JIANFENG CHEN, Case No. 20-cv-05254-DMR
Plaintiff, ORDER ON CROSS MOTIONS FOR v. SUMMARY JUDGMENT
ALEJANDRO N. MAYORKAS, et al., Re: Dkt. Nos. 9, 20 Defendants.
Plaintiff Jianfeng Chen filed this action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. seeking to reverse the decision by the United States Citizenship and Immigration Services (“USCIS”) denying his Form I-90 Application to Replace Permanent Resident Card. Plaintiff now moves pursuant to Federal Rule of Civil Procedure 56 for summary judgment to reverse the July 21, 2020 decision by USCIS denying his application. [Docket No. 9 (Pl.’s Mot.).] Defendants Alejandro N. Mayorkas, Secretary of the Department of Homeland Security (“DHS”), et al. cross-move for summary judgment to affirm the decision. [Docket No. 20 (Defs.’ Mot.).] The court ordered the parties to submit supplemental briefing, which they timely filed. [Docket Nos. 27-29.] This matter is appropriate for determination without oral argument. Civil L.R. 7-1(b). For the following reasons, Plaintiff’s motion is granted. Defendants’ motion is denied. Plaintiff is a citizen of China. He was admitted to the United States as a conditional permanent resident on December 19, 2001 as the spouse of a U.S. citizen. The court first sets forth the governing statutory framework contained in the relevant provisions of the Immigration and Nationality Act (“INA”) and then the undisputed facts A. Conditional Permanent Resident Status “[A] conditional permanent resident is an alien admitted to the United States for permanent residence on a conditional basis due to, inter alia, his marriage to a U.S. citizen.” Eleri v. Sessions, 852 F.3d 879, 881 (9th Cir. 2017) (citations omitted). Conditional permanent residents possess all “rights, privileges, responsibilities and duties which apply to all other lawful permanent residents,” including “the privilege of residing permanently in the United States as an immigrant.” 8 C.F.R. § 216.1. 8 U.S.C. § 1186a governs conditional permanent resident status. The statute provides in relevant part that when a noncitizen obtains permanent resident status as the spouse of a U.S. citizen “by virtue of a marriage which was entered into less than 24 months” before obtaining permanent resident status, such status is on a conditional basis. 8 U.S.C. § 1186a(a)(1), (h)(1)(A). In order to remove the conditional basis for status, the conditional permanent resident and their U.S. citizen spouse must jointly file a petition to remove the conditions and appear together for an interview. 8 U.S.C. § 1186a(c)(1). The petition, a Form I-751 Petition to Remove Conditions on Residence, must be filed within the 90-day period before the noncitizen’s second anniversary of obtaining lawful admission for permanent residence. 8 U.S.C. § 1186a(d)(2)(A). Among other things, the petition must state that the marriage “was not entered into for the purpose of procuring [the noncitizen’s] admission as an immigrant.” 8 U.S.C. § 1186a(d)(1)(A). The Ninth Circuit has explained that “[t]he two-year conditional period prescribed by these provisions ‘strikes at the fraudulent marriage by the simple passage of time [because] it is difficult to sustain the appearance of a bona fide marriage over a long period.’” Eleri, 852 F.3d at 881 (quoting H.R. Rep. No. 99-906, at 9-10 (1986)). If the Secretary of Homeland Security determines that the facts alleged in the petition about the qualifying marriage are true following the interview, the conditions are removed and the noncitizen spouse remains a legal resident. 8 U.S.C. § 1186a(c)(3). Under the INA, a noncitizen whose conditional permanent resident status under section 1186a has been terminated “is deportable.” 8 U.S.C. § 1227(a)(1)(D)(i). USCIS may terminate a conditional permanent resident’s status for three reasons: 1) prior to the two-year anniversary of the noncitizen obtaining permanent resident status, the Secretary of Homeland Security determines that the qualifying marriage was entered into for the purpose of procuring the noncitizen’s admission as an immigrant, 8 U.S.C. § 1186a(b)(1); 2) the conditional permanent resident and spouse fail to file a timely joint petition to remove the conditions or do not appear for the required interview, 8 U.S.C. § 1186a(c)(2); or 3) the conditional permanent resident and spouse file a timely joint petition and appear for the interview but the Secretary of Homeland Security determines that the facts contained in the petition are not true, 8 U.S.C. § 1186a(c)(3)(C). The Secretary of Homeland Security may remove the conditional basis for a noncitizen who does not meet the joint petition requirement if the noncitizen demonstrates one of four grounds, collectively known as the “hardship waiver.” 