Opinion
CASE NO. 22-21694-CIV-ALTONAGA/Torres
2022-10-26
Mauro Brito PINERO, Plaintiff, v. Ur Mendoza JADDOU, U.S. Citizenship & Immigration Services (USCIS); et al., Defendants.
Eduardo Rigoberto Soto, Coral Gables, FL, for Plaintiff. Monica L. Haddad, U.S. Attorney's Office, Miami, FL, for Defendants.
Eduardo Rigoberto Soto, Coral Gables, FL, for Plaintiff. Monica L. Haddad, U.S. Attorney's Office, Miami, FL, for Defendants. ORDER CECILIA M. ALTONAGA, CHIEF UNITED STATES DISTRICT JUDGE
THIS CAUSE comes before the Court on Defendants, United States Citizenship and Immigration Services ("USCIS") Director Ur Mendoza Jaddou, USCIS Hialeah Field Office Director Lina Swacina, and the Department of Homeland Security ("DHS") Director Alejandro Mayorkas's Motion to Dismiss Plaintiff's Amended Complaint [ECF No. 17], filed on August 9, 2022. Plaintiff Mauro Brito Pinero filed a Response in Opposition [ECF No. 19], to which Defendants filed a Reply [ECF No. 20]. The Court has carefully considered the parties' written submissions, the record, and the applicable law. For the following reasons, Defendants' Motion is granted.
I. BACKGROUND
Plaintiff is an alien and Cuban national who came to the United States on June 7, 1995. (See Am. Compl., Attach. 5, Jan. 24, 2010 Notice to Appear [ECF No. 8-5] 1 (hereinafter "Notice to Appear")). In September 1996, he was driving through Tennessee with Clara Ruiz, a friend. (See Am. Compl. ¶ 20). Ms. Ruiz owned the car, but she rode in the passenger seat while Plaintiff drove. (See Am. Compl., Attach. 4, Brito Pinero Statement [ECF No. 8-4] 1).
The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers of all court filings.
A police officer pulled the car over for speeding and having a broken light. (See id.). The officer obtained Plaintiff's permission to search the vehicle, conducted a search, and found over 47 pounds of marijuana. (See Am. Compl. ¶¶ 21-22). He arrested Plaintiff, and local authorities charged him with unlawful possession of marijuana with intent to sell, in violation of Tennessee Code section 39-17-417. (See id. ¶ 23; Am. Compl., Attach. 3, July 20, 1998 J. [ECF No. 8-3] 2-3 (hereinafter "July 20, 1998 Judgment")).
Plaintiff pleaded guilty on July 20, 1998. (See July 20, 1998 J. 2). He received a $2,000 fine and a sentence of two years "workhouse." (Id.). Plaintiff completed his sentence under a judicial diversion program pursuant to Tennessee Code section 40-35-313. (See Am. Compl., Attach 3, Aug. 31, 1998 Order [ECF No. 8-3] 4-6 (hereinafter "Deferment Order")). On November 6, 2000 — upon Plaintiff's successful completion of the program — the Criminal Court of Shelby County dismissed Plaintiff's criminal case with prejudice. (See Am. Compl., Attach. 3, Nov. 6, 2000 Order [ECF No. 8-3] 12 (hereinafter "Expungement Order")).
On January 24, 2010, the Department of Homeland Security initiated removal proceedings against Plaintiff. (See generally Notice to Appear). Supervisory Deportation Officer Kerry Kaufman charged Plaintiff with violating sections 212(a)(2)(A)(i)(II) and 212(a)(2)(C) of the Immigration and Nationality Act ("INA"). (See id. 2). The former provision renders an alien who has been convicted of violating "any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21)" — or who admits to having committed acts that violate a controlled substance-related law or regulation — inadmissible to the United States. INA § 212(a)(2)(A)(i)(II). The latter provides that any alien "who the consular officer or the Attorney General knows or has reason to believe . . . is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so" is inadmissible. Id. § 212(a)(2)(C) (alteration added).
Section 212 of the INA has been codified in the United States Code as 8 U.S.C. section 1182. The parties' filings and the record cite to provisions of the INA as they appear in the INA, rather than in the United States Code. For convenience, the Court does the same.
Two years later, an immigration judge terminated the proceedings against Plaintiff without prejudice in a January 4, 2012 Order. (See Compl., Attach. 5, Jan. 4, 2012 Order [ECF No. 8-5] 4). The order did not reach the merits of the charges against Plaintiff. (See id.). Rather, it dismissed the proceedings because the Notice to Appear that listed the charges "lack[ed] an authorized signature." (Id. (alteration added)).
