Mora-Albarran v. Mayorkas

• Court: District Court, N.D. California
• Decided: May 23, 2023
• Docket: 3:22-cv-04181
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RAMON MORA-ALBARRAN, Case No. 22-cv-04181-JSC

8 Plaintiff, ORDER RE: MOTION TO DISMISS v. 9 Re: Dkt. No. 13 10 ALEJANDRO MAYORKAS, Defendant. 11

12 13 Roman Mora Albarran sued the U.S. Citizenship and Immigration Service (“USCIS”) 14 under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), challenging the denial of his Form 15 I-90 (Application to Replace Permanent Resident Card) as unlawful. (Dkt. No. 1. 1) After the 16 action was filed, USCIS vacated its denial, re-opened Plaintiff’s I-90, approved his application, 17 and produced his new lawful permanent resident card. (Dkt. No. 13-1.) USCIS now moves to 18 dismiss Plaintiff’s action for lack of subject matter jurisdiction due to mootness. (Dkt. No. 13.) 19 Having reviewed the parties’ briefs and supplemental submissions, and having had the benefit of 20 oral argument on March 30, 2023, the Court DENIES the motion to dismiss. 21 BACKGROUND 22 A. Complaint Allegations 23 Plaintiff was admitted to the United States as a lawful permanent resident (“LPR”) on 24 April 13, 1985, following his marriage to a U.S. citizen. (Dkt. No. 1 at ¶¶ 2, 12.) About a year 25 later, Plaintiff was attempting to reenter the United States at the San Ysidro, California, Port-of 26 Entry with a friend when they were stopped by immigration officials and Plaintiff accused of 27 1 marriage fraud. (Id. at ¶¶ 2-3.) Specifically, an immigration officer falsely told Plaintiff the friend 2 reported Plaintiff’s marriage was a sham; the officer warned Plaintiff that if he did not relinquish 3 his permanent resident status he could be sent to prison for a long time. (Id. at ¶¶ 2-3.) As a 4 result, Plaintiff “executed a form I-407, abandonment of his lawful permanent residence.” (Id. at ¶ 5 2.) Although Plaintiff waived the right to counsel in writing, he was not advised of the waiver’s 6 implications. (Id. at ¶ 4.) After Plaintiff executed the I-407, the inspecting officer seized his 7 permanent resident card. “A transmittal memorandum from the officers, returning the cards to the 8 ‘Immigration Card Facility,’ states ‘These two subjects were found guilty of marriage fraud, 9 Therefore documents must be destroy [sic].’” (Id. at ¶ 20.) 10 A little over a year later, Plaintiff filed an I-90 to replace his permanent resident card. (Id. 11 at ¶ 22.) As part of his application review, an immigration official wrote: “Pls re-issue a new card. 12 Our understanding is that Subject’s I-151 [LPR card] was lifted without a valid reason.” (Id. at ¶ 13 23.) The I-90 application was then stamped granted with a note “Fee waived card lifted arbitrarily 14 (without a valid reason).” (Id. at ¶ 24.) 15 Although lawful permanent resident status never expires, lawful permanent cards (also 16 known as LPR or green cards) are valid for 10 years. (Id. at ¶ 25.) On June 26, 2017, Plaintiff 17 filed a form I-90 to renew his LPR card, which had been issued on October 31, 2007 and was valid 18 through October 30, 2017. (Id. at ¶¶ 26-27.) Plaintiff’s application was denied 10 months later 19 “based solely on the execution of the I-407 abandonment of residence.” (Id. at ¶ 28.) 20 B. Procedural Background 21 In July 2022, Plaintiff filed this action pleading three causes of action under the 22 Administrative Procedure Act, 5 U.S.C. § 706. (Dkt. No. 1.) He requests the following relief: 23 (1) Find that the USCIS decision denying Mr. Mora’s I-90 was 24 not supported by substantial evidence that he voluntarily abandoned his status, vacate said decision, and remand with instructions to grant 25 the I-90 application and issue him evidence of his status;