8 U.S.C. § 1186a(c)(4); Vasquez v. Holder, 602 F.3d 1003, 1006 (9th Cir. 2010). Only two bases for waiver have potential relevance here.1 First, noncitizens may seek a waiver of the joint filing requirement by establishing that “extreme hardship would result if [the noncitizen] is removed.” 8 U.S.C. § 1186a(c)(4)(A). Second, noncitizens may seek a waiver by establishing that “the qualifying marriage was entered into in good faith by the [noncitizen] spouse, but the qualifying marriage has been terminated” and the noncitizen was not at fault for failing to file a joint petition. 8 U.S.C. § 1186a(c)(4)(B). B. Plaintiff’s Status Plaintiff is a citizen of China. Following his 2000 marriage to Sandra Mai, a U.S. citizen, he was admitted to the United States as a conditional permanent resident under 8 U.S.C. § 1186a(a)(1) on December 19, 2001. Administrative Record (“A.R.”) 140, 132, 139.2 On December 18, 2003, Plaintiff timely filed an I-751 petition to remove the conditions on his permanent resident status in which he requested a hardship waiver of the requirement to file a joint petition with Mai, asserting that he “entered into the marriage in good faith, but the marriage was terminated through divorce/annulment” under 8 C.F.R. § 1186a(c)(4)(B). A.R. 135-36, 142-45. 1 The other two bases apply to circumstances involving domestic battery or extreme cruelty. 8 U.S.C. § 1186a(c)(4)(C) and (D).
2 The court granted Defendants leave to file the administrative record under seal as it contains Plaintiff subsequently did not attend his June 1, 2005 interview, and on June 29, 2005, USCIS notified him that his conditional permanent resident status was terminated for his failure to appear. A.R. 132. See 8 U.S.C. § 1186a(c)(2)(A)(ii). DHS initiated removal proceedings against Plaintiff on September 25, 2014 through the issuance of a Notice to Appear, which charged Plaintiff as removable because his conditional permanent resident status was terminated in June 2005. A.R. 129-30. On October 2, 2015, while removal proceedings were pending, Plaintiff filed a second I- 751 petition in which he again requested a waiver of the joint filing requirement on the ground that he entered into the qualifying marriage in good faith but the marriage was terminated through divorce or annulment. A.R. 107-119. In a declaration that apparently was submitted with his petition, Plaintiff stated that following his divorce from Mai, he married Xueya Li, a U.S. citizen, in 2014 and that they have two U.S. citizen children.3 A.R. 119; see also A.R. 99. Plaintiff appeared for an interview for his second I-751 petition on May 17, 2016. During the interview, Plaintiff admitted under oath that he married Mai “because [he was] very poor in China, and Ms. Mai helped [him] come to the United States by marrying [him].” He also provided a sworn statement in which he admitted that his marriage to Mai was “fraudulent.” A.R. 100, 2. On March 27, 2018, USCIS denied Plaintiff’s second I-751 petition on the ground that he failed to establish that his marriage to Mai was entered into in good faith. A.R. 98-101. USCIS informed Plaintiff that his “permanent resident status remains terminated as of December 19, 2003.” Id. at 100. On October 9, 2019, the Department of Justice added an additional basis for removal of Plaintiff, charging him as removable because he was “inadmissible at the time of admission because he sought to procure admission by [marriage] fraud.” A.R. 3. During his removal proceedings, Plaintiff applied for relief under 8 U.S.C. § 1227(a)(1)(H), which is known as the “fraud waiver.” A.R. 5-10. See Vasquez, 602 F.3d at 1008, 1010. In relevant part, the fraud waiver grants the Attorney General discretion to waive provisions related to the removal of noncitizens on the ground that they were inadmissible at the time of admission due to fraud or misrepresentation for any noncitizen who “is the spouse, parent, son, or daughter” of a U.S. citizen or permanent resident. See 8 U.S.C. § 1227(a)(1)(H). If granted, the waiver “waive[s] removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.” Id. On October 10, 2019, an immigration judge granted Plaintiff a waiver of removability under 8 U.S.C. § 1227(a)(1)(H). A.R. 1. On October 23, 2019, Plaintiff filed a Form I-90 Application to Replace Permanent Resident Card, seeking to update his expired lawful permanent resident card. A.R. 382-84. USCIS denied Plaintiff’s I-90 application on July 21, 2020 on the ground that he is “ineligible to be issued a replacement” lawful permanent resident card. A.R. 390-93. According to USCIS, as a conditional permanent resident, Plaintiff was required to file a timely I-751, Petition to Remove the Conditions on Residence, approval of which “results in the creation of a new Form I-551, Permanent Resident Card.” A.R. 390. USCIS noted that Plaintiff filed an I-751 petition on October 8, 2015 which was denied on April 7, 2018,4 and wrote, “[s]ince your Form I-751 was denied, you are not eligible to receive a replacement Form I-551, Permanent Resident Card. See 8 CFR 216.4(d)(2).” A.R. 390. That regulation addresses the denial of an I-751 Petition to Remove Conditions on Residence, as follows:
