United States District Court, N.D. Illinois
January 15, 2004.
MARIA ROSA RAMOS, et. al, Plaintiff's,
JOHN ASHCROFT, et al, Defendants
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Defendants' Motion to Dismiss
Plaintiff's Complaint for failure to state a claim, pursuant to Federal
Rules of Civil Procedure 12(b)(6). Both parties have fully briefed the
issues in Defendant's Motion and it is now ripe for decision.
I. FACTUAL AND PROCEDURAL BACKGROUND
Eleven immigrant plaintiffs filed this class action complaint on
November 15, 2002, on behalf of a class of immigrant plaintiffs who filed
applications for adjustment of status under Section 245(i) of the
Immigration and Nationalization Act in the Chicago District Office of the
Immigration and Naturalization Service (INS) between January 29, 1997,
and April 13, 2001 The complaint challenges the policies of the Chicago
District Office of the INS relating to the processing of applications for
adjustment of status under Section 245(i). Subsequent to the processing
of these applications, the Chicago office relied on the information in
the applications for adjustment of status to initiate investigations and
removal proceedings against the unsuccessful applicants.
The Court will again review the law governing the applications for
adjustment of status under Section 245(i). In 1994, Congress enacted
Section 245(i) of the Immigration and Nationalization Act to permit
undocumented immigrants already in the United States to stabilize their
immigration status if they were related to persons who were in the United
States legally, See 8 U.S.C. § 1255(i). Although it was not
referred to as an amnesty program, for those undocumented immigrants who
qualified for an adjustment of status under § 245(i), it had the
effect of excusing their undocumented entry to the United States. The
qualifying relative could file an immediate relative visa petition on
behalf of the undocumented relative (INS form I-130). Once the petition
was filed and approved, the undocumented relative could submit the
application for adjustment of status (INS form I-485). If a visa was
immediately available to the applicant, the application could be approved
at the. discretion of the Attorney General and the undocumented relative
could obtain a work authorization.
Plaintiffs allege that the acceptance and processing of these
applications in the Chicago District Office during the class period was
improper under the regulatory scheme. They contend that the applications
should not have been processed under the statute and accompanying
regulations unless a visa was immediately available to the applicant.
Defendants assert that the Plaintiffs' reading of the immigration
statutes and regulations is incorrect. They contend that the sole proper
consequence of filing an application for adjustment of status when a visa
was not immediately available is to deny the application.
Defendants previously moved to dismiss the complaint for lack of
jurisdiction. On September 30, 2003, this Court denied that motion in a
written order. See Ramos v. Ashcroft, No. 02 C 8266, 2003 WL
22282521 (N.D. Ill., Sept. 30, 2003). Defendants now seek to dismiss
the Complaint for failure to state a claim. Their Motion to Dismiss
states several grounds for dismissal First, they contend that the actions
of the Chicago District Office were proper under the statute Second, they
contend that Plaintiffs' constitutional claims cannot be sustained as a
matter of law. Finally, they assert that the Plaintiffs are ineligible
for the injunctive relief that they seek in their Complaint.
II. STANDARD OF REVIEW
In reviewing a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), the district court must accept
all well-pleaded factual allegations as true and draw all
reasonable inferences in favor of the plaintiff. See Transit Exp.
Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001) The district
court should not grant a motion to dismiss "unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957).
The central dispute between the parties in this case revolves around an
interpretation of the statutes and regulations that govern the acceptance
and processing of Applications for Adjustment of Status under Section
245(i) of the Immigration and Naturalization Act, 8 U.S.C. § 1255(i).
The Court will begin its discussion there and then it will move on to
discuss the constitutional allegations in the Complaint and the
possibility of injunctive relief.
A. Count I: Violation of the Administrative Procedures Act
Plaintiff's allege in Count I that the policies and practices of the
Chicago District Office of the INS with respect to the applications for
adjustment of status violated the Administrative Procedures Act,
5 U.S.C. § 706. In order to survive a motion to dismiss, this complaint
under the Administrative Procedures Act (APA) must allege that the
challenged federal agency action was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law. See
5 U.S.C. § 706.
1. Interpretation of 8 U.S.C. § 1255
Section 245(i) of the Immigration and Naturalization Act,
8 U.S.C. § 1255(i), sets forth the relevant law relating to the adjustment of
status program. The law declares that the Attorney General "may accept
such application [for adjustment of status] only if the alien remits with
such application a sum equalling $1,000 as of the date of receipt of the
application." 8 U.S.C. § 1255(i)(1). According to the face of the
statute, then, the $1,000 special processing fee is a co-requisite of
filing the application. The law further states that "upon receipt of such
an application and the sum hereby required, the Attorney General may
adjust the status of the alien to that of an alien lawfully admitted for
permanent residence if . . . an immigrant visa is immediately
available to the alien at the time the application is filed."
8 U.S.C. § 1255(i)(2). The application cannot be granted under Section 245(i)
of the Act unless a visa is immediately available.
The Code of Federal Regulations contains the specific regulations that
individuals must follow if they choose to seek the benefits of the
statute. The parties disagree about which section of the Code of Federal
Regulations governs filing of an application for adjustment of status.
Defendants assert that the general filing procedures for applications to
the INS, found at 8 C.F.R. § 103.2 (2000), governs the filing of
these adjustment applications. Plaintiff's claim that the specific filing
procedures for applications for adjustment of status found at
8 C.F.R. § 245.2(a)(2)(i) (2000) sets forth the governing filing requirements.
The general rule which
Defendants urge allows that applications are properly filed when
they are received, signed, and accompanied by proper payment.
Defendants point to the incorporation of these requirements in
8 C.F.R. § 245.10 as support for their position. Defendants assert that the
"explicitness of 8 C.F.R. § 245.10 and its incorporated reference to
8 C.F.R. § 103.2(a)(1) and (a)(2)" is determinative. (Def. Mot.
Dismiss at 5.) Defendants are correct that the explicitness of
8 C.F.R. § 245.10 is determinative of its content, but they are incorrect that
it explicitly sets forth filing requirements for Adjustment of Status
Applications. Section 245.10 explicitly sets filing requirements for the
qualifying immigrant visa petitions that the relative of the undocumented
immigrant must file prior to the application for the adjustment of
status. The regulation that Defendants rely on does not reference or even
mention the applications for adjustment of status that are at issue
The regulation that the Plaintiff's highlight, by contrast, is entitled
"Proper Filing of application under Section 245."
8 C.F.R. § 245.2(a)(2)(i) (2000) The regulation, as it was during the class
Before an application for adjustment of status
under section 245 of the Act may be considered
properly filed, a visa must be immediately
available. If a visa would be immediately
available upon approval of a visa petition, the
application will not be considered properly filed
unless such petition has first been approved. If
an immediate relative petition filed for
classification under section 201(b)(2)(A)(i) of
the Act or a preference petition filed for
classification under section 203(a) of the Act is
submitted simultaneously with the adjustment
application, the adjustment application shall be
retained for processing only if approval of the
visa petition would make a visa immediately
available at the time of filing the adjustment
application. If the visa petition is subsequently
approved, the date of filing the adjustment
application shall be deemed to be the date on
which the accompanying petition was filed.
The Court holds that the filing requirements for applications for
adjustment of status are clearly set forth in
8 C.F.R. § 245.2(a)(2)(i) (2000). Defendants are right, however, that Section
245.2(a)(2)(i) cannot be looked at in a vacuum, as there are significant
filing requirements (location, fees, etc.) that are not discussed there.
Consequently, the Court holds that the filing requirements of Section
245.2(a)(2)(i) supplement the general filing requirements of Section
103.2 and, in the event of a conflict between them, the specific
requirements listed above would prevail.
By its own terms, then, the regulation dictates that the adjustment of
status applications would not be considered "properly filed" unless a
visa would be "immediately available." This begs the question that
underlies this lawsuit what are the consequences, if any, of filing an
application for adjustment of status under § 245(i) when a visa is
not immediately available? Or, to put it another way, what happens to a
filing that is not "properly filed"?
Plaintiffs allege that the practice in most INS district and
subdistrict offices was to return the applications along with the filing
and processing fees if a visa was not immediately available to the
applicant. (Pl. Comp. ¶ 52) Plaintiff's urge that the Chicago
District Office of the INS was similarly required by statute to return
the application and the fees to the applicant if the visa was not
immediately available. In support of their position, they point to the
language of the Section 245.2(a)(2)(i) that indicates that the
applications "shall be retained for processing only if approval of the
visa petition would make a visa immediately available at the time of
filing the adjustment application." 8 C.F.R. § 245.2(a)(2)(i). In the
full context of the regulation (which is quoted above), however, it is
clear that this circumstance does not apply directly to every
Application for Adjustment of Status; it only applies directly when the
adjustment application "is submitted simultaneously" with the
immediate relative visa petition. It is not clear from the complaint that
any of the named Plaintiff's submitted their adjustment applications
simultaneously with an immediate relative visa petition, but it is
possible that some of the class members did so.
Even if none of the class members filed their applications
simultaneously with an immediate relative visa petition, this would not
doom the Complaint. Plaintiff's urge that the regulations should be
interpreted to require a visa to be immediately available before an
application for adjustment of status is accepted in the INS District
Office. The policies underlying this interpretation are consistent with
the policies of the statute as a whole. The statute is designed to
encourage undocumented immigrant relatives to stabilize their immigration
status in the United States without requiring them to leave the country.
There is no apparent reason to differentiate between the premature
adjustment application that is filed simultaneously with an immediate
relative visa petition and a premature adjustment application that is
filed subsequent to an immediate relative visa petition. If a visa is not
immediately available, the applications in both instances would be denied
under the statute. Plaintiffs assert that the regulations should be
interpreted to require immediate availability of visas. This
interpretation is compelling enough to be endorsed by the American Law
Reports. See 4 A.L.R. Fed. 557, § 14 ("The regulations
state that before an application for adjustment of status under § 245
may be accepted and considered properly filed, a visa must be immediately
available to the applicant. . .").
At this stage, this Court does not need to. determine whether the
statute affirmatively requires the INS to reject premature adjustment
applications without processing them. If many
other INS district offices in the country returned both the
application and the accompanying fees to applicants when visas were not
immediately available, as alleged, Plaintiffs' Complaint states a claim
that the challenged agency action was arbitrary and capricious. That is
all that is required to state a claim under the APA,
Accepting the allegations as true, Count I of Plaintiff's Complaint
states a claim under the APA. Consequently, the Motion to Dismiss will be
denied as to Count I of the Complaint.
B. Count II: Procedural Due Process
Count II of Plaintiff's Complaint alleges that the policy and actions
of the Chicago District Office of the INS violated their procedural due
process rights under the Fifth Amendment. In order to state a claim for a
procedural due process violation, the Plaintiff's must allege that they
have a constitutionally protected property or liberty interest. This must
be a "legitimate claim of entitlement to [the benefit]" rather than "an
abstract need or desire for it." Board of Regents v. Roth,
408 U.S. 564, 577 (1972).
Plaintiffs cannot sustain their procedural due process claim. The
Plaintiff's have conceded that they were ineligible for an adjustment of
status at the time they submitted their applications. Moreover, even if
the Plaintiff's were eligible for an adjustment of status, mere
eligibility under the statute is not determinative of an adjustment: the
Attorney General retains discretion to deny adjustment even for those who
are statutorily eligible. Cf. Drax v. Reno, 338 F.3d 98, 113
(2d Cir. 2003) ("an adjustment of status under § 245(a) is entirely
discretionary [;] . . . even where an alien satisfies the statutory
requirements of eligibility for an adjustment of status . . ., `the
[INS] has discretion under section 245 to deny the application.'
Jain v. INS, 612 F.2d 683, 687 (2d Cir. 1979)."). The Supreme
confirmed that the INS need not have even considered their
statutory eligibility if, in its discretion, the agency determined that
they were otherwise ineligible for an adjustment. See INS v.
Bagamasbad, 429 U.S. 24 (1976) (per curiam). Since the Plaintiff's
cannot show that they had a legitimate entitlement to the ultimate
benefit of the adjustment application, their claim that the way their
applications were handled is a constitutional problem of
procedural due process under the Fifth Amendment is unavailing.
C. Count III: Equal Protection of the Laws
Plaintiff's claim in Count III that Defendants' actions deprived them
of equal protection of the laws. Because the Plaintiff's are challenging
the actions of the federal government, this claim arises under the Fifth
Amendment's Due Process Clause, which contains an implicit guarantee of
equal protection of the laws, rather than the Fourteenth Amendment's
Equal Protection Clause (which only applies to the states). In order to
sustain their complaint of an equal protection violation, the Plaintiff's
must allege that the law creates distinctions between classes of aliens
that were not supported by a rational basis. See Matthews v.
Diaz, 426 U.S. 67, 80 (1976).
Here, Plaintiff's do not challenge the distinctions created by the law;
rather they challenge the distinctions that the INS created between
classes of aliens who were seeking an adjustment of status. Although this
is cast as an equal protection claim, it is more properly depicted as a
selective enforcement challenge to the Chicago District Office's
enforcement policy. According to Plaintiff's Complaint, the Chicago
District Office chose to investigate those immigrants who submitted
premature applications for adjustment of status during the class period
and it chose not to investigate those who submitted premature
or after the class period.
The Supreme Court has counseled strongly against accepting a selective
enforcement claim in the immigration context. See Reno v.
American-Arab Anti-Discrimination Committee [Reno v. AAADC],
525 U.S. 471, 488-92 (1999). In Reno, the Court announced that "as
a general matter . . . an alien unlawfully in this country has no
constitutional right to assert selective enforcement as a defense against
his deportation." Id. at 488. The concerns that counsel caution
in selective enforcement claims generally "are greatly magnified in the
deporation context." Id. at 490.
To the extent that Plaintiff's purported equal protection claim alleges
that this class of immigrants was treated differently than other similar
classes without any rational basis to do so, such allegations would
buttress their claim that the agency action was arbitrary and capricious
in violation of the Administrative Procedures Act. It does not, however,
state a separate constitutional claim.
D. Count IV: Substantive Due Process
In Count IV, Plaintiff's claim that the Defendants' actions in
investigating and commencing proceedings against them interfered with
their right of familial association which is protected among other
substantive rights under the Due Process Clause of the Fifth Amendment.
The claim that enforcement of immigration statutes unconstitutionally
impinges on family relationships has never gotten far in American courts.
See, e.g., Fiallo v. Bell, 430 U S. 787 (1977) (holding that it
did not violate equal protection for natural mothers to receive
immigration privileges that natural fathers did not); Newton v.
I.N.S., 736 F.2d 336 (6th Cir. 1984) (holding that it did not
violate U.S. citizen children's rights to deport their parents). It
gets no farther today, even though Plaintiff's are right that the
statute in question seeks to permit laudatory family unification.
In their response to the Motion to Dismiss, Plaintiffs contend that
they are arguing in Count IV "that Defendants' actions are contrary to
the spirit of section 245(i) and to the section's implementing
regulations, and have interfered with their federally protected right to
unite with their citizen and legal permanent resident family members."
(Pl. Resp. Mot. Dismiss, at 11.) As noted above in the discussion of the
procedural due process claim, the Plaintiff's do not have a "federally
protected right to unite with their citizen and legal permanent resident
family members." They have a federally created opportunity to apply for
an adjustment of status that, if granted, would permit them to unite
legally with their citizen and legal permanent resident family members.
Defendants' actions are arguably contrary to the Administrative
Procedures Act, but they do not run afoul of the Plaintiff's' substantive
due process rights.
E. Limitations on Injunctive Relief
Defendants assert that Plaintiff's are statutorily precluded from
granting injunctive relief on Plaintiff's Complaint under Section 242(f)
of the Immigration and Naturalization Act, 8 U.S.C. § 1252(f). This
portion of the statute prohibits courts other than the Supreme Court from
"enjoin[ing] or restrain[ing] the operation of provisions of chapter 4 of
Title II." 8 U.S.C. § 1252(f)(1). Defendants are right that this does
impose "nothing more or less than a limit on injunctive relief."
Reno v. AAADC, 525 U.S. at 481. By its own terms, however, it
would not prevent the court from considering the injunctive relief sought
in this case. Plaintiff's seek to enjoin what they allege are improper
practices under 8 U.S.C. § 1255 and its
accompanying regulations. This is outside of the scope of the
statutory limitation on injunctive relief. See Catholic Social
Services. Inc. v. I.N.S., 232 F.3d 1139, 1150 (9th Cir. 2000) (en
banc) ("[T]he district court . . . issued the preliminary injunction
under 8 U.S.C. § 1255a. . . . Therefore, by its terms, the
limitation on injunctive relief does not apply to the preliminary
injunction granted by the district court."). The Court makes no
determination on the propriety of the injunctive relief that Plaintiff's
seek in this case.
For the foregoing reasons, the Defendants' Motion to Dismiss
Plaintiffs' Complaint for failure to state a claim is granted as to
Counts II through IV and denied as to Count I.