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West v. Holder

September 2, 2010

MELODY WEST AND MARK WEST, PLAINTIFFS,
v.
ERIC H. HOLDER, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

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.

BACKGROUND*fn1

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. ยง1182(a)(6)(C). On August 25, ...


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