If the director denies the joint petition, he or she shall provide written notice to the alien of the decision and the reason(s) therefor and shall issue a notice to appear under section 239 of the Act and 8 CFR part 239. The alien’s lawful permanent resident status shall be terminated as of the date of the director’s written decision. The alien shall also be instructed to surrender any Permanent Resident Card previously issued by the Service. 8 C.F.R. § 216.4(d)(2). C. Procedural History Plaintiff filed this lawsuit on July 30, 2020, challenging USCIS’s July 21, 2020 decision denying his I-90 application for a replacement permanent resident card. The parties later 4 It is unclear why USCIS used the April 7, 2018 date, since the copy of the denial in the record is dated March 27, 2018. A.R. 98-101. This discrepancy does not appear to be material to the stipulated to a briefing schedule for the instant motions. [Docket Nos. 17, 19.]5 On June 29, 2021, the court ordered the parties to file supplemental briefing regarding the motions for summary judgment. [Docket No. 27.] The parties timely filed the supplemental briefs. [Docket Nos. 28 (Defs.’ Supp. Br.), 29 (Pl.’s Supp. Br.).] Plaintiff contends that USCIS’s July 21, 2020 denial of his I-90 application was arbitrary and capricious under the APA, 5 U.S.C. § 706(2)(A). Compl. ¶¶ 11, 14. That provision states that a reviewing court “shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . .” Review under the APA’s arbitrary and capricious standard is deferential. Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 (2007). In such cases, a district court’s role is not fact-finding. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994). “[T]he function of the district court is 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. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985). A court should not vacate an agency’s decision unless it has “relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Nat’l Ass’n of Home Builders, 551 U.S. at 658 (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
5 The parties agreed to submit three briefs in connection with these motions: Plaintiff’s motion for summary judgment; Defendants’ opposition and cross-motion for summary judgment; and Plaintiff’s reply in support of his motion for summary judgment. [See Docket Nos. 17, 19.] Despite this agreement, Defendants filed a reply brief without leave of court in which they state that Plaintiff’s reply “raises a new and factually incorrect assertion” about the circumstances of the filing of his first I-751 petition and that they “submit this Reply to correct that error.” [Docket No. 25.] After purportedly correcting the error, Defendants then go on to raise a number of new III. DISCUSSION Plaintiff moves for summary judgment on the ground that USCIS’s July 21, 2020 denial of his I-90 application for a replacement permanent resident card was arbitrary and capricious. He argues that the agency’s reliance on 8 C.F.R. § 216.4(d)(2) in denying his application for a replacement permanent resident card was erroneous because the cited regulation only addresses the denial of an I-751 Petition to Remove Conditions on Residence. According to Plaintiff, the ultimate issue in this case “is the question of plaintiff’s current immigration status.” Pl.’s Mot. 5. Plaintiff contends that the immigration judge’s grant of the section 1227(a)(1)(H) fraud waiver accomplished several things, including restoring him to his previous status of conditional permanent resident and ultimately removing the conditions on that status, so that he is now a lawful permanent resident and entitled to a new lawful permanent resident card. Plaintiff argues that in adjudicating his I-90 application for a replacement permanent resident card, USCIS did not take the effect of the section 1227(a)(1)(H) fraud waiver into account. Therefore, he argues, the denial of his I-90 application on the ground that USCIS has not granted an I-751 Petition to Remove Conditions on Residence—i.e., that Plaintiff has not successfully removed the conditions on his residence—was arbitrary and capricious. In response, Defendants argue that Plaintiff’s section 1227(a)(1)(H) fraud waiver waived only Plaintiff’s removability on the ground of fraud; it did not waive the requirement that Plaintiff must remove the conditions on his permanent resident status under section 1186a. Therefore, Defendants argue, Plaintiff must “file a [third] Form I-751 petition and have that petition approved in order to remove the conditions on his permanent resident status” pursuant to section 1186a(c), and only then will he be eligible for a lawful permanent resident card. Defs.’ Mot. 2. Defendants contend that USCIS’s denial of Plaintiff’s I-90 application for a replacement permanent resident card was thus in accordance with section 1186a and not arbitrary and capricious. In order to determine whether USCIS’s denial of Plaintiff’s I-90 petition was arbitrary and capricious, the court must examine Plaintiff’s current immigration status as an individual who was a conditional permanent resident but whose status has been terminated and any effect of the section 1227(a)(1)(H) fraud waiver on that status. The INA provides that “[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(i). In turn, 8 U.S.C. § 1227(a)(1) describes six “[c]lasses of deportable” noncitizens. In relevant part, the statute makes deportable noncitizens “who at the time of entry or adjustment of status [were] within one or more of the classes of aliens inadmissible by the law existing at such time.” 8 U.S.C. § 1227(a)(1)(A). Additionally, a noncitizen with conditional permanent resident status under section 1186a “who has had such status terminated . . . is deportable.” However, the Attorney General may waive removal for certain noncitizens pursuant to the “fraud waiver,” which “allows the Attorney General to waive removal for an alien who sought to procure admission by fraud and is the spouse or parent of a U.S. citizen.” Vasquez, 602 F.3d at 1008 (citing 8 U.S.C. § 1227(a)(1)(H)). Congress enacted the fraud waiver “as a humanitarian gesture to preserve families comprised in part of United States citizens or lawful permanent residents[.]” Id. (quotation marks and citation omitted). In relevant part, the fraud waiver provision states:
(H) Waiver authorized for certain misrepresentations
The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 1182(a)(6)(C)(i) of this title, whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who— (i)(I) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and (II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission . . . [.] (ii) is a VAWA self-petitioner. A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the 8 U.S.C. § 1227(a)(1)(H). The fraud waiver applies to each of the six classes of “deportable” noncitizens that are set forth in section 1227(a)(1), among them noncitizens who “were inadmissible at the time of admission, including aliens who sought to procure admission by fraud,” and “any other provisions of [section 1227(a)(1)] bearing on or connected to the removal of aliens on that ground.” Vasquez, 602 F.3d at 1011-12. The statute addresses the effect of a grant of a fraud waiver with respect to removal based on inadmissibility; however, it is silent as to the corresponding impact on a noncitizen’s status. Plaintiff contends that even though the “ultimate legal effect on” a noncitizen’s status of the granting of a section 1227(a)(1)(H) fraud waiver “is not explicitly spelled out in the statute,” the “natural and logical consequence of a successful waiver application is obvious.” Plaintiff’s logic begins with the proposition that the statute expressly waives “the removal of aliens within the United States on the ground that they were inadmissible at the time of admission” due to fraud or misrepresentation. See 8 U.S.C. § 1227(a)(1)(H) (citing 8 U.S.C. § 1182(a)(6)(C)(i) (“[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure . . . admission into the United States . . . is inadmissible”). Pl.’s Mot. 8. Plaintiff argues that the waiver of inadmissibility arising out of fraud or misrepresentation plus any inadmissibility grounds related to that fraud or misrepresentation, and the subsequent termination of removal proceedings “returns the alien to the status which they had previously attained, meaning, for aliens who adjusted status upon admission to the U.S., status as a lawful permanent resident.” Id. Plaintiff also argues that “there is no ‘condition’ remaining on such an alien’s status after the grant of the [section 1227(a)(1)(H) fraud] waiver.” Pl.’s Mot. 9. Plaintiff contends that the purpose of the two-year conditional basis of lawful permanent resident status based on a noncitizen’s marriage to a U.S. citizen is “meant to test the legitimacy of the marital relationship.” Id. See Eleri, 852 F.3d at 881 (noting that “[t]he two-year conditional period prescribed by [section 1186a(c)] strikes at the fraudulent marriage by the simple passage of time” (citation and quotation marks omitted)). In this case, Plaintiff argues that it makes no sense to conclude that he passed and he has already conceded that the marriage which conferred the status in the first place—his marriage to Mai—was fraudulent and not in good faith. Therefore, Plaintiff contends, the “natural and logical consequence of [his] successful fraud waiver” is restoration of