Plaintiff now wants to become a permanent resident. (See generally Am. Compl.). He submitted an I-485 Application for Adjustment of Status under Section 1 of the Cuban Adjustment Act of 1996, Pub. L. No. 89-732, 80 Stat. 1161 ("CAA") on March 7, 2016. (See id. ¶¶ 1, 13). The USCIS denied the application in a December 1, 2016 Decision [ECF No. 8-1]. It cited Plaintiff's 1998 conviction as the reason for the denial. (See generally id.). Even though the Criminal Court of Shelby County had Plaintiff undergo a judicial diversion program and subsequently dismissed charges against him, the 2016 Decision explained, USCIS nonetheless considered the event "a 'conviction' for immigration purposes" under the INA because Plaintiff "entered a plea of guilty and received a form of punishment (2 years workhouse)." (Id. 2). The 2016 Decision reiterated that INA section 212(a)(2)(A) renders applicants with controlled substance-related convictions "inadmissible to the United States." (Id.).
Plaintiff filed a motion with USCIS to reopen and reconsider the 2016 Decision. (See Am. Compl. ¶ 15). In a December 20, 2017 Decision [ECF No. 8-2], USCIS denied the motion to reconsider. (See id.). Like the 2016 Decision, the 2017 Decision relied on Plaintiff's conviction. (See id.). The 2017 Decision also cited INA sections 212(a)(2)(A) and 212(a)(2)(C), concluding that as "an illicit trafficker of controlled substances[,]" Plaintiff is "not qualified to adjust status." (Id. (alteration added)).
Plaintiff filed his Amended Complaint on August 9, 2022. (See generally Am. Compl.). Plaintiff asks that the Court declare USCIS's December 20, 2017 Decision "arbitrary, capricious, and an abuse of discretion," under 5 U.S.C. section 706. (Id. 11). The Amended Complaint also seeks remand of this matter to USCIS for further consideration. (See id.).
Defendants ask that the Court dismiss the Amended Complaint. (See generally Mot.). Defendants filed the Motion, relying on Federal Rule of Civil Procedure 12(b)(1) (see Mot. 1), the procedural mechanism to seek dismissal for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). But in their Motion, Defendants provide only a sparse discussion of jurisdiction. They briefly assert that Plaintiff "has failed to show the Court has jurisdiction to review the decision of USCIS" (Mot. 2), but the arguments presented primarily concern the merits of the Amended Complaint (see id. 4-17). That is, the substance of the Motion is that Plaintiff has not "carr[ied] his burden to establish that USCIS acted arbitrarily, capriciously, or not in accordance with the law[,]" and Defendants' actions did not violate the Administrative Procedure Act ("APA"). (Id. 17 (alteration added)).
Plaintiff's Response meets Defendants on these grounds. Plaintiff asks the Court to find that subject matter jurisdiction exists (see Resp. 4), and proceeds to the merits of the Amended Complaint, which concern whether Defendants' actions violated the APA (see id. 4-8). Plaintiff insists that he has carried his burden and demonstrated he is eligible for a status adjustment under the CAA. (See id. 6-8).
II. LEGAL STANDARDS
According to the APA, "[a]gency action[s] made reviewable by statute and final agency action[s] for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704 (alterations added). In contrast, "[a] preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action." Id. (alteration added). The Eleventh Circuit has held federal jurisdiction is lacking under Rule 12(b)(1) when the administrative action at issue is not final within the meaning of section 704. See LabMD, Inc. v. F.T.C., 776 F.3d 1275, 1278-79 (11th Cir. 2015).
To prevail on an APA claim, a plaintiff must establish that the agency's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" 5 U.S.C. § 706(2)(A) (alteration added); see also Salmeron-Salmeron v. Spivey, 926 F.3d 1283, 1286 (11th Cir. 2019). "This standard 'provides the reviewing court with very limited discretion to reverse an agency decision, and is exceedingly deferential,' especially 'in the field of immigration.' " Diamond Miami Corp. v. USCIS, No. 18-24411-Civ, 2019 WL 4954807, at *2 (S.D. Fla. Oct. 8, 2019) (quoting Mathews v. USCIS, 458 F. App'x 831, 833 (11th Cir. 2012)). "The court's role is to ensure that the agency came to a rational conclusion, not to conduct its own investigation and substitute its own judgment for the administrative agency's decision." Defenders of Wildlife v. U.S. Dep't of Navy, 733 F.3d 1106, 1115 (11th Cir. 2013) (internal quotation marks and citations omitted).
