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Rivera-Durmaz v. Chertoff

September 29, 2006

ROSSY LAURA RIVERA-DURMAZ, MAHMUT ERHAN DURMAZ, PLAINTIFF,
v.
MICHAEL CHERTOFF, SECRETARY DEPARTMENT OF HOMELAND SECURITY, ALBERTO GONZALEZ, MICHAEL COMFORT, CHICAGO, ILLINOIS DISTRICT DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Rebecca R. Pallmeyer United States District Judge

Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiffs Rossy Laura Rivera-Durmaz and her husband, Mahmut Erhan Durmaz, sued Defendants Secretary of Homeland Security Michael Chertoff, Attorney General Alberto Gonzales, and Director Michael Comfort of the U.S. Citizenship and Immigration Services ("CIS") Chicago District Office in their official capacities. Invoking the Administrative Procedures Act, 5 U.S.C. § 702, Plaintiffs allege that agency decisions denying Mr. Durmaz's application for an adjustment of his alien status and a waiver of inadmissibility were arbitrary, capricious, and contrary to the law. Defendants have moved to dismiss the complaint for lack of jurisdiction and for failure to state a claim. In addition, Defendants have moved to supplement the record with evidence that the CIS has issued a notice to appear for Mr. Durmaz. Plaintiffs move to strike all references to that notice to appear and oppose Defendants' motion to dismiss. For the reasons set forth here, the motion to dismiss is granted, and the motions to strike and to supplement the record are denied as moot.

FACTS

For purposes of this motion, the facts alleged in Plaintiffs' First Amended Complaint ("FAC") are presumed true. Plaintiff Rossy Laura Rivera-Durmaz (hereinafter, "Mrs. Durmaz,") is a U.S. citizen who in 2003 resided in Illinois with her husband, Plaintiff MahmutErhan Durmaz, who entered the United States legally (from Turkey, the court infers). (FAC ¶¶ 4,5.) On May 5, 2003, Mrs. Durmaz filed a Form I-130 petition for alien relative and Mr. Durmaz filed a Form I-485 petition for adjustment of status to lawful permanent resident with the U.S. Citizenship and Immigration Services Chicago District Office (hereinafter, "CDO"). (Id.¶ 10.) More than a year later, Defendants scheduled a routine interview for October 5, 2004.

Plaintiffs allege that their attorney advised Mrs. Durmaz that a letter from her employer might bolster Mr. Durmaz's application. (Id. ¶ 32.) Because she believed that requesting such a letter from her employer would be an imposition, she instead requested that Robert C. Pribilski,*fn1 the President of USA Financial Management Services, Inc. prepare and submit an employment letter on her behalf. (Id. ¶¶ 30-31, 33-35.)Pribilski's letter stated that Mrs. Durmaz worked for him in Oakbrook, Illinois, and that she resided with Mr. Durmaz at an undisclosed Illinois address. (Id. ¶ 37.) In fact, however, although she "had helped around the [USA Financial] office in the past," Mrs. Durmaz was not an employee of USA Financial Management Services, Inc. and, moreover, she was residing in New Jersey at the time without Mr. Durmaz. (Id. ¶ 38.) Mrs. Durmaz nonetheless submitted the Pribilski letter at the October 5, 2004 hearing. Plaintiffs allege that Mr. Durmaz himself had no knowledge of the Pribilski letter or of its contents. (Id. ¶¶ 30, 39-40.) They allege, further, that they answered all questions at the October 5, 2004 hearing truthfully, but Defendants refused to rule on the petition "allegedly because security clearances could not be completed at that time." (Id. ¶ 12.)

As of June 1, 2005, when Plaintiffs appeared for an "Infopass interview," CIS staff advised them that the case remained pending because the security clearances had not yet been completed.

