Paez-Basto et al v. Acting Secretary, Department of Homeland Security et al
Filing
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ORDER denying 6 Motion for TRO. Signed by Judge Gregory A. Presnell on 1/28/2014. (ED)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MARTHA PAEZ-BASTO and
MASSIMILIANO CENTANNI,
Plaintiffs,
v.
Case No: 6:13-cv-1955-Orl-31TBS
RAND BEERS, acting director,
Department of Homeland Security;
ALEJANDRO MAYORKAS, director,
U.S. Citizenship and Immigration Services;
RUTH DOROCHOFF, district director,
Citizenship and Immigration Services,
Tampa, Florida; and WARREN
JANSSEN, field office director, U.S.
Citizenship and Immigration Services,
Orlando, Florida,
Defendants.
ORDER
This matter comes before the Court after a hearing on Plaintiffs’ Motion for Temporary
Restraining Order (Doc. 6), the Defendants’ Memorandum in Opposition (Doc. 14), and two
memoranda (Doc. 7, 21) filed by Plaintiffs in support of their motion.
I.
Background
For purposes of resolving the instant motion, the Court accepts the following information
(taken primarily from the Plaintiffs’ papers) as true: The Plaintiffs, Martha Paez-Basto (“PaezBasto”) and Massimiliano Centanni (“Centanni”), have been married since 2006 and reside in
Florida. Paez-Basto is an American citizen; Centanni is an Italian national. The Plaintiffs
sought to have Centanni’s status adjusted to that of permanent resident of the United States. To
that end, on July 22, 2013, Paez-Basto filed a Form I-130 (titled “Petition for Alien Relative”) and
Centanni filed a Form I-485 (titled “Application to Register Permanent Resident or Adjust
Status”). Centanni also sought and received an “Advanced Parole” document (henceforth, an
“APD”) that permitted him to travel abroad and return while his Form I-485 was pending.
On November 27, 2013, Paez-Basto’s Form I-130 was denied, resulting in the denial of
Centanni’s Form I-485. Centanni departed the United States for Italy on December 1, before
learning of the denials. Although the record is not clear on this point, it appears likely (and the
Court assumes) that the denial of Centanni’s application has invalidated the APD, such that
Centanni will not be allowed to return to the United States to contest that denial or to help care for
the Plaintiffs’ minor son.
On December 20, 2013, the Plaintiffs filed the instant suit, seeking a writ of mandamus to
“compel Defendants to reopen and properly adjudicate” the Form I-130 and the Form I-485.
(Doc. 1 at 1). More particularly, the Plaintiffs seek to have this Court invalidate the orders
denying their requests, thereby making Centanni’s APD valid again, which would allow him to
return to the United States. Shortly after filing their complaint, the Plaintiffs filed the instant
motion. (Doc. 6).
II.
Analysis
Though still married, the Plaintiffs have been living apart since 2011 and are in the process
of obtaining a divorce. (Doc. 7 at 3). On July 6, 2013, the Plaintiffs entered into a “Marriage
Settlement Agreement,” which was filed in state court and which, according to USCIS, “settled
financial, property, and other rights” between them. (Doc. 1-7 at 3). Because of this, USCIS
found that the Plaintiffs were “legally separated” and that Paez-Basto’s petition was therefore due
to be denied. (Doc. 1-7 at 3). In reaching this decision, USCIS relied primarily on Matter of
Lenning, 171 I & N Dec. 476 (BIA 1980), a case out of New York in which the Bureau of
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Immigration Appeals held that “a visa petition filed on behalf of an alien spouse is properly denied
where the parties legally separated pursuant to the terms of a formal, written separation agreement
notwithstanding the fact that their marriage was entered into in good faith and had not been finally
dissolved by an absolute divorce decree.” The Plaintiffs contend that their requests were
improperly denied because (1) unlike New York, Florida does not recognize the concept of “legal
separation” and (2) the Marital Settlement Agreement is not the equivalent of the “formal, written
separation agreement” at issue in Lenning.