III. DISCUSSION
A. Subject Matter Jurisdiction
To begin, the Court notes that while Defendants' Motion is styled as a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, there is little question that the Court possesses jurisdiction here. The Eleventh Circuit has held that "28 U.S.C. [section] 1331 confers jurisdiction on federal judges to review agency action under federal-question jurisdiction." Perez v. USCIS, 774 F.3d 960, 965 (11th Cir. 2014) (alteration added; citation omitted). This includes Plaintiff's challenge to the ultimate "legal determination by officials at USCIS that he is statutorily ineligible" for status adjustment under the CAA. Mejia Rodriguez v. U.S. Dep't of Homeland Sec., 562 F.3d 1137, 1146 (11th Cir. 2009).
Moreover — the Rule 12(b)(1) form of the Motion notwithstanding — the parties' written briefs prioritize discussion of the substance of Plaintiff's Amended Complaint and whether Defendants violated the APA, while ignoring the narrow jurisdictional question initially framed by the introduction to the Motion. (See Mot. 2 ("Plaintiff has failed to show the Court has jurisdiction to review the decision of USCIS, and thus the Complaint must be dismissed in its entirety."). Where, as here, a Rule 12(b)(1) motion "is also a challenge to the existence of a federal cause of action, the proper course of action for the district court (assuming that the plaintiff's federal claim is not immaterial and made solely for the purpose of obtaining federal jurisdiction and is not insubstantial and frivolous) is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case." Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. 1981) (footnote call number omitted); see also Ford v. Strange, 580 F. App'x 701, 708 (11th Cir. 2014) ("When jurisdictional and merits question[s] are intertwined, federal courts at least sometimes find that jurisdiction exists and then proceed to analyze the merits." (alteration added; footnote call number and citations omitted)).
Plaintiff also asks the Court to pursue this course. (See Resp. 4 ("When a district court has pending before it both a 12(b)(1) motion and a 12(b)(6) motion, the generally preferable approach, if the 12(b)(1) motion essentially challenges the existence of a federal cause of action, is for the court to find jurisdiction and then decide the 12(b)(6) motion." (citing Jones v. Georgia, 725 F.2d 622, 623 (11th Cir. 1984)))).
The Court thus finds that jurisdiction exists and proceeds to examine whether the Amended Complaint states a claim for relief, as is required under Federal Rule of Civil Procedure 12(b)(6).
B. Scope of Review of Agency Action Under Rule 12(b)(6)
Ordinarily, a court considering a Rule 12(b)(6) motion must construe the complaint in the light most favorable to the plaintiff and take its factual allegations as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (citing SEC v. ESM Grp., Inc., 835 F.2d 270, 272 (11th Cir. 1988)). But when a complaint seeks review of agency action under the APA, as Plaintiff does here (see generally Am. Compl.), "[t]he entire case on review is a question of law," and the reviewing district court sits not as a finder of fact but "as an appellate court[.]" Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993) (alterations added; citation omitted). To elaborate, an APA plaintiff's "complaint, properly read, actually presents no factual allegations, but rather only arguments about the legal conclusion to be drawn about the agency action." Id. In other words, where the review concerns whether agency action was arbitrary or capricious under the APA, "the sufficiency of the complaint is the question on the merits, and there is no real distinction . . . between the question presented on a 12(b)(6) motion and a motion for summary judgment." Id. (alteration added; footnote call number omitted).
That means the Court may go beyond the allegations in the Amended Complaint and review " 'the whole record,' which 'consists of all documents and materials directly or indirectly considered by agency decision-makers.' " Herguan Univ. v. Immigration & Customs Enf't, 258 F. Supp. 3d 1050, 1063-64 (N.D. Cal. 2017) (quoting Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 1989); other citation omitted). The Court thus reviews the December 2017 Decision under this more expansive scope, considering the entire record.
