Fargo v. United States Department of Homeland Security

Filing 41

DECISION and ORDER Dismissing Fargo's Mandamus Claims. Signed by Chief Judge Ramona V. Manglona on 10/16/2018. (BTC)

FILED

Clerk
District Court

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OCT 16 2018

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for the Northern Mariana Islands
By________________________
(Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN MARIANA ISLANDS

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MILAN FARGO,

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Plaintiff,

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v.

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DEPARTMENT OF HOMELAND
SECURITY,

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Defendant.
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Case No. 16-CV-00024
DECISION AND ORDER DISMISSING
FARGO’S MANDAMUS CLAIMS

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I.

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INTRODUCTION

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Milan Fargo is an alien seeking a court order to compel the Department of Homeland

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Security to issue him certain immigration documents, including some documents from his Alien

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file (“A-file”) pursuant to the Freedom of Information Act (“FOIA”). 1 On July 30, 2018, the

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Court allowed Fargo’s FOIA claim to go forward, but dismissed without prejudice his mandamus

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claims requesting that the Court order the Government (1) to give him a copy of an advance

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parole purportedly granted to him on December 22, 2016, (2) to decide his application for refugee

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status, and (3) to provide a replacement permanent resident card. (Order Granting Fargo’s Motion

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to Proceed in Forma Pauperis, ECF No. 31 (“Order”).) The Court observed that “Fargo’s

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pleadings do not show that he has no other adequate means to obtain the documents he seeks

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from the agency . . . within a reasonable amount of time[, or] that he has a pending application

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Fargo was placed in removal proceedings in September, 2016 and has been released on his own
recognizance. (Order of Release on Recognizance, ECF No. 9-1 at 3-4.)

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for refugee status awaiting agency action.” (Id. at 6–7.) The Court gave Fargo until August 10,

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2018, to file an amended complaint. (Id. at 8.) On August 9, 2018, Fargo filed amendments, in a

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document titled My Responses Honorable Court’s Order to Leave to Amend (ECF No. 33)

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(“Responses”). Because Fargo is proceeding pro se, without the assistance of a lawyer, the Court

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will liberally construe the Responses as amending Fargo’s earlier requests for mandamus relief

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(see Order at 3–5) and, taken together, constituting an amended complaint.

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II.

LEGAL STANDARD

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Before service on defendants, all in forma pauperis complaints must be screened to ensure

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that they are not frivolous or malicious, that they state a claim on which relief may be granted,

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and that they do not seek monetary relief against an immune defendant. 28 U.S.C. §

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1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000); Bertha v. Sullivan, 719 Fed.

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Appx. 516, 519 (7th Cir. 2017) (“Bertha was proceeding in forma pauperis, so the judge could

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have screened the amended complaint under § 1915(e)(2)(B)”). The standard for adequately

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stating a claim is the same as the one that is applied under Rule 12(b)(6) of the Federal Rules of

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Civil Procedure. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). A complaint “must

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contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on

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its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 678.

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III.

DISCUSSION

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All three of Fargo’s claims are for mandamus relief. “Mandamus is an extraordinary

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remedy and is available to compel a federal official to perform a duty only if: (1) the individual's

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claim is clear and certain; (2) the official's duty is nondiscretionary, ministerial, and so plainly

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prescribed as to be free from doubt, and (3) no other adequate remedy is available.” Patel v.
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Reno, 134 F.3d 929, 931 (9th Cir. 1997). When mandamus is sought on grounds that an agency

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has unreasonable delayed taking required action, the reasonableness of the delay is evaluated

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under the so-called TRAC factors: (1) rule of reason, (2) whether Congress has provided a

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timetable, (3) whether human health and welfare are at stake, (4) the cost to other higher-priority

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agency activities in forcing immediate action, and (5) the nature and extent of the interests

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prejudiced by the delay. In re A Community Voice, 878 F.3d 779, 786 (9th Cir. 2017) (citing

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Telecommunications Research and Action Center v. F.C.C. (“TRAC”), 750 F.2d 70, 80 (D.C.

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Cir. 1984)). A sixth factor is a caution that “the court need not find any impropriety lurking

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behind agency lassitude in order to hold that agency action is unreasonably delayed.” Id. (quoting

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TRAC, 750 F.2d at 80).

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1. 2016 Advance Parole and Employment Authorization Card

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Fargo states that his employment authorization card (or employment authorization

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document, EAD, known as a work permit) was confiscated by the Saipan office of Immigration

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and Customs Enforcement (ICE) in August 2017, and that he now understands that the EAD also

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serves as an advance parole. (Responses at 1.) His understanding is based on his reading of a

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letter from a “Mr. Anderson” that his advance parole was combined with his EAD, which Fargo

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has dubbed the “combo card.” (Id.) He further states, “I am afraid to demand my card back [from

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ICE] because they can cancel my release on my own recognizance at any time.” (Id.) Fargo is

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referring to the fact that he is in removal proceedings and has been released on recognizance with

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specific conditions. (Motion for Relief from [Saipan ICE Office’s] Restrictive 9/19/2016 Order

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Violating my Right to Free Movement, May 25, 2017, ECF No. 9, at 3–4.)

