Opinion
No. C 01-4035 SI
October 9, 2002
JUDGMENT
Defendant's motion for summary judgment having been granted on the merits, judgment is hereby entered in favor of defendant and against plaintiff.
IT IS SO ORDERED AND ADJUDGED.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; and GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT On October 4, 2002, the Court heard argument on defendant's motion to dismiss, plaintiffs motion; for summary judgment and defendant's cross-motion for summary judgment. Having carefully considered the papers submitted and the arguments of counsel, the Court DENIES defendant's motion to dismiss DENIES plaintiffs motion for summary judgment, and GRANTS defendant's motion for summary judgment, for the reasons set forth below.BACKGROUND
Plaintiff claims that the Immigration and Naturalization Service ("INS") granted his application for permanent resident status and then later unlawfully rescinded that status. See Compl., ¶ 1-2. Defendant INS claims that it never granted plaintiffs application, although it erroneously issued certain documents indicating otherwise. See Def.'s Mot. to Dismiss at 2. Defendant thus claims that what plaintiff regards as a rescission of status was actually only a proper denial of the original application for permanent resident status. See id.
Plaintiff is a native and citizen of Nigeria, where he married his first wife in 1988. See Decl. of Monica Fernandez in Support of Def's Opp'n to Pl.'s Mot. for Summ. J. ("Fernandez Decl."), Ex. A, T. 1992 he married Terrilyn Emma Pierce, a United States citizen by birth, and shortly thereafter applied for permanent resident status. See Fernandez Decl., Ex. T. An INS investigation revealed that Mr. Bassey was still married to his Nigerian wife when he married Ms. Pierce. See Fernandez Decl., Ex E. On October 14, 1997, the INS concluded that Mr. Bassey had attempted marriage fraud in order to pursue immigration benefits and on that basis denied his application for status adjustment. See Fernandez Decl., Ex. I.
On August 30, 1998, having divorced his previous wives, Mr. Bassey married his third wife, Linda King, a United States citizen by birth. On September 15, 1998, plaintiff filed an Application for Permanent Residence (Form I-485) and his wife filed a Petition for Alien Relative (Form I-130) on behalf of her new husband. On June 14, 2000 the INS informed Mr. Bassey that his application had been processed and approved. See Fernandez Decl., Ex. V. On June 15, 2000 the INS placed a stamp in Mr. Bassey's passport indicating lawful permanent resident status. See id.
However, on October 19, 2000, the INS informed Linda Bassey that the INS actually intended to deny her I-130 Petition on behalf of Mr. Bassey. See Fernandez Decl., Ex. U. The INS indicated to her that Mr. Bassey was ineligible for permanent resident status because he had earlier participated (in 1992) in a marriage fraud scheme aimed at securing immigration benefits. See id. The INS letter explained that the earlier finding of marriage fraud now acted, pursuant to 8 U.S.C. § 1154 (c), as a bar to subsequent petitions for permanent resident status. See id. Ms. Bassey was given time to appeal this decision, which she did. See Compl., Attach. C at 3. On May 11, 2001 the INS cancelled the passport stamp, indicating on the passport that the original stamp has been placed in error. See Compl., Attach. D.
On May 25, 2001, the INS formally denied Linda Bassey's I-130 Petition for plaintiff, again citing the earlier marriage fraud scheme as the reason for the denial. See Fernandez Decl., Ex. W. On September 7, 2001, the INS denied plaintiffs I-485 Application for Permanent Residence because the supporting I-130 Petition for Alien Relief had been denied.See Fernandez Decl., Ex X. On October 26, 2001 plaintiff filed the current complaint in district court. On April 10, 2002, the INS initiated removal proceedings against Mr. Bassey. On June 13, 2002, Mr. Bassey moved in Immigration Court to terminate those proceedings. A hearing is scheduled for December 9, 2002 before Immigration Judge Brian H. Simpson.