his status as a lawful permanent resident without conditions. See Pl.’s Opp’n & Reply 4. Defendants do not dispute that the granting of the fraud waiver in Plaintiff’s case waived his removal based on his inadmissibility due to marriage fraud and terminated removal proceedings. However, they disagree that the section 1227(a)(1)(H) fraud waiver resulted in changing his status to lawful permanent resident. They argue that such an outcome is unsupported and inconsistent with the statute. Defendants note that the statute provides that the waiver applies to “[t]he provisions of this paragraph relating to the removal of aliens” and says nothing about waiving the requirements of section 1186a. Defendants cite Vasquez, in which the Ninth Circuit held that section 1227(a)(1)(H) applies to the six grounds of removability listed in section 1227(a)(1) but did not extend the waiver to remove conditions on a noncitizen’s status under section 1186a. Defs.’ Mot. 8-10 (citing Vasquez, 602 F.3d at 1006, 1012). Defendants’ reliance on Vasquez is misplaced because it did not reach the issue that Defendants cite it for. Vasquez was admitted as a conditional lawful permanent resident as the spouse of a U.S. citizen. 602 F.3d at 1006. She and her spouse jointly submitted an I-751 petition to remove the conditions, but her spouse admitted at the interview that he married her for immigration purposes. Id. at 1007. The Immigration and Naturalization Service (“INS”) denied the petition and terminated the plaintiff’s conditional resident status. It charged her with removability “as an alien inadmissible at the time of admission because she sought to procure admission by fraud.” Id. (citing 8 U.S.C. § 1227(a)(1)(A)). INS then filed an additional charge that she was removable “as an alien who was lawfully admitted for conditional permanent resident status but whose status was later terminated.” Id. (citing 8 U.S.C. § 1227(a)(1)(D)(i)). During removal proceedings, Vasquez requested a fraud waiver under section 1227(a)(1)(H). The immigration judge held in relevant part that the fraud waiver did not apply to the second charge of removability based on termination of conditional permanent resident status. In the alternative, the removed. Id. at 1008. The BIA affirmed the immigration judge’s ruling that the fraud waiver would not cover both grounds of removal as well as the discretionary waiver denial. Id. The Ninth Circuit reversed. It examined “whether the fraud waiver applies to removal based on the termination of conditional permanent residence, where the reason the alien’s status was terminated was that the Attorney General found the qualifying marriage was ‘entered into for the purpose of procuring an alien’s admission as an immigrant.’” Id. at 1011 (quoting 8 U.S.C. § 1186a(d)(1)(A)). It ultimately concluded that “in [the plaintiff’s] case, and in any other case in which the Attorney General admits an alien . . . as a conditional permanent resident based on her marriage to a U.S. citizen but later terminates that status upon a finding of marriage fraud, the termination of status ground of removal does ‘relat[e] to the removal of aliens . . . on the ground that they were inadmissible at the time of admission’ as aliens who sought to procure admission by fraud.” Id. at 1014 (quoting 8 U.S.C. § 1227(a)(1)(H)). This is because “[b]oth the termination of status and the finding of inadmissibility result from a single determination by the Attorney General that the qualifying marriage was entered into for the purpose of obtaining admission as an immigrant.” Id. (citing 8 U.S.C. § 1227(a)(1)(H)). Therefore, noncitizens charged with removal based on termination of conditional lawful permanent resident status due to fraud “are . . . eligible for the fraud waiver provided for in [section 1227(a)(1)(H)].” Id. at 1015. The court also reversed the immigration judge’s discretionary denial of the fraud waiver based on the judge’s misunderstanding of the statutory requirements for the waiver and remanded the matter to the BIA to consider the plaintiff’s application for a fraud waiver. Id. at 1017-18. Importantly, Vasquez did not reach the issue presented here. The case supports Plaintiff in that it recognizes that fraud waivers apply to removals based on the termination of conditional permanent resident status due to an underlying fraudulent marriage. However, Vasquez says nothing one way or the other about the issue in this case, which is the effect of a fraud waiver on the current immigration status of Plaintiff, whose conditional permanent residence status was terminated due to an underlying fraudulent marriage. Thus, contrary to Defendants’ assertion, Vasquez does not foreclose the relief Plaintiff now seeks. permanent resident in June 2005 for his failure to appear at an interview for his first I-751 petition, see A.R. 132, and that his status remains terminated. Defs.’ Mot. 7-8 (citing Singh v. Holder, 591 F.3d 1190, 1198 (9th Cir. 2010) (noting that after conditional lawful permanent resident’s status was terminated, he “was a former permanent resident who lacked conditional status”)). Defendants contend that “[t]o remove the condition on his residence and remedy his status, Plaintiff must file a Form I-751 and the petition must be approved.” Defs.’ Mot. 11. They note that in filing a third Form I-751 petition, Plaintiff may seek a waiver of the joint filing requirement under 8 U.S.C. § 1186a(c)(4)(A), which requires him to establish that “extreme hardship would result if” he were removed for failure to file a joint petition. In other words, Defendants’ position is that even though Plaintiff is no longer a conditional lawful permanent resident, he must still “remove the condition on his residence” in order to be eligible for a permanent resident card. Id. at 11-12. Plaintiff responds that Defendants’ position is untenable, because if Plaintiff is still subject to conditional lawful permanent resident status, he is “left with no conceivable means to ever remove the condition.” Pl.’s Mot. 9. The court agrees. It is legally impossible for Plaintiff to satisfy the requirements of section 1186(c), which sets forth the “[r]equirements of timely petition and interview for removal of condition.” See 8 U.S.C. § 1186(c). He is unable to file a joint petition under 8 U.S.C. § 1186a(c)(1) because he has not been married to Mai since 2004. See 8 U.S.C. § 1186a(c)(1) (“the alien spouse and the petitioning spouse . . . jointly must submit” a petition requesting the removal of the conditional basis for status). Plaintiff also cannot obtain relief from the joint filing requirement because he cannot satisfy the requirements of a section 1186a(c)(4) hardship waiver. To qualify for a hardship waiver, Plaintiff would have to establish that “extreme hardship would result if [the noncitizen] is removed.” However, the statute specifies that when “determining extreme hardship,” the Secretary may “consider circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis.” 8 U.S.C. § 1186a(c)(4). This means “that the only relevant time period is the period of conditional resident status, and as a result, any event that serves as a basis for a hardship finding must occur Sessions, 878 F.3d 429, 434 (1st Cir. 2017) (citing Matter of Munroe, 26 I. & N. Dec. 428, 435 (BIA 2014)). Here, Plaintiff’s admission as a conditional lawful permanent resident was terminated by no later than June 29, 2005. A.R. 132.6 As noted by Plaintiff, “it approaches absurdity to construct a scenario where extreme hardship as a result of prospective removal in the mid-2020s is due solely” to circumstances that arose during the period of his conditional resident status fifteen to twenty years ago. Pl.’s Opp’n & Reply 4. Plaintiff further explains that he cannot obtain hardship waiver relief from the joint filing requirement under 8 U.S.C. § 1186a(c)(4)(B), because that provision requires a noncitizen to establish that “the qualifying marriage was entered into in good faith by the [noncitizen] spouse, but the qualifying marriage has been terminated” and the noncitizen was not at fault for failing to file a joint petition. Plaintiff has already conceded that his marriage to Mai was not entered into in good faith. In sum, Plaintiff argues that filing a third Form I-751 petition would be futile. Defendants did not address Plaintiff’s futility argument and were silent as to any non-futile action Plaintiff could take to remedy his status. The court ordered Defendants to “file a supplemental brief that sets forth in detail the steps that Plaintiff can take to remedy his status at this time that would not be futile,” and ordered Plaintiff to file a response. [Docket No. 27.] Defendants’ supplemental brief sets forth “two administrative options” available to Plaintiff to remedy his status that they contend are not futile. First, they assert that Plaintiff and Defendants can “[f]ile a joint motion to reopen Plaintiff’s prior removal proceedings with [USCIS] so that Plaintiff can seek review of” the denial of his Form I-751 “under 8 U.S.C. § 1186a(c)(4)(B).” Defs.’ Supp. Br. 1-2. According to Defendants, during the reopened removal proceedings, Plaintiff may ask an immigration judge to consider his eligibility for a waiver of the joint filing requirement based on the prior grant of a waiver of removability. Id. at 2. The problem with this option is that it is undisputed that Plaintiff does not satisfy the requirements of 8 U.S.C. § 1186a(c)(4)(B), because that provision requires a noncitizen to establish that “the qualifying marriage was entered into in good faith by the [noncitizen] spouse,” among other things. 