petition for Alien Relative, filed by the American citizen spouse; (3) is not “ineligible” for a provisional waiver under 8 C.F.R. § 212.7(e)(4)(i) or (vi); and (4) is within the jurisdiction of the Baltimore ICE-ERO field office (i.e., the state of Maryland).

(Sanchez, Sept. 30, 2020 Order at 1; ECF No. 53).

On February 9, 2021, Defendants filed the instant Motion for Summary Judgment (Sanchez, ECF No. 72). Following a stay of the case, Plaintiffs filed the instant CrossMotion for Summary Judgment and Opposition to Defendants' Motion on July 19, 2022. (Sanchez, ECF No. 104). Defendants filed a Reply in...