Baez v. United States of America et al, No. 3:2009cv00662 - Document 49 (D. Or. 2010)

Court Description: Opinion & Order: Denying Plaintiff's Motion for Summary Judgment 32 ; Granting Defendants' Motion to Dismiss, or Alternatively for Summary Judgment 35 . Signed on May 28, 2010 by Magistrate Judge Dennis J. Hubel. (hubel2, )

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1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF OREGON 11 PORTLAND DIVISION 12 SECUNDINO BAEZ, 13 14 15 16 17 18 19 Plaintiff, v. UNITED STATES OF AMERICA; JANET NAPOLITANO, Secretary of Homeland Security of the United States; ALEJANDRO MAYORKAS, USCIS Director; CHRISTINA POULOS, Director, USCIS California Service Center; ERIC HOLDER, United States Attorney General, 20 Defendants. 21 22 23 24 Stephen W. Manning Jennifer M. Rotman Jessica M. Boell IMMIGRANT LAW GROUP, P.C. P.O. Box 40103 Portland, Oregon 97240 25 Attorneys for Plaintiff 26 27 / / / 28 / / / 1 - OPINION & ORDER ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-09-662-HU OPINION & ORDER 1 2 3 4 5 6 7 8 9 Tony West ASSISTANT ATTORNEY GENERAL Civil Division David J. Kline DIRECTOR, DISTRICT COURT SECTION Office of Immigration Litigation Gjon Juncaj SENIOR LITIGATION COUNSEL Adam Laurence Goldman TRIAL ATTORNEY United States Department of Justice, Civil Division Office of Immigration Litigation, District Court Section Liberty Square Building 450 Fifth Street, NW, Room 6224 Washington, D.C. 2001 13 Dwight C. Holton ACTING UNITED STATES ATTORNEY District of Oregon James E. Cox, Jr. ASSISTANT UNITED STATES ATTORNEY United States Attorney's Office District of Oregon 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 14 Attorneys for Defendants 10 11 12 15 16 HUBEL, Magistrate Judge: Plaintiff Secundino Baez brings this immigration action 17 against the United States, Secretary of Homeland Security Janet 18 Napolitano, United States Citizenship and Immigration Services 19 (USCIS) Director 20 Center 21 General Eric Holder. 22 Plaintiff's Director Alexander Christina Second Mayorkas, Poulos, Amended USCIS and California United Complaint States has five Service Attorney claims, 23 discussed more fully below. 24 based on the lack of subject matter jurisdiction. 25 defendants move for summary judgment on all claims. In response to 26 defendants' motion, plaintiff voluntarily dismisses his second 27 claim for relief. 28 (stating that plaintiff dismisses his second claim for relief 2 - OPINION & ORDER Defendants move to dismiss the action Alternatively, Pltf's Mem. in Sup. of Pltf's MSJ at p. 5 n.1 1 without prejudice because it is moot). Plaintiff moves for summary 2 judgment on his remaining four claims. 3 All parties have consented to entry of final judgment by a 4 Magistrate Judge in accordance with Federal Rule of Civil Procedure 5 73 and 28 U.S.C. § 636(c). 6 grant defendants' motion and deny plaintiff's motion. 7 8 9 For the reasons explained below, I BACKGROUND In 1963, plaintiff, a citizen of Cuba, entered the United States. He was about three years old. He was paroled into the 10 United States under 8 U.S.C. § 1182(d)(5).1 11 in the United States, without interruption, for the nearly forty- 12 seven years since his arrival here. Plaintiff has remained 13 In 1986, plaintiff applied to adjust his status to that of a 14 lawful permanent resident pursuant to Section 1 of the Cuban 15 Refugee Adjustment Act of 1996 (CAA). 16 1161 (1966). 17 adjustment of status to permanent resident was denied for failure 18 to submit requested documentation. Pub. L. 89-732, 80 Stat. On February 5, 1991, plaintiff's application for 19 In 2007, plaintiff filed a second application to adjust his 20 status to that of a lawful permanent resident pursuant to the CAA. 21 On February 21, 2008, the USCIS denied plaintiff's application. 22 23 1 24 25 26 27 The statute gives the Attorney General the discretion to "parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States[.]" 8 U.S.C. § 1182(d)(5)(A). Parole status, however, "shall not be regarded as an admission of the alien," id., and thus, is not a "lawful entry of the alien into the United States." 8 U.S.C. § 1101(a)(13)(A). 28 3 - OPINION & ORDER 1 On May 3, 2008, the Department of Homeland Security issued 2 plaintiff a Notice to Appear, charging him with being removable 3 pursuant to 4 hearings before the immigration court on the following dates, all 5 in connection with this charge of removability: 6 March 17, 2009, April 9, 2009, June 12, 2009, and October 22, 2009. 7 At the time of the March 3, 2010 oral argument on the motions 8 at issue here, counsel represented that plaintiff had had an 9 additional hearing on February 23, 2010, at which a July 2012 date 10 8 U.S.C. § 1182(a)(7)(A)(i). Plaintiff has had November 4, 2008, was set for a merits hearing. 11 In the context of the removability hearings pending before the 12 Immigration Judge (IJ), in March 2009 plaintiff (1) filed an 13 application for Asylum and Withholding of Removal, (2) renewed his 14 application to adjust his status to permanent resident pursuant to 15 the CAA, and (3) filed an application for Cancellation of Removal. 16 On August 31, 17 reconsidered 18 plaintiff's 19 Simultaneously, however, the USCIS notified plaintiff of its intent 20 to deny the adjustment application because plaintiff had not 21 clearly established eligibility for adjustment. Admin. Record (AR) 22 at pp. 10-12. 23 Notice of Intent to Deny (NOID). 24 plaintiff responded to the NOID with a six-page letter memorandum 25 and other documents. 26 USCIS denied plaintiff's application. its 2009, prior second the USCIS vacated, from February decision adjustment of reopened, 2008 status and regarding application. Plaintiff was given thirty days to respond to this Id. AR at pp. 13-18. On September 29, 2009, On October 14, 2009, the AR at pp. 4-7. 27 The instant action was initially filed on June 15, 2009, 28 before the USCIS vacated, reopened, reconsidered, and re-denied 4 - OPINION & ORDER 1 plaintiff's second adjustment application. 2 Complaint was filed on November 25, 2009, after the USCIS's October 3 14, 2009 denial of that application. 4 Additional facts are discussed below. 5 6 The Second Amended STANDARDS I. 7 Motion to Dismiss for Lack of Subject Matter Jurisdiction A motion to dismiss brought pursuant to Federal Rule of Civil 8 Procedure 12(b)(1) addresses the court's subject matter 9 jurisdiction. The party asserting jurisdiction bears the burden of 10 proving that the court has subject matter jurisdiction over his 11 claims. 12 377 (1994). 13 A Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, Rule 12(b)(1) motion may attack the substance of the 14 complaint's jurisdictional allegations even though the allegations 15 are formally sufficient. See Corrie v. Caterpillar, Inc., 503 F.3d 16 974, 17 substance of complaint's jurisdictional allegations as a Rule 18 12(b)(1) motion); Dreier v. United States, 106 F.3d 844, 847 (9th 19 Cir. 1996) ("[U]nlike a Rule 12(b)(6) motion, a Rule 12(b)(1) 20 motion can attack the substance of a complaint's jurisdictional 21 allegations 22 quotation omitted). 23 outside the pleadings to resolve factual disputes. 24 United States, 586 F.3d 683, 685 (9th Cir. 2009); see also Dreier, 25 106 26 jurisdiction under Rule 12(b)(1) may rely on affidavits or any 27 other evidence properly before the court). 28 / / / 979-80 F.3d at (9th Cir. despite 847 their (court formal treats motion sufficiency[.]") attacking (internal Additionally, the court may consider evidence (a 5 - OPINION & ORDER 2007) challenge to the court's Robinson v. subject matter 1 II. Summary Judgment 2 Summary judgment is appropriate if there is no genuine issue 3 of material fact and the moving party is entitled to judgment as a 4 matter of law. 5 initial responsibility of informing the court of the basis of its 6 motion, and identifying those portions of "'pleadings, depositions, 7 answers to interrogatories, and admissions on file, together with 8 the affidavits, if any,' which it believes demonstrate the absence 9 of a genuine issue of material fact." 10 Fed. R. Civ. P. 56(c). The moving party bears the Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). 11 "If the moving party meets its initial burden of showing 'the 12 absence of a material and triable issue of fact,' 'the burden then 13 moves to the opposing party, who must present significant probative 14 evidence tending to support its claim or defense.'" Intel Corp. v. 15 Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) 16 (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th 17 Cir. 1987)). 18 designate facts showing an issue for trial. 19 322-23. 20 The nonmoving party must go beyond the pleadings and Celotex, 477 U.S. at The substantive law governing a claim determines whether a 21 fact is material. 22 Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). 