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For screening purposes, Fargo has plausibly pled a clear and certain claim to an EAD. He

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submitted a copy of an I-797 Notice of Action from the USCIS Texas Service Center showing

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that his I-765 “application for employment authorization and advance parole has been

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approved[,]” and that the EAD will be sent to him separately. (ECF No. 19, at 3–4.) The notice

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states that the authorization is valid from December 19, 2016, to December 18, 2018. (Id.)

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Fargo has not, however, pled facts that would show ICE has a ministerial duty to return

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his EAD to him. The purpose of the writ of mandamus is “to compel an administrative officer to

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do a nondiscretionary administrative act.” Finley v. Chandler, 377 F.2d 548, 548 (9th Cir. 1967).

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Fargo has not pled that ICE has a nondiscretionary duty to return his EAD to him. Rather, he is

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implicitly asking the Court to determine that ICE had no right to confiscate his EAD and then

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issue an injunction ordering ICE to return it.

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Further, by his own admission Fargo has failed to take the first administrative step to

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regaining his EAD, which he also claims includes his 2016 advance parole: asking for it back.

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Fear that his recognizance release will be revoked, even if it were well founded, is not a sufficient

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reason not to make the direct request at the Saipan ICE office, which no doubt is already aware

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that he is litigating against their parent agency in the district court in Saipan. Fargo’s amendment

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fails to show he had no adequate means to obtain the document from the agency. He thus fails to

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show he is entitled to a writ of mandamus.

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2. Replacement Permanent Resident Card

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In his initial complaint filed on May 30, 2018 (consolidated case No. 18-CV-00016, ECF

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No. 1-1), Fargo stated that his permanent resident card (green card) was lost in the mail twice,

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that on November 2, 2017, he received assistance at the Saipan USCIS office in applying online

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for a replacement card, but that he has received no response. He now seeks a writ of mandamus

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to have DHS USCIS issue a receipt notice of his Form I-90 Application, or a decision, or a

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replacement green card because more than six months have passed and he has not received any

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response. (Id. at 7–9.)

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In support of his claim, Fargo submitted copies of his May 2018 e-mails addressed to

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“dhsexecsec” and “AskDOJ” claiming DHS USCIS has never responded to his Form I-90
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Application and seeking assistance. (Id. at 9–10.) Separately, he submitted to the Court in this

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case a letter from U.S. Citizenship and Immigration Services (USCIS) dated March 17, 2017,

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informing him as follows: “We have received your service request regarding your Permanent

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Resident Card. On December 22, 2016, your card was mailed to the address on record at that

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time. However, the post office returned it to us as undeliverable. We have requested your card

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be re-mailed to the provided address. Please allow 90 days for delivery.” (1:16-cv-00024, ECF

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No. 19.)

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In an email to the Department of Homeland Security Executive Secretary, dated February

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22, 2018, Fargo stated, “The permanent residency card was sent to me but it got returned back as

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undeliverable of not having my mailbox at that time. The card was sent second time, but . . . it

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got lost by the US Postal Service Office 96950 in Saipan.” (ECF No. 33, Document 1.) On May

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24, 2018, he sent a message to [e-mail], stating that on February 8,

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2018, he asked for help from Section 508 in finding his advance parole and his green card, but

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has received no response. (ECF No. 33, Document 8.) 2 He complained that he had been unable

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to use the Outside Normal Processing Time utility on the USCIS website because he had not

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been given the identification numbers and other information necessary to make an e-request. (Id.)

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Fargo has not plausibly pled that he has a clear claim to a replacement green card.

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Although the March 17, 2017 letter from USCIS does at one point refer to a “service request

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regarding your Permanent Resident Card,” elsewhere in the same letter the type of service

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requested is listed as “Non-Delivery of Employment Authorization Card,” and the case type is

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listed as “I-765,” which is an application for an EAD.

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The clear and certain evidence Fargo has provided that his application for employment

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authorization was approved in December 2016 belies his claim that he has a right to a green card

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Section 508 of the Rehabilitation Act of 1973, as amended in 1998, requires federal agencies to make
their electronic and information technology accessible to people with disabilities.

