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Sile v. Napolitano

May 12, 2010

EMILE TOKA SILE, PLAINTIFF,
v.
JANET NAPOLITANO, SECRETARY OF U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on the parties' motions for summary judgment. For the reasons stated below, we grant Plaintiff's motion for summary judgment and deny Defendants' motion for summary judgment.

BACKGROUND

The facts in this case are unique. Plaintiff Emile Toka Sile (Sile) was born in Cameroon in 1959. In July 1994, Sile entered the United States as a visitor and subsequently applied for asylum in the United States. On December 28, 1995, an immigration judge granted Sile's application for asylum. Before Sile was granted asylum status in the United States, he had a pending application filed on October 6, 1995, to immigrate to Canada. In 1996, Sile received notification from the Canadian Consulate General that his application to immigrate to Canada had been completed, and Sile was issued an "Immigrant Visa and Record of Landing" and instructed that he must present such documents at a Canadian port of entry before July 12, 1996. In June 1996, Sile was issued a United States Refugee Travel Document, which Sile contends he used together with his Canadian Immigrant Visa to visit Canada on June 15, 1996. Upon entering Canada, Sile was considered a Landed Immigrant by the Canadian Government. Three weeks later, on July 7, 1996, Sile attempted to return to the United States as an asylee (an alien who has been granted asylum status in the United States). However, the former Immigration and Naturalization Service (INS) refused to admit him to the United States as an asylee, but deferred his inspection into the United States. This meant that Sile was physically allowed to remain in the United States while the INS made a decision relating to Sile's admissibility to the United States as a returning asylee.

On January 3, 1997, the INS placed Sile in Exclusion Proceedings by issuing Sile a Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge. INS, in part, contended that Sile became a Landed Immigrant in Canada in June 1996, when he visited Canada, and as a result, Sile's "Application for Political Asylum in the United States" was terminated. The INS's characterization of Sile in the charging document, as an applicant for asylum, was incorrect since Sile at the time was not an applicant for asylum, but had already been granted political asylum in the United States on December 28, 1995, by an immigration judge.

On January 6, 1998, an immigration judge held a hearing on the charges by the INS. During the Exclusion Proceedings, the judge entered an order, which stated "[a]fter considering the facts and circumstances of this case and as there is no opposition from the parties, it is HEREBY ORDERED that these proceedings be terminated." (Jan. 1998 Order). Sile then was re-admitted as a returning asylee to the United States. At no time was Sile's asylum status terminated, nor did Sile receive any notice of intent to terminate his asylum status in the United States. In fact, on June 18, 2009, Sile was issued a Refugee Travel Document as an individual with a valid asylum status. As of this date, the Defendants concede that Sile has a valid asylum status in the United States, which has never been terminated.

On January 18, 2000, Sile, as an asylee, filed a Form I-485, Application to Adjust Status, with the U.S. Citizenship and Immigration Services (CIS), one of the successor agencies to the INS, to adjust his status to lawful permanent residence status under 8 U.S.C. § 1159(b). Six and a half years later, on August 18, 2006, the CIS denied Sile's application, classifying Sile as an alien firmly resettled in Canada when Sile went to Canada for three weeks in 1996, and thus, ineligible to adjust his status to permanent residence. On September 15, 2006, Sile filed a motion to reconsider the denial. Approximately three years later, on July 17, 2009, the CIS "dismissed" Sile's motion to reconsider. In August 2009, Sile brought the instant action pursuant to the Mandamus Act, 28 U.S.C. § 1361, the All Writs Act, 28 U.S.C. § 1651, the Declaratory Judgment Act, 28 U.S.C. § 2201, the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq., and the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq.. Sile and Defendants have filed motions for summary judgment.

LEGAL STANDARD

Pursuant to 28 U.S.C. § 1361 of the Mandamus Act, "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Id.; see also 28 U.S.C. § 1651(explaining authority of courts to issue writs). Pursuant to 5 U.S.C. § 706 of the APA, a reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. . . ." 5 U.S.C. § 706(2)(A); Head Start Family Educ. Program, Inc. v. Cooperative Educational Service Agency, 11 46 F.3d 629, 633 (7th Cir. 1995) (explaining limited scope of review of agency decisions); Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984)(explaining deference accorded to agency decisions).

DISCUSSION

Sile argues that Defendants' classification of Sile as an alien firmly resettled in Canada in 1996, thus barring him from adjustment of status to permanent residence, was in violation of the law since Sile was granted asylum in the United States in 1995, and his asylee status has never been terminated. Pursuant to 8 U.S.C. § 1158, an alien cannot be granted asylum unless the alien is a refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A). Also, pursuant to 8 U.S.C. § 1158, an alien cannot be granted asylum if the alien is firmly resettled in another country, and if granted asylum, it is subject to revocation. 8 U.S.C. § 1158(b)(2)(A)(vi); 8 C.F.R. § 208.14(d)(2)(effective January 1, 1997); 8 C.F.R. § 208.13(c)(2)(i)(B)(effective currently). Pursuant to 8 U.S.C. § 1159(b), an alien who is granted asylum cannot adjust to permanent resident status if the alien (1) does not apply for adjustment, (2) is not physically present in the United States for one year after being granted asylum, (3) is no longer a refugee, (4) is firmly resettled in another country, and (5) is inadmissible to the United States as an immigrant. 8 U.S.C. § 1159(b); 8 C.F.R. § 209.2(a)(1)(i-v). There are therefore five prerequisites to adjustment before adjustment of status can even be adjudicated on the merits and a discretionary determination made. If an asylee does not meet prerequisites (1), (2), and (5), the alien still has asylum status in the United States. For example, an alien who has asylum status in the United States might decide not to file for adjustment of status under prerequisite (1), or if an asylee does not have one year presence in the United States, the alien can still keep the asylum status, or if an asylee is disqualified under one of the admissibility grounds, the alien might still be able to keep his or her asylee status. However, if an alien is no longer a refugee or is firmly resettled under prerequisites (3) and (4), the alien under the above referenced statutes cannot have asylum status. These two bars, (3) and (4), for adjustment of status go to the heart of asylee status in the first place.

There are two issues that are relevant to Sile's request for mandamus and review under the APA: (I) whether the doctrines of res judicata and collateral estoppel apply on the issue of firm resettlement, and (II) whether CIS's classification of Sile as an alien firmly resettled in Canada, and thus ineligible for adjustment of status, is arbitrary and capricious.

I. Doctrines of Res Judicata and Collateral Estoppel

Sile contends that the CIS's classification of Sile as firmly resettled in Canada, and thus ineligible for adjustment of status, is contrary to the law and principles of res judicata and collateral estoppel. In effect, Sile is arguing that INS/CIS should be collaterally estopped from considering Sile as firmly resettled in another country because the issue of firm resettlement was presented by the INS to the immigration judge in 1997 in Exclusion Proceedings and the immigration judge terminated the proceedings. Defendants contend that the analysis regarding firm resettlement as it relates to Sile's application for adjustment of status is separate and distinct from the analysis of firm resettlement on Sile's status as an asylee. Under the doctrine of collateral estoppel, a party is "prevent[ed] from relitigating issues that have already been litigated and decided." Aaron v. Mahl, 550 F.3d 659, 665 (7th Cir. 2008). In order for the doctrine of collateral estoppel to be applicable: "(1) the issue sought to be precluded must be the same as that involved in the prior litigation, (2) the issue must have been actually litigated, (3) the determination of the issue must have been essential to the final judgment, and (4) the party against whom ...


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