United States District Court, D. New Jersey
OPINION AND ORDER
Madeline Cox Arleo United States District Judge.
MATTER arises from the detention of Antonio de Jesus
Martinez, a law-abiding undocumented immigrant and married
father of two, who was told by an agency of the United States
Government that he could apply for a waiver to legalize his
immigration status but was abruptly arrested by the same
agency when he tried to do so.
Antonio de Jesus Martinez, is a citizen of El Salvador who
has lived in the United States without authorization for
approximately the past 15 years. Compl. ¶¶ 1,
26-27. Mr. Martinez is married to a United States citizen and
with his wife, Plaintiff Vivian Martinez, is the father of
two young children. Id. ¶¶ 8, 26. Mr.
Martinez is a Heating Ventilation and Air Conditioning (HVAC)
technician and pays his taxes. Id. ¶ 28;
Antonio Martinez Aff. ¶ 7, ECF No. 1-1. He has no
criminal history and has never been arrested. Compl. ¶
28. He taught himself English. A. Martinez Aff. ¶ 7. He
supports his immediate family, and provides for his mother
and siblings. Id. ¶¶ 5, 7.
Martinez entered the United States at age 19 in 2003 and was
apprehended by border patrol. Id. ¶ 9. He was
given notice to appear in court in Texas. Id. He
hired a lawyer and moved to New York to live with his family.
Id. He attempted to transfer his case to New York,
including by appearing in immigration court in Manhattan on
his appointed court date. Id. He was unsuccessful in
transferring his case and an immigration judge in Texas
ordered him removed in absentia. Id.; Compl.
¶27. Mr. Martinez has continued to live in the United
States and does not dispute the validity of this removal
order in this action.
Martinez seeks to legalize his immigration status through a
process promulgated by the Department of Homeland Security
(“DHS”). Generally, spouses of U.S. citizens are
eligible to apply to become lawful permanent residents of the
United States. See 8 U.S.C. § 1255. But a non-citizen
spouse like Mr. Martinez, who has been ordered removed, may
not apply domestically; rather, he must leave the United
States to apply for an immigrant visa at a U.S. consulate
abroad. Further, his prior order of removal triggers various
provisions of the Immigration and Nationality Act, 8 U.S.C.
§ 1101 et seq., that bar him from reentering the U.S.
for up to 10 years even with a visa. See 8 U.S.C.
§§ 1182(a)(9)(A); (a)(9)(B).
2013, the Department of Homeland Security promulgated
regulations that allow non-citizen spouses of U.S. citizens
with no criminal history who have been present in the U.S.
without authorization to apply for a waiver of
inadmissibility for unlawful presence (a “provisional
waiver”). The provisional waiver allows them to adjust
their respective immigration status and obtain immigrant
visas without a prolonged period of separation from their
families-that is, a waiver of the multiple-year bar. See
Provisional Unlawful Presence Waivers of Inadmissibility for
Certain Immediate Relatives; Final Rule 78 Fed. Reg. 535, 536
(Jan 3, 2013). In 2016, DHS expanded the program to make it
available to non-citizens like Mr. Martinez who have final
orders of removal. See Expansion of Provisional Unlawful
Presence Waivers of Inadmissibility; Final Rule, 81 Fed. Reg.
50244, 50245 (July 29, 2016); Id. at 50271 (stating
that the provisional waiver program will “reduce
separation time among family members during the immigrant
visa process” and referencing the “humanitarian
and emotional benefits derived from reduced separation of
the provisional waiver program, a waiver applicant must file
a Petition for Alien Relative (“Form I-130”) with
U.S. Citizenship and Immigration Services
(“USCIS”), a division within DHS, to establish
that the applicant and beneficiary have a bona fide
relationship. The applicant and beneficiary are then
scheduled for an interview with USCIS to determine the
validity of that relationship. Once the Form I-130 is
approved, the applicant files a Permission to Reapply for
Admission to the United States form (“Form
I-212”) and then for a provisional unlawful presence
waiver (“Form I-601A”).
upon these regulations, Mr. and Ms. Martinez began the
process of applying for a provisional waiver in 2016. Compl.
¶ 29. As part of this process, Mr. and Ms. Martinez,
together with their attorney, appeared for an interview with
U.S. Citizenship and Immigration Services
(“USCIS”) on their I-130 application on April 27,
2018 to confirm the bona fides of their marriage.
Id. ¶ 31. At the conclusion of the interview,
and despite DHS's regulations concerning the provisional
waiver process, two Immigration and Customs Enforcement
(“ICE”) agents entered the interview room and
abruptly arrested Mr. Martinez, purportedly based on a
“new policy” of detaining any individual with an
outstanding order of removal at an interview. Id.
¶ 31. ICE agents transported Mr. Martinez to Hudson
County Correctional Facility in New Jersey where he has been
detained since April 27, 2018. Id. ¶ 32. Less
than one week later, USCIS approved the Martinezes' I-130
application. Id. ¶ 33. Nevertheless, ICE did
not release Mr. Martinez. Id.
22, 2018, Mr. Martinez filed this petition for a writ of
habeas corpus and an emergency motion for a temporary
restraining order seeking, inter alia, his release from
custody and to enjoin Respondent-Defendants from removing him
from the United States while he is pursuing the provisional
waiver process. ECF Nos. 1, 2. That same day, the Court
stayed Mr. Martinez's removal pending further order of
the Court. ECF No. 6. On August 3, 3018, the Court entered an
Order finding that the government's actions violated the
Administrative Procedure Act (“APA”) and Mr.
Martinez's due process rights, and ordered him released
so that he could complete the waiver process. ECF No. 25.
This Opinion and Order supplements and amends the Court's
August 3, 2018 Order.
Martinez sought an order releasing him from custody and
enjoining Respondent-Defendants Kristjen Nielsen, Thomas
Homan, Thomas Decker, and Ronald Edwards from removing him
until he exhausts his right to complete the process of
obtaining a provisional unlawful presence waiver. He argues
that the government's attempt to detain and deport him as
he engaged in a step of the provisional waiver process
violated his rights under the Fifth Amendment and the APA.
contend that the Court lacks jurisdiction to review Mr.
Martinez's claims and that, even if it did, the Court
cannot grant Mr. Martinez relief because he has no right to
engage in the provisional waiver process. The Court rejects
threshold matter, the Court has jurisdiction over this
matter, and that jurisdiction is not vitiated by 8 U.S.C.
§ 1252. Section 1252(g) strips federal court
jurisdiction over “any cause or claim by or on behalf
of an alien arising from the decision or action by the
Attorney General to commence proceedings, adjudicate cases,
or execute removal orders against any alien under this
chapter.” Id. That is, the statute precludes
judicial review of ICE's prosecutorial discretion to
engage in three discrete types of actions: to commence
proceedings, to adjudicate cases, or to execute removal
orders. Reno v. Am. Arab Anti-Discrimination Comm.,
525 U.S. 471, 482-83 (1999).
contend that ICE engaged in the third of these types of
actions when it detained and attempted to deport Mr.
Martinez. But that is not what happened. ICE agents did not
track down Mr. Martinez because of his final order of
removal. Instead they waited until he appeared for an
interview pursuant to DHS regulations that permit aliens in
exactly Mr. Martinez's position to gain legal status, and
attempted to frustrate those regulations by detaining Mr.
Martinez without warning or explanation. ICE arrested Mr.
Martinez because he presented himself for an I-130 interview
and, as such, exceeded its legal authority when it chose to
arrest him after he had begun a lawful process but before it
was completed. The Honorable Paul Crotty in the Southern
District of ...