23 to the existence of a genuine issue of fact must be resolved 24 against the moving party. 25 Radio, 26 drawn from the facts in the light most favorable to the nonmoving 27 party. 28 T.W. Elec. Serv. v. Pacific Elec. Contractors All reasonable doubts as Matsushita Elec. Indus. Co. v. Zenith 475 U.S. 574, 587 (1986). The court should view inferences T.W. Elec. Serv., 809 F.2d at 630-31. If the factual context makes the nonmoving party's claim as to 6 - OPINION & ORDER 1 the existence of a material issue of fact implausible, that party 2 must come forward with more persuasive evidence to support his 3 claim than would otherwise be necessary. 4 Research and Tech. Group, 916 F.2d 528, 534 (9th Cir. 1990); 5 California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, 6 Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). 7 8 9 Id.; In re Agricultural DISCUSSION I. Plaintiff's Claims Plaintiff has four remaining claims. In his first claim for 10 relief, he challenges the denial of his second application for 11 adjustment to permanent resident status. 12 denial violates the CAA, the Immigration and Nationality Act (INA), 13 the applicable regulations and policy, and the Administrative 14 Procedures Act. He seeks an adjudication of his permanent resident 15 application based on the appropriate legal standard. 16 In his third claim for relief, He alleges that the plaintiff contends that 17 defendants' denial of his second application for adjustment to 18 permanent resident status violates the CAA, the INA, the applicable 19 regulations and policy, and the Administrative Procedures Act 20 because it is not based on substantial evidence. 21 adjudication of his permanent resident application based on the 22 record. He seeks an 23 In his fourth claim for relief, plaintiff contends that a 2009 24 ruling by the Bureau of Immigration Appeals (BIA) in Matter of 25 Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009), which plaintiff 26 asserts prohibits him from seeking an adjustment to permanent 27 resident status in the context of his removal proceedings, violates 28 the CAA, the INA, the applicable regulations and policy, and the 7 - OPINION & ORDER 1 Administrative Procedures Act. 2 to removal, including raising an adjustment claim under the CAA, 3 before the IJ. 4 In his fifth claim He seeks to present a full defense for relief, plaintiff contends that 5 defendants' reliance on Martinez-Montalvo violates the CAA, the 6 INA, the applicable regulations and policy, the United States 7 Constitution, and the Administrative Procedures Act because it is 8 impermissibly retroactive. Plaintiff seeks to have his application 9 for adjustment under the CAA adjudged in accordance with the rules 10 in effect on the date of his filing. 11 Because subject matter jurisdiction is a threshold issue, I 12 address defendants' motion first. 13 II. Subject Matter Jurisdiction Over Plaintiff's Fourth & Fifth Claims for Relief 14 Martinez-Montalvo, decided in April 2009, overturned the 2001 15 BIA decision In re Artigas, 23 I&N Dec. 99 (BIA 2001). Both 16 decisions concern the ability of certain aliens to seek an 17 adjustment of status to permanent resident in the context of 18 removal proceedings. Although not directly relevant to the subject 19 matter jurisdiction determination, a review of some statutory 20 history provides context for the discussion. 21 Before 1996, the then-Immigration and Naturalization Service 22 (INS) conducted (1) deportation hearings to deport aliens who had 23 actually entered the United States, and (2) exclusion hearings to 24 bar entry into the United States for those aliens seeking to enter 25 the country. See Eligibility of Arriving Aliens in Removal 26 Proceedings to Apply for Adjustment of Status and Jurisdiction to 27 Adjudicated Applications for Adjustment of Status, 71 Fed. Reg. 28 8 - OPINION & ORDER 1 27585-01, 2006 WL 1288099 (May 12, 2006) (explaining history of 2 regulations). 3 Before 1996, adjustment of status applications, including 4 those brought under the CAA, were exclusively presented to an IJ if 5 deportation proceedings against the alien had been initiated. 6 However, 7 adjustment of status application with the IJ. 8 were required to file adjustment of status applications with the 9 District Director of the INS (now, the USCIS). aliens in exclusion hearings could not pursue an Rather, such aliens 10 After the 1996 passage of the Illegal Immigration Reform and 11 Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 12 110 Stat. 3009 (1996), all proceedings, whether "deportation" or 13 "exclusion," were considered "removal" proceedings. 14 distinction between "admitted" and "seeking admission" aliens was 15 still relevant, however. 16 seeking admission, the alien is charged in removal proceedings as 17 an inadmissible alien under 8 U.S.C. § 1182. 18 admitted, 19 deportable alien under 8 U.S.C. § 1227. 20 admission are referred to as "arriving aliens." 21 Montalvo, 24 I&N Dec. at p. 780 (noting the continued distinction 22 after passage of IIRIRA, "between aliens who have been admitted and 23 those seeking admission, i.e. arriving aliens."). 24 the alien is Id. The Presently, post-IIRIRA, if an alien is charged in If the alien has been removal proceedings as a Those aliens seeking See Martinez- In implementing the IIRIRA, the Attorney General adopted rules 25 that continued the tradition of denying arriving aliens the 26 opportunity to seek adjustment of status before an IJ as a form of 27 relief from removal. 28 at 27587. Eligibility of Arriving Aliens, 71 Fed. Reg. The agency adopted 8 C.F.R. § 245.1(c)(8), and then 9 - OPINION & ORDER 1 later 8 C.F.R. § 1245.1(c)(8)2, both of which provided that an 2 arriving alien placed in removal proceedings was ineligible for an 3 adjustment of status. 4 IIRIRA law which had also denied arriving aliens the ability to 5 seek an adjustment of status in the context of an exclusion 6 hearing. 7 new regulation prohibited arriving aliens in removal proceedings 8 from filing an adjustment of status application with the USCIS as 9 well. Id. This was no different than the pre- But, in addition to adopting these regulations, another 8 C.F.R. § 245.2(a). This was a change from the pre-IIRIRA 10 law which had allowed arriving aliens in exclusion proceedings to 11 seek an adjustment of status with the then-INS. 12 Challenges to the new regulations were mounted and arguments 13 were made that the regulations were inconsistent with 8 U.S.C. § 14 1255(a) 15 adjustment of status by any alien who was "inspected and admitted 16 or paroled." which allows for an application for discretionary 17 In Artigas, the specific challenge was brought under the CAA. 18 The alien was seeking an adjustment of status under the CAA in the 19 context of his removal proceeding. 20 C.F.R. § 245.1(c)(8), argued that arriving aliens placed in removal 21 proceedings could not pursue an adjustment of status under the CAA. 22 The 23 jurisdiction to adjudicate adjustment applications under the CAA in BIA rejected that position, The government, relying on 8 holding that the IJ had 24 25 26 27 28 2 As explained in Bona v. Gonzales, 425 F.3d 663, 665 n.1 (9th Cir. 2005), these two regulations are identical. 8 U.S.C. § 245.1(c)(8) applied to the immigration agencies within the Department of Homeland Security, while 8 U.S.C. § 1245.1(c)(8) applied to the immigration courts and the BIA which remain within the Department of Justice. 10 - OPINION & ORDER 1 removal proceedings when a Cuban alien had been charged as an 2 arriving alien without a valid visa or entry document. Artigas, 23 3 I&N Dec. at 103-05. 4 given effect, a Cuban alien in a removal proceeding would have no 5 avenue in which to pursue an adjustment of status because one 6 regulation deprived the alien of the opportunity to pursue the 7 adjustment in the removal proceeding and the other regulation 8 deprived the alien of the opportunity to pursue the adjustment with 9 the USCIS. Artigas noted that if the new regulations were Id. at 105. 10 Rather than invalidate the regulations, the Artigas decision 11 focused specifically on the CAA and held that because 8 C.F.R. § 12 245.1(c)(8) provided that an arriving alien in removal proceedings 13 was ineligible to adjust status to that of a lawful permanent 14 resident "under section 245 of the Act," such ineligibility did not 15 apply to Cuban aliens proceeding under the CAA. 16 Artigas carved out an exception to 8 C.F.R. § 245.1(c)(8) for 17 adjustment applications made by arriving aliens under the CAA. 18 Several courts did confront the Id. at 104. validity of 8 Thus, C.F.R. § 19 245.1(c)(8) head on, including the Ninth Circuit which found it 20 invalid and inconsistent with 8 U.S.C. § 1255(a). 