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as a lawful permanent resident. A green card holder does not need an EAD. An alien who is a

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lawful permanent resident is “authorized to be employed in the United States without restrictions

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as to location or type of employment . . .” 8 C.F.R. § 274a.12(a). An alien who is applying for

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adjustment of status to lawful permanent resident must apply for work authorization, 8 C.F.R. §

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274a.12(c)(9); but Fargo is claiming that his status has already been adjusted and he has a right

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to a replacement green card. The previously discussed evidence that USCIS issued him an

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employment authorization starting on December 19, 2016, with a EAD to follow shortly, strongly

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suggests that the card referred to in the March 17, 2017 letter was an EAD, not a green card.

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An error on the part of the unknown Texas Service Center employee who responded on

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March 17, 2017 to Fargo’s service request seems to have left Fargo with the mistaken belief he

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has both an advance parole/EAD and a green card. Unfortunately, it has led him down some

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blind alleys, as when he sent an email to the DHS National Record Center requesting copies

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that he was awarded “on December 22, 2016 Advance Parole and in March, 2017, Permanent

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Residency Card . . .” (Responses, Doc. 9.) The misunderstanding, however, does not make the

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existence of a permanent resident card a reality.

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Even if somehow the card in question really is a green card, Fargo has not pled facts

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showing that no adequate remedy is available to him other than mandamus. Fargo asserts that

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“Defendant has demonstrated a strong unwillingness to give me the replacement card.”

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(Responses at 3.) The facts as Fargo has stated them and the exhibits he has submitted to support

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them show otherwise. The Government mailed him a card twice. The first time it was mailed to

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the last address Fargo had given them – apparently, he had not updated his address. The second

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card was lost in the mail. The evidence presented thus far has not demonstrated the Government’s

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reluctance to issue him a replacement card.

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Fargo states that on November 2, 2017, the “USCIS Saipan Office Lady in charge spent

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a lot of time online submitting my Application for Replacement Card while I waited outside.”
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(Complaint, No. 18-CR-16, ECF No. 1-1, at 2.) Once the application was submitted, she told him

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his job “is to wait and wait. It is all what I know about the submitted application. The USCIS

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Saipan Office can submit to Honorable Court more information.” (Id.) Fargo has not submitted

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a copy of the application or a receipt notice or receipt number. He has submitted a USCIS

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instruction sheet that says a receipt notice will be “mailed to the address you provided on your

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application. If you have a USCIS online account, your receipt notice will also be posted to your

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USCIS Online Account.” (Id. at 8.) Fargo states that he “cannot use this nice and effective service

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because I do not know the receipt number.” (Id. at 3.) It seems he is confused here, because a

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receipt number is not needed to access an online account. 3

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It is not the job of the Saipan USCIS office to give the Court evidence that Fargo

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submitted an I-90 application and supply the Court with the receipt notice. Fargo must obtain

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that information himself. If he does not have it in his possession, the most basic step would be to

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go back to the Saipan USCIS office and make inquiries there. But Fargo has not stated that he

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has done so, and therefore cannot tell us what their response was. It appears he could obtain the

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necessary information online if he establishes, or has already established, an online account. If

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he needs help with online access, he needs to find someone to assist him.

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Because Fargo has not pled facts that plausibly show he has a pending application for a

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replacement permanent resident card and that he has no other adequate remedy, the Court does

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not reach the question of whether an 11-month delay in processing such a request is reasonable.

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See In re A Community Voice, 878 F.3d at 784 (“an agency cannot unreasonably delay that which

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it is not required to do”).

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3. Application for Refugee Status

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See https://myaccount.uscis.dhs.gov. The home page describes how to create a new account,
and requires only an email address and password for access.
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Fargo states that he applied for refugee status in August 2016 and has submitted as

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evidence an I-589 Application for Asylum and for Withholding of Removal. (Responses, Doc.

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5, ECF No. 33.) In the application, he stated that he has been living in the CNMI since August

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22, 2012. (Id., Part C(5).)

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The application Fargo says he submitted is for asylum, not refugee status. Asylum is the

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relief available to aliens who are physically present in the United States, as Fargo was in 2016.

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See 8 U.S.C. § 1158(a)(1). The two statuses are related; an applicant for asylum must prove that

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he is a refugee as defined in section 1101(a)(42)(A) of Title 8 of the United States Code. See 8

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U.S.C. § 1158(b)(1)(B)(i).

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The CNMI is in a transition period between its own sovereign control of immigration to

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full application of federal immigration law, as set forth in Title VII of the Consolidated Natural

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Resources Act of 2008, Pub. L. 110-229, May 8, 2008, 122 Stat. 754; 48 U.S.C. 1806(a)(2).

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During the transition period, asylum is unavailable to aliens living in the Commonwealth.

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“Section 208 of the Immigration and Nationality Act (8 U.S.C. § 1158) [concerning asylum] shall

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not apply during the transition period to persons physically present in the Commonwealth or

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arriving in the Commonwealth . . .” 48 U.S.C. § 1806(a)(7). 4

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Even if it is impossible for Fargo to be granted asylum while living in the Commonwealth,

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USCIS might arguably have a ministerial duty to respond to his application – if he actually

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submitted one. The application and supplements he filed with the Court have many irregularities.

