Mazariegos Hernandez v. Napolitano et al

Filing 34

MEMORANDUM AND ORDER - The defendants' motion to dismiss for lack of subject matter jurisdiction and for failure to state claim on which relief can be granted (Filing No. 21 ) is denied. Ordered by Judge Joseph F. Bataillon. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARIO MAZARIEGOS HERNANDEZ,
Plaintiff,

8:13CV113

vs.
JANET NAPOLITANO, Secretary of the
Department of Homeland Security, in her official
capacity as head of the Department of
Homeland Security; ALEJANDRO MAYORKAS,
Director, United States Citizenship and
Immigration Services; KENNETH MADSEN,
Director of Chicago Asylum Office; ERIC H.
HOLDER, JR., Attorney General, in his official
capacity as head of the Department of Justice;
JOHN F. KERRY, Secretary of State, in his
official capacity as head of the Department of
State; and DEPARTMENT OF HOMELAND
SECURITY,

MEMORANDUM AND ORDER

Defendants.

This matter is before the court on the defendants’ (hereinafter, “the
Government’s”) motion to dismiss for lack of subject matter jurisdiction and for failure to
state claim on which relief can be granted. Filing No. 21. This action involves an
alleged breach of the stipulated Class Action Settlement Agreement approved in
American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (the
“ABC Agreement”) by the defendants (hereinafter, collectively, “DHS” or “immigration
authorities”). The plaintiff contends that the defendants1 erroneously concluded that he

1

Defendant Janet Napolitano is the Secretary of the Department of Homeland Security, the
successor agency to the former Immigration and Naturalization Service (“INS”). Defendant Alejandro
Mayorkas is the Director of United States Citizenship and Immigration Services (“USCIS”), a successor
agency that was part of the former INS. Defendant Kenneth Madsen is the Director of the Chicago
Asylum Office, also part of the former INS. Defendant Eric H. Holder, Jr., is the Attorney General of the
United States. Defendant John F. Kerry is the Secretary of State and is alleged to be responsible for the
administration and enforcement of immigration law. 8 U.S.C. § 1104. Under the Homeland Security Act
of 2002, 116 Stat. 2135 (Nov. 25, 2002), the functions and responsibilities and obligations of the former
INS were transferred to DHS. See 6 U.S.C. §§ 251, 552, 557; Molina Jerez v. Holder, 2012 WL 1072581,

did not timely invoke the benefits of the ABC Agreement and was not entitled to relief
thereunder. He seeks declaratory and injunctive relief, including, but not limited to, the
right to apply for special cancellation of removal. Jurisdiction is premised on 28 U.S.C.
§ 1346 (United States as defendant in contract disputes of less than $10,000), 28
U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. §§ 2201-2202 (actions for
declaratory relief).
I. FACTS
A. Historical Background
In 1985, “‘thousands of Salvadorian and Guatemalan asylum seekers . . . filed a
lawsuit against [immigration authorities] claiming their asylum applications had not been
fairly adjudicated.’”

Molina Jerez v. Holder, 625 F.3d 1058, 1062 (8th Cir. 2010)

(quoting Cuadra v. Gonzales, 417 F.3d 947, 948 (8th Cir. 2005)); Jacobo v. Attorney
General of the United States, 459 Fed. App’x 112, 114-15 (3d Cir. 2012) (quoting In re
Morales, 21 I. & N. Dec. 130, 132 (BIA 1996)) (noting that the litigation “‘arose out of
systemic challenges by certain Salvadorans and Guatemalans in the United States to
the processing of asylum claims.’”). The United States had denied many applicants
asylum because it had favorable relations with El Salvador and Guatemala and
therefore concluded that many applicants could not have a “well-founded fear of
persecution” in those countries. See American Baptist Churches v. Thornburgh, 760 F.
Supp. 796, 799 (N.D. Cal. 1991) (“ABC”). In 1991, a district court approved a class
action settlement agreement in that case. Id. at 799, 804-05. The ABC Settlement

*1 n.2 (D. Minn. March 30, 2012) (“Molina Jerez II”) (noting “[t]he INS ceased to exist in 2003 and its
functions were transferred to the Department of Homeland Security. USCIS and Immigration and
Customs Enforcement (“ICE”) are divisions within the Department of Homeland Security.).” For ease of
reference, the defendants will be referred to, collectively, as DHS or “immigration authorities.”
2

offered asylees of those countries another chance to seek asylum and relief from the
consequences of prior asylum denials. Id. The United States “‘agreed not to deport
class members (commonly referred to as the ABC class), to give each class member a
proper de novo asylum interview, and to give class members work authorization while
they awaited these interviews.’” Molina-Jerez, 625 F.3d at 1061 (quoting Cuadra, 417
F.3d at 948). “The settlement was intended to provide ‘additional review procedures’ to
asylees.” ABC, 760 F. Supp. at 804. Also, “the ABC settlement provided that ‘[e]ligible
class members . . . [would] not be placed in [deportation] proceedings nor will
proceedings be resumed before the[ir] adjudication is completed.” Jacobo v. Attorney
General of United States, 459 Fed. App’x 112, *115 (3d Cir. 2012) (quoting ABC, 760 F.
Supp. at 803).
The de novo adjudications provided to ABC class members were designed to be
procedurally robust. Jacobo, 459 Fed. App’x at 115. For instance, every adjudication
was to include a new interview. Id. Every application was guaranteed a “preliminary
assessment” by an asylum officer, and a second read by a supervisor. Id.
The ABC settlement class was broadly defined as “Guatemalans in the United
States as of October 1, 1990” and “Salvadorans in the United States as of September
19, 1990.” Id. at 114. The benefits of the agreement were available to “Guatemalans
who indicate to the INS in writing their intent to apply for a de novo asylum adjudication
before an Asylum Officer, or otherwise to receive the benefits of this agreement, within
the period of time commencing July 1, 1991 and ending on December 31, 1991.” Id. at
800; see Chaly-Garcia v. United States, 508 F.3d 1201, 1204 (9th Cir. 2007). Also, the
ABC Agreement explicitly grants jurisdiction to federal district courts if an ABC class

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member is determined ineligible for benefits. Id. at 809–810; see Molina-Jerez, 625
F.3d 1058, 1069 (8th Cir. 2010) (holding that courts of appeals lack jurisdiction to review
the Department of Homeland Security/USCIS’s factual determination that a purported
asylee failed to timely register for ABC Agreement benefits); Molina Jerez II, 2012 WL
1072581 at *3.2
In 1996, Congress enacted the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), 110 Stat. 3009-546.

The legislation made a

number of changes to immigration law including replacing suspension of deportation
with cancellation of removal and strengthening the reinstatement of removal provisions.
Molina Jerez, 625 F.3d at 1062. “Before IIRIRA, ‘aliens with pending asylum claims
were able to apply for suspension of deportation’ which granted the Government more
discretion to grant permanent resident status to aliens.” Id. (quoting Cuadra, 417 F.3d
at 948-49).

IIRIRA replaced the suspension of deportation with the “much more

restrictive form of immigration relief” called cancellation of removal. Cuadra, 417 F.3d
at 949. However, in 1997, Congress passed the Nicaraguan Adjustment and Central
American Relief Act of 1997 (“NACARA”), 111 Stat. 2160, which “‘allows ABC class
members to seek relief under conditions approximating pre-IIRIRA suspension of
deportation.’” Molina Jerez, 625 F.3d at 1063 (quoting Cuadra, 417 F.3d at 949). Such

2

Numerous district courts have concluded that they have jurisdiction to hear breach of contract
claims relating to ABC eligibility. See e.g., Tobar-Barrera v. Napolitano, 2010 WL 972557, *2-*3 (D. Md.
March 12, 2010) (finding that the ABC Agreement granted subject matter jurisdiction to the district court
over a claim brought by a class member who was declared ineligible for ABC Agreement benefits); ChalyGarcia v. United States, 2005 WL 1459330 (D. Or. June 17, 2005) (exercising jurisdiction over plaintiff’s
challenge to USCIS’s determination regarding ABC eligibility, but finding plaintiff ineligible), rev’d on the
merits, Chaly-Garcia, 508 F.3d. at 1204 (holding that plaintiff established registration for ABC benefits);
Escobar v. Mukasey, 2008 WL 3843829, *4 (D. Cal. Aug. 15, 2008) (assuming jurisdiction to consider
plaintiff’s eligibility for ABC benefits); Villalta v. Holder, 2012 WL 2280099, *4-*5 (D. Cal. June 18, 2012)
(same).
4

relief is called “special rule cancellation of removal.”3 Id. (noting that legislation was
enacted to ameliorate some of IIRIRA’s adverse effects upon ABC class members).
Also, in 2000, Congress passed the LIFE Act Amendments of 2000, 114 Stat. 2763A324 through 2763A-327, which exempt “ABC class members from IIRIRA’s
strengthened reinstatement-of-removal provision and thereby ‘extend[s] NACARA’s
benefits to a category of aliens previously ineligible for NACARA relief.’” Id. (quoting
Aguilar de Polanco v. United States Dep’t of Justice, 398 F.3d 199, 202 (2d Cir. 2005)).
The INS “delayed implementation of the [ABC] settlement for years, and what
were once strong asylum claims became stale as conditions improved in El Salvador
and Guatemala.” See Cuadra 417 F.3d at 948; Molina Jerez, 625 F.3d at 1061. In the
intervening years, Congress amended immigration laws several times.

The Eighth

Circuit Court of Appeals explains:
By the mid-1990s, many ABC class members accrued the
requirements for suspension of deportation under 8 U.S.C. § 1254
(repealed by the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA) on September 30, 1996), which gave the Attorney
General discretion to grant permanent resident status to an alien who had
been in the United States for seven years, was of good moral character,
and whose deportation would cause extreme hardship for the alien or
certain lawfully present relatives. For many ABC class members, relief
through suspension of deportation was a better alternative than their nowstale asylum claims.
3

NACARA grants the Attorney General discretion to cancel removal of certain aliens who, among
other things:
(ii) [have] been physically present in the United States for a continuous period of not less
than 7 years immediately preceding the date of such application; and
(iii) [have] been person[s] of good moral character during such period.
NACARA § 203 (emphasis added). NACARA § 203 is an amendment to IIRIRA, and is now part of the
“transitional rules” found at IIRIRA § 309(f)(1)(A). See 8 U.S.C. § 1101 note; Cuadra, 417 F.3d at 948
n.1.

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As ABC class members began to apply for suspension of
deportation, however, Congress passed IIRIRA, which replaced
suspension of deportation with a much more restrictive form of
immigration relief—cancellation of removal. See 8 U.S.C. § 1229b. To
make relief easier for ABC class members, Congress passed NACARA,
which allows ABC class members to seek relief under conditions
approximating pre-IIRIRA suspension of deportation.
ABC class members who were placed in removal proceedings prior
to IIRIRA’s effective date are eligible for NACARA suspension of
deportation; ABC class members who were not placed in deportation
proceedings prior to IIRIRA’s effective date (like Cuadra) are eligible for
special rule cancellation of removal.
Cuadra, 417 F.3d at 948-49.
The United States Citizenship and Immigrations Services (“USCIS”) later issued
guidance on the proper application of the terms of the ABC Agreement. See Filing No.
26, Index of Evid., Ex. 4, USCIS Director Joseph Langlois Memorandum dated August
5, 2008, “Making ABC Determinations, Chaly-Garcia v. U.S., 508 F.3d 1201 (9th Cir.
2007)” (“Langlois Memo II”); Ex. 3, USCIS Director Joseph Langlois Memorandum
dated June 8, 2006, “Making ABC Registration Determinations” (“Langlois Memo I”). Its
policies evolved in response to caselaw as follows:
Previously, in determining whether Guatemalan and Salvadoran
nationals satisfied the registration requirement to receive ABC benefits
under the Settlement Agreement, USCIS required evidence of registration,
which could be established through credible testimony