21 at 22 precluded the plaintiff, a parolee deemed an arriving alien, from 23 applying 24 conflicted with section 1255(a) which allows any alien who has been 25 "inspected and admitted or paroled" into the country to apply for 26 adjustment of status. 27 28 668-71. Not The for every Bona court adjustment court of held that status the before Bona, 425 F.3d regulation, the IJ, which directly Id. addressing the issue reached the same conclusion, however, with some courts finding the regulation valid. 11 - OPINION & ORDER 1 Eligibility of Arriving Aliens, 71 Fed. Reg. at 27587. As a 2 result, the Department of Homeland Security and the Department of 3 Justice adopted new regulations in 2006 to avoid inconsistent 4 interpretation of the rules across the country. Id. 5 Under the new regulations, the "USCIS has jurisdiction to 6 adjudicate an application for adjustment of status filed by any 7 alien, unless the immigration judge has jurisdiction to adjudicate 8 the application under 8 CFR 1245.2(a)(1)." 9 (emphasis added). 8 C.F.R. § 245.2(a) 8 C.F.R. § 1245.2(a)(1) gives IJs who are 10 conducting removal proceedings exclusive jurisdiction to adjudicate 11 adjustment applications by aliens in those proceedings, other than 12 arriving aliens.3 13 arriving alien in removal proceedings cannot pursue an adjustment 14 of status before the IJ, but, that alien can still file an 15 adjustment of status application with USCIS. 16 Thus, presently, under the 2006 regulations, an In Martinez-Montalvo, the BIA held that the new regulations 17 effectively superseded Artigas 18 jurisdiction over an application for adjustment of status filed by 19 'any' alien, and by eliminating the jurisdiction of Immigration 20 Judges over 'any' adjustment application filed by an arriving 21 alien[.]" 22 explained that "[n]ow that the amended regulations assure that 23 arriving aliens who are eligible for relief under the [CAA] can 24 file an adjustment application with the USCIS, we see no reason not 25 to afford the term 'any' its full and natural meaning." Martinez-Montalvo, by 24 "conferring I&N Dec. at on 783. the USCIS The Id. 26 27 28 3 The regulation contains a narrow exception, not applicable here, allowing certain arriving aliens to file an adjustment application with the IJ in the removal proceeding. 12 - OPINION & ORDER BIA 1 The BIA further explained that 2 [i]n other words, there is no longer a need to ascribe a different meaning to the regulatory language to avoid depriving all arriving aliens seeking relief under the [CAA] in removal proceedings of a statutory avenue to adjust their immigration status. Although adjustment under the statute is considered "separate and apart from adjustment of status under section 245 of the Act," Matter of Artigas, supra, at 106, the intent of Congress in enacting the [CAA] is still honored, because arriving aliens may now seek this form of relief before the USCIS, whether or not they are in removal proceedings, and whether or not they are under an order of removal. 3 4 5 6 7 8 Id. Based on this conclusion, the BIA held that the IJ did not 9 have jurisdiction to consider Martinez-Montalvo's CAA adjustment 10 application in the removal proceeding. Id. But, Martinez-Montalvo 11 could elect to file an adjustment application with the USCIS. Id. 12 In the instant case, plaintiff's removal proceedings were 13 initiated in May 2008 and were in progress when the BIA decided 14 Martinez-Montalvo. The record shows that plaintiff's counsel wrote 15 to the IJ handling plaintiff's case on June 1, 2009, and stated 16 that Martinez-Montalvo represented a "substantial change in the law 17 that materially impacts the case[.]" AR at p. 113. Plaintiff's 18 counsel noted that plaintiff's next hearing before the IJ was 19 scheduled for June 12, 2009. Id. Concurrently with the letter, 20 plaintiff filed a motion to continue the removal hearing. Id. 21 In his motion to continue, plaintiff argued to the IJ that 22 Martinez-Montalvo was wrongly decided, could not be applied 23 retroactively to him, and could cause a removal order to be entered 24 prior to the completion of judicial review of his adjustment status 25 application. AR at pp. 97-99. He also argued that the current 26 June 12, 2009 hearing date did not allow for adequate briefing of 27 the many complex and novel questions of law raised by Martinez28 13 - OPINION & ORDER 1 2 Montalvo. Id. The IJ denied the motion to continue in a checklist form 3 order. 4 of the form, the IJ indicated that the motion to continue could be 5 raised at the hearing. 6 hearing has clearly been continued since June 2009, and a merits 7 hearing date sometime in July 2012 has now been set. 8 removal proceeding, and any issues attendant to that proceeding, is 9 still pending before the IJ. 10 AR at p. 96. Defendants However, in a handwritten note at the bottom argue Id. that As indicated above, plaintiff's this Court lacks Thus, the subject matter 11 jurisdiction over plaintiff's fourth and fifth claims because these 12 claims relate to questions of law currently pending before the IJ. 13 Because, defendants contend, the issues raised in plaintiff's 14 fourth and fifth claims for relief have not been subject to 15 administrative exhaustion, the issues are not addressed in a final 16 order, a prerequisite to judicial review. 17 add, any judicial review of a decision rendered in a removal 18 proceeding is directly to a circuit court, not a district court. 19 I agree with defendants. 20 Moreover, defendants The issues raised by plaintiff's fourth and fifth claims are 21 pending before the IJ. In his memorandum filed in response to 22 defendants' motion to dismiss/summary judgment motion, plaintiff 23 states that during the June 12, 2009 hearing before the IJ, the IJ 24 considered plaintiff's motion for continuance, and as part of that 25 proceeding, "[e]veryone at the hearing," (whom plaintiff identifies 26 as plaintiff, the IJ, and the lawyer representing the Department of 27 Homeland Security) recognized the precedential effect of Martinez- 28 Montalvo. Pltf's Resp. to Defts' Mtn at p. 4, n.4. 14 - OPINION & ORDER Plaintiff 1 argues that Martinez-Montalvo inflicts a concrete injury on him now 2 because, as a result of that decision, he is denied the opportunity 3 to seek adjustment of status as part of his removal proceeding. 4 Thus, he argues, the legal issues he raises in his fourth and fifth 5 claims have been finally decided by the BIA and he is entitled to 6 immediate judicial review of those issues. 7 There are at least two problems with plaintiff's argument. 8 First, the record of the proceedings before the IJ are not part of 9 the Administrative Record in the instant case and thus, there is no 10 admissible evidence in this case to show that the IJ has made any 11 decision 12 plaintiff's adjustment application. 13 record of any determination actually made in plaintiff's case 14 precluding plaintiff from seeking to adjust his status before the 15 IJ. 16 to review. whatsoever about the effect of Martinez-Montalvo on Second, there is simply no Thus, there simply is nothing in plaintiff's case, as of yet, 17 Even if there were a written order from the IJ resolving all 18 of the issues involved in plaintiff's removal proceeding, including 19 his asylum application, his adjustment application, and his request 20 to cancel the removal order, plaintiff may not seek judicial review 21 of the IJ decision without first exhausting his administrative 22 remedies. 23 alien has exhausted all administrative remedies available to the 24 alien as of right[.]" 25 Chertoff, 488 F.3d 812, 814-15 (9th Cir. 2007) (describing 8 U.S.C. 26 § 1252(d)(1) as a "statutorily-mandated administrative exhaustion 27 requirement"). 28 order decision to the BIA. A court may review a final order of removal only if "the 8 U.S.C. § 1252(d)(1); see also Puga v. Plaintiff has the right to appeal the IJ's removal 15 - OPINION & ORDER 8 C.F.R. §§ 1003.1(b)(3), 1240.15. 1 Thus, the regulatory scheme requires him to appeal to the BIA 2 before a determination is considered a final order. 3 If and when plaintiff obtains a decision from the BIA, 4 plaintiff will then have exhausted his administrative remedies and 5 will have a final order subject to judicial review. 6 directly to the circuit court, not the district court. 7 U.S.C. § 1252(b)(9), 8 9 10 11 Such review is Under 8 [j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. 12 8 U.S.C. § 1252(b)(9). The final order, and any questions of law 13 and fact contained therein, is reviewed only through a "petition 14 for review" filed with the appropriate circuit court of appeals 15 which is the "sole and exclusive means for judicial review of an 16 order of removal[.]" 17 Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (noting 18 that the "REAL ID Act of 2005" expanded the jurisdiction of the 19 circuit courts over final orders of removal and made the circuit 20 courts the "sole" judicial body able to review challenges to such 21 final orders). 