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The application itself is unsigned and undated. (Responses, Doc. 5, Part D.) Fargo did sign and

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date Supplement A, on August 11, 2016. (Id., Suppl. A.) Supplement A is to be submitted only

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when an applicant needs additional space to list all his or her children. Fargo does not list any

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children, either in the application itself or in his Supplement A, which is blank. In the application

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Section 1806(a)(7) was unaffected by the Northern Mariana Islands U.S. Workforce Act of 2018, Pub.
L. 115-218, July 24, 2018, 132 Stat. 1547, which extended the termination of the transition period from
December 31, 2019 to December 31, 2029.

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he states, “I have applied for . . . asylum in 1996, 2002 and 2[0]12 because I had no idea of the

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possibility to ask for refugee status.” (Id., Part C(1).) Fargo does not state the date on which he

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submitted the Form I-589 asylum application, or where he submitted it to. According to the I-

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589 instruction sheet, 5 it must be filed with the immigration court or Board of Immigration

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Appeals if the applicant is currently in proceedings there. If the applicant is not in proceedings,

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the application goes to a service center according to the applicant’s location – except that no

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service center is listed as serving the CNMI. That is because “[p]ursuant to 48 U.S.C §

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1806(A)(7), if you are physically present in, or arriving in the Commonwealth of the Northern

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Mariana Islands, you may not apply for asylum until January 1, 2020; however, you may use

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Form I-589 . . . to apply for withholding of removal and for protection from removal under the

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Convention Against Torture in Immigration Court proceedings.” (Instructions, Part I(1).) 6 In

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short, if Fargo was in removal proceedings, the application would have had to be made directly

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in the immigration court; otherwise, it could not be made at all.

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Fargo has submitted an email dated February 4 – from context, the year appears to be

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2017 – from the USCIS Chief of Customer Engagement Center that begins as follows: “Thank

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you for your inquiry to Former Secretary of Homeland Security Jeh Johnson regarding your

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Accuracy Monetizers Nation Mega project, and your request for refugee status. The U.S.

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Department of Homeland Security referred your inquiry to the U.S. Citizenship and Immigration

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Services (USCIS), Special Cases Unit. Your inquiry has been assigned case# 1137447.”

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(Responses, Doc. 4.) Fargo points to this letter as evidence his application for refugee status was

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Form I-589 Instructions 5/16/17 are available at
https://www.uscis.gov/sites/default/files/files/form/i-589instr.pdf (accessed October 16, 2018).
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This information is also available at

https://www.uscis.gov/legal-resources/immigration-commonwealth-northern-mariana-islandscnmi/us-immigration-law-commonwealth-northern-mariana-islands-cnmi
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received. Fargo has not submitted a copy of the referenced inquiry. It appears to have been a

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letter or email directly to the Secretary of DHS inquiring about refugee status, not an application.

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There is no basis to conclude that the Special Cases Unit had a ministerial duty to follow up with

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Fargo.

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IV.

CONCLUSION

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The Court has given Fargo ample opportunity to demonstrate he has a claim to the

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extraordinary remedy of mandamus on his applications for asylum, a replacement permanent

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resident card, and his 2016 advance parole with his EAD. As shown above, asylum is impossible

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for him while he is present in the CNMI, he has failed to show a clear and certain right to a

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replacement permanent resident card, and he has failed follow through with basic means of

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obtaining relief from immigration authorities on his advance parole and EAD claim.

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Wherefore the Court ORDERS as follows:

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1. Fargo’s claim for mandamus relief as to his advance parole/EAD card is dismissed

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with prejudice. Amendment would be futile, because even if he asked for the return

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of his card and was denied, the U.S. Immigration and Customs Enforcement does not

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have a ministerial duty to return it to him.

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2. Fargo’s claim for mandamus relief as to his alleged application for a replacement

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permanent green card is dismissed without prejudice. Fargo may, within 14 days of

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this order, file a Motion for Leave to File a Second Amended Complaint. Leave will

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not be granted unless Fargo can plausibly show that he, or an agent on his behalf,

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actually filed a Form I-90 on or about November 2, 2017, and that he has followed up

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appropriately at the Saipan USCIS office. Failure to file the motion within 14 days

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will result in a dismissal with prejudice.

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3. Fargo’s claim for mandamus relief as to his alleged application for refugee status

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using a Form I-589 Application for Asylum and for Withholding of Removal is
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dismissed with prejudice. Amendment would be futile because asylum is statutorily

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unavailable to him and an application for withholding of removal would properly be

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before the immigration court.

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IT IS SO ORDERED this 16th day of October, 2018.

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_________________________________
RAMONA V. MANGLONA
Chief Judge

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