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West v. Holder


September 2, 2010


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Through the present action, Plaintiffs Melody West and her father, Mark West, ("Plaintiffs") seek declaratory relief from the Department of Homeland Security's ("DHS") denial of Melody West's application for adjustment of her immigration status. Plaintiffs also seek a writ of mandamus compelling Defendants Eric H. Holder, U.S. Citizenship and Immigration Service ("USCIS"), Janet Napolitano, Alejandro Mayorkas, and Susan M. Curda (collectively "Defendants") to complete the adjudication of Melody West's application for lawful permanent residence, as well as attorney's fees and costs.

Presently before the Court is Defendants' application for reconsideration pursuant to Federal Rule of Civil Procedure 59(e). Defendants seek reconsideration of this Court's earlier order (ECF No. 23) denying Defendants' Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56(c). Pointing to the narrow scope of review afforded to federal courts under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et. seq., Defendants request that this Court reconsider the issue of inadmissibility due to Melody's misrepresentation of a material fact when she attempted to gain entry into the United States.

For the reasons set forth below, Defendants' Motion for Reconsideration is granted.


The present dispute centers around the immigration status of Plaintiff Melody West, a citizen of Canada. On January 3, 2008, Melody and her father Mark, a U.S. citizen living in Canada, were detained while crossing the border between the U.S. and Canada near Seattle, Washington. During interrogation by Customs and Border Protection ("CBP"), Melody initially indicated that she was entering the United States to attend a two-week yoga class in Nevada City, California, and that afterwards she would return to Canada. (Defs.' Cross-Mot. Summ. J. 4.)

When CBP contacted the yoga school, they discovered that Melody had been living in Nevada City since 2006, contrary to her claims that she had been living in Canada. (Id.) When confronted with this information, Melody maintained that she had been living in Canada, not the United States, between 2006 and 2007. (Id.) Melody ultimately signed a sworn statement, however, in which she admitted that she had been living in the United States since 2006, and that her father had coached her to provide answers to immigration officials. (Id. at 5.)

Melody was then served with a Notice to Appear for removal proceedings, charging her with fraud in violation of 8 U.S.C. § 1182(a)(6)(C)(1). The Notice provides that "you are an alien, who, by fraud or wilfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, or other documentation, or admission into the United States or other benefit provided under this Act." According to the Notice, Melody had misrepresented an intent to return to her permanent residence.

Melody was conditionally released into the United States pending hearing on her Notice to Appear. On June 17, 2008 she was granted leave to file a motion to terminate removal proceedings, which she did on July 14. This motion challenged the Notice to Appear and the fraud charges as "facially defective." (Pls.' Mot. Summ. J. Ex. A.) The DHS opposed this motion, but in its opposition withdrew the charge of fraud without prejudice and substituted a lesser charge under 8 U.S.C. § 1182 (a)(7)(A)(i)(I) (immigrant not in possession of a valid unexpired immigrant visa, re-entry permit, border crossing card, or other valid entry document). Id.

On September 4, 2008, in light of DHS's withdrawal of the fraud charge, the Immigration Judge denied the motion to terminate removal proceedings.

In November 2008, Melody moved to administratively close the proceedings in order to file an application for adjustment of status as the daughter of a U.S. citizen. This motion was unopposed by DHS and granted by the Immigration Judge. Melody's application for adjustment of status, however, was denied by the USCIS, a division of DHS, on August 27, 2009. The denial stated two grounds for this decision: "you are ineligible for adjustment of status under INA § 245(a)[8 U.S.C. § 1255(a)], and you are inadmissible to the United States pursuant to INA § 212(a)(6)(C)(I) [8 U.S.C. § 1182(a)(6)(C)(i)]." (Defs.' Cross-Mot. Summ. J. 6.) As to the first ground, USCIS asserted that Melody was conditionally released into the U.S., which is not "parole" for the purposes of adjustment of status. (Id.) As to the second ground for denial, USCIS found that Melody was "inadmissible" pursuant to 8 U.S.C. § 1182(a)(6)(C)(I) due to her failure to timely retract misrepresentations made during questioning by immigration officials on January 3, 2008. (Id.)

Plaintiffs brought the present action on October 9, 2009 seeking declaratory relief and a writ of mandamus. Plaintiffs subsequently moved for summary judgment on May 13, 2010. Defendants filed a cross-motion for summary judgment on May 20, 2010. On July 29, 2010, this Court denied (ECF No. 23) both Plaintiffs' and Defendants' Motions for Summary Judgment.

In denying Defendants' Motion for Summary Judgment, the Court found that 1) Melody was "paroled" for the purpose of adjustment of status, and 2) there existed a genuine issue of fact regarding whether Melody "wilfully" misrepresented information such as to make her inadmissible pursuant to 8 U.S.C. §1182(a)(6)(C). On August 25, 2010, Defendants timely applied for reconsideration on the sole issue of inadmissability.