(Id. ¶¶ 16-17.) Repeated personal and telephone contacts with CIS yielded no results and on July 1, 2005, Plaintiffs initiated this lawsuit. (Id. ¶¶ 18-20.) At this point, the CDO scheduled a second "adjustment of status interview," an action that Plaintiffs call "suspect" because petitions such as theirs are "normally decided after one interview" and because, in Plaintiffs' view, a second interview would be of no assistance in obtaining the security clearances Defendants had claimed were necessary. (Id. ¶¶ 21, 23-24.) Indeed, when Plaintiffs did appear for the interview on August 26, 2005, they allege, Defendants made no effort to investigate the issue of security clearances but instead conducted a "de novo interview." (Id. ¶ 27.)

Defendants approved the I-130 petition, thus classifying Mr. Durmaz as the immediate relative of a United States citizen. They refused, however, to act on Mr. Durmaz's I-485 petition for adjustment of status. (Id. ¶¶ 28-29.) Instead, Plaintiffs allege, Defendants "insisted on inquiring into" the Pribilski letter. (Id. ¶¶ 30-31.) The CDO concluded, based on that letter, that Mr. Durmaz was inadmissible as an alien who misrepresented himself to an immigration officer. (Id. ¶ 42.) Plaintiffs allege that on November 3, 2005, they requested that the CDO reconsider its finding on inadmissibility, but they have never received a decision. (Id. ¶¶ 55, 57.) Plaintiffs also asked for a waiver which would have allowed Mr. Durmaz to receive a green card in spite of his misrepresentations because of the extreme hardship Mrs. Durmaz would face without him.*fn2 (Id. ¶¶ 58, 60.)

In two decisions issued on November 17, 2005, the CDO denied the request for a waiver, "formally pronounced their determination of inadmissibility" and denied Mr. Durmaz's I-485 petition.

(Id. at ¶¶ 61-62.) In his decision on the application for a waiver, a copy of which is attached to Defendants' Motion to Dismiss, Defendant Comfort observed that at the August 26, 2005 interview, Mrs. Durmaz declared in sworn statement that she legally married Mr. Durmaz on December 29, 2002; that she resided with him in Illinois for the first four months of 2003 before moving to New Jersey; that she had never worked for USA Financial Management Services in Illinois and instead was employed by Bioreference Labs in New Jersey; and that she had spoken to Mr. Durmaz about the fraudulent Pribilski letter before submitting it on Mr. Durmaz's behalf. (CDO Decision, at 1-2.) The CDO approved Mr. Durmaz's I-130 petition because the Immigration and Nationality Act provides that "a marriage for immigration purposes need only be bona fide at inception," Mr. Durmaz remained legally married, and Mrs. Durmaz was not seeking a divorce. (Id. at 2.) The CDO denied the I-485 petition, however, on the ground that Mr. Durmaz is "an alien who misrepresented himself to an immigration officer," within the meaning of Section 212(a)(6)(C)(i) of the Immigration and Nationality Act. (Id. at 1.) The CDO denied Plaintiff's request for a waiver of inadmissibility because it was unpersuaded by Plaintiffs' evidence of "extreme hardship." (Id. at 3-5.) The decision concluded by notifying Plaintiffs of their right to appeal and explaining the steps they needed to take to pursue an appeal. (Id. at 5.)

On December 5, 2005, Plaintiffs filed their First Amended Complaint seeking review of that finding. They allege it is contrary to law and to Defendants' own regulations; that it is arbitrary and capricious; that it is without rational explanation, unsupported by substantial evidence, and in bad faith. (FAC ¶¶ 62-70.) Plaintiffs ask the court to vacate the CDO's November 17, 2005, decisions on inadmissibility and denial of waiver and order the approval of Mr. Durmaz's I-485 petition. (Id. ¶¶ 12-13.)

On December 23, 2005, Defendants moved to dismiss this case, arguing that the court has no power to review the CDO's discretionary decisions and that Plaintiffs had failed to exhaust their administrative remedies. Plaintiffs filed a response in opposition to that motion. Attached as an exhibit to Defendants' reply memorandum was a copy of a notice, issued on January 23, 2006, directing Mr. Durmaz to appear at a hearing in removal proceedings on March 31, 2006. Plaintiffs moved to strike that exhibit, and ...


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