8 U.S.C. § 1252(a)(5); see also Alvarez- 22 Plaintiff relies on the "futility exception" to the exhaustion 23 requirement to argue that he may presently obtain judicial review. 24 The Ninth Circuit addressed the futility exception in Sun v. 25 Ashcroft, 370 F.3d 932 (9th Cir. 2004). 26 argued that certain claims should be excused from exhaustion 27 because a prior en banc BIA decision foreclosed the arguments he 28 made for the first time in his habeas petition. 16 - OPINION & ORDER There, the plaintiff Id. at 941. The 1 court recognized the general principle that "[w]here a statute 2 specifically requires exhaustion, the requirement is not excused 3 based merely on a judicial conclusion of futility." 4 quotations and brackets omitted). Id. (internal 5 But, the court also noted that 8 U.S.C. 1252(d)(1) requires 6 the exhaustion of administrative remedies which are available to 7 the alien "as of right." 8 "[s]ome issues may be so entirely foreclosed by prior BIA case law 9 that no remedies are available as of right with regard to them Id. The court then explained that 10 before IJs and the BIA." Id. at 942 (internal quotation and 11 ellipsis omitted). 12 issues, however, cannot be broader than that encompassed by the 13 futility exception to prudential [e.g., non-statutory] exhaustion 14 requirements." 15 Following The court stated that the "realm of such Id. that principle, the court looked at the non- 16 constitutional claims the plaintiff raised in his habeas petition 17 and the BIA en banc case the plaintiff contended foreclosed raising 18 those arguments. 19 establish the law so firmly as to make plaintiff's administrative 20 remedy to the BIA unavailable as of right. 21 under Sun, while futility is generally not an exception to the 22 exhaustion requirement, futility may be recognized if the BIA case 23 law is firm and settled on a particular issue. 24 The court concluded that the BIA case did not Id. at 943-44. Thus, Here, Martinez-Montalvo is a single, recent BIA decision that 25 overruled an earlier case. 26 change in regulation, a single case is hardly a body of law which 27 firmly establishes the BIA's position. 28 nothing in the Martinez-Montalvo decision indicates that the BIA 17 - OPINION & ORDER Although there was an intervening More importantly, however, 1 considered the arguments that plaintiff makes here as to why that 2 decision 3 regulatory purposes of the CAA and the INA, and the issuance of the 4 regulation under a grant of power to implement the INA, not the 5 CAA). 6 suggests. 7 the alien in the Martinez-Montalvo case, there was no indication 8 that the alien had raised the retroactive application argument that 9 plaintiff raises here in his fifth claim for relief. was wrongly decided (including noting the different Thus, the law is not as fully developed and set as plaintiff Additionally, while the BIA applied its conclusion to Under Sun, 10 even if there were a decision in this case by an IJ which was 11 capable of review, the requirements for an exception to exhaustion 12 based on futility are not established. 13 I grant defendants' motion to dismiss plaintiff's fourth and 14 fifth claims for relief because this Court lacks subject matter 15 jurisdiction over those claims. 16 III. Subject Matter Jurisdiction Over Plaintiff's First & Third Claims for Relief 17 These two claims challenge the October 14, 2009 denial by the 18 USCIS of plaintiff's second adjustment application. In the first 19 claim, plaintiff contends that the adjudication of his adjustment 20 application was based on an inappropriate legal standard. In the 21 third claim, he contends that the denial was not based on 22 substantial evidence in the record. 23 At this point, it is sufficient to note that the USCIS 24 provided two bases for denying plaintiff's application. First, the 25 USCIS found "sufficient, reasonable, substantial, and probative 26 evidence to support a finding" that plaintiff is or was, an 27 "illicit trafficker in a controlled substance," or has been a 28 18 - OPINION & ORDER 1 "knowing assister, abettor, conspirator, or colluder with others in 2 the illicit trafficking in a controlled substance" and thus the 3 USCIS 4 1182(a)(2)(C)(i). 5 USCIS relied on 8 U.S.C. § 1255(a) and concluded that adverse 6 factors outweighed positive factors and thus, "as a separate, 7 distinct and independent ground," the application was "denied as a 8 matter of discretion." denied plaintiff's application AR at p. 5. pursuant to 8 U.S.C. § Second, and alternatively, the Id. at p. 7. 9 Defendants contend that because the adjustment application was 10 denied as a matter of discretion, this Court lacks subject matter 11 jurisdiction to review it. The relevant portion of 8 U.S.C. § 1252 12 states, in pertinent part, that 13 14 (B) Notwithstanding any other provision of law (statutory or nonstatutory), . . . . and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review - 15 * * * 16 17 18 (ii) any other decision or action of the Attorney General . . . the authority for which is specified under this subchapter to be in the discretion of the Attorney General. . . other than the granting of relief under section 1158(a) of this title. 19 8 U.S.C. § 1252(a)(2)(B)(ii). 20 Ninth Circuit cases interpreting section 1252(a)(2)(B)(ii) 21 make clear that a discretionary denial of adjustment under section 22 1255(a) is unreviewable under section 1252(a)(2)(B)(ii), even when 23 the discretionary denial is an alternative basis for denying 24 adjustment. Hassan v. Chertoff, 593 F.3d 785, 788-89 (9th Cir. 25 2010) ("judicial review of a discretionary determination is . . . 26 expressly precluded by 8 U.S.C. § 1252(a)(2)(B)(ii)"); Hosseini v. 27 Gonzales, 471 F.3d 953, 956 (9th Cir. 2006) (the court "lack[s] 28 19 - OPINION & ORDER 1 jurisdiction to review the BIA's denial of [the plaintiff's] 2 adjustment of status claim because the BIA alternatively denied 3 relief as a matter of discretion.").4 4 Plaintiff argues that section 1252(a)(2)(B)(ii) does not apply 5 here because it is limited to discretionary decisions allowed by 6 the INA, not to discretionary decisions made under the CAA. 7 language 8 jurisdiction and review of discretionary determinations has a 9 limitation as seen in the underlined language below: 10 11 12 13 14 in section 1252(a)(2)(B)(ii) withdrawing The judicial Notwithstanding any other provision of law . . . no court shall have jurisdiction to review . . . any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security . . . . 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). 15 Plaintiff argues that the discretion given to the Attorney 16 General to deny or grant an adjustment application made pursuant to 17 the CAA 18 according to plaintiff, "this subchapter" refers only to the INA, 19 not the CAA. 20 have squarely addressed the issue, the Supreme Court recently 21 noted, in resolving a different issue, that the reference in 22 section 1252(a)(2)(B)(ii) to "this subchapter" is to "Title 8, 23 Chapter 12, Subchapter II, of the United States Code, codified at 24 8 U.S.C. §§ 1151-1391 and titled 'Immigration.'"). is not given pursuant to "this subchapter" because, While no reported decision from any court appears to Kucana v. 25 26 27 28 4 Although there is an exception for colorable constitutional violations, Hassan, 593 F.3d at 789, plaintiff raises no constitutional issues in his first and third claims for relief. 20 - OPINION & ORDER 1 Holder, 130 S. Ct. 827, 832 n.3 (2010) (holding that section 2 1252(a)(2)(B)(ii) barred jurisdiction of decisions specified by 3 statute as discretionary but did not bar decisions specified by 4 regulation as discretionary); see also Medina-Morales v. Ashcroft, 5 371 6 1252(a)(2)(B)(ii) refers to acts "the authority for which is 7 specified under the INA to be discretionary") (brackets omitted). 8 The issue is complicated by the fact that the CAA is not 9 codified in the United States Code, but appears only after section 10 1255(a). See Santana Gonzalez v. Attorney General of the U.S., 506 11 F.3d 274, 280-81 (3d Cir. 2007) (citing to CAA as follows: "Cuban 12 Adjustment (1966) 13 (reproduced as historical note to 8 U.S.C. § 1255"); Federation for 14 Am. Immigration Reform v. Reno, 93 F.3d 897, 899 (D.C. Cir. 1996) 15 (same).5 F.3d 520, Act, 528 Pub. (9th L. Cir. No. 2004) 89-732, (noting [80] that Stat. section 1161 16 If reproduction of the CAA following section 1255 is enough to 17 make the CAA part of the INA, then section 1252(a)(2)(B)(ii) 18 applies and bars review of the USCIS's discretionary denial of 19 plaintiff's adjustment status application by any court. If the CAA 20 is 21 jurisdictional bar is inapplicable and this Court may review the 22 determination. not considered part of the INA, then the statutory 23 24 25 26 27 28 5 In the United States Code itself, the CAA appears following section 1255(a) with no designation whatsoever, including no designation as a historical note. In the United States Code Annotated, published by West Publishing Company, it appears after section 1255(a) and is designated a historical note. In the United States Code Service, published by Matthew Bender & Co, it appears after section 1255(a) and is designated under a section entitled "[o]ther provisions." 