Opinion
EP-00-CA-19-DB
March 19, 2001
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Respondent Luis Garcia's ("Garcia" or "Respondent") "Motion To Dismiss Or, in the alternative, Motion For Summary Judgment," filed on August 17, 2000, in the above-captioned cause. Petitioner Jivanbhai Dullanbhbhai Bhakta ("Bhakta" or "Petitioner") filed a Response on September 19, 2000. Garcia filed a Reply to Bhakta's Response on October 20, 2000, to which Bhakta filed a Surreply on October 23, 2000.
After due consideration, the Court is of the opinion that the Motion should be denied in part and granted in part for the reasons that follow.
BACKGROUND
Petitioner, a native of India, was admitted to the United States on July 7, 1972, on a B-2 visitor visa. On May 31, 1973, Petitioner applied for employment-based adjustment of status and claimed exemption from the labor certification requirements of 8 U.S.C. § 11 82(a)(5)(A) based on the fact that he was an investor in a commercial enterprise with an amount of investment capital of at least $10,000 and at least one year of experience or training qualifying him to engage in such enterprise, pursuant to 8 C.F.R. § 2 12.8(b)(4). The application was approved and Petitioner obtained lawful permanent resident status on February 15, 1974.
As most recently amended, 8 C.F.R. § 2 12.8(b) exempts from labor certification, among others, "an alien who establishes on Form 1-526 that he has invested, or is actively in the process of investing, capital totaling at least $40,000 in an enterprise in the United States of which he will be a principal manager and that the enterprise will employ a person or persons in the United States who are United States citizens or aliens lawfully admitted for permanent residence, exclusive of the alien, his spouse and children." 8 C.F.R. § 212.8 (b)(4) (West, WESTLAW through February 6, 2001).
In September 1974, a visa petition on behalf of Petitioner's son was approved at the United States Consulate in Bombay, India. During the interview that followed, Petitioner's father, who had accompanied Petitioner's son to the Consulate, was questioned regarding his son's prior work experience as it was represented in Petitioner's 1973 application for permanent residence. The father's responses prompted the Immigration and Naturalization Service ("INS" or "Service") to reopen their investigation regarding Petitioner's qualification for waiver of the labor certification requirement. The 145 subsequently summoned Petitioner to the INS District Office in Reno, Nevada, where he was interviewed on March 17, 1978. As a result of that interview, the INS determined that Petitioner had made material misrepresentations regarding his work experience on his application for permanent resident status and soon took steps to rescind his residency status.
On June 16, 1978, the INS issued a "Notice of Intention to Rescind" ("Notice"), advising Petitioner that he was not exempt from the labor certification requirements of 8 U.S.C. § 1182 (a)(5)(A). The INS further informed him that, since he had failed to obtain labor certification, Petitioner did not qualify for legal permanent resident status. Pursuant to administrative procedure, Petitioner had 30 days in which to respond. On July 27, 1978, INS rescinded Petitioner's lawful permanent resident status on the ground that Petitioner had not filed a response. The rescission order was withdrawn on October 10, 1979, following INS discovery that Petitioner had in fact submitted a limely response.
More than five years passed before INS took further action. On May 1, 1985, the INS issued a "Notice of Hearing in Deportation Proceedings," advising Petitioner that his case was set for a hearing. On December 12, 1986, Petitioner appeared at the merits hearing without representation, and subsequently, upon the Immigration Judge's off-the-record intervention, reappeared that same day with an attorney. Petitioner contends that his attorney, William Lawler, Jr.("Lawler"), made certain admissions on Petitioner's behalf which Petitioner did not understand and which, had he understood, Petitioner would not have made. The Immigration Judge subsequently rescinded Petitioner's lawful permanent resident status, and Lawler followed with a reservation of right to appeal. Lawler never pursued the appeal.
Because his attorney had informed him that the case would be appealed subsequent to the rescission hearing, and because no further action was taken by the INS, Petitioner claims that he believed that the case had been resolved in his favor. In 1995, he filed an application to renew his permanent resident card, which was later approved. In 1996, subsequent to the approval, Petitioner filed an Application for Naturalization. The INS denied the application on November 2, 1998, on the ground that Petitioner could not satisfy the requirements for naturalization since he was not a permanent resident of the United States. Almost one year later, on December 13, 1999, the INS initiated removal proceedings.