8 U.S.C. § 1186a(c)(4)(B). Plaintiff has admitted that his marriage to Mai was not “entered into in good faith.” Defendants fail to explain how Plaintiff can argue in reopened removal proceedings that he satisfies the requirements of section 1186a(c)(4)(B) despite his admission of marriage fraud. Defendants’ second option is for Plaintiff to file a new (third) Form I-751 petition to remove conditions based on “extreme hardship’ under 8 U.S.C. § 1186a(c)(4)(A), which Defendants state “does not require a bona fide marriage.” Defs.’ Supp. Br. 2. As discussed above, this is also not a viable option. Section 1186a(c)(4)(A) provides that the Secretary of Homeland Security “may remove the conditional basis of the permanent resident status” for a noncitizen if the noncitizen demonstrates that “extreme hardship would result if such [noncitizen] is removed.” However, “the relevant period for determining whether extreme hardship would result from” Plaintiff’s removal for purposes of establishing eligibility for the waiver “is the 2-year period for which [Plaintiff] was admitted as a conditional permanent resident.” Matter of Munroe, 26 I. & N. Dec. at 432 (analyzing section 1186a(c)(4)(A)). In this case, that period ended nearly 18 years ago on December 19, 2003. See A.R. 100. Defendants completely ignore this portion of the statute. They fail to address Plaintiff’s point that it would be impossible for him to establish that an extreme hardship that would result if he were removed now, if that extreme hardship had to be based solely on facts from 2001 to 2003, long before the birth of his children in 2010 and 2014 and his 2014 marriage to Li. Matter of Munroe squarely validates Plaintiff’s position. Munroe was admitted to the United States as a conditional permanent resident in July 1997 based on her 1996 marriage to a U.S. citizen. 26 I. & N. Dec. at 428. They divorced in 1999 and Munroe was unable to meet the requirements for filing a joint petition to remove the conditions on her residence. She filed two applications for waiver of the joint filing requirement, both of which were denied, and she was placed in removal proceedings. Id. at 429. She subsequently married a lawful permanent resident in 2007 and they had three children together. Id. She then filed a third waiver petition, arguing separated from her second husband and their children.” Id. USCIS denied the petition “because the hardship she claimed was not based on circumstances occurring during” the two-year period of her conditional permanent resident status. Id. The Board of Immigration Appeals (“BIA”) affirmed, holding that “the relevant period for determining [extreme] hardship is the 2-year period that a[ ] [noncitizen] was admitted for permanent residence on a conditional basis.” Id. at 430. The BIA found that the hardship waiver of section 1186a(c)(4)(A) should “relate in some way to” the “marriage that generated the conditional permanent resident status,” which was consistent with other waiver provisions, and that “[t]here is no indication that Congress intended the hardship waiver to extend to situations” where a “hardship claim is only related to the difficulty that may occur as a result of [Munroe’s] separation from her second husband and the children born of that relationship.”). Id. at 433-34. In this case, as in Munroe, it appears that any attempt by Plaintiff to establish an extreme hardship would not be based on his first marriage, but instead on his separation from his spouse and children if he were removed. In sum, Defendants’ two proposed administrative options are non-options; they will not remedy Plaintiff’s situation. In essence, Plaintiff is in limbo. He is lawfully present in this country and is not subject to removal. However, due to unique procedural twists and turns, he has no plausible avenue to move past the roadblock created by Defendants’ denial of his I-90 request for issuance of a permanent resident card. The paths identified by Defendants are both dead ends. Defendants ignore this catch-22. Defendants offer no other argument or authority supporting their position that USCIS’s denial of Plaintiff’s I-90 application for a replacement permanent resident card should be upheld. Moreover, as discussed above, they offer no path forward for Plaintiff that would not be futile. The court therefore vacates Defendants’ decision as arbitrary and capricious because it “entirely failed to consider an important aspect of the problem.” Nat’l Ass’n of Home Builders, 551 U.S. at 658. For the foregoing reasons, Plaintiff’s motion is granted. The parties shall immediately KES DISTR KD S 1 within 14 days of the date of this order. x) □□ □ ED 2 IT IS SO ORDERED. ORDER 2/[Vir 38 S° 3 Dated: September 24, 2021 ~ < /- y 4 Z kA a Afi R □□ CN feo —— □□ > Unies Magistrate Judge 6 £8 lV OS ; DISTRICS 8 9 10 11 x 12
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