21 - OPINION & ORDER 1 In pertinent part, section 1 of the CAA states that 2 notwithstanding the provisions of section 245(c) of the [INA], the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least one year, may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. 3 4 5 6 7 8 CAA, Pub. L. 89-732, 80 Stat. 1161 (1966) (reproduced following 8 9 U.S.C. § 1255(a)). Section 4 of the CAA further provides that 10 the definitions contained in section 101(a) and (b) of the [INA] shall apply in the administration of this Act. Nothing contained in this Act shall be held to repeal, amend, alter, modify, affect, or restrict the powers, duties, functions, or authority of the Attorney General in the administration and enforcement of the [INA] or any other law relating to immigration, nationality, or naturalization. 11 12 13 14 15 Id. 16 As can be seen from section 1, and as the Ninth Circuit has 17 noted, the language in the CAA is similar to that of section 18 1255(a). 19 Cir. 2007) ("Cuban Adjustment Act . . . uses language similar to § 20 1255(a)."); see also Ibarra v. Swacina, No. 09-22354, 2009 WL 21 4506544, at *1 (S.D. Fla. 2009) ("The language of the [CAA] mirrors 22 that of § 1255(a)[.]"). 23 CAA expressly provides that it is not intended to interfere with 24 the administration of the INA, or any other immigration-related 25 law. 26 between the CAA and section 1255(a), the fact that the CAA may not 27 restrict the enforcement of the INA or other immigration laws, and 28 that the CAA is appended to section 1255(a), the CAA should be Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1118 (9th And, as can be seen from section 4, the Thus, one could argue that given the similarity in language 22 - OPINION & ORDER 1 considered part of the INA for purposes of the application of 2 section 1252(a)(2)(B)(ii). 3 During oral argument, defendants' counsel posited that the 4 material found in historical notes to statutes reproduced in the 5 United States Code Annotated (USCA), was placed there by order of 6 a special congressional committee. 7 was unable to provide any authority to support this assertion at 8 the time, I have found that in 1974, Congress established the 9 Office of Law Revision Counsel 2 U.S.C. § 285. Although defendants' counsel as part of the House of 10 Representatives. The principal purpose of the 11 Office of Law Revision Counsel is "to develop and keep current an 12 official and positive codification of the laws of the United 13 States", 2 U.S.C. § 285a, and it is responsible for preparing and 14 publishing the United States Code. 2 U.S.C. §§ 285a-285g. 15 A 1986 law journal article addressing the codification process 16 for federal laws, explains that public laws are published in the 17 United States Statutes at Large and that Congress has directed the 18 Archivist of the United States to compile, edit, index, and publish 19 in the Statutes at Large, all the laws, concurrent resolutions, 20 proclamations 21 issued during each session of Congress. 22 Law Libr. J. 585, 591 (1986). 23 matter arrangement of statutes, is a consolidation and codification 24 of all the general and permanent laws of the United States in force 25 at the time of publication. 26 Revision Counsel prepares and publishes the United States Code. 27 Id. 28 by the President, Id. and constitutional amendments Questions & Answers, 78 The United States Code, a subject As noted above, the Office of Law The journal article notes that the Office of Law Revision 23 - OPINION & ORDER 1 Counsel prepares and submits new editions of the United States Code 2 to the Committee on the Judiciary, which publishes new editions and 3 supplements to the United States Code. 4 notes that there are numerous statutes and sections of statutes 5 that never are codified. 6 Office of Law Revision Counsel supplies the Archivist of the United 7 States with the codification information that appears in the 8 margins of the official slip laws and Statutes at Large. 9 592. Id. Id. The article further As explained in the article, the Id. at The Office of Law Revision Counsel selects for inclusion in 10 the Code all provisions of a statute that it considers general and 11 permanent in nature. 12 the United States Code does not affect its validity. 13 article explains that in compiling the United States Code, the 14 Office of Law Revision Counsel also includes material, either in 15 notes or appendixes, to aid in the construction and interpretation 16 of the United States Code. Id. Exclusion of a statute or a section from Id. The Id. 17 In a recent Ninth Circuit case, the court, citing to Questions 18 & Answers, noted that "codification decisions are ordinarily not 19 made by Congress[.]" 20 1063 n.9 (9th Cir. 2010). 21 to Questions & Answers, contends, in a post-hearing filing, that 22 the appearance of a note is an editorial decision of the Office of 23 the Law Revision Counsel, not a decision by Congress. Ledezma-Galicia v. Holder, 599 F.3d 1055, Plaintiff, citing to this decision and 24 Defendants, in response to plaintiff's post-hearing filing, 25 contend that because the Office of Law Revision Counsel submits its 26 editions 27 Judiciary, it is that Committee, not the Office of Law Revision 28 Counsel, which makes the ultimate determination of where a law is of the United 24 - OPINION & ORDER States Code to the Committee on the 1 placed in the United States Code. 2 that because the actual public law text of a 1976 amendment to the 3 CAA contains a parenthetical reference to the CAA being found at "8 4 U.S.C. 1255, note," the placement of the CAA following section 1255 5 was indeed a Congressional Act. 6 I disagree with defendants Additionally, defendants argue that the 1976 public law's 7 reference to the CAA's location within the United States Code 8 demonstrates that Congress actually placed the CAA there. Notably, 9 while the Office of Law Revision Counsel has had authority since 10 1974 for placement of federal laws into the United States Code, it 11 is unclear what authority it has over laws passed before that date, 12 such as the original CAA. 13 this Court why the CAA was not codified. 14 remains equally unclear that the presence of the CAA following 15 section 1255(a) was intended by Congress to indicate that the CAA 16 should be read as part of the INA. 17 the CAA in a note following section 1255(a), that does not, without 18 more, conclusively show that Congress meant for the CAA to become 19 part of the INA. And, it is still entirely unclear to Most importantly, it Even if Congress itself placed 20 Additionally, I note that in the Artigas decision, the BIA 21 itself distinguished between adjustment status applications made 22 pursuant to "section 245 of the Act," meaning made pursuant to 23 section 1255(a) of the INA, and adjustment status applications made 24 under the CAA. 25 explained that "by specifically barring only section 245 relief . 26 . ., but making no mention of relief under the [CAA], the Attorney 27 General has declined to exercise her discretion to bar [CAA] 28 applications." Artigas, 23 I&N Dec. at 104. Id. 25 - OPINION & ORDER The court further The BIA's decision in Artigas is inconsistent 1 with any argument that the CAA is to be considered part of section 2 1255(a) of the INA.6 3 This is a close question and one I do not resolve because, as 4 explained below, even if this Court has jurisdiction to review the 5 denial of plaintiff's adjustment application, I conclude that the 6 USCIS's decision should be affirmed. 7 IV. The Denial of Plaintiff's Adjustment Application 8 As noted above, the USCIS denied plaintiff's second adjustment 9 application under section 1182(a)(2)(C)(i), and alternatively, in 10 the exercise of its discretion after determining that the adverse 11 factors outweighed the positive factors. 12 section 1182(a)(2)(C)(i) decision because I determine that the 13 discretionary determination is free of legal error and is supported 14 by substantial evidence. 15 I do not address the According to the USCIS, plaintiff was arrested and/or charged 16 with the following: 17 Transportation of Marijuana"; (2) on or about October 7, 1980, for 18 "Grand Theft"; (3) on or about November 17, 1994, for "Menacing, 19 Recklessly Endanger Another, Carry Concealed/Unlawful Possession 20 Firearm"; and (4) on or about March 12, 1998, for "Contempt of 21 Court/Punitive Violation of Restraining Order." 