Sanchez v. McAleenan

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

Case No.: GJH-19-1728

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

February 7, 2020

MEMORANDUM OPINION

Undocumented spouses of American citizens who entered the United States without inspection or who have been ordered removed from the United States are eligible to apply for lawful status that will permit them to reside permanently in the United States, but only after leaving the United States to complete a procedure called consular processing. This process often results in long periods of family separation, and many spouses have thus chosen not to apply for lawful status. In 2016, in recognition of this problem, United States Customs and Immigration Services ("USCIS"), a component of the United States Department of Homeland Security ("DHS"), promulgated a rule that allowed spouses with final orders of removal to apply for a provisional waiver of inadmissibility prior to leaving the United States, thus reducing the length of the consular processing procedure.

Plaintiffs-Petitioners ("Petitioners") are married couples—each comprising one American citizen and one noncitizen with a final order of removal—who applied for this provisional waiver only for Immigration and Customs Enforcement ("ICE") to detain the noncitizen spouse at therequired waiver interview or who chose not to apply for the waiver out of fear that the noncitizen spouse would be detained at the waiver interview. ECF No. 6. Defendants-Respondents ("Respondents") are the Acting Secretary of Homeland Security, the Acting Director of ICE, and the Director of ICE's Maryland Field Office. Id.

On behalf of themselves and a proposed class of all others similarly situated, Petitioners challenge ICE's practice of detaining noncitizens who come to USCIS for their waiver interview on the grounds that the practice violates the Immigration and Nationality Act ("INA"), the Due Process Clause, and the Administrative Procedure Act ("APA"). Id. Currently pending before the Court is Petitioners' Motion for Preliminary Injunction, ECF No. 7, and Respondents' Motion to Dismiss, ECF No. 15. No hearing is necessary to resolve the pending motions. See Loc. R. 105.6 (D. Md. 2016). For the following reasons, Petitioners' Motion for Preliminary Injunction is granted and Respondents' Motion to Dismiss is denied.

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.² 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 bythe Secretary of Homeland Security's consent to reapply for admission, 8 U.S.C. § 1182(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.

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. ("[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 567. 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 requires first filling out a Form I-130, which establishes a qualifying relationship to a United States citizen. 78 Fed. Reg. 536-01 at 547-48. After the Form I-130 is approved, the individual must file a Form I-212, which requests a waiver of inadmissibility and, pursuant to 8 C.F.R. § 212.2(j), can be conditionally approved while the individual remains in the United States. Id. Once the I-212 is conditionally approved, the individual must completeForm I-601A, an application for a provisional unlawful presence waiver. Id.; see also 8 C.F.R. § 212.7(e)(4)(iv). Once the waiver is approved, the individual departs from the United States to obtain the immigrant visa through the consular processing procedure, thereby executing the prior removal order. See 8 U.S.C. § 1101(g).

B. Factual Background

i. Alyse Sanchez and Elmer Onan Sanchez Hernandez

Petitioners Alyse Sanchez and Elmer Onan Sanchez Hernandez have been married since August 7, 2013. ECF No. 6 ¶ 39. They have two children together. Id. As the owner of a home remodeling company, Mr. Sanchez Hernandez is the family's primary income earner. Id. ¶ 48. Ms. Sanchez is a United States citizen, and Mr. Sanchez Hernandez is a citizen of Honduras and was ordered removed from the United States in absentia on September 6, 2005 because he did not receive notice of his hearing. Id. ¶ 40. Ms. Sanchez submitted an I-130 petition on behalf of her husband on September 4, 2018, id. ¶ 41, and the couple was scheduled for an interview at the USCIS-Baltimore Field Office on May 7, 2019 to determine whether they were in a bona fide marriage relationship, id. ¶ 42. Although the USCIS interviewer approved the I-130 petition, ICE arrested and detained Mr. Sanchez Hernandez at the conclusion of the interview and transferred him to the Frederick County Adult Detention Center. Id. ¶ 42-44. Mr. Sanchez Hernandez was under immediate threat of removal to Honduras, where he feared for his life; he attempted to have his removal case reopened to prevent his deportation, but his motion to reopen was denied on June 3, 2019. Id. ¶¶ 44, 50. Respondents only agreed to Mr. Sanchez Hernandez's conditional release once Petitioners filed the instant case on June 19, 2019. Id. ¶ 51.

ii. Jean Claude Nana and Amira Abbas Abdalla

Petitioners Jean Claude Nana and Amira Abbas Abdalla have been married since April 14, 2017. ECF No. 6 ¶ 53. They have no children together, but they care for their younger siblings as their own children. Id. ¶ 54. Ms. Abdalla is a naturalized citizen of the United States, and Mr. Nana is a citizen of Cameroon. Id. ¶ 53. Mr. Nana originally entered the United States with a B-1 visitor's visa on April 19, 2011. Id. ¶ 55. He claimed asylum based on fear of persecution for his political opinions, but he was denied and ordered removed on May 3, 2016, and his appeals to the Board of Immigration Appeals and the Fourth Circuit were subsequently denied on February 17, 2017 and October 12, 2017, respectively. Id. ¶ 55. Ms. Abdalla filed an I-130 petition on behalf of her husband on June 1, 2017. Id. ¶ 56. The couple attended their marriage interview on August 22, 2018 at the USCIS-Baltimore Field Office, but Mr. Nana was detained after the interview. Id. ¶ 57. He was held for 296 days, but Petitioners' counsel was able to negotiate his release and a delay in his removal in connection with this case. Id. ¶ 58. Petitioners remain in fear that Mr. Nana will be taken away and are distrustful of the United States government and the provisional waiver process. Id. ¶¶ 62-63.

iii. Misael Rodriguez Peña and Theresa Rodriguez Peña

Petitioners Misael Rodriguez Peña and Theresa Rodriguez Peña were married on March 8, 2010. ECF No. 6 ¶ 64. They have four children together, and Mr. Rodriguez Peña has two additional children from a prior relationship who live with Petitioners and are under their care. Id. Ms. Rodriguez Peña is a United States citizen, and Mr. Rodriguez Peña is a citizen of Honduras and was ordered removed in absentia by an immigration court in San Antonio, Texas on August 10, 2005. Id. ¶ 65. Ms. Rodriguez Peña submitted an I-130 petition on behalf of her husband on March 26, 2018, and their marriage interview was scheduled for May 6, 2018. Id. ¶66. When Petitioners' attorney notified them of reports that ICE was arresting potential I-130 beneficiaries during their marriage interviews, they became anxious and decided that only Ms. Rodriguez Peña and their attorney would attend the interview. Id. The interviewer, however, would not complete the interview without Mr. Rodriguez Peña present. Id. ¶¶ 67-68. Petitioners are concerned that their application will be denied because Mr. Rodriguez Peña did not attend the I-130 interview and that they will have to go through the process again and risk his arrest. Id. ¶ 69.

iv. Jose Carlos Aldana Martinez and Olivia Aldana

Petitioners Jose Carlos Aldana Martinez and Olivia Aldana were married on February 24, 2018. ECF No. 6 ¶ 70. They have one child together, and they are also caregivers for Mr. Aldana Martinez's son who has developmental delays, ADHD, anxiety, and depression and requires specialized services and care. Id. Mr. Aldana Martinez is the family's primary income earner. Id. ¶ 76. Ms. Aldana is a United States citizen, and Mr. Aldana Martinez is a Mexican citizen with a final order of removal issued on March 6, 2018. Id. ¶¶ 70, 71. Ms. Aldana submitted an...