The eligibility requirements for a person seeking naturalization, as set forth in 8 U.S.C. § 1427, are that the person (a) have been admitted as a lawful permanent resident of the United States; (b) have resided continuously, after being admitted as a lawful permanent resident, in the United States for at least five years, (c) have resided continuously within the United States from the date of the application up to the time of admissions to citizenship; (d) have been a person of good moral character. See 8 U.S.C.A. § 1427 (West 1999)
On January 21, 2000, Petitioner commenced the instant action by filing an "Application for De Novo Hearing and Review of Denial of District Director INS [sic] of his Application for Naturalization." In a separate action commenced on March 17, 2000, Petitioner filed an "Original Complaint and Application for Injunctive Relief' under cause number EP-00-CV-72-DB, asking the Court to enjoin the INS and Respondent from rescinding Petitioner's Legal Permanent Resident status or executing a notice of removal. By Order entered April 7, 2000, the Court consolidated the two cases under the instant cause number. Respondent's Motion soon followed.
DISCUSSION
Respondent argues that Petitioner cannot establish that he had been lawfully admitted as a permanent resident of the United States for five years and that he resided lawfully within the United States under that status. As this is one of the eligibility requirements for a person seeking naturalization, and since Petitioner allegedly cannot meet that eligibility requirement, Respondent avers that Petitioner is unable to prove any facts which would entitle him to relief. Respondent further argues that Petitioner's appeal rests on a collateral attack of the underlying rescission of his status as a permanent legal resident. Such an attack, Respondent avers, is neither timely nor proper since Petitioner failed to exhaust his administrative remedies before raising the matter in this Court. Respondent concludes that this Court lacks jurisdiction to consider Petitioner's claim. In the alternative, Respondent argues that even if Plaintiffs Complaint stated facts that might entitle him to relief, Respondent is entitled to summary judgement since Petitioner cannot make a prima facie showing with regard to his assertion that the INS is equitably estopped from denying his petition for naturalization.
Petitioner, for his part, maintains that he was accepted as a legal permanent resident in 1973, and that the subsequent proceedings to strip him of that status violated his right to due process. Petitioner contends that he received ineffective assistance of counsel during the proceedings, and that he was permanently harmed by the INS's delay or inaction in waiting more than few years before taking action to rescind Petitioner's permanent resident status. Petitioner seeks to equitably estop the INS from denying his petition for naturalization, arguing that the INS's delay or inaction caused him irreparable harm and precluded the possibility of a fair process with regard to his petition for naturalization.
Motion to Dismiss — FED. R. Civ. P. 12(b)(1)
Federal Rule of Civil Procedure 12 allows a party to move to dismiss an action for lack of subject matter jurisdiction (subsection (b)(1)) and for "failure to state a claim upon which relief can be granted" (subsection (b)(6)). Under Rule 12(b)(1), which the Court must consider before any other challenge, see Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994), a court must dismiss a cause for lack of subject matter jurisdiction "when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal quotation marks removed) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).
Although Respondent moves for dismissal pursuant to Federal Rule of Civil Procedure 1 2(b)(6), the Court finds that much of Respondent's arguments are jurisdictional in nature. Hence, the Court construes Respondent's motion as one pursuant to Federal Rule of Civil Procedure 1 2(b)(1).
Petitioner contends that this Court may exercise proper jurisdiction pursuant to 8 U.S.C. § 1421, which provides that a person whose application for naturalization is denied may appeal that decision to a district court, and that the court must conduct, de novo, a review of the merits of the case. Respondent avers that the Immigration Judge's decision to rescind Petitioner's status becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken. Respondent further argues that since Petitioner did not appeal the Immigration Judge's 1986 decision to rescind to the Board of Immigration Appeals ("BIA"), that decision is final and binding on this Court. Hence, Respondent argues, Petitioner cannot now collaterally attack the recision order without having first appealed that decision to the BIA. The Court is in agreement.