C. The USCIS's Decision
An alien applying for status adjustment under the CAA bears the burden of showing that he is eligible for the adjustment. See INA § 291. "To carry that burden, a nonpermanent resident alien . . . must prove . . . that he 'has not been convicted' of certain disqualifying offenses[.]" Pereida v. Wilkinson, — U.S. —, 141 S. Ct. 754, 760, 209 L.Ed.2d 47 (2021) (alterations added; citation omitted). Among the offenses that rate as disqualifying are those "relating to a controlled substance (as defined in section 802 of title 21)[.]" INA § 212(a)(2)(A)(i)(II) (alteration added). An applicant may be disqualified if he is convicted of a controlled substance offense or if he admits to having committed acts that would constitute a violation of a controlled substance offence. See id. The Sixth Circuit has held that Tennessee Code section 39-17-417(a)(4) — the statute under which Plaintiff was convicted (see July 20, 1998 J. 2) — "is categorically a controlled-substance offense[.]" United States v. Garth, 965 F.3d 493, 498 (6th Cir. 2020) (alteration added).
The July 20, 1998 Judgment mentions only Tennessee Code section 39-17-417, not paragraph (a)(4). (See July 20, 1998 J. 2). That said, the Judgment specifically describes the specific offense as possession with the intent to sell (see id.), which is the purview of paragraph (a)(4). See Tenn. Code Ann. § 39-17-417(a)(4) ("It is an offense for a defendant to knowingly . . . [p]ossess a controlled substance with intent to manufacture, deliver or sell the controlled substance." (alterations added)).
The USCIS's 2017 Decision — like the earlier 2016 Decision — noted that Plaintiff was "arrested in Tennessee in 1996 for Possession with Intent to Sell Marijuana" and "pled guilty in 1998." (Dec. 20, 2017 Decision). In other words, Plaintiff pleaded guilty to violating section 39-17-417(a), a controlled substance offense. See Garth, 965 F.3d at 498. As noted, the USCIS concluded that Plaintiff was ineligible for admission. (See id.).
Plaintiff asserts that USCIS's reliance on the 1998 conviction was "arbitrary and capricious" and lacked support in the administrative record. (Resp. 6). According to Plaintiff, he met his burden because he provided Defendants with a "written statement, detailing the events that led to" his arrest. (Id. 7). The Statement describes how the police officer in Tennessee came to pull over Ms. Ruiz's car, which Plaintiff was driving, as well as the subsequent arrest. (See Brito Pinero Statement 1). It makes no representations regarding whether Plaintiff committed the crime for which he later pleaded guilty. (See id.).
Plaintiff insists that all USCIS could validly conclude from his Statement is that he was arrested in 1996, which is insufficient to support the 2017 Decision. (See Resp. 7-8). Certainly, an arrest, without more, does not suffice to show that an applicant committed a disqualifying offense, much less that he was convicted of one. See Garces v. U.S. Atty. Gen., 611 F.3d 1337, 1349 (11th Cir. 2010). But to state a plausible claim that the agency's final Decision of December 20, 2017 was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[,]" 5 U.S.C. § 706(2)(A) (alteration added), it is insufficient for Plaintiff to merely rely on the Brito Pinero Statement.
First, the Court notes that the Brito Pinero Statement discusses only Plaintiff's arrest and furnishes no information concerning "the who, what, when, and where of a conviction — and the very existence of a conviction in the first place" — all of which constitute "questions of fact" relevant to Plaintiff's eligibility. Pereida, 141 S. Ct. at 765. To carry his burden of demonstrating that he presented USCIS with information showing "the absence of a disqualifying conviction[,]" Plaintiff had "the duty to present" evidence rebutting the 1998 conviction. Id. at 764 (alteration added). He failed to do so with a Statement that only addressed the arrest and not his later guilty plea and conviction, which are fatal to his APA claim. See id. at 760.
Second, USCIS had evidence of more than Plaintiff's arrest when it concluded that he committed and was convicted of the disqualifying offense. The 2017 Decision explained that Plaintiff was ineligible for a status adjustment under the CAA not merely because Plaintiff was arrested, but because he was convicted of a controlled substance offense. (See Dec. 20, 2017 Decision). The July 20, 1998 Judgment on which USCIS relied states that Plaintiff pleaded guilty to violating Tennessee Code section 39-17-417 and received a sentence of two years "workhouse." (July 20, 1998 J. 2). A guilty plea is not merely evidence of a conviction; it "constitutes a conviction." Morris v. Reynolds, 264 F.3d 38, 48 (2d Cir. 2001) (citing Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927)). The July 20, 1998 Judgment thus provided ample support for the USCIS's December 20, 2017 Decision.
