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Galvez v. Cuccinelli

United States District Court, W.D. Washington, Seattle

August 23, 2019

LEOBARDO MORENO GALVEZ, et al., Plaintiffs,
v.
KENNETH T. CUCCINELLI, [1] et al., Defendants.

          ORDER REGARDING DEFENDANTS' MOTION FOR RECONSIDERATION

          ROBERT S. LASNIK UNITED STATES DISTRICT JUDGE

         On July 17, 2019, the Court issued a preliminary injunction enjoining defendants from:

• denying applications for Special Immigrant Juvenile (“SIJ”) status pursuant to 8 U.S.C. §1101(a)(27)(J) on the ground that a Washington state court did not have jurisdiction or authority to “reunify” an immigrant with his or her parents; or
• initiating removal proceedings against or removing any SIJ petitioner whose SIJ petition has been denied on the ground that the Washington state court did not have jurisdiction or authority to “reunify” an immigrant with his or her parents.

         Dkt. #42 at 16-17. The Court also ordered the United States Citizenship and Immigration Services (“USCIS”) to:

• reopen and readjudicate any SIJ petition that was denied on the grounds that the Washington state court did not have jurisdiction or authority to “reunify” an immigrant with his or her parents within thirty days of the date of the order;
• adjudicate all outstanding SIJ petitions based on a Washington state court order within thirty days if more than 150 days had already passed since the petition was filed; and
• adjudicate all other SIJ petitions based on Washington state court orders within the 180-day period set forth in the statute in the absence of an affirmative showing that the petition raises novel or complex issues which cannot be resolved within the allotted time.

         Dkt. #42 at 17.[2] Defendants filed a timely motion for reconsideration (Dkt. #45) arguing that the Court lacks jurisdiction under 8 U.S.C. §1252(f)(1) and §1252(g) to interfere with removal proceedings. In addition, defendants argue that the deadlines imposed in the July 17th order will create substantial hardship for the agency and unfairly prioritize Washington-based SIJ applications over those filed elsewhere.

         “Motions for reconsideration are disfavored.” LCR 7(h)(1). The moving party must show “manifest error in the prior ruling” or “new facts or legal authority which could not have been brought to [the Court's] attention earlier with reasonable diligence.” Id. Defendants' jurisdictional arguments are primarily based on the “manifest error” prong of LCR 7(h)(1), while their request for reconsideration of the deadlines imposed is based on “new facts.”

         A. Jurisdiction

         Section 1252 of the Immigration and Nationality Act strips most courts of the power to enjoin or restrain on a classwide basis the operation of the provisions of §§ 1221-1232 (8 U.S.C. §1252(f)(1)) or to hear any claim arising from the Attorney General's decision to commence proceedings, adjudicate cases, or execute removal orders (8 U.S.C. §1252(g)). When applying §1252(f)(1), the Ninth Circuit has held that where “a petitioner seeks to enjoin conduct that allegedly is not even authorized by the statute, the court is not enjoining the operation of” the specified statutory sections, but rather is enjoining a violation of those statutory provisions. Rodriguez v. Hayes, 591 F.3d 1105, 1120 (9th Cir. 2010) (quoting Ali v. Ashcroft, 346 F.3d 873, 886 (9th Cir. 2003)). In such circumstances, §1252(f)(1) is simply not implicated. Id. The Supreme Court recently had a chance to review the Ninth Circuit's approach, remanding for consideration of whether classwide injunctive relief may issue based on a constitutional challenge, as opposed to a statutory challenge. Jennings v. Rodriguez, __ U.S. __, 138 S.Ct. 830, 851 (2018).

         In this case, plaintiffs allege that defendants' new policy violates the SIJ statute, that the unlawful denials caused by the policy have deprived them of a defense to removal, and that the delays in adjudication violate 8 U.S.C. §1232(d)(2). Defendants argue that the long wait time for immigrant visas for class members breaks any causal connection between the alleged violations of the SIJ statute and the initiation of removal proceedings, with the implication being that there is no violation of §§1221-1232 that could justify classwide injunctive relief under Rodriguez. In particular, defendants argue that adjustment of status under 8 U.S.C. §1255(a) is appropriate only if an immigrant visa is immediately available, that the wait time for a visa to become available for someone from Mexico, Guatemala, El Salvador, and Honduras is at least three years, [3] and that under an interim decision issued by the Attorney General, “good cause” for a continuance of removal proceedings “does not exist if the alien's visa priority date is too remote to raise the prospect of adjustment of status above the speculative level.” Dkt. #49 at 2 (citing Matter of L-A-B-R, 2018 WL 3955559, 27 I&N Dec. 405 at 418 (A.G. Aug. 16, 2018)). Although defendants raised a §1252(f)(1) argument in response to plaintiff's request for a preliminary injunction, they waited until filing their reply to the motion for reconsideration to assert this visa/good cause argument. Plaintiffs have not had an opportunity to respond to this argument and, given defendants' reliance on a decision that is over a year old and facts regarding wait times that have long been in their possession, its untimely assertion cannot be justified on the grounds of “new” facts or legal authority. Reconsideration is denied on that ground.[4]

         Section 1252(g), for its part, is designed to limit “attempts to impose judicial constraints upon prosecutorial discretion” regarding three discrete types of decisions, namely to commence removal proceedings, adjudicate cases, or execute removal orders. U.S. v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004). It does not, however, divest courts of jurisdiction to hear claims that arise outside of the removal context, such as this challenge to an unlawful policy regarding the way SIJ applications are adjudicated. See Fatty v. Nielsen, C17-1535MJP, 2018 WL 3491278 at *1-2 (W.D. Wash. July 20, 2018). To the extent the remedy chosen by the Court prohibits the commencement of removal proceedings against class members and therefore interferes with the Attorney General's prosecutorial discretion, the Court has already found, and reiterates here, that temporarily enjoining the ...


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