Alves Da Cruz v. Riordan et al

Filing 7

Judge Douglas P. Woodlock: ORDER entered denying Emergency Motion 2 to Stay Removal (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CLAUDINOR ALVES DA CRUZ,
Plaintiff,
v.
DENIS RIORDAN, ET AL.,
Defendants.

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C.A. No. 11-10818-DPW

MEMORANDUM AND ORDER
May 11, 2011
WOODLOCK, D.J.
I.

INTRODUCTION
On May 9, 2011, plaintiff Claudinor Alves Da Cruz (“Alves Da

Cruz”), an immigration detainee at the Plymouth County House of
Corrections in Plymouth, Massachusetts, filed, through his
counsel, Saher J. Macarius, Esq., a “Complaint for Writ in the
Nature of Mandamus” against various federal officials,1 under 28
U.S.C. § 1361 and 5 U.S.C. § 551 (the Administrative Procedures
Act.

Along with his Complaint, Alves Da Cruz filed an Emergency

Motion to Stay Removal (Docket No. 2) with a proposed Order
attached.

He seeks an Order staying removal, awarding attorney’s

fees and costs, and other equitable relief.
In his pleadings, Alves Da Cruz alleges that the Department
of Homeland Security is attempting to remove him to Brazil on
Wednesday, May 11, 2011, and he was apprised of his removal on

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Alves Da Cruz names as defendants: (1) Denis Riordan,
United States Citizenship and Immigration Services (“USCIS”)
District Director of the Boston District Office; (2) Alejandro
Mayorkas, Director, USCIS; (3) Janet Napolitano, Secretary of the
U.S. Department of Homeland Security; (4) Eric Holder, Attorney
General of the United States; and (5) Carmen M. Ortiz, United
States Attorney for the District of Massachusetts. Alves Da Cruz
paid the $350.00 civil action filing fee, and the Clerk issued
summonses as to the defendants on May 9, 2011.

May 9, 2011.

Alves Da Cruz seeks mandamus against the defendants

to compel action on his properly-filed I-130 (petition for alien
relative)2 and his properly-filed I-485 (application to register
permanent residence or adjustment status a/k/a “greencard
application”), which he filed on March 28, 2011.

Alves Da Cruz

contends that the defendants have improperly withheld action on
these applications, to his detriment, in violation of the
Administrative Procedures Act, 5 U.S.C. § 551 et seq.
Alves Da Cruz’s contends that he is entitled to legal
permanent resident status (“PRS”) because he is married to a
United States Citizen, Leah Knipe, who currently is pregnant with
their child, due on June 8, 2011.

He further asserts eligibility

for PRS because he was paroled into the United States and has no
criminal record.
Alves Da Cruz claims that USCIS has delayed adjudicating his
case.

USCIS had not issued the receipt notice of his

applications until April 27, 2011, and the Boston District Office
has been unable to process his case because of delays in
transferring his file.

He has attempted numerous times to

inquire into the status of his applications, to no avail, and now
maintains that the defendants are unlawfully withholding or
unreasonably delaying action on his petitions, thus failing to

2

I note that the Notice of Receipt of the I-130 visa
petition lists plaintiff as “Claudionor” Alves Da Cruz; however,
the instant Complaint lists plaintiff as “Claudinor” Alves Da
Cruz. The same is true for the I-485 application.
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carry out the adjudicative functions delegated to them by law.
Finally, Alves Da Cruz claims the refusal to act in a timely
fashion is arbitrary and his removal will render the adjudication
of his applications moot.

He asserts his constitutional rights

will be violated should he be removed, and that he will suffer
great emotional damage, as he will be barred from re-entry into
the United States for 10 years.

Moreover, his wife will suffer

irreparable harm because she is unemployed and is expecting their
first child in June.
II.

DISCUSSION
As a threshold matter, I construe Alves Da Cruz’s Emergency

Motion to Stay Removal as a request for an ex parte Temporary
Restraining Order (“TRO”).

To obtain the extraordinary remedy of

a TRO, Alves Da Cruz must show that: (1) he will suffer
irreparable harm absent an injunction; (2) the injury outweighs
the harm to the defendants if granted; (3) he is likely to
succeed on the merits of the case, and (4) the injunction does
not adversely affect the public interest.