26 (2) Issue a declaratory judgment that Mr. Mora is a lawful permanent resident because he has not been ordered excluded, 27 deported, or removed following his admission, and any purported I- 407 he executed is void as the product of a denial of counsel; (3) Enter a permanent injunction enjoining Defendants from 1 removing Mr. Mora from the United States, or denying him as a returning lawful permanent resident, unless Defendant obtains an 2 administratively final removal order pursuant to 8 U.S.C. § 1229a; 3 (Id. at ¶ 48.) 4 A month after Plaintiff filed suit, USCIS re-opened and approved his I-90, produced his 5 LPR card, and mailed it to his address on record. (Dkt. No. 13-1 at ¶¶ 5-6.) USCIS then filed the 6 now pending motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing its 7 decision to grant Plaintiff’s I-90 moots the live case or controversy on which his claims for relief 8 depend. (Dkt. No. 13.) Plaintiff opposes dismissal and cross moves for summary judgment. 9 (Dkt. No. 18.) The Court subsequently granted the parties’ stipulation to stay briefing on the 10 summary judgment motion until disposition of the motion to dismiss. (Dkt. No. 20.) Following 11 oral argument, and at the Court’s request, both parties provided additional briefing on the 12 challenged conduct’s likelihood of recurrence. (Dkt. Nos. 25, 26.) 13 LEGAL STANDARD 14 Federal jurisdiction requires a live case or controversy at every stage of litigation. U.S. 15 Const. art. III, § 2, cl. 1; Hollingsworth v. Perry, 570 U.S. 693, 704-05 (2013). “A case becomes 16 moot—and therefore no longer a case or controversy for purposes of Article III—when the issues 17 presented are no longer live or the parties lack a legally cognizable interest in the outcome.” 18 Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (internal citation omitted); see also Am. Rivers 19 v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997) (“If an event occurs that 20 prevents the court from granting effective relief, the claim is moot and must be dismissed.”). A 21 federal court does not have jurisdiction “to give opinions upon moot questions or abstract 22 propositions, or to declare principles or rules of law which cannot affect the matter in issue in the 23 case before it.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (internal 24 citations omitted). 25 DISCUSSION 26 USCIS insists this action is moot because it granted Plaintiff’s I-90 application. That is, it 27 contends that because it stopped the challenged activity and granted Plaintiff the relief he sought, 1 conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make 2 the case moot.” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting United States 3 v. W.T. Grant Co., 345 U.S. 629, 632 (1953)). However, a court may conclude voluntary 4 cessation has rendered a case moot if (1) “there is no reasonable expectation that the alleged 5 violation will recur,” and (2) “interim relief or events have completely and irrevocably eradicated 6 the effects of the alleged violation.” Davis, 440 U.S. at 631 (cleaned up). “[A] defendant claiming 7 that its voluntary cessation moots a case bears the formidable burden of showing that it is 8 absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” 9 Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting 10 United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)). 11 The government has not met its heavy burden to demonstrate there is no reasonable 12 expectation Plaintiff’s I-90 LPR card renewal will not be denied again based on the allegedly 13 invalid I-407. Doe v. Harris, 696 F.2d 109 (D.C. Cir. 1982), is instructive. There the plaintiff 14 challenged the Department of Veteran’s Affairs release of his medical records to the United States 15 Attorney’s Office as part of a grand jury investigation without providing notice to the plaintiff or 16 his attorney. Among other relief, the plaintiff sought an injunction barring the defendants or 17 anyone on their behalf from reacquiring the files or disseminating their contents. Id. at 110. After 18 the plaintiff filed suit, the government moved to dismiss on mootness grounds. The government 19 relied on a declaration from the United States Attorney’s Office stating “no use had been made of 20 the VA records in connection with the grand jury matter, that in fact the records were of no value 21 to the investigation concerning fraudulent collection of unemployment compensation, and that 22 defendant law enforcement officers contemplated no future acquisition or use of the records” Id. 23 at 110-11. Applying the Davis test, the DC Circuit Court of Appeals reversed the district court’s 24 dismissal on mootness grounds. The court found the government had not met its heavy burden of 25 establishing the official conduct would not recur given the careful cabining of the declarations 26 submitted in support of the government’s motion. Id. at 112. The court also concluded “it [was] 27 far from plain that defendant-appellees’ response to Doe’s demands completely and irrevocably 1 alleges that his future treatment by the VA will be impaired absent at least the declaratory relief he 2 now seeks.” Id. at 113 (cleaned up). 