Motions for relief from judgment pursuant to Rule 60(b) are addressed to the sound discretion of the district court. Casey v. Albertson's Inc., 362 F.3d 1254, 1257 (9th Cir. 2004). A court should be loathe to revisit its own decisions unless extraordinary circumstances show that its prior decision was clearly erroneous. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988). This principle is generally embodied in the law of the case doctrine. That doctrine counsels against reopening questions once resolved in ongoing litigation. Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 (9th Cir. 1989). Nonetheless, under certain limited circumstances, the court has discretion to reconsider its prior decisions.

Pursuant to Local Rules, a motion for reconsideration must set forth the material facts and circumstances surrounding the motion, including: (1) what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion and (2) why the facts or circumstances were not shown at the time of the prior motion. E.D. Cal. L.R. 230(j).

A motion for reconsideration is treated as a Rule 59(e) motion if filed within ten days of entry of judgment, but as a Rule 60(b) motion if filed more than ten days after judgment. See Am. Ironworks & Erectors Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). Since this motion is seeking reconsideration of a final disposition of claims against Defendant and was filed more than ten days that final disposition, the Court will treat it as a Rule 60(b) motion.

Rule 60(b) enumerates the grounds upon which a motion for relief from an order or judgment may be made. It specifies that:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief.

Fed. R. Civ. Proc. 60(b). Mere dissatisfaction with the court's order, or belief that the court is wrong in its decision, are not grounds for relief under Rule 60(b).


Federal judicial review of agency action is governed by the APA. 5 U.S.C. § 701; Hoefler v. Babbit, 139 F.3d 726, 728 (9th Cir. 1998). Pursuant to the APA, a reviewing court may set aside an agency's finding only if it is found to be "arbitrary, capricious, [or] an abuse of discretion," "contrary to [a] constitutional right," "in excess of statutory jurisdiction," "without observance of procedure required by law," or "unwarranted by the facts." See 5. U.S.C. 706(a). Indeed, as acknowledged in the Court's prior Order, the Immigration and Nationality Act deems decisions on inadmissability "conclusive unless manifestly contrary to law," thus reflecting the same deferential standard set forth by the APA. See 8 U.S.C. § 1252(b)(4)(c).

Ultimately, resolution of this action rests on a determination of whether USCIS's denial of Melody West's application for adjustment of status was an unlawful "abuse of discretion" or "manifestly contrary to law" on the issue of inadmissability. The function of the reviewing court is solely "to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Occidental Eng'g Co. v. INS, 753 F.2d 766, 770; see also Nw. Motorcycle Ass'n v. United States Dep't of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994).

Under such stringent standards, where the Court's scope of review is markedly narrowed, summary judgment may be utilized by the courts as "an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts that it did." Occidental, 753 F.2d at 770.

The Court previously declined to reach a final determination on the issue of inadmissability, however it chooses to do so now. Whereas Defendants' denial of Melody's application on the basis of parole status was unwarranted under the law, the Court finds that the administrative record supports a finding that Melody was inadmissible due to misrepresentations she made to border officials during Melody's attempt to gain entry into the United States January 3, 2008. The sworn testimony of Melody West verifies that upon initial questioning by CBP she misrepresented her residency and length of stay in the United States. (Admin. Record 294-296.) The Immigration Judge determined that her retraction was not timely as it was done at the first opportunity. (Admin. Record 294-296.)

Resultantly, the subsequent denial of Melody's application for adjustment of status on the basis of inadmissability is supported by facts in the record. Plaintiffs argue in Opposition to Defendants' Motion for Summary Judgment that the doctrine of res judicata should preclude Defendants from denying Melody's application on the basis on misrepresentation when it had previously chosen to withdraw charges of misrepresentation in the course of removal proceedings.

Plaintiffs rely on the Ninth Circuit's ruling in Bravo-Pedroza v. Gonzales, for the proposition that DHS is precluded from "initiating a second deportation case on the basis of a charge that [it] could have brought in the first case". Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007). However, here DHS is not reinitiating deportation proceedings, but rather denying an application for permanent status. Moreover, application of res judicata requires a final judgment on the merits. Poblete Mendoza v. Holder, 606 F.3d 1137, 1140-41 (9th Cir. 2010). DHS's withdrawal of charges does not constitute a final judgment on the merits, but instead was an exercise of discretion committed to the agency. 8 U.S.C. § 1252(g).

Accordingly, the Court revises its position, finding that resolution of this action is appropriate at the summary judgment stage. Defendants' denial of Melody's application for adjustment of status on the basis of inadmissability is sufficiently supported by the administrative record. As such, summary judgment in favor of Defendants is warranted.


For the reasons set forth above, Defendants' Application for Reconsideration (ECF No. 27) is GRANTED. The Court revises its Order at ECF No. 23 and hereby grants Defendants' Motion for Summary Judgment (ECF No. 18). The Clerk is directed to enter judgment in favor of Defendants and close the file.


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