Notably, the Criminal Court of Shelby County's subsequent Expungement Order — which dismissed the criminal case against Plaintiff (see Expungement Order 12) — did not prevent USCIS from relying on the 1998 conviction. In this regard, the Eleventh Circuit has distinguished between convictions vacated for procedural defects and those vacated under rehabilitative statutes. See Resendiz-Alcaraz v. U.S. Atty Gen., 383 F.3d 1262, 1265 (11th Cir. 2004). Where a court vacates a conviction based on the "merits of the charge or on a defect in the underlying criminal proceeding," immigration authorities may have less reason to rely on the conviction in subsequent proceedings. Id. at 1270 (quoting Herrera-Inirio v. I.N.S., 208 F.3d 299, 306 (1st Cir. 2000)). But a conviction expunged under a state's rehabilitative statute remains a valid conviction for immigration purposes. See id. at 1270-71; see also Alim v. Gonzales, 446 F.3d 1239, 1248 (11th Cir. 2006).
The Expungement Order does not reference any defects in Plaintiff's 1998 conviction. (See Expungement Order 12). Rather, it states that Plaintiff completed his judicial diversion program under Tennessee Statute section 40-35-313. (See id.). The Sixth Circuit has held that section 40-35-313 is a rehabilitative statute for immigration purposes. See Padhiyar v. Holder, 560 F. App'x 514, 517-18 (6th Cir. 2014). Thus, notwithstanding the Expungement Order, USCIS did not err in considering Plaintiff's 1998 conviction.
Third, the Court notes that even if USCIS improperly considered Plaintiff's conviction under INA section 212(a)(2)(A)(i)(II), the 2017 Decision also survives scrutiny under section 212(a)(2)(C). Unlike section 212(a)(2)(A)(i)(II), section 212(a)(2)(C) does not require that the alien be convicted of violating a controlled substance law or admit acts that would constitute a violation. (Compare INA § 212(a)(2)(C) with id. § 212(a)(2)(A)(i)(II)). Rather, section 212(a)(2)(C) renders an alien ineligible for a status adjustment if "the Attorney General knows or has reason to believe" that the alien "is or has been an illicit trafficker in any controlled substance[.]" INA § 212(a)(2)(C) (alteration added).
The July 20, 1998 Judgment reveals that Plaintiff pleaded guilty to possession of marijuana with the intent to sell. (See July 20, 1998 J. 2). That offense constitutes illicit trafficking. See, e.g., Rendon v. Mukasey, 520 F.3d 967, 975-76 (9th Cir. 2008) (" 'Possession of marijuana with intent to sell' necessarily means that [the plaintiff] possessed the marijuana with the intent to engage in 'some sort of commercial dealing.' We therefore hold that possession of a controlled substance with the intent to sell contains a trafficking element and is an aggravated felony." (alteration added; citation and footnote call number omitted). The Eleventh Circuit has held that if an alien pleads guilty to trafficking in a controlled substance, "it logically follows that immigration officials do not merely have reason to believe he has trafficked in [the controlled substance], they have reason to know he has done so." Castano v. I.N.S., 956 F.2d 236, 238 (11th Cir. 1992) (alteration added; emphasis in original).
Here, USCIS knew that Plaintiff pleaded guilty to, and was convicted of, violating section 39-17-417(a)(4), a controlled substance offense. (See July 20, 1998 J. 2). It thus "logically follows" that USCIS also had "reason to know" Plaintiff had trafficked in a controlled substance, Castano, 956 F.2d at 238; which suffices to disqualify an applicant under INA section 212(a)(2)(C), see INA § 212(a)(2)(C).
IV. CONCLUSION
Plaintiff failed to meet his burden of showing that he presented evidence to USCIS that he was not convicted of a disqualifying crime. Plaintiff also failed to demonstrate that Defendants erred in considering his 1998 conviction, a conviction that renders him ineligible under INA sections 212(a)(2)(A)(i)(II) and 212(a)(2)(C). Plaintiff's guilty plea and conviction render him ineligible for status adjustment under INA section 212(a)(2)(C) and further defeat the claim made in the Amended Complaint that USCIS's December 20, 2017 Decision is arbitrary, capricious, or an abuse of discretion.
Accordingly, it is
ORDERED AND ADJUDGED that Defendants' Motion [ECF No. 17] is GRANTED. Plaintiff's Amended Complaint [ECF No. 8] is DISMISSED.
DONE AND ORDERED in Miami, Florida, this 26th day of October, 2022.