Opinion
Civil Action 3:01-CV-0589-P
February 13, 2002
ORDER
Now before the Court are the following:
1. Petitioner Rene Alcala-Gonzales's Petition for a Writ of Mandamus, filed March 27, 2001;
2. Respondent's Response in Opposition to Petitioner's Petition for a Writ of Mandamus, and Respondent's Motion to Dismiss and Brief in Support, filed June 22, 2001; and
3. Petitioner's Response to Respondent's Motion to Dismiss, filed July 23, 2001.
After considering the parties' arguments and briefings, and the applicable law, the Court concludes Petitioner's Petition for Writ of Mandamus should be DENIED.
BACKGROUND
Petitioner is a 30-year-old male, citizen of Mexico. Resp't's Resp at 1. Between December 1988 and March 1995, he entered the United States twice without inspection and was subsequently granted voluntary departure to return to Mexico each time. Id. at 1-2. He returned to the United States a third time at an unknown date. Id. at 2. On January 28, 1997, he married U.S. citizen Maria Lourdes Guzman, five days after divorcing his first wife. Id. Petitioner then filed an application for permanent residence on a conditional basis on March 7, 1997, which was granted May 6, 1998, under Sections 245 and 216 of the Immigration and Nationality Act ("INA"). Id.
On January 25, 1999, Petitioner divorced Guzman ("petitioning spouse"), and thereafter, on December 1, 1999, filed the 1-751 Petition to Remove the Conditions on Residence. Id. at 2-3. Petitioner marked choice "a" on this form, stating that his wife and he were filing together; however, he should have marked choice "d," that would have indicated they were divorced. Pet'r's Pet. 2.
The Immigration and Naturalization Service ("INS") scheduled an interview with Petitioner in Dallas, Texas, on November 17, 2000. Id. At that interview, Petitioner's attorney, Margaret A. Donnelly, informed the INS agent of the error on the 1-751 form and further requested that Petitioner be permitted to amend it by marking instead choice "d." Id. at 3. Petitioner's attorney also offered testimony of Petitioner's ex-wife as to the good faith of their previous marriage. Id. The INS agent denied the 1-751 since Petitioner was no longer married to his "petitioning spouse," and for the fact that Petitioner had failed to file one of the available waivers of requirement for joint filing. Pet'r's Pet. 3; Resp't's Resp. 3. The agent also informed Petitioner and his attorney that he would place Petitioner in deportation proceedings and that he would consider the 1-751 once Petitioner was before the Immigration Judge. Pet'r's Pet. 3.
In December of 2000, Petitioner's attorney submitted a second 1-751 form to the INS, along with a cover letter explaining Petitioner's position. Id. at 4. The INS responded that the original case would have to be closed before looking at the second 1-751 form. Id. Subsequently, Petitioner's new counsel, Marc Esquenazi, sent another letter to the INS on February 15, 2001, similar to the December letter, reurging Petitioner's concerns. Id. Later in March of 2001, Mike Peace, Assistant Director for the INS in Dallas, called Petitioner's attorney to express the same opinion as given by the INS agent to Petitioner during the previous November interview. Id.
On April 25, 2001, Petitioner filed this Writ of Mandamus to compel the INS to grant Petitioner a waiver of the joint filing requirement. Resp't's Resp. 3. On May 8, 2001, Petitioner's conditional residence status was terminated and a notice to appear before an Immigration Judge for deportation proceedings was issued. Id.