3 As Mr. Doe, Plaintiff challenges past and continuing harm—the possibility the government 4 will again deny him his LPR card when he seeks renewal in nine years.2 The government’s 5 argument that Doe v. Harris is an anomaly because the voluntary cessation exception to mootness 6 only applies to cessation of a “practice” is unpersuasive. The government has not cited any 7 authority that so holds.3 The rule, as set forth by the Supreme Court, is whether there is a 8 reasonable likelihood the “alleged violation will recur.” Davis, 440 U.S. at 631; see also Fikre v. 9 Fed. Bureau of Investigation (Firke I), 904 F.3d 1033, 1039-40 (9th Cir. 2018) (concluding the 10 voluntary cessation exception applied to preclude a mootness finding because the government had 11 not explained why it added the plaintiff to the No Fly List in the first place and then years later 12 removed him from it, noting “[t]he FBI’s decision to restore [his] flying privileges [wa]s an 13 individualized determination untethered to any explanation or change in policy, much less an 14 abiding change in policy.”). 15 The government’s alternative argument that there is no reasonable likelihood Plaintiff’s I- 16 90 will be denied again because he has been able to renew his LPR card on three occasions is 17 likewise unavailing. The Court granted the government leave to submit a declaration to address 18 the likelihood of recurrence, and in particular, to explain why Plaintiff’s I-90 was denied in 2018. 19 However, as in Davis, the government’s declaration is carefully cabined. Karla Moran, the 20 Deputy Director of the Potomac Service Center, attests the Potomac Service Center “completed 21

22 2 Plaintiff also contends the issue of his status would arise if he attempts to reenter the United States from abroad or if he applies to become a naturalized citizen. (Dkt. No. 18 at 5, n.1.) 23 3 The government’s reliance on a footnote in the unpublished decision, Kuzova v. U.S. Dep't of Homeland Sec., 686 F. App’x 506, 507 n.1 (9th Cir. 2017), is not persuasive. The case Kuzova 24 cited for the proposition “voluntary cessation is not applicable, because the government did not change any policy in response to litigation,” did not hold the voluntary cessation exception only 25 applies to lawsuits challenging a policy. See Rosebrock v. Mathis, 745 F.3d 963, 971–72 (9th Cir. 2014). Instead, Rosebrook simply analyzed whether a voluntary policy change rendered the action 26 moot. Alvarez Najar v. Chertoff—also cited by USCIS—actually supports Plaintiff’s argument as there, the court denied the motion to dismiss on mootness grounds finding “there is every reason 27 to expect that Plaintiff will be asked to submit his criminal records when he renews his LPR card.” 1 the review of the record and determined that the April 16, 2018, decision to deny the I-90 2 application was in error.” (Dkt. No. 25-1 at ¶ 10.) Ms. Moran does not indicate why the error 3 occurred nor—more critically—does she state the I-407 is invalid or that it will not be considered 4 with future applications. Instead, Ms. Moran attests “the Form I-407 document remains part of the 5 record, the [Potomac Service Center] has updated the record to clearly reflect the history of the 6 case. This declaration will be placed in the record so the Form I-407 may be considered 7 consistently in future I-90 adjudications.” (Id. at ¶ 11.) While Ms. Moran attests “USCIS policy 8 is generally to grant deference to a prior approval, and Plaintiff’s I-90 application approval in this 9 matter would warrant such deference in future adjudications” (id. at ¶ 12), this statement does not 10 satisfy the government’s heavy burden to demonstrate the challenged conduct—denial of 11 Plaintiff’s I-90—will not recur. 