22 (1) on or about May 1, 1980, for "Sale or AR at p. 6. The USCIS also found that plaintiff was convicted of the 23 following: (1) "Grand Theft" on October 7, 1980; (2) "32PC 24 (Accessory)" on December 2, 1980; (3) "Carry Concealed/Unlawful 25 26 27 28 6 Although Martinez-Montalvo overruled Artigas, the decision was based on an intervening change in regulations, not on a change by the BIA in its treatment of the CAA as distinct from the INA. 26 - OPINION & ORDER 1 Possession Firearm" on February 3, 1995; and (4) "Punitive Contempt 2 of Court/Violation of Restrain Order" on April 17, 1998. Id. 3 The USCIS decision then states that 4 [t]he applicant was advised of this adverse information in an "Intent to Deny" issued on August 31, 2009. The response to the "Intent" was received on September 30, 2009. However, the applicant did not submit evidence that would indicate that this discretionary application should be approved based on the adverse factors outlined. The applicant stated that this discretionary application should be adjudicated through the appropriate lens of the Cuban Adjustment Act, and use a less stringent standard. It was also stated that the applicant has significant family ties in the United States, and notes his longevity here as well as the hardships for his family if this application would be denied. 5 6 7 8 9 10 11 Id. 12 The USCIS concluded that plaintiff's "involvement in multiple 13 criminal acts as well as the serious nature of these acts reflects 14 a disregard for the laws of the United States." 15 USCIS explained that it had thoroughly reviewed the evidence and 16 afforded "due consideration to all positive factors, such as, but 17 not limited to, length of time in the United States, family ties, 18 etc." 19 to adjust status, the USCIS concluded that the adverse factors 20 greatly outweighed the "limited positive factors" in his case. Id. 21 The USCIS also rejected plaintiff's "proposed framework of 22 treating Cuban Adjustment Act adjustment applications under refugee 23 law as opposed to adjustment of status in INA sec. 245[.]" 24 The USCIS then noted that the record did not indicate a showing of 25 unusual or outstanding equities on plaintiff's behalf that offset 26 plaintiff's adverse factors. 27 distinct 28 application . . . as a matter of discretion." Id. Id. at p. 7. The Although plaintiff appeared to be statutorily eligible and independent 27 - OPINION & ORDER Id. ground," Id. Therefore, "as a separate, the USCIS Id. denied "this 1 In reviewing the USCIS's denial of plaintiff's adjustment 2 application, the court reviews questions of law under a de novo 3 standard. 4 2005) (court reviews "purely legal questions concerning the meaning 5 of the immigration laws de novo") (internal quotation omitted). 6 Findings of fact are reviewed for substantial evidence. 7 v. Ashcroft, 345 F.3d 824, 832 (9th Cir. 2003) (determinations of 8 fact, including determinations regarding eligibility for adjustment 9 of status, are reviewed for substantial evidence). Altamirano v. Gonzales, 427 F.3d 586, 591 (9th Cir. 10 The 11 deferential." 12 1999) (internal quotation omitted). 13 14 15 16 17 18 "substantial evidence" standard is Hernandez "extremely Singh-Kaur v. INS, 183 F.3d 1147, 1149 (9th Cir. The court must uphold the BIA's findings unless the evidence presented would compel a reasonable finder of fact to reach a contrary result, . . . .; however, minor inconsistencies in the record are not an adequate basis for an adverse credibility finding, . . . . The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. . . . . Id. (internal quotations, citations, and brackets omitted). 19 Plaintiff argues that an application for a discretionary 20 adjustment of status under the CAA is not analyzed under 8 U.S.C. 21 § 1255, but rather, is properly analyzed under laws and principles 22 developed for those applying for asylum under 8 U.S.C. § 1258(b). 23 Plaintiff 24 expressly supports this argument. Instead, plaintiff suggests that 25 because the CAA was meant as an ameliorative program to protect 26 Cubans fleeing the Castro regime, Congress intended the CAA to 27 operate similarly to "the asylum mechanism." 28 cites to no case law, statute, or regulation that There is some authority to support the proposition that the 28 - OPINION & ORDER 1 CAA is remedial in nature and thus, should be construed liberally. 2 Matter of Mesa, 12 I&N Dec. 432 (BIA 1967) (further noting that the 3 purpose of the CAA "is to provide a ready means to permit certain 4 Cuban refugees in the United States to adjust to permanent resident 5 status, in the discretion of the Attorney General[.]"); see also 6 Note, The Cuban Adjustment Act of 1966: ?Mirando Por Los Ojos de 7 Don Quijote or Sancho Panza?, 114 Har. L. R. 902, 910-11 (2001) 8 (discussing four separate bases motivating Congressional passage of 9 the CAA, including humanitarian concerns of providing a safe haven 10 for victims of persecution, as well as national security concerns, 11 reducing administrative burdens on Cuban refugees already in the 12 United States, and providing an expeditious way by which Cuban 13 refugees in the United States could join the American workforce). 14 Nonetheless, I agree with defendants that the USCIS did not 15 err in applying cases and law developed under 8 U.S.C. § 1255(a) to 16 guide its discretion in analyzing plaintiff's application under the 17 CAA. Several reasons support this conclusion. 18 First, there is no statute, regulation, court decision, or BIA 19 decision affirmatively establishing a distinct analysis used for 20 CAA adjustment applications. 21 plaintiff's status as a parolee is analogous to that of a person 22 having 23 distinguishable 24 Plaintiff's contention that asylum or refugee law should be used to 25 adjudge his CAA adjustment application is unsupportable because 26 plaintiff, as a result of being a parolee, is in effect already 27 similarly situated to an asylee or refugee. 28 been already from Second, I agree with defendants that been one granted seeking asylum asylee or and thus, refugee is status. As explained in the Harvard Law Review article, an immigrant 29 - OPINION & ORDER 1 from Cuba does not need to apply for political asylum and establish 2 a 3 resident status because the CAA allows Cubans to bypass the asylum 4 process. 5 States . . . receive preferential treatment, as they are not 6 required to apply for political asylum or prove that they are 7 refugees." 8 process because they are generally paroled into the country." 9 at 907. well-founded fear of persecution before seeking permanent Id. at 905-06. "Cuban immigrants who flee to the United Id. at 906. Rather, they "circumvent the asylum Id. 10 Immigrants from countries who contend they are victims of 11 persecution must first establish their status as a refugee or 12 asylee, and then they may seek an adjustment to permanent resident 13 status. 14 refugees and admission of emergency situation refugees), 1158 15 (governing asylum) 1159 (governing adjustment of status of refugees 16 and asylees). 17 for such immigrants. 18 See 8 U.S.C. §§ 1157 (governing annual admission of The statutory scheme establishes two separate steps The same is true of Cuban immigrants seeking adjustment under 19 the CAA. They must first have been paroled into the country and 20 then they may separately seek adjustment of status. 21 parole 22 individual as an asylee or refugee. Accordingly, an application to 23 adjust status under the CAA is not parallel to a request for 24 asylum. 25 the latter is the first step in a two-step process and it would be 26 error to equate them. is the procedural equivalent to the The act of admission of an The former is the second step in a two-step process while 27 Third, the Ninth Circuit suggests that the discretionary 28 determinations allowed by the INA for waiver of deportation, 30 - OPINION & ORDER 1 voluntary departure, and adjustment of status, all use a balancing 2 of the equities inquiry. 3 810 (9th Cir. 1994) (discretionary determinations made in waiver of 4 deportability cases, voluntary departure cases, and adjustment of 5 status 6 equities"); see also Vargas-Hernandez v. Gonzales, 497 F.3d 919, 7 924 n.4 (9th Cir. 2007) (noting that equities in a section 212(c) 8 analysis (seeking waiver of deportation), are similar to those used 9 in cases, adjustment all Paredes-Urrestarazu v. INS, 36 F.3d 801, involve of the status). see adjustment no type of balancing principled applications reason from the of for 10 distinguishing 11 discretionary determinations made under various provisions of the 12 INA. 13 CAA I "same other Fourth, the most similar statute in the INA to the CAA is 8 14 U.S.C. § 1255. Finally, I note that in 2010, the purposes behind 15 the CAA and giving Cuban immigrants preferential treatment in 16 becoming permanent residents no longer appear relevant. 