Opinion
2:23-cv-00724-APG-EJY
08-03-2023
Florinda Garcia Rivera and Felipe Carrera Mendez, Plaintiffs, v. Loren K. Miller, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services, in his official capacity as well as his successor and assigns; Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security, in his official capacity as well as his successors and assigns; Ur Mendoza Jaddou, Director, U.S. Citizenship and Immigration Services, in her official capacity as well as her successor and assigns; Antony J. Blinken, Secretary of State, U.S. Department of State, in his official capacity as well as his successors and assigns; Philip Slattery, Director National Visa Center, U.S. Department of State, in his official capacity as well as his successors and assigns; Richard C. Visek, Acting Legal Advisor, U.S. Department of State, in his official capacity as well as his successor and assigns, Defendants.
JASON M. FRIERSON United States Attorney R. THOMAS COLONNA Assistant United States Attorney Attorneys for the United States Maria Quiroga Nevada State Bar Number: 13939 Attorney for Plaintiffs
JASON M. FRIERSON United States Attorney R. THOMAS COLONNA Assistant United States Attorney Attorneys for the United States
Maria Quiroga Nevada State Bar Number: 13939 Attorney for Plaintiffs
STIPULATION TO STAY CASE
Plaintiffs Florinda Garcia Rivera and Felipe Carrera Mendez (“Plaintiffs”) and Federal Defendants, through counsel, submit the following stipulated statement and order (“Stipulation”) to stay proceedings in this matter.
1. On May 8, 2023, Plaintiffs filed the Complaint. (ECF No. 1).
2. Federal Defendants have an Answer due on August 15, 2023. Federal Defendants have yet to file an Answer or, alternatively, file a motion to dismiss on the basis that this Court lacks subject matter jurisdiction over this action.
3. On July 7, 2023, in a separate case, Mercado, et. al v. Miller, et. al., No. 2:22-cv-02182-JAD-EJY, 2023 WL 4406292 (D. Nev. July 7, 2023), ECF No. 18, the United States District Court for the District of Nevada granted a motion to dismiss a substantially similar case alleging unreasonable delay in the processing of a provisional unlawful presence waiver for lack of subject matter jurisdiction pursuant to 8 U.S.C. § 1182(a)(9)(B)(v). Mercado, 2023 WL 4406292, at *1-3. The Mercado plaintiffs sought “declaratory and injunctive relief under the . . . APA . . . and a writ of mandamus ordering . . . USCIS . . . to complete its adjudication of Gustavo Mercado's I-601A application for a provisional-unlawful-presence waiver and the Department of State (DOS) to schedule his consular visa interview.” Id. at *1. As to the three U.S. Department of Homeland Security officials who the Mercado plaintiffs sued, the District of Nevada granted Defendants' motion to dismiss on the grounds that “§ 1182(a)(9)(B)(v) precludes judicial review of USCIS's alleged delay in processing Gustavo's I-601A application ....” Id. at *3.
4. On July 12, 2023, the Mercado plaintiffs noticed an appeal. Mercado, et. al. v. Miller, et. al., No. 2:22-cv-02182-JAD-EJY, ECF No. 20 (D. Nev.), which the Ninth Circuit has docketed as Case No. 23-16007. Pursuant to the Time Scheduling Order, which the Ninth Circuit issued on July 17, 2023, the Mercado Plaintiffs-Appellants' opening brief is due by September 18, 2023; the Mercado Defendants-Appellees' answering brief is due by October 18, 2023; and the Mercado Plaintiffs-Appellants' optional reply brief is due within 21 days of the filing of Defendants-Appellees' answering brief. Mercado, et. al. v. Miller, et. al., No. 23-16007, Doc. No. 1-1 at 3 (9th Cir.). Consequently, the precise question concerning this Court's subject matter jurisdiction which is at issue in this case is now before the Ninth Circuit in an appeal scheduled to be fully briefed by November 8, 2023.
5. On July 25, 2023, counsel for the Parties conferred over email in which Defendants asked to stay this case pending a resolution by the U.S. Court of Appeals for the Ninth Circuit (the “Ninth Circuit”) of the appeal in Mercado, et. al. v. Miller, et. al., No. 2316007 (9th Cir.), which, as stated above, involves the precise question concerning this Court's subject matter jurisdiction that is at issue, rather than file another motion to dismiss, which it has done in other 601-A cases. Plaintiff's counsel agreed with this request.
6. Counsel for the parties agree that a stay would preserve the resources of the Court and the parties, allow the parties to avoid the risk of inconsistent judgments, and would be of limited duration.
7. The Parties now hereby agree and stipulate to stay this case pending resolution of the Mercado appeal.
The parties shall file a status report every 6 months or within 60 days of a decision in Mercado v. Miller, whichever comes first.
IT IS SO ORDERED: