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Martinez v. Nielsen

United States District Court, D. New Jersey

September 14, 2018

ANTONIO DE JESUS MARTINEZ, et al., Petitioner-Plaintiffs,
v.
KRISTJEN NIELSEN, et al., Respondent-Defendants.

          OPINION AND ORDER

          Hon. Madeline Cox Arleo United States District Judge.

         THIS 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.

         I. Background

         Petitioner-Plaintiff, 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.

         Mr. 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.[1]

         Mr. 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).

         In 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 families[.]”).

         Under 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”).

         Based 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.[2] 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.

         On June 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.

         II. Discussion

         Mr. Martinez sought an order releasing him from custody and enjoining Respondent-Defendants Kristjen Nielsen, Thomas Homan, Thomas Decker, and Ronald Edwards[3] 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.

         Respondent-Defendants 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 these arguments.

         A. Jurisdiction

         As a 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).

         Respondent-Defendants 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 ...


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