17 Adjustment Act of 1966, 114 Harv. L. Rev. at 911-14 (explaining why 18 the four justifications for the CAA are outdated). 19 that 20 applications to asylum applications might have had in the 1960s and 21 1970s is largely absent today. plaintiff's argument regarding equating See Cuban Any vitality CAA adjustment 22 Under the de novo standard of review used to review questions 23 of law, I conclude that the USCIS properly relied on the law and 24 analysis developed under 8 U.S.C. § 1255 to adjudicate plaintiff's 25 adjustment application under the CAA and thus, the USCIS made no 26 errors of law. 27 supported by substantial evidence. 28 I next consider whether the USCIS's decision is Because the decision to grant an adjustment of status is 31 - OPINION & ORDER 1 "purely discretionary" and constitutes an "extraordinary remedy to 2 be granted only in meritorious cases," the alien bears the burden 3 of proof and of persuading the USCIS to exercise its discretion 4 favorably. 5 When making a discretionary determination, the BIA must "explain 6 what factors it has considered or relied upon sufficiently that we 7 are able to discern that it has heard, considered, and decided." 8 Kalubi 9 (internal 10 "explained 11 rationale." Eide-Kahayon v. INS, 86 F.3d 147, 150 (9th Cir. 1996). v. Ashcroft, quotation with 364 F.3d 1134, omitted). enough clarity The 1140-41 BIA's that we (9th Cir. conclusion can 2004) must understand be the Id. at 1141. 12 In discretionary determination cases, including adjustment 13 cases, the agency is required to balance positive versus negative 14 factors. E.g., Vargas-Hernandez v. Gonzales, 497 F.3d 919, 924 n.5 15 (9th Cir. 2007) (citing In re Mendez-Moralez, 21 I&N Dec. 296, 16 299-300 (BIA 1996) for proposition that exercise of discretion is 17 a case by case balancing for all forms of discretionary relief); 18 Rashtabadi v. INS, 23 F.3d 1562, 1570 (9th Cir. 1994) (noting that 19 "[o]ne 20 whether to grant discretionary relief . . . The BIA or the IJ 21 decides whether an applicant is entitled to a favorable exercise of 22 agency discretion [under § 245] on a case by case basis by taking 23 into account the social and humane considerations presented in an 24 applicant's favor and balancing them against the adverse factors 25 that 26 resident.") (internal quotation omitted, bracket in Rashtabadi); 27 see also Matter of Arai, 13 I&N Dec. 494, 496 (BIA 1970) ("[w]here 28 adverse factors are present in a given application, it may be general, evidence analytical the 32 - OPINION & ORDER approach applicant's governs undesirability all as decisions a on permanent 1 necessary for the applicant to offset these by a showing of unusual 2 or even outstanding equities"). 3 As noted above, in support of the discretionary denial of 4 plaintiff's adjustment application, the USCIS noted four arrests 5 and four convictions. 6 arrested in Josephine County, Oregon, for Menacing, Recklessly 7 Endangering, and Carrying a Concealed/Possession of a Firearm, and 8 as a result of this arrest, on February 3, 1995, was convicted of 9 Carrying a Concealed/Possession of a Firearm and sentenced to three AR at p. 6. Plaintiff admits that he was 10 years of probation. AR at pp. 6, 118-20, 292. Plaintiff also 11 admits that he was arrested in Josephine County, Oregon, on March 12 12, 1998 for Contempt of Court and as a result, on April 17, 1998, 13 was convicted of Punitive Contempt of Court - Violation of a 14 Restraining Order and sentenced to twelve months of probation. 15 at pp. 6, 123-24, 292. AR 16 Plaintiff contests the USCIS's assertions that he was arrested 17 for or charged with the sale or transportation of marijuana in 18 1980, that he was convicted in December 1980 of "32PC (Accessory)," 19 that he was arrested or charged with "Grand Theft," on or about 20 October 7, 1980, and that he was convicted of "Grand Theft," on or 21 about October 7, 1980. 22 Administrative Record regarding these two arrests and convictions 23 is unreliable, not substantial, and may not be used against him in 24 the relevant balancing inquiry. He contends that the evidence in the 25 The primary record regarding the marijuana arrest and later 26 conviction consists of three pages from the Los Angeles Police 27 Department, with the first labeled "Arrest Report," the second 28 labeled "Continuation Sheet," and the third labeled "Disposition of 33 - OPINION & ORDER 1 Arrest and Court Action." AR at pp. 293-95. None of the three 2 pages in the Administrative Record is easy to read, but, it is 3 readily apparent that the first page indicates that plaintiff, or 4 someone with his name, was arrested for a "Hard Narc" offense 5 occurring May 1, 1980, at the "Hardor" or "Harbor" "OCC School." 6 AR at p. 293. 7 MARIJ." Id. There's a handwritten reference to evidence of "Buy 8 Notes." Id. The next page are handwritten notes indicating that 9 officers learned from "buy notes" that Undercover Officer Holguin There is a reference to "11360(A) H&S SL OR TRS 10 purchased marijuana on February 9, 1980 from plaintiff. AR at p. 11 294. 12 "11360(A), H&S Sale of Marij" and was then booked at Harbor 13 Station. The page also indicates that plaintiff was arrested for Id. 14 The third page suggests that the 11360 charge was a felony to 15 which plaintiff initially pleaded not guilty, but which was then 16 later dismissed. 17 plaintiff pleaded guilty to a second charge of "32PC," also a 18 felony, for which he received thirty-six months of probation. 19 It shows a date of sentence of December 2, 1980. 20 this page is difficult to read and there is no guide to the various 21 abbreviations used. 22 and understandable to support a suggestion that plaintiff pleaded 23 guilty to some charge connected with the February 1980 marijuana 24 arrest. 25 AR at p. 295. The record also suggests that Id. Id. Admittedly, But, even so, it is sufficiently discernable The other record regarding these arrests and convictions is a 26 four-page FBI criminal history printout. 27 record recites that plaintiff was arrested and charged with the 28 sale or transportation of marijuana on May 1, 1980, by the Los 34 - OPINION & ORDER AR at pp. 289-93. That 1 Angeles Police Department, and that this charge was dismissed on 2 December 2, 1980, but on that same date, plaintiff was convicted of 3 "32PC" for which he received 120 days of confinement, followed by 4 thirty-six months of probation. 5 on January 3, 1983, the charge was dismissed and the "32PC" 6 conviction was set aside. 7 Id. This record also shows that Id. The FBI criminal history printout is the only record showing 8 the arrest and conviction for "grand theft." AR at p. 291. It 9 recites an October 10, 2007 arrest by the Hemet Police Department 10 for which plaintiff was subsequently convicted and received ninety 11 days confinement and two years of probation. Id. 12 Plaintiff argues that the Los Angeles Police Department and 13 FBI records do not support the USCIS's factual findings regarding 14 his marijuana arrest, his "32PC" conviction, his grand theft 15 arrest, and his grand theft conviction. 16 reliability 17 "dubious 18 unidentified individual's impression of some other individual's 19 notes, which are not part of the record. 20 is impermissible to rely on the fact of an arrest to support a 21 negative inference about his conduct. at of the best" Los Angeles because the Police arrest He argues that the Department report is Records based on is an He also contends that it 22 The question on review is whether the USCIS's factual findings 23 are supported by substantial evidence on the record as a whole. 24 E.g., INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (defining 25 substantial evidence review for asylum claims); Abebe v. Gonzales, 26 432 27 determinations 28 "reasonable, substantial, and probative evidence on the record F.3d 1037, 1039-40 are 35 - OPINION & ORDER to (9th be Cir. affirmed 2005) if (noting they are that agency supported by 1 considered as a whole") (internal quotation omitted). 2 Here, plaintiff concedes the two convictions from the 1990s. 3 Although they are approximately twelve and fifteen years old, they 4 are not insignificant. 5 "32PC" conviction, which, apparently, was later dismissed, the Los 6 Angeles 7 indicate that plaintiff was arrested in 1980 for the sale and 8 transportation of marijuana and was later convicted for some 9 offense in connection with that arrest. 10 Police As to the marijuana arrest and subsequent Department three-page report is sufficient to The FBI report provides additional confirmation of the arrest 11 and subsequent conviction. Even though the record fails to 12 establish what "32PC" is, the police report and the FBI report show 13 that the conviction was related to the marijuana arrest. Moreover, 14 plaintiff offers no reason to reject as unreliable the information 15 in the FBI criminal history printout showing both the marijuana- 16 related arrest and conviction and the "grand theft" arrest and 17 conviction. 