United States District Court, N.D. Georgia, Atlanta Division
MURIEL T. PIKE, Plaintiff, JEH JOHNSON, Secretary of U.S. Department of Homeland Security, LEON RODRIGUEZ, Director of U.S. Citizenship and Immigration Services, BRETT R. RINEHART, Director of Atlanta Field Office, U.S. Citizenship and Immigration Services, Defendants
For Muriel T. Pike, Plaintiff: H. Glenn Fogle, Jr., Viridiana Guido Carreon, The Fogle Law Firm, LLC, Atlanta, GA.
For Jeh Johnson, Secretary of U.S. Department of Homeland Security, Leon Rodriguez, Director of U.S. Citizenship and Immigration Services, Brett R. Rinehart, Director of Atlanta Field Office, U.S. Citizenship and Immigration Services, Defendants: Darcy F. Coty, U.S. Attorneys Office - ATL, Atlanta, GA.
RICHARD W. STORY, UNITED STATES DISTRICT JUDGE.
This case comes before the Court on Defendants' Motion to Dismiss . After reviewing the record, the Court enters the following Order.
Plaintiff Muriel T. Pike is a native and citizen of Jamaica. (Compl. ¶ ¶ 2.) On September 8, 1996, Plaintiff arrived in the United States at Newark International Airport, where she presented a U.S. birth certificate to an Immigration Inspector and sought admission as a returning U.S. citizen. (Dkt. [4-1] at 7--13.) The birth certificate identified Plaintiff as Jania Terrona Lodge, born in Brooklyn, New York, on January 26, 1980. (Id. at 7.) Plaintiff also had an Air Jamaica boarding pass and ticket for Jania Lodge Thompson as well as a New York high school identification card for Jania Thompson. (Id. at 8--10.) The Immigration Inspector became suspicious and directed Plaintiff to secondary inspection, where she was questioned about her identity. (Id. at 11.) There, Plaintiff admitted that she was not a U.S. citizen. (Id.) However, she then stated that her real name was Taniesha Smith and that she was born in Jamaica. (Id. at 12.) Plaintiff stated that she obtained the U.S. birth certificate from a woman named Marie, whom she had never met. (Id. at 11.)
On September 9, 1996, Plaintiff signed a sworn statement claiming to be Taniesha Smith. (Id. at 12--13.) Later that day, Plaintiff admitted her true and correct name was Muriel Tassetha Edwards, born in Jamaica on June 17, 1981. (Id. at 14--15.) When asked why she previously identified herself as Taniesha Smith, Plaintiff responded, " Because I was scared, and made up this name." (Id. at 16.) Plaintiff was again asked how she obtained the U.S. birth certificate, and responded, " When I was at the airport in Jamaica, a lady gave me the birth certificate, and my airline tickets." (Id.) Plaintiff's older sister, Ilene McLean, admitted that she procured the documents Plaintiff was carrying after paying an unknown person in New York to make the arrangements in Jamaica. (Id. at 14.)
After she was advised that she may be excluded from the United States, Plaintiff requested an exclusion hearing before an Immigration Judge. (Id. at 17.) Plaintiff was then served with Form I-122, charging Plaintiff with excludability under 8 U.S.C. § 1182(a)(6)(C), seeking entry into the United States by fraud or willful misrepresentation of material fact, and under 8 U.S.C. § 1182(a)(7)(A)(i)(I), being an immigrant not in possession of a valid, unexpired immigrant visa or other valid entry document. (Id. at 19--20.)
Because she was a juvenile, the INS paroled her into the United States to await her hearing, and she was released into the custody of her sister, Ilene McLean. (Id. at 14.) However, Plaintiff failed to appear for her exclusion hearing. (Id. at 23.) As a result, on January 16, 1997, Plaintiff was ordered excluded and deported in absentia pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an immigrant not in possession of a valid, unexpired immigrant visa or other valid entry document. (Id.) The order did not include fraud as a basis for the ruling. (Id.) Plaintiff has apparently remained in the United States in spite of that order.
On March 30, 2004, Plaintiff married Rory Pike, a U.S. citizen. (Compl. ¶ ¶ 13). On December 21, 2004, U.S. Citizenship and Immigration Services (" USCIS" ) approved Rory Pike's request to classify Plaintiff as the spouse of a U.S. citizen. (Compl. ¶ ¶ 14.) On January 1, 2007, Plaintiff filed a Form I-485, Application to Register Permanent Resident or Adjust Status (" Adjustment Application" ). (Compl. ¶ ¶ 15.) USCIS sent Plaintiff a Request for Evidence on March 30, 2009, notifying Plaintiff that she appeared to be ineligible for a status adjustment because she misrepresented a material fact or committed fraud and because she was unlawfully present in the United States. (Compl. ¶ ¶ 15.)
Plaintiff then filed a Form I-601 on May 28, 2009, requesting a waiver of inadmissability based on the emotional hardship that her deportation would cause her husband and their three children. (Compl. ¶ ¶ 16.) On June 16, 2009, USCIS denied Plaintiff's waiver application because she did not demonstrate the requisite level of hardship to her U.S. citizen family members. (Compl. ¶ ¶ 16.) That same day, USCIS issued a Notice of Decision denying Plaintiff's Form I-485 Adjustment Application because her inadmissability to the United States barred the status adjustment. (Dkt. [4-1] at 39--41.) In its reasoning, USCIS cited both fraudulent entry and entry without valid identification as potential reasons for inadmissability, but only concluded that Plaintiff was found inadmissible because she " attempted to enter the United States without a valid immigrant visa, reentry permit, border crossing identification card, or other valid entry document." (Id. at 40.)
Plaintiff appealed the denial of her Adjustment Application to the USCIS Administrative Appeals Office (" AAO" ) on September 30, 2010. (Id. at 42--43.) However, the AAO rejected Plaintiff's appeal, noting that " the AAO does not have appellate jurisdiction over an appeal from the denial of an application for adjustment of status." (Id. at 44--45.) Plaintiff then initiated this action, filing a complaint for writ of mandamus and a declaratory judgment to vacate USCIS's denial of her Adjustment Application and to grant the adjustment of status. Defendants now move to dismiss.
I. Motion to Dismiss Legal ...