Plaintiffs complaint states three causes of action. First, plaintiff alleges the INS has failed to provide Mr. Bassey with proof of his permanent resident status, as required by law. Second, plaintiff claims that the INS has violated the Administrative Procedure Act by cancelling his lawful resident status without a hearing, as required by 8 C.F.R. § 246.1. Plaintiff also alleges, in his third cause of action, that the failure to provide the hearing required by 8 C.F.R. § 246.1 violated plaintiffs right to due process under the Fifth Amendment. Plaintiff has filed a Motion for Summary Judgment on these claims.
Defendant has filed a Motion to Dismiss and a Cross-Motion for Summary Judgment. In the Motion to Dismiss, defendant asserts that this Court lacks jurisdiction to hear the case because plaintiff has not exhausted his administrative remedies. Mot. to Dismiss at 3-4. Defendant also asserts that, because there is an ongoing removal proceeding against Mr. Bassey, this Court should dismiss the case "[i]n the interest of comity and in deference to the IJ [Immigration Judge]. . . ." Mot. to Dismiss at 3.
For the reasons explained below, defendant's Motion to Dismiss is DENIED, plaintiffs Motion for Summary Judgment is DENIED, and defendant's Cross-Motion for Summary Judgment is GRANTED.
LEGAL STANDARDS
A. Jurisdiction
Under the doctrine of exhaustion of administrative remedies, a party may not seek judicial review of an adverse administrative decision until the party first pursues all possible relief within the agency." Young v. Reno, 114 F.3d 879, 881 (9th Cir. 1997), citing Howell v. INS, 72 F.3d 288, 291 (2d Cir. 1995). Section 10(c) of the Administrative Procedures Act ("APA") requires that an aggrieved party exhaust all intra-agency appeals mandated either by statute or by agency rule. 5 U.S.C. § 704; see also Darby v. Cisneros, 509 U.S. 137, 143, 113 S.Ct. 2539. 2543 (1993). However, where an administrative appeal available but not mandated, a party need not pursue that appeal prior to seeking judicial review. Id. at 154, 113 S.Ct. at 2548 ("an appeal to `superior agency authority' is a prerequisite to judicial review only when expressly required by statute").
B. Summary Judgment
The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings," depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
In a motion for summary judgment, "[i]f the party moving for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Cattrett, 477 U.S. 317 (1986)); Kaiser Cement Corp. v. Fischbach Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir. 1986), cert. denied, 479 U.S. 949 (1986).
On cross motions for summary judgment, the burdens faced by the opposing parties vary with the burden of proof they will face at trial. When the moving party will have the burden of proof at trial "his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." William W. Schwarzer,Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-488 (1984).
In contrast, a moving party who will not have the burden of proof at trial need only point to the insufficiency of the other side's evidence, thereby shifting to the nonmoving party the burden of raising genuine issues of fact by substantial evidence. T.W. Electric, 809 F.2d at 630 citing Celotex, 477 U.S. at 323; Kaiser Cement, 793 F.2d at 1103-04.
In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the nonmoving party. T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991).
The evidence the parties present must be admissible. Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49 (2nd Cir. 1985); Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements found in affidavits are inadmissible. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980). The party who will have the burden of proof must persuade the Court that it will have sufficient admissible evidence to justify going to trial.
Discussion
A. Jurisdiction
Defendant argues that this Court does not have jurisdiction to hear plaintiffs appeal because the INS decision of September 7, 2001, regarding Mr. Bassey's resident status, is subject to review in a pending removal proceeding. Mot. to Dismiss at 3-4. Plaintiff and defendant disagree about how to characterize the decision of September 7, 2001. However, whether characterized as a denial of Mr. Bassey's application for permanent residency (as the INS claims) or as rescission of Mr. Bassey's permanent resident status (as Mr. Bassey claims), this Court has jurisdiction to review the decision.