DISCUSSION
I. Applicable Law for Conditional Basis of Permanent Residency
Section 216 of the INA explains the procedures for Permanent Residency on a Conditional Basis. See 8 U.S.C. § 1186a (1999 Supp. 2001); 8 C.F.R. § 216.5 (2002). Once an alien is granted Permanent Residency on a Condition Basis, the Attorney General gives him a 90-day period before the second anniversary of obtaining that status to file the 1-751 petition to remove the condition. 8 C.F.R. § 216.4(a)(1). The 1-751 Petition confirms that the qualifing marriage was lawful, has not been terminated (except for the death of a spouse), and was not entered into for immigration purposes. Id. The Attorney General will then terminate the alien's conditional status if he finds that before the second anniversary of the alien's obtaining the status, the marriage was entered into for immigration reasons or that it has been judicially annulled or terminated (other than the death of a spouse). 8 C.F.R. § 216.4(c). However, the Attorney General may remove the conditional basis of permanent residency for an alien who fails to meet the requirement of having the petitioning spouse at the personal interview if the marriage was entered into in good faith and it has been terminated (other than by death) so that the alien was not at fault in not meeting the requirements. 8 C.F.R. § 216.5(a).
III. Application of the Law to the Facts
Petitioner has filed this Writ of Mandamus in order to compel Respondent to allow Petitioner to (1) amend his original 1-751 Petition to Remove the Condition on Permanent Residence; (2) consider the presented evidence that his marriage to his "petitioning spouse," Ms. Guzman, was in good faith; and (3) render a decision on that 1-751. If necessary, Petitioner has also requested that Respondent conduct an additional interview of Petitioner, or in the alternative that Respondent should consider the second 1-751 form and interview Petitioner.
On the other hand, Respondent claims Petitioner's Petition for Writ of Mandamus should be dismissed because he has failed to exhaust his administrative remedies and, moreover, failed to file a waiver for not being able to jointly file the 1-751 Petition. See 8 C.F.R. § 216.5(a)(2).
In order to exhaust Petitioner's administrative remedies, Respondent correctly urges that Mr. Alcala-Gonzales should have renewed his argument concerning the 1-751 Petition in the removal proceedings before the Immigration Judge. The Board of Immigration Appeals ("BIA") must be able "to address the matter as to which exhaustion is claimed." Bernal-Vallejo v. I.N.S., 195 F.3d 56, 64 (1st Cir. 1999). The District Court of Massachusetts has stated that "[Petitioner's] failure to appeal to the BIA [is] a `waiver' of the available administrative remedy of appeal to the BIA." Cortorreal-Castellanos v. Reno, 81 F. Supp.2d 199, 200 (D. Mass. 2000). In addition, the First Circuit Court of Appeals has also "long acknowledged that the doctrine of administrative exhaustion bars issues `raised for the first time in a petition for review.'" Mendes v. I.N.S., 197 F.3d 6, 13 (1st Cir. 1999) (quoting Bernal-Vallejo v. I.N.S., 195 F.3d 56, 64 (1st Cir. 1999)). Thus, the Court finds that Petitioner should have followed through with the administrative remedies available to him before filing this Petition for Writ of Mandamus.
As Respondent has further urged, this Petition for Writ of Mandamus must also be dismissed because the INA and the appropriate Federal Regulations explicitly state the process to follow when a 1-751 petition is not filed jointly with the petitioning spouse. See 8 C.F.R. § 216.5. More specifically, 8 C.F.R. § 216.5(a)(2) states that: "A conditional resident who is in exclusion, deportation, or removal proceedings may apply for the waiver only until such time as there is a final order of exclusion, deportation or removal." In addition, an appropriate fee is required and an interview may be required as well at the local office in connection with the waiver. 8 C.F.R. § 216.5(b), (d). This application for the waiver of filing jointly can be based on the fact the conditional resident's marriage was entered into in good faith. 8 C.F.R. § 216.5(e)(2). If the Petitioner were to claim that his marriage was in good faith, he would also need to admit such evidence as documentation of cohabitation, financial assets and liabilities, and any birth certificates of children born in the marriage. Id. Therefore, Petitioner needed to have filed this waiver of joint filing and to have exhausted his administrative remedies under the INA and Federal Regulations before petitioning this Court for a writ of mandamus; accordingly, this petition is dismissed.
CONCLUSION
For the foregoing reasons, the Court DENIES Petitioner Rene Alcala-Gonzales' Petition for a Writ of Mandamus and further DISMISSES this action WITH PREJUDICE.
SO ORDERED.