18 In Paredes-Urrestarazu, the plaintiff argued that a prior 19 narcotics charge could not be used in determining whether he was 20 deserving of discretionary relief from deportation under 8 U.S.C. 21 § 1182(c) because the charges against him were dismissed after his 22 successful completion of a diversion program established by state 23 law. 24 successful completion of a diversion program the arrest upon which 25 the diversion was based shall be deemed to have never occurred." 26 36 F.3d at 805 n.2. 27 contended that the "FBI Rap Sheet" reflecting the narcotics charge, 28 could not be admitted by the IJ because to do so would violate the The state diversion law explicitly provided that "[u]pon 36 - OPINION & ORDER In addition to other arguments, the plaintiff 1 state diversion statutes. 2 The Ninth Circuit rejected the plaintiff's argument and held 3 that the BIA did not have to give effect to the diversion program 4 in making a discretionary determination. 5 reached that conclusion, the Ninth Circuit then dismissed the 6 plaintiff's concern that the IJ should not have introduced the FBI 7 Rap Sheet into the administrative record. 8 Rosales-Pineda v. Gonzales, 452 F.3d 627, 630-32 (7th Cir. 2006) 9 (BIA did not err in relying on information in FBI "Rap Sheet" as 10 evidence that "reasonably indicated the existence of a criminal 11 conviction" when some of the information was confirmed by other 12 evidence in the record). 13 Id. at 808-15. Having Id. at 816; see also There is no dispute that plaintiff was made aware of the 14 USCIS's 15 considering his adjustment application. 16 made express reference to these arrests and convictions and cited 17 to 18 application. 19 submitted 20 photographs, letters from family members and friends, and an 21 unsworn, signed statement from plaintiff stating simply that "the 22 synopsis contained in the Notice of Intent to Deny about me and the 23 1980 arrest is inaccurate and false." 24 intent them The as to rely support for on the AR at pp. 8-12. several "synopsis" these arrests and convictions in The August 31, 2009 NOID proposed denial of plaintiff's In response to the NOID, plaintiff documents plaintiff including a letter memorandum, AR at pp. 13-84. referred to is the following 25 statement by the USCIS in the NOID: 26 undercover officer purchased marijuana from the applicant in a 27 sting 28 enforcement. The applicant was subsequently charged with the 'Sale operation. 37 - OPINION & ORDER The applicant "On February 9, 1980, an was then arrested by law 1 or Transportation of Marijuana.'" 2 plaintiff's response to the NOID was to simply deny the accuracy of 3 this statement. 4 "synopsis" which addresses only the marijuana arrest and thus, 5 plaintiff appears to have never challenged the USCIS's reliance on 6 the grand theft arrest and conviction. 7 the burden of proof and the burden of persuading the USCIS to 8 exercise its discretion in his favor, he failed to submit any 9 explanation of AR at pp. 10-11. Notably, Also, plaintiff's statement refers only to the the arrest or Although plaintiff bears additional facts regarding the 10 circumstances of the underlying incident. Without such explanation 11 or additional facts, he fails to demonstrate why the information in 12 the Los Angeles Police Department and FBI records is inaccurate or 13 unreliable. 14 Plaintiff also contends that it is error for the USCIS to rely 15 only on the fact of an arrest in making its determination. I do 16 not read the USCIS's discretionary determination as relying solely 17 on the fact of an arrest. 18 of four arrests and four convictions. Even though the FBI criminal 19 history printout indicates that the marijuana conviction was later 20 set aside, there are three other criminal convictions established 21 in the record. Rather, the USCIS relied on the history 22 Additionally, even if the USCIS had relied on the fact of 23 plaintiff's marijuana arrest alone, it would not have been error in 24 this case. 25 support a denial of an adjustment application based on 8 U.S.C. § 26 1182(a)(2)(C)(i), the drug trafficker statute. 27 v. 28 1182(a)(2)(C) does not require a conviction, but only a 'reason to Gonzales, As the parties note, no conviction is required to 405 F.3d 38 - OPINION & ORDER 1049, 1053 (9th Cir. See Lopez-Umanzor 2005) ("Section 1 believe' that the alien is or has been involved in drug 2 trafficking"); Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1209 (9th 3 Cir. 2004) ("Section 1182(a)(2)(C) . . . does not require a 4 conviction in order for the alien to be deemed removable"). 5 conviction is not required as a basis for determining statutory 6 ineligibility under section 1182(a)(2)(C), it is similarly not 7 required as a basis for the exercise of discretion. If a 8 Additionally, while the Ninth Circuit has, as plaintiff notes, 9 indicated it would be "troubled" by the BIA finding the "mere fact 10 of 11 underlying conduct, the court also expressly made clear that 12 15 [t]he fact of arrest, insofar as it bears upon whether an alien might have engaged in underlying conduct and insofar as facts probative of an alien's bad character or undesirability as a permanent resident arise from the arrest itself, plainly can have relevance in performing the analysis required by section 212(c) [allowing discretionary relief from deportation]. 16 Paredes-Urrestarazu, 36 F.3d at 810 (internal quotation omitted) 17 (further noting that the breadth of a section 212(c) inquiry 18 "permits the Board to consider evidence of conduct that does not 19 result in a conviction"). 13 14 an arrest" probative of whether an alien has engaged in 20 Furthermore, the case cited by the Ninth Circuit in support of 21 its expression of concern about the BIA's reliance on the "mere 22 fact of an arrest," stated, according to the Ninth Circuit, in 23 dicta, 24 prosecution resulted should not have been counted as adverse 25 factors in denying section 212(c) relief. 26 Sierra-Reyes v. INS, 585 F.2d 762, 764 n.2 (5th Cir. 1978)). 27 in terms of plaintiff's marijuana arrest, there is more than a 28 police report concerning conduct for which no prosecution was that police 39 - OPINION & ORDER reports concerning conduct for which no Id. at 816 n.15 (citing Here, 1 commenced. The Los Angeles Police Department arrest 2 includes a reference to the undercover purchase of marijuana by 3 plaintiff. 4 not just a police report of a stop absent an arrest, or absent any 5 reference to underlying conduct. 6 plaintiff was prosecuted for that conduct. It refers to facts regarding the offense. report Thus, it is The record further shows that 7 The concern expressed by Paredes-Urrestarazu and Sierra-Reyes 8 is that the agency should not rely solely on an arrest absent 9 information regarding the conduct for which the arrest was made. 10 Since that is not the case here, the USCIS properly considered the 11 marijuana arrest and its underlying conduct. 12 As a whole, the record contains a combination of weak and 13 strong evidence of the events the USCIS relied on in support of its 14 determination that plaintiff had a history of multiple criminal 15 acts. 16 factual determinations regarding plaintiff's criminal history of 17 arrests and convictions, is supported by substantial evidence in 18 the record. 19 Considering the evidence in its totality, the USCIS's Plaintiff also argues that the USCIS erred by not discussing 20 his positive 21 plaintiff's length of time in the country and his family ties, and 22 it had earlier mentioned plaintiff's assertion that a denial of his 23 application would create a hardship on his family. 24 discussion was not required. 25 The factors. balancing of But, the equities USCIS is did reviewed specifically for note More extensive an abuse of 26 discretion. See Paredes-Urrestarazu, 36 F.3d at 807 (noting 27 standard for section 28 determination, whatever decision this Court might make in the first 40 - OPINION & ORDER 212(c) cases). In reviewing an agency 1 instance is irrelevant. Given the record as a whole, I cannot say 2 that the USCIS's decision to deny plaintiff's application was 3 unreasonable and an abuse of its discretion. 4 the USCIS's decision and grant summary judgment to defendants on 5 plaintiff's first and third claims for relief. 6 7 Therefore, I affirm CONCLUSION Plaintiff's motion for summary judgment (#32) is denied. 8 Defendants' motion 9 judgment (#35) is granted. 10 IT IS SO ORDERED. 11 to dismiss, Dated this or 28th alternatively day of May for summary , 2010. 12 13 14 /s/ Dennis James Hubel Dennis James Hubel United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 41 - OPINION & ORDER

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