Defendant cites only one case to the contrary: Ecology Center, Inc. v. United States Forest Serv., 192 F.3d 922, 924 (9th Cir. 1999). Ecology Center, however, speaks to the "final action" question only in regard to actions of the Forest Service; the rule in INS cases is different. InBaria v. Reno, 94 F.3d 1335, 1338 (9th Cir. 1996), the Court of Appeals rejected the view "that a district court does not have jurisdiction to entertain a challenge to a rescission order and that an alien whose status is rescinded cannot challenge that rescission until a deportation order is entered, allowing review in the court of appeals pursuant to § 1105a." Instead, the Court of Appeals concluded that the district court has "jurisdiction under 8 U.S.C. § 1239 to review the Board's [rescission] decision. . . ." Id. at 1339. Thus, this Court may review INS rescission decisions even if a removal proceeding is pending.
Similarly, this Court may review INS denials of applications for status adjustment. Chan v. Reno, 113 F.3d 1068, 1071 (9th Cir. 1997); Jaa v. INS, 779 F.2d 569, 571 (9th Cir. 1986); Tang v. Reno, 77 F.3d 1194, 1196 (9th Cir. 1996). In Jaa v. INS, the Court of Appeals examined a case in which an alien had been denied a status adjustment and was then subject to removal proceedings. The alien challenged the status adjustment decision in district court. The Court of Appeals later affirmed that the district court had jurisdiction and explained: "[F]inal deportation orders are reviewable exclusively by the Court of Appeals. Other determinations, ancillary to an application for permanent residency, must be challenged first in district court In particular, that court has jurisdiction to review a denial of status adjustment." Jaa, 779 F.2d at 571.
Thus, whether the INS action of September 7, 2001 is characterized as a denial or a rescission of permanent residency, this Court has jurisdiction to review that decision. Defendant also argues, however, that the case should be dismissed on a general theory of federal comity, in that the INS removal proceeding is still pending and the Immigration Court will consider the resident status issue in the course of that proceeding. See Mot. to Dismiss at 4-5. The difficulty with this request is that if this Court denies Mr. Bassey the review he seeks, and then the Immigration Court makes a final adverse removal decision, this Court would no longer have jurisdiction over the residency issue because the Court of Appeals has exclusive jurisdiction of appeals following deportation decisions. 8 U.S.C. § 1105a(a); see also Baria v. Reno, 94 F.3d 1335, 1338-39 (9th Cir. 1996). Defendant thus asks this Court to take away altogether Mr. Bassey's defined right to review by this Court. "Comity" will not justify such an action.
B. Summary Judgment
While there are no jurisdictional consequences to the dispute about whether the INS action of September 7, 2001 was a denial or rescission, plaintiffs substantive rights hinge on the distinction. If Mr. Bassey is found to have been granted permanent resident status, then he is entitled, pursuant to 8 C.F.R. § 246.1, to a rescission review, which both parties agree did not occur, and which plaintiff seeks to compel with his complaint.
Plaintiff alleges that the INS granted Mr. Bassey permanent residency when it (a) sent him the notice of conditional permanent residency on June 14, 2000 and (b) stamped his passport the following day. Defendant does not dispute that it issued the June 14 notice and stamped the passport. In fact, defendant even adds that on September 23, 1999, the INS mailed another notice, what it terms the "first erroneous notice," informing Mr. Bassey that he had received permanent resident status. (This "first erroneous notice" is not discussed by plaintiff, but is reproduced in Fernandez Decl., Ex. S.) Despite this, INS argues that it never granted plaintiff permanent resident status and properly denied (rather than rescinded) plaintiff's Application for Permanent Residency on September 7, 2001.
There are thus two questions: first, whether the INS, by the actions described, granted Mr. Bassey permanent residency and, second, whether the later rescission (in the plaintiffs view) or denial (in the defendant's view) of permanent resident status was lawful.
In regard to the June 14, 2000 notice and June 15, 2000 passport stamp, INS argues that these do not constitute an actual legal approval. In support of this view, INS relies exclusively on Nelson v. Reno, 204 F. Supp.2d 1355 (S.D. Fla. 2002). In Nelson, the INS placed an I-551 stamp in plaintiffs passport, which which stamp plaintiff later claimed constituted an approval of his application for permanent resident status. The sole question before the court, then, was at what point does an INS approval of a status adjustment become official. The court there explained:
[A]n adjustment requires approval of the I-130, the I-485, and then the I-181. The I-551 stamp placed in the applicant's passport then serves as the applicant's proof to employers and even the INS, in some cases, that he or she is a lawful permanent resident of the United States. While the stamp typically serves as a record — in fact, the applicant's only record — of an approval, it is not an approval.Id. at 1359-60 (emphasis in original). The court found that "because the I-130 petition filed on behalf of Mr. Nelson was indisputably never approved, he was also ineligible for an adjustment of status." Id. at 1360 (citations omitted).
With respect to the passport stamp, Nelson establishes that an I-551 passport stamp is not an actual approval of the application for permanent residence. In this case, however, unlike Nelson Mr. Bassey received notice, in the form of a letter on June 14, 2000 from the INS, indicating that his application for permanent residence had been approved. Fernandez Decl., Ex. V. The letter states in part:
Pursuant to Section 216, Marriage Fraud Act of the Immigration and Nationality Act, as amended, you have been granted conditional permanent residency in the United States as of the date you were admitted to be adjusted to such status by an officer of the Immigration and Naturalization Service.
The plain language of this letter thus indicated to Mr. Bassey that he had complied with all the requirements for permanent residence.
This language, though, had no legal effect on Mr. Bassey's immigration status. As in Nelson, there is no dispute that Ms. Bassey's I-130 application (the visa petition for her husband) was denied. Further, 8 C.F.R. § 245.2(a)(2)(i) states: "Before an application for adjustment of status under section 245 of the Act may be considered properly filed, a visa must be immediately available." Thus, absent approval of the I-130, the INS had no authority to grant Mr. Bassey permanent resident status. Nelson, 204 F. Supp.2d at 1359-60. Copies of the INS denials of Mr. Bassey's I-130 and I-485 are reproduced in Fernandez Decl., Ex. Q and R, respectively.
Because the letter and passport stamp of June 14-15, 2000 were issued erroneously, they did not confer permanent resident status and the INS action of September 7, 2001 must be characterized as a denial of Mr. Bassey's application for permanent resident status. The lawfulness of that denial is the next question before this Court.
In its Reply to Plaintiffs Opposition to Motion to Dismiss, defendant also argues that, if the Court finds that there was a denial rather than a rescission, the Court may not hear Mr. Bassey's appeal because the INS action was not characterized as a denial in the complaint. See Reply to Mot. to Dismiss at 3. It is, however, clear from the complaint that Mr. Bassey seeks review of the INS decision of September 7, 2001, however characterized, and which this Court has jurisdiction to review.
The INS denial of Mr. Bassey's application is based solely on the earlier finding that in 1992 Mr. Bassey attempted to obtain permanent resident status by marrying a U.S. citizen (his second wife) without first divorcing his Nigerian wife. In its letter of October 19, 2000, denying Mr. Bassey's application for permanent residence (through his third wife), the INS cites 8 U.S.C. § 1154 (c), which states:
[N]o petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) he Attorney General has determined that the alien has attempted or conspired to enter into the marriage for the purpose of evading the immigration laws.
The earlier finding of marriage fraud has not been disputed by the plaintiff in the present case. U.S.C. § 1154(c) prohibits the INS from granting permanent resident status to individuals found to have committed marriage fraud. Thus, the INS denial of Mr. Bassey's application for permanent residence status was mandated by statute.
Because this Court has jurisdiction to hear appeals from INS decisions rescinding or denying permanent resident status, defendant's Motion to Dismiss is DENIED. Because Mr. Bassey was never granted permanent residence in the United States, and because the denial of his application for status adjustment was lawful, plaintiffs Motion for Summary Judgment is DENIED. Because the INS denial was mandated by statute, defendant's Cross-Motion for Summary Judgment is GRANTED.
CONCLUSION
For the foregoing reasons, defendant's Motion to Dismiss is DENIED [DOCKET #24]; plaintiffs Motion for Summary Judgment is DENIED [DOCKET #23]; defendant's Cross-Motion for Summary Judgment is GRANTED [DOCKET # 31].