United States District Court, District of Columbia
JAMES E. BOASBERG United States District Judge
As modernist architect Ludwig Mies van der Rohe once reflected, “It is not possible to go forward while looking back.” Yet that is exactly what Plaintiff Armando Moya Garcia, an alien émigré from Cuba, seeks to do here. He wants this Court to turn back time, not in a literal sense, but in a legal one, so that his quest to remain in this country may go forward.
Garcia came to the U.S. by boat in 1980, and in 1981, while he was a minor living in Florida, his mother applied on his behalf for lawful-permanent-resident (LPR) status with the predecessor agency of what is now U.S. Citizenship and Immigration Services. After years of waiting without a decision on that application, Garcia filed a second application as an adult in 1990. Initially successful in obtaining LPR status on that one, he was later ordered deportable, in large part because of a cocaine-trafficking conviction. He subsequently sought - and was denied - a discretionary waiver from deportation; as a result, he has been under an order of supervision ever since. Garcia has two goals in bringing this suit: to obtain through the Freedom of Information Act a record of any adjudication of his 1981 application and, barring that, to secure a reconsideration of his LPR request under the facts and law as they stood in 1981 - before his criminal conviction - so that he may seek another chance at a deportation waiver.
On his FOIA cause of action, the Court ultimately concludes that USCIS has adequately searched - albeit in vain - for a record of a 1981 adjudication. As to his LPR-reconsideration claim, Plaintiff’s theory of relief is both too speculative and too spectral to establish that he has standing. It would require the exercise of extraordinary nunc pro tunc equitable remedies - ones the Court doubts it has the authority to grant - to bend time in the manner Garcia seeks, rewinding 20 years of changes to immigration laws and 35 years of facts relating to him. As such relief is not warranted here, the Court will grant Defendants’ combined Motion for Summary Judgment and Motion to Dismiss.
Because the relevant parts of Plaintiff’s story take place in both the past (his claim for adjustment of status under his 1981 Application for LPR status) and the present (his FOIA inquiry), the Court will recount them separately.
A. Adjustment of Status and Order of Deportation
“[O]ur Byzantine immigration laws and administrative regulations are second or third in complexity [only] to the Internal Revenue Code.” Santiago v. Holder, 312 F.App’x 867, 868 (9th Cir. 2009) (Pregerson, J., dissenting). The Court’s recitation of the background of Plaintiff’s case, accordingly, is light on facts but heavy on law.
Plaintiff Armando Garcia Moya is a citizen of Cuba who currently resides in Falls Church, Virginia. See Compl., ¶ 9. Although the parties do not account for his early childhood, on October 19, 1981 - when Plaintiff was nine - his mother filed on his behalf a Form I-485A, an Application by Cuban Refugee for Permanent Residence, with Immigration and Naturalization Services (INS), the predecessor agency to USCIS. Id., ¶ 15; see also Notice (ECF No. 13), Exh. 8 (I-485A Application (Oct. 19, 1981)). Plaintiff’s mother appears to have filed his 1981 application in person, and Garcia seems to have been interviewed by INS that same day, see Compl., ¶ 15, but his family never received notification of the resolution of his application. Id., ¶ 16. Once Garcia reached the age of majority in 1990, he filed a second Form I-485A application, on November 19, 1990. Id.; see also Notice, Exh. 10 (I-485A Application (Nov. 19, 1990)). While his 1981 application omitted the date and location of his arrival in the United States, his 1990 application suggests he arrived in Miami, Florida, by boat on August 11, 1980. See I-485A Application (Nov. 19, 1990) at 1. At no time either before the filing of his 1990 application or during its adjudication does Plaintiff suggest he or his mother ever inquired into the status of the 1981 application.
This was only the beginning of Garcia’s interactions with federal agencies. Six months after he filed his 1990 application, Plaintiff was convicted on May 31, 1991, of distribution and possession with intent to distribute more than 500 grams of cocaine. See Notice, Exh. 11 (Order to Show Cause and Notice of Hearing (Nov. 21, 1995)) at 6; id., Exh. 7 (Decision of Immigration Judge (Jan. 23, 1996)) at 2. Around that same time, his status was adjusted to that of lawful permanent resident by INS. To the Court’s initial confusion, Plaintiff’s pleadings never specify the date this adjustment took place, and the record evidence and Defendants’ briefings contradict themselves as to whether it occurred on April 19, 1991, or April 19, 1992. Because the Memorandum of Creation of Record of Lawful Permanent Residence for Plaintiff is dated April 19, 1991, in multiple places on the document, and because that document is the official record of his adjustment of status, the Court will assume the 1991 date is accurate. See Notice, Exh. 12 (Memorandum of Creation of Record of Lawful Permanent Residence). In any case, at the time his status was adjusted, it was also made administratively retroactive to January 1, 1982, a fact the parties do agree on. Id.; see also Compl., ¶ 16; Reply at 19. Absent any other explanation, the retroactive status appears to have been made in recognition of his earlier - and then-outstanding - 1981 application.
Plaintiff’s honeymoon with LPR status did not last long, however. In 1995, he was issued an Order to Show Cause and Notice of Hearing, in which he was informed that he was subject to deportation under several provisions of the Immigration and Naturalization Act. See Order to Show Cause. The grounds for his deportation included his involvement with illegal drug trafficking, his conviction related to a controlled substance, and the procurement of immigration benefits (his LPR status) based on fraudulent or willful misrepresentation by attesting in his 1990 application that he was not then involved in drug trafficking or narcotics distribution. Id. at 3, 6.
The subsequent events are legally complicated, but reciting them with precision is critical to the disposition of Plaintiff’s case. At his January 4, 1996, hearing on the issue of deportation, Garcia admitted all of the allegations of fact contained in the Order to Show Cause, and he was consequently found to be “deportable as charged.” See Decision of Immigration Judge at 2. Although both the parties’ briefs and the documentary record fail to establish this, the parties appear to agree that Garcia’s LPR status was terminated as a result of the immigration judge’s order that he be deported. See Compl., ¶ 16; Defendants’ Statement of Material Facts (ECF No. 11-2) at 7. At a minimum, the case law supports this conclusion. See Matter of Lok, 18 I. & N. Dec. 101, 101 (BIA 1981) (“The lawful permanent resident status of an alien terminates within the meaning of section 101(a)(20) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(20), with the entry of a final administrative order of deportation . . . .”); Rivera v. I.N.S., 810 F.2d 540, 541 (5th Cir. 1987) (applying Matter of Lok); see also United States v. Yakou, 428 F.3d 241, 248 (D.C. Cir. 2005). The Court, accordingly, proceeds under the assumption that at the present moment Garcia no longer has LPR status.
What happened next involves considerable legal time travel, given the changing and fluid nature of this country’s immigration laws. Having been ordered deportable, Garcia applied for a discretionary waiver from deportation under § 212(c) of the INA (then codified as amended at 8 U.S.C. § 1182(c), and since repealed). See Decision of Immigration Judge at 2. Confusingly, at the time Garcia applied, the plain text of § 212(c) suggested such a waiver was available only in instances of exclusion proceedings - that is, when an LPR who had left the country returned and was denied re-entry. See 8 U.S.C. §§ 1182(a), (c), repealed by Omnibus Consolidated Appropriations Act, 1997, Pub. L. 104-208, § 304(b), 110 Stat. 3009, 3009-597 (Sept. 30, 1996) (setting out conditions under which “excludable aliens . . . shall be excluded from admission into the United States”). The parties do not provide any evidence suggesting Garcia entered exclusion proceedings after returning from abroad, and the address listed in his 1995 order to show cause, as well as that listed in the immigration judge’s 1996 decision, suggest he was incarcerated at the time he applied for the waiver. See Order to Show Cause at 1 (listing Plaintiff’s address as “Avoyelles Parish Jail” in Marksville, LA); Decision of Immigration Judge at 1 (same). At first blush, then, Garcia’s seeking a § 212(c) exclusion waiver would seem to have been improper.
The Court presumes that the reason Garcia sought such a waiver is that at the time (1996), the relevant statute - 8 U.S.C. § 1182(c) - granted immigration judges considerably more discretion in waiving deportation or exclusion orders than did the equivalent waiver for aliens ordered deported from within the United States, then known as a § 244 waiver (since moved to § 237 of the INA and re-codified as amended at 8 U.S.C. § 1227). See Zamora-Mallari v. Mukasey, 514 F.3d 679, 683-86 (7th Cir. 2008) (providing extensive history of applicability of § 212(c) waivers). Indeed, after the Second Circuit in 1976 found that such difference in treatment between those ordered deportable and those ordered excludable was arbitrary and in violation of the Equal Protection Clause, see Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976), the Board of Immigration Appeals (BIA) began to permit “immigration courts throughout the country [to] consider § 212(c) waiver requests from lawful permanent residents in deportation proceedings where the permanent resident aliens were similarly situated to those in exclusion proceedings.” Zamora-Mallari, 514 F.3d at 685 (citing Matter of Silva, 16 I & N. Dec. 26) (emphasis added).
The Court thus assumes that this is why Garcia’s immigration judge entertained his § 212(c) waiver absent any evidence of his having been found excludable. While § 212(c) has since been repealed in its entirety, see § 304(b), 110 Stat. at 3009-597, at that time it functioned to grant the Attorney General broad discretion to waive an order of deportation for aliens who satisfied two conditions: first, they were “lawfully permitted for permanent residence, ” and second, they had “unrelinquished domicile of seven consecutive years” in the United States. See id.; see also Decision of Immigration Judge at 2. Garcia’s judge denied his waiver application for failure to satisfy the first condition. He held that “respondent was not ‘lawfully’ admitted for permanent residence because he obtained his adjustment of status by fraud and the willful misrepresentation of a material fact.’” Decision of Immigration Judge at 2. The fraud, as Garcia acknowledges, was that he had “willfully failed to disclose his drug trafficking activities during the course of his adjustment of status, ” which would have rendered him “ineligible for adjustment of status due to section 212(a)(2)(C) . . . .” Id.; see also Compl., ¶ 16; I-485A Application (Nov. 11, 1990) at 3-4. In 1996, INA Section 212(a)(2)(C), then codified at 8 U.S.C. § 1182, deemed excludable “[a]ny alien who the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in any such controlled substance or is or has been a knowing assister, abettor, conspirator, or colluder with others in the illicit trafficking in any such controlled substance . . . .” § 212(a)(2)(C) (amended 1996). Although the immigration judge ordered that Garcia be removed from the country, his Cuban citizenship presumably blocked INS from carrying out his removal, and so Plaintiff was instead placed under an order of supervision on June 11, 1998, see Compl., ¶ 16, a status that he has apparently retained ever since. Apart from an apparent 2004 FOIA request for documents related to his immigration file, see Response, Exh. 2 (USCIS FOIA Correspondence (Sept. 13, 2004)), Plaintiff appears to have made no objection to either his deportability or the revocation of his LPR status in the intervening years.
So what has changed to motivate his suit today, nearly 20 years later? Although his Complaint does not say so, the recent reestablishment of diplomatic relations between Cuba and the United States - and the concomitant threat of deportation - is a likely catalyst. In any event, Garcia here does not challenge anything related to the adjudication of his second (and successful) 1990 I-485A application for adjustment of status to LPR. Instead, he claims that had the 1981 I-485A application been adjudicated “in 1981, [he] could have sought relief under [§ 212(c)] to preserve his lawful permanent residence status at his deportation hearing.” Compl., ¶ 16. That date is crucial because if he had achieved permanent-resident status in 1981, it would have preceded his participation in criminal activities related to cocaine trafficking. He therefore would not have had to commit fraud or misrepresentation by lying about his criminal activities in order to qualify for LPR status during his 1981 adjustment-of-status process. Absent the fraud or misrepresentation, in turn, he may have been eligible to do the time warp again and apply for the discretionary § 212(c) waiver denied him in 1996, which could curtail his 1995 deportation order.
B. FOIA Request
To complicate matters still further, Plaintiff does not know what actually happened with his 1981 application. That mystery, in turn, led to a 2013 FOIA request, in which he sought a “complete copy of [his] Alien File (A-File), ” the official record of all immigration transactions involving Garcia. See MTD/MSJ at 5 (quoting Notice (ECF No. 13), Exh. 1 (Decl. of Jill A. Eggleston), ¶ 8). Upon receipt of his request, USCIS conducted a computerized search and located Plaintiff’s physical A-File, which it then scanned and reviewed. Id. On August 30, 2013, USCIS informed Garcia it had identified 419 pages responsive to his request; 263 were released in their entirety, 15 were released in part, and 5 were withheld in full. See Compl., ¶ 17. The balance of pages (136) originated with other federal agencies, and so USCIS referred 8 to the Federal Bureau of Prisons and 128 to Immigration and Customs Enforcement for their own responses. Id.; see also MTD/MSJ at 5-6.
Among the responsive documents in his A-File that USCIS released was a copy of the 1981 I-485A application, but no documentation demonstrating whether or how that application had been resolved. See Compl., ¶ 17. BOP eventually released all 8 pages in their entirety to Garcia, while ICE produced 54 pages in full and 74 pages in part. See MTD/MSJ at 6. There is no evidence that Plaintiff filed an administrative appeal concerning the withholdings and exemptions asserted by ICE. Id.
Plaintiff did file an administrative appeal with USCIS on October 8, 2013, however, arguing that “a reasonably conducted search would have revealed the ultimate disposition of” his case. See Compl., ¶ 17. USCIS in response released 3 additional pages, all entirely redacted but for the heading “Supplemental Release” and the page numbers. Id. Still dissatisfied, Garcia sought mediation by the Office of Government Information Services (OGIS), the federal FOIA Ombudsman that mediates disputes between FOIA requesters and federal agencies. Id., ¶ 18; Notice, Exh. 4 (OGIS Letter). On September 4, 2014, OGIS concluded the mediation without being able to assist Plaintiff in finding any record of an adjudication of his 1981 application. Id., ¶ 18; see also OGIS Letter.
C. Federal Lawsuit
Frustrated by his inability both to uncover what happened to his 1981 I-485A application and to forestall deportation, Plaintiff brought this suit against USCIS, Léon Rodríguez in his official capacity as Director of USCIS, and Jeh Johnson in his official capacity as Secretary of the Department of Homeland Security, the federal agency within which USCIS is housed. Garcia claims that USCIS has fallen short in one of its duties: either it has not satisfied its FOIA obligations to perform an adequate search for responsive documents, see Compl., ¶¶ 19-22, or, if no records exist, it has failed to fulfill its responsibility to adjudicate his 1981 I-485A application in a reasonable time. Id., ¶¶ 23-26. Plaintiff thus seeks relief under FOIA regarding records of his unresolved I-485A application, id., ¶ 5, and, in the alternative, he brings causes of action arising under the INA, the APA, and the federal mandamus provision to have this Court compel USCIS to adjudicate his 1981 application. Id., ¶¶ 5-8.
Defendants respond with a combined Motion for Summary Judgment and Motion to Dismiss. Under the former, they seek judgment on Garcia’s FOIA claim, arguing that they have “satisfied all of their statutory obligations under the FOIA to conduct a reasonable search and produce all” relevant and non-exempt documents. See MTD/MSJ at 1. Under the latter, Defendants maintain that the Court lacks subject-matter jurisdiction over - and Plaintiff has failed to state a claim for relief on - the non-adjudication of his 1981 I-485A application. Id. The Court deals with each in turn.
Before doing so, it notes that a full month after Defendants filed their Reply, Plaintiff moved for leave to file a Sur-Reply. See ECF No. 20. Although this appears untimely, and Defendants oppose it, see ECF No. 22, the Court will nonetheless grant it and consider the arguments raised therein where relevant.
II. FOIA Claim
A. Legal Standard
Defendants here move for summary judgment on Plaintiff’s FOIA claim, which may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to construe the conflicting evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual assertions in the moving ...