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Gonzales v. Napolitano

May 6, 2010

ENRIQUE C. GONZALES, PLAINTIFF,
v.
JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William Q. Hayes United States District Judge

ORDER

HAYES, Judge

The matter before the Court is Defendants' Motion to Dismiss or in the Alternative for Summary Judgment. (Doc. # 7).

BACKGROUND

On November 5, 2009, Plaintiff filed his complaint in mandamus. (Doc. # 1). Plaintiff, a United States citizen, seeks a writ of mandamus directing Defendants to process Plaintiff's pending immigrant visa petitions filed on behalf of his adult daughters. Id. On February 3, 2010, Defendants filed their Motion to Dismiss or in the Alternative for Summary Judgment. (Doc. # 7).

Plaintiff alleges he filed immigrant visa petitions on behalf of his daughters on July 17, 2007. (Doc. # 1 at ¶ 4). Plaintiff alleges the processing and adjudication of newly filed petitions is currently taking over five years. Id. at ¶ 5. However, Plaintiff alleges his daughters are eligible for immediate processing because his daughters have I-130 petitions which were previously filed and approved in 1995, when his daughters were minors. Id. at ¶ 6. Plaintiff alleges his daughters were "not able to file for permanent resident status at that time." Id. Plaintiff alleges he requested "reaffirmation of the original priority date" when he filed the new petitions in 2007. Id. Plaintiff alleges the priority dates of his daughters' petitions are therefore current, but Defendants have failed to adjudicate them. Id. Plaintiff alleges his counsel has repeatedly contacted Defendants to remedy the delay in processing Plaintiff's daughters' petitions, but Defendants have failed to respond. Id. at ¶ 9-10. Plaintiff alleges Defendants' failure to adjudicate his daughters' current petitions is "arbitrary and not in accord with the law and regulations." Id. at ¶ 12. Plaintiff alleges "Defendants have effectively denied the Plaintiff the opportunity to enjoy the company of his daughters in spite of the fact that the immigrant visa quota is presently open for them." Id. at ¶ 13. Plaintiff seeks an order requiring Defendants to immediately adjudicate his daughters' petitions. Id. at 4.

Defendants contend that Plaintiff is not entitled to immediate adjudication of his daughters' petitions. (Doc. # 7 at 6). Defendants contend that the original petitions filed in 1995 were terminated and revoked in March 2002 because they failed to appear at the consulate in Caracas, Venezuela for an in-person visa interview. Id. Defendants contend that Plaintiff's current petition cannot "relate back" to the 1995 petition because, as a matter of law, "a renewed I-130 application cannot relate back to a terminated and revoked prior application and must remain in the visa process queue until visa numbers become available." Id. Defendants contend that the Child Status Protection Act of 2002 ("CPSA") allows the children of citizens who had pending petitions on August 6, 2002 to retain their "immediate relative preference date . . . even after they turned 21." Id. at 9. Defendants contend that Plaintiff's daughters are not eligible for relief under the CPSA because their petition was not pending on August 6, 2002. Id. Defendants contend that the CPSA contains a specific exception which provides that petitioners who have had their original petition terminated or revoked cannot receive the benefit of retaining their original petition date. Id. (citing 8 C.F.R. § 204.2(h)(2)). Defendants contend that Plaintiff therefore fails to state a claim for mandamus relief because Defendants have no duty to immediately adjudicate Plaintiff's daughters' petitions. Id. at 11. Defendants contend they cannot adjudicate Plaintiffs' daughters' petition "unless and until a visa number becomes available." Id. Defendants further contend that Plaintiff lacks standing to raise this claim because Defendants are not responsible for Plaintiff's injury. Id. Rather, Defendants contend, it was Plaintiff's daughters' failure to respond to the consular notice to appear for an in-person visa interview that led to Plaintiff's separation from his daughters. Id. In the alternative, Defendants seek summary judgment on the grounds that Plaintiff cannot establish a right to mandamus. Id. at 15-16.

In support of their alternative motion for summary judgment, Defendants submitted the declaration of Chloe Dybdahl, an attorney for the United States Department of State's Bureau of Consular Affairs. (Doc. # 7-2 at 3). Dybdahl states she used the Consular Consolidated Database of the Bureau of Consular Affairs to look up Plaintiff's 1995 petition and determined that "the immigration petitions" filed by Plaintiff's daughters "were terminated and destroyed on March 4, 2002 in accordance with § 203(g) . . . for failure to pursue an immigrant visa." Id. Dybdahl states Plaintiff's daughters received notice in 2000 and in 2001 from the United States Embassy in Caracas that their visa applications would be terminated if they failed to appear for an interview. Id. at 3.

Plaintiff contends that his injury is traceable to Defendants' failure to adjudicate his daughters' petition. (Doc. # 8 at 1-2). Plaintiff contends that there is a genuine issue of material fact as to the status of Plaintiff's daughters' original visa petition. Id. Plaintiff contends that on July 26, 2006, the United States Embassy in Caracas sent letters to Plaintiff's daughters which state "the record of your application has been destroyed and any petition approved on your behalf has been returned to the Immigration and Naturalization Service." Id. Plaintiff contends this letter shows the 1995 petitions have not been revoked. Id.

Plaintiff has attached the letters received by his daughters as exhibits. (Doc. # 8-1). Each daughter received a letter which states in part:

This office previously notified you that as of [January 12, 1999] . . . your application for an immigrant visa was cancelled and any petition was also cancelled. We informed you that your application might be reinstated if, within one year, you could establish that your failure to pursue your immigrant visa application was due to circumstances beyond your control.

Since you have failed to do so, the record of your application has been destroyed and any petition approved on your behalf has been returned to the Immigration and Naturalization Service . . . .

In their reply, Defendants contend that this letter does not raise a genuine issue of material fact because whether the application was destroyed is legally irrelevant. (Doc. # 9 at 4). Defendants contend revocation was automatic pursuant to 8 U.S.C. ยง 1153(g) regardless of whether any part of ...


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