To obtain preliminary injunctive relief, a plaintiff must show: (1) a substantial likelihood
of success on the merits; (2) a substantial threat of irreparable injury if injunctive relief is denied;
(3) a balancing of the hardships in the plaintiff’s favor; and (4) that the public interest favors relief.
Haitian Refugee Center., Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir. 1991). The Plaintiffs
assert a number of theories in their Complaint, but for purposes of the instant motion, they argue
only that their rights to procedural and substantive due process were violated. (Doc. 7 at 2).
A procedural due process violation is not complete unless and until the government fails to
provide due process. McKinney v. Pate, 20 F.3d 1550,1557 (11th Cir. 1994) (citing Zinermon v.
Burch, 494 U.S 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)). “In other words, the [government]
may cure a procedural deprivation by providing a later procedural remedy; only when the
[government] refuses to provide a process sufficient to remedy the procedural deprivation does a
constitutional violation actionable under Section 1983 arise.” Id. In the instant case, the
Plaintiffs admit that they have the right to appeal the denial of the Form I-130 to the Board of
Immigration Appeals, and if successful, Centanni’s denied Form I-485 could be renewed. (Doc.
7 at 14-15). The availability of these avenues for subsequent review and correction of USCIS’s
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allegedly incorrect decision weighs heavily against the Plaintiffs’ contention that they have
suffered a violation of their right to procedural due process.
The substantive component of the Due Process Clause protects those rights that are
“fundamental,” that is, rights that are “implicit in the concept of ordered liberty.” McKinney, 20
F.3d at 1556 (citing Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288
(1937).
The Supreme Court has deemed that most—but not all—of the
rights enumerated in the Bill of Rights are fundamental; certain
unenumerated rights (for instance, the penumbral right of privacy,
see Planned Parenthood v. Casey, 505 U.S. 833, ––––, 112 S.Ct.
2791, 2807, 120 L.Ed.2d 674 (1992)) also merit protection. It is in
this framework that fundamental rights are incorporated against the
states. A finding that a right merits substantive due process
protection means that the right is protected “against ‘certain
government actions regardless of the fairness of the procedures used
to implement them.’” Collins v. City of Harker Heights, 503 U.S.
115, ––––, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992) (quoting
Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88
L.Ed.2d 662 (1986)).
Id.
The Plaintiffs have not shown that the Government’s actions have violated any
fundamental rights. Based on Centanni’s inability to reenter the United States, they attempt to
argue that Centanni’s right to liberty has been violated. (Doc. 7 at 11-12). They also argue that
Centanni’s exclusion from this country will interfere with his ability to appeal the USCIS denial or
to care for his minor son. The Court is sympathetic to the Plaintiffs’ plight. However, at least
for purposes of the instant motion, their arguments fail for several reasons, not least of which is
the fact that Centanni, not the Government, is responsible for his being outside the United States.
The Plaintiffs have also failed to point to any law or precedent supporting the notion that aliens
have a fundamental right to enter the United States so as to pursue permanent residency, to care
for minor children, or for any similar purpose. See, e.g., Kleindienst v. Mandel, 408 U.S. 753,
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762 (1972) (holding that unadmitted nonresident alien had no constitutional right of entry to the
United States). In addition, while district courts possess subject matter jurisdiction to review
denials of Form I-130s, Rivera v. Patterson, 2011 WL 5525356 (S.D.Fla. Nov. 14, 2011), they
lack such jurisdiction in regard to the denial of a Form I-485 application, Gupta v. Holder, 2011
WL 4460188 (M.D.Fla. Sept. 26, 2011). This court also lacks jurisdiction to review the
(apparent) invalidation of Centanni’s APD. Samirah v. O’Connell, 335 F.3d 545, 549 (7th Cir.
2003).
As Plaintiffs have not shown a substantial likelihood of success on either of their due
process claims, it is hereby
ORDERED that the Motion for Temporary Restraining Order (Doc. 6) is DENIED.
DONE and ORDERED in Chambers, Orlando, Florida on January 28, 2014.
Copies furnished to:
Counsel of Record
Unrepresented Party
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