Robledo Response to Motion to Dismiss - Surviving Spouses ...

More documents

Recommendations

Info

denying status adjustment). Further Higuit, Velasquez-Gabriel and Jean each involved a challenge to a denial of status of adjustment and therefore are not applicable here. While Jean does not address district court jurisdiction specifically, the court outlined the scope of the jurisdictional stripping provisions. The appellate court observed that § 1252(a)(2)(B) “appears, by its terms, to create an unqualified bar to judicial review of decisions involving the specified types of discretionary relief . . ..” 435 F.3d at 480. The court also observed that the REAL ID Act confirmed that direct review by appellate courts was available for constitutional questions or questions of law arising from the agency’s decision to deny discretionary relief.” Id. Both of these observations support the conclusion that § 1252 does not strip any court of jurisdiction with respect to non-discretionary acts under sections not expressly enumerated in § 1252(a)(2)(B). Recently, this Court addressed its jurisdiction under § 1252 in five unreported decisions. 9 Lee v. USCIS, No. Civ. A. CCB-07-141, 2008 WL 1805749 (D. Md. April 8, 2008); Goumilevski v. Chertoff, Civ. Act. No. DKC 2006-3247, 2007 U.S. Dist. LEXIS 59858 (D. Md. July 27, 2007); Patel v. Chertoff, No. Civ. A. PJM-05-1304, 2006 WL 5908351 (D. Md. Aug. 31, 2006); Kim v. Gonzales, Civ. No. CCB-05-485, 2006 WL 1892426 (D. Md. June 19, 2006) (adopting provisional conclusions on jurisdiction set forth in 2006 WL 581259 ( March 7, 2006); Igwebuike v. Caterisano, No. Civ. A. DKC-04-1586, 2005 WL 745577 (D. Md. Mar. 18, 2005), 9 As Judge Blake recently recognized, “unpublished opinions are neither precedential nor otherwise binding.” Lee v. USCIS, 2008 WL 1805749, at *3 n. 1. - 14 -
ev’d, 230 Fed. Appx. 278 (4th Cir. 2007). Each of these cases is readily distinguishable from the case at bar and none addressed the precise issue presented here, a challenge to the widow penalty. Lee and Patel each involved claims that a USCIS regulation violated the language and intent of 8 U.S.C. § 1255. See Lee v. USCIS, at *3 n.1. Since § 1255 is an enumerated provision under § 1252(a)(B)(2)(i), the court held that the plaintiffs’ claims were subject to the IIRIRA and the REAL ID Act’s jurisdictional scheme which required that plaintiffs first challenge the USCIS interpretation in removal proceedings and then appeal directly to the Court of Appeals. Here, Plaintiffs challenge the widow penalty on the grounds that it violates § 1151, which is not an enumerated provision in the IIRIRA and, therefore, is not subject thereto. Similarly, Kim involved a challenge to denial of an application for adjustment of status. This Court concluded that the Kims were seeking de novo review of an agency decision on the merits of its application for adjustment of status under § 1255. Kim, 2006 WL 581259, at *4. Since § 1255 is an enumerated provision in § 1252(a)(2)(B)(i), the Court concluded that it lacked subject matter jurisdiction. Kim, 2006 WL 1892426, at *1. Significantly, the Court distinguished the Fourth Circuit’s decision in Obioha on the grounds that, in Obioha, “the agency decision under review was not a decision on the merits under a section enumerated by the gatekeeper provision.” Kim, 2006 WL 581259, at *3. As in Obioha, Plaintiffs here do not challenge a decision on the merits of their applications for adjustment of status. Rather, Plaintiffs challenge a non-discretionary action by the USCIS prior to and independent of any action by the agency on Plaintiffs’ I-485 petitions. - 15 -
Page 1 and 2: IN THE UNITED STATES DISTRICT COURT
Page 3 and 4: TABLE OF AUTHORITIES CASES Page(s)
Page 5 and 6: Kellici v. Gonzales, 472 F.3d 416 (
Page 7 and 8: Taing v. Chertoff, 526 F. Supp. 2d
Page 9 and 10: USA Patriot Act of 2001, Pub. L. No
Page 11 and 12: I. THE COURT HAS JURISDICTION Acros
Page 13 and 14: Defendants’ contention that 8 C.F
Page 15 and 16: Accordingly, in each case the appel
Page 17 and 18: in removal proceedings. Instead, 8
Page 19 and 20: 67 (11th Cir. 2006); Nadarajah v. G
Page 21 and 22: (2000 & Supp. V 2005) to the discre
Page 23: eview of what he contends is legal
Page 27 and 28: As to the patchwork concern, Defend
Page 29 and 30: over the “immediate relative” c
Page 31 and 32: 8 U.S.C. § 1101(a)(35) (2000). Not
Page 33 and 34: Nevertheless, Defendants contend th
Page 35 and 36: U.S. at 842-43). The Court finds th
Page 37 and 38: Taing, 526 F. Supp. 2d at 184. Acco
Page 39 and 40: statute ought, upon the whole, to b
Page 41 and 42: each Act merely created a separate
Page 43 and 44: D. Chevron Deference Is Not Appropr
Page 45 and 46: citizen. His death had stripped her
Page 47 and 48: Moreover, Defendants gloss over the
Page 49 and 50: 23, 2009. By law, however, deportat
Page 51: DATED this 26 th day of January, 20

Robledo Response to Motion to Dismiss - Surviving Spouses ...

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?