12 First, the allegedly invalid I-407 remains part of Plaintiff’s file and there is no indication it 13 will not be used again to deny Plaintiff’s renewal application. “The voluntary cessation of 14 allegedly illegal conduct [] does not moot a case unless the party asserting mootness satisfies the 15 heavy burden of making it absolutely clear the allegedly wrongful behavior could not reasonably 16 be expected to recur.” Fikre v. Fed. Bureau of Investigation (Fikre II), 35 F.4th 762, 770 (9th Cir. 17 2022) (cleaned up); see also Fikre I, 904 F.3d at 1040 (“Absent an acknowledgment by the 18 government that its investigation revealed Fikre did not belong on the [No Fly L]ist, and that he 19 will not be returned to the list based on the currently available evidence, Fikre remains, in his own 20 words, ‘stigmatiz[ed] ... as a known or suspected terrorist and as an individual who represents a 21 threat of engaging in or conducting a violent act of terrorism and who is operationally capable of 22 doing so.’”). 23 Second, to the extent the government relies on the “USCIS policy [] generally to grant 24 deference to a prior approval” (Dkt. No. 25-1 at ¶ 13), the government does not provide any 25 information regarding the policy. To establish mootness the government must “demonstrate that 26 the change in its behavior is entrenched or permanent.” Fikre I, 904 F.3d at 1037 (cleaned up). 27 “[A] voluntary change in official stance or behavior moots an action only when it is absolutely 1 arbitrary reversal and the government’s rationale for its changed practice(s), that the activity 2 complained of will not reoccur.” Id. at 1039 (cleaned up). Here, the USCIS guidance at issue has 3 flip-flopped with different administrations—while the 2004 policy guidance directed officers to 4 defer to prior determinations of eligibility, that policy was rescinded in 2017, and then restored in 5 2021. (Dkt. No. 26 at 6 (citing April 27, 2021 USCIS Policy Alert PA-2021-05, available at 6 https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210427- 7 Deference.pdf (last visited May 15, 2023).) See Barrios Garcia v. U.S. Dep’t of Homeland Sec., 8 25 F.4th 430, 441 (6th Cir. 2022) (holding voluntary cessation did not apply where “[a] future 9 administration could rescind the BFD process just as easily as this administration established it.”). 10 Moreover, the government offers no evidence Plaintiff’s application was denied in 2018 because 11 of the policy in effect at that time; thus, even apart from the volatility of the agency’s deference 12 policy, the Court cannot conclude that the 2021 change in policy moots Plaintiff’s challenge. 13 As a final matter, the Court declines to consider the government’s argument—raised for 14 the first time on reply—that Plaintiff’s challenge to the I-407 is barred by the statute of limitations. 15 See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 n.5 (9th Cir. 2003); cf. Glenn K. Jackson Inc. 16 v. Roe, 273 F.3d 1192, 1202 (9th Cir. 2011) (noting district court has discretion to consider, or not 17 consider, arguments raised only in reply). 18 Accordingly, the government has not satisfied its heavy burden of demonstrating it is 19 absolutely clear Plaintiff’s I-90 will not again be denied based on the allegedly invalid I-407. 20 CONCLUSION 21 For the reasons stated above, the government’s motion to dismiss on mootness grounds is 22 DENIED. 23 The Court sets a status conference for June 29, 2023 at 1:30 p.m. via Zoom video. The 24 parties shall file a joint statement by June 21, 2023 addressing the next steps for this action. 25 Alternatively, if the parties agree as to the next steps, they can file a stipulation setting forth a 26 schedule and the Court will vacate the status conference. 27 // 1 This Order disposes of Docket No. 13. 2 3 IT IS SO ORDERED. 4 Dated: May 23, 2023 5 6 ne JACQUELINE SCOTT CORL 7 United States District Judge 8 9 10 11 12

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