Planned Parenthood

League of Mass. v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981);
see Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bishop, 839 F.
Supp. 68, 70 (D. Me. 1993)(extending four part preliminary
injunction test to temporary restraining orders).

Additionally,

Alves Da Cruz must demonstrate that his injury of loss is
“immediate and irreparable.”

Fed. R. Civ. P. 65(b).

At this juncture, I cannot find that Alves Da Cruz has
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satisfied the requirements of Rule 65, particularly where the
lapse of time between the filing of the applications and the
filing of the instant action is less than two months (i.e., from
March 28, 2011 to May 9, 2011).

Thus, I cannot find, at this

juncture, that the failure of USCIS to act on Alves Da Cruz’s
applications is an unreasonable delay in violation of the
Administrative Procedures Act, notwithstanding that there are
significant consequences associated with his removal.
As Judge O’Toole has observed:
Although it has not mandated a time limit, the
expressed “sense of the Congress” is that “the
processing of an immigration benefit application should
be completed not later than 180 days after the initial
filing of the application.” See 8 U.S.C. § 1571(b).
Because Congress stopped short of mandating a time
limit, the six month period for processing seems to be
an aspirational goal, rather than an enforceable
standard.
Aziz v. Chadbourne, 2007 WL 3024010, *2 n.2 (D. Mass.
2007)(O’Toole, J.).

Even using the six-month period as an

enforceable gauge, I cannot find that the failure to adjudicate
the applications at issue here evidences an unreasonable delay or
refusal of USCIS to carry out the adjudicative functions
delegated to it by law.
More fundamentally, however, I cannot find that Alves Da
Cruz has demonstrated sufficiently that I have jurisdiction to
stay removal, where THE REAL ID Act of 2005 has stripped the
District Courts of jurisdiction to stay a final order of removal.

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See Aziz, 2007 WL 3024010 at *1 (in action to compel USCIS to act
on plaintiff’s application for adjustment of status on the
grounds that USCIS had not made a final decision on application
and removal was imminent, district court denied emergency motion
to stay removal, finding the court lacked jurisdiction under 8
U.S.C. § 1252(g)).

See also Aziz v. Chadbourne, No. 07-2708 (1st

Cir. 2007)(“The emergency motion for a stay of removal is denied.
Judging by the arguments made so far, the jurisdictional basis
and merits of the petitioner’s action in district court are too
doubtful to justify interim relief.”).
Even if this Court were to have jurisdiction to consider the
Complaint for Mandamus to compel the USCIS to rule on Alves Da
Cruz’s applications3, such relief is not warranted at this time
given the relatively brief pendency of the applications.

In any

event, this Court does not have jurisdiction to grant the relief

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See Patel v. Napolitano, 2009 WL 2922946, *3 (E.D. Mich.
2009)(“The Administrative Procedures Act requires administrative
agencies to conclude all matters before them within a “reasonable
time,” and authorizes the Court to compel agency action
‘unreasonably delayed.’ 5 U.S.C. §§ 555(b); 706(1). The Mandamus
Act gives the district courts jurisdiction to compel an agency to
perform a duty owed to a plaintiff when a petitioner has a clear
right to relief; the defendant has a clear, non-discretionary
duty to act; and there is no other adequate remedy available. 28
U.S.C. § 1361.”). See also Marrakchi v. Secretary, U.S. Dept. Of
Homeland Security, 2010 WL 2854252, *2 (M.D. Fla. 2010)(declining
to dismiss challenge to denial of I-485 application for lack of
subject matter jurisdiction, stating that: “[a]bsent additional
briefing from the parties (and, in particular, from the
Government, which has not yet been served nor made any appearance
in this action), the Court cannot conclude at this time that it
is without jurisdiction to entertain the Complaint.”).
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petitioner seeks through a stay of his removal.
III.

CONCLUSION AND ORDER
Based on the foregoing it is hereby Ordered that plaintiff’s

Emergency Motion to Stay Removal (Docket No. 2) is DENIED.

SO ORDERED.
/s/ Douglas P. Woodlock
UNITED STATES DISTRICT JUDGE

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