The Court is in agreement only insofar as the INS contends that Petitioner must exhaust his administrative remedies. The Court, however, specifically withholds judgment with regard to whether Petitioner may collaterally attack the rescission order. While there is no caselaw directly addressing the question of collateral attacks on underlying rescission orders in the context of a denial of petition for naturalization, the Ninth Circuit has examined the matter in the context of deportation hearings. In Baria v. Reno the Ninth Circuit held that where a petitioner faces deportation based on an underlying order rescinding the petitioner's adjustment of status, '"[t]he interdependency of the two orders requires that the [court's exclusive] power of review extend to the order rescinding' an adjustment of status." Baria v. Reno, 94 F.3d 1335, 1338 (9th Cir. 1996). The INS cites Bachelier v. INS for the proposition that a decision to rescind adjustment of status cannot be challenged in a deportation proceeding. This interpretation, the Court finds, is flat-out wrong. In Bachelier, the Fifth Circuit noted the Supreme Court's holding that "in immigration matters direct review in the court of appeals is limited to final deportation orders under section 1252(b)." Bachelier v. INS, 548 F.2d 1157, 1158 (5th Cir. 1977) (citing Cheng Fan Kwok v. INS, 392 U.S. 206, 216, 88S.Ct. 1970, 1976, 20 L. Ed 2d 1037 (1968)). With this in mind, the Fifth Circuit found that the rescission order in question was not a final order of deportation, and thus, direct review in the court of appeals was inappropriate. See Id. at 1158. The instant case does not present the same problem. This Court exercises jurisdiction pursuant to 8 U.S.C. § 1421. The question, then, is whether review of the rescission order is appropriate as part the Court's review of the 145's denial of a petition for naturalization specifically based on that rescission. That question is beyond the scope of the instant Opinion.
The failure to raise an issue on appeal to the BIA constitutes failure to exhaust administrative remedies with respect to that question, thus depriving a court from exercising jurisdiction to hear the matter. See Rivera-Zurita v. INS, 946 F.2d 118, 120 n. 2 (10thCir. 1991). Courts have carved out an exception to the exhaustion requirement where a petitioner raises a constitutional challenge to the immigration laws on the ground that the BIA has no jurisdiction to review such claims. See, e.g., Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir. 1994). "Nevertheless,'the BIA does have the authority to reopen cases to fix administratively correctable procedural errors, even when these errors are failures to follow due process."' Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1991) (citing Liu v. Waters, 55 F.3d 421, 426 (9th Cir. 1995)).
The BIA permits an alien to move to reopen the administrative proceedings when his counsel's incompetence has prevented him from properly presenting his case. See Matter of Lozada, 19 IN Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988). Hence, "because the BIA provides a mechanism for hearing an ineffective assistance claim, an alien's failure to raise the claim to the BIA deprives [an appellate] court of jurisdiction to review it." Akinwunmi, 194 F.3d at 1341; see also Molsilovic v. INS, 156 F.3d 743, 748-49 (7thCir. 1998); Liu, 55 F.3d at 426; Nguyen v. INS, 991 F.2d 621, 623 n. 3 (10thCir. 1993); Dokic v. lNS, 899 F.2d 530, 53 1-32 (6th Cir. 1990); but see Rabiu v. lNS, 41 F.3d 879, 881-82 (2d Cir. 1994) (holding that court of appeals could consider an ineffective assistance claim even though claim was not considered by BIA).
To the extent Petitioner argues that the rescission of his permanent residency status should be reversed based on lack of due process because of ineffective assistance of counsel — including allegations that counsel failed to present certain arguments regarding the materiality of Petitioner's alleged misrepresentations this Court lacks jurisdiction to address the matter. Thus, the Court dismisses Petitioner's claims based on ineffective assistance of counsel for lack of subject matter jurisdiction.
Petitioner may have the option to move the BIA (or the Immigration Judge who entered the order to rescind) to reopen his case. See 8 C.F.R. § 3.2 (West, WESTLAW through February 6, 2001) (procedures for motion to reopen or reconsider).
Motion for Summary Judgment — FED. R. Civ. P. 56
A. STANDARD
As to the remaining claims and arguments, the Court finds that it must proceed under Federal Rule of Civil Procedure 56 rather than Federal Rule of Civil Procedure 12(b). Respondent seeks an Order either dismissing this cause pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted or granting summary judgment pursuant to Rule 56. Petitioner and Respondent both attach evidence to support their claims. Thus, pursuant to Rule 12(b), which states that "[i]f, on a motion asserting the defense numbered (6) . . ., matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in rule 56," FED. R. Civ. PROC. 12(b), the Court treats Defendants' Motion as a motion for summary judgment. See Baton Rouge Bldg. Constr. Trades Council AFL-CIO v. Jacobs Constructors, Inc., 804 F.2d 879, 881 (5th Cir. 1986) (holding that district court which goes beyond pleadings must rule on basis of Rule 56); see generally 5A CHARLES A. WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE: § 1366 (2d ed. 1990).
Summary judgment should be granted only where "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 moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). If the movant does meet this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See, e.g., Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. "If the non-movant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 F.3d at 954.
When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994). The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See id.
B. EQUITABLE ESTOPPEL
To establish estoppel against the government, a plaintiff must show affirmative misconduct by the government and also establish four additional elements: "(1) that the party to be estopped was aware of the facts, and (2) intended his act or omission to be acted upon; (3) that the party asserting estoppel did not have knowledge of the facts, and (4) reasonably relied on the conduct of the other to his substantial injury." Moosa v. INS, 171 F.3d 994, 1003 (5th Cir. 1999).
Petitioner argues that the INS should be estopped from denying his application for naturalization on the ground that he has been substantially harmed by several acts of INS misconduct. of particular relevance here, Petitioner alleges that he was harmed when the INS renewed his Permanent Resident Card in 1995, even though his permanent residency status had allegedly been rescinded in 1986. This, Petitioner argues, harmed him irreparably, for in reliance on the INS's inaction for the nine-year period between 1986 and 1995, Petitioner believed that the rescission order had been reversed pursuant to an appeal which his attorney had promised to file. Accordingly, Petitioner did not pursue any appeal with the BIA or seek to have the Immigration Judge reconsider the order to rescind Petitioner's status.
The Court finds that as to this particular allegation, Petitioner has raised a genuine issue of material fact. Petitioner argues that Respondent's renewal of his permanent resident card caused him substantial harm in that he relied on the renewal — as well as the Service's failure to act during the period from 1985 to 1996 — which led him to believe that his status as a permanent resident had been reinstated. Based on this erroneous belief, he applied for naturalization. Respondent argues that no such reliance could have resulted, and that, in any event, Petitioner cannot show that he was harmed by the reliance. Hence, Respondent asserts, summary judgment is appropriate. The Court does not agree.
Petitioner's allegations raise a question of fact as to whether or not he relied on Respondent's failure to act. Petitioner argues, and the record supports his allegation, that he relied on the INS's conduct to his own detriment; that he took no steps to challenge the Immigration Judge's order based on his belief that his attorney had successfully appealed the decision; that he petitioned the INS for renewal of his permanent resident card and later, for naturalization; that had he believed that the rescission order was still outstanding, he would have challenged the Immigration Judge's decision, procured new counsel, or simply done nothing in hopes that INS would take no further action to deport him. Petitioner contends that he did none of these things in reliance on the INS's omissions. This, the Court finds, raises an issue of fact as to reliance.
Accordingly, IT IS HEREBY ORDERED that Respondent's Motion To Dismiss pursuant to FED.R.CIV.P. 12(b)(1) is GRANTED IN PART, to the extent that Respondent seeks judgment regarding Plaintiffs claims based on ineffective assistance of counsel.
IT IS FURTHER ORDERED that Petitioner's claims based on ineffective assistance of counsel are DISMISSED for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1).
IT IS FURTHER ORDERED that Respondent's Motion for Summary Judgement is DENIED to the extent that Respondent seeks judgement with regard to Petitioner's contention that the INS is equitably estopped from denying his petition for naturalimtion.
IT IS FURTHER ORDERED that Petitioner's application for injunctive relief is GRANTED.
IT IS FINALL ORDERED that Respondent Luis Garcia, District Director of the Immigration and Naturalization Service, the agents and employees of the Immigration and Naturalization Service, and all persons acting in concert with Respondent, are ENJOINED from removing Petitioner Jivanbhai Dullabhbhai Bhakta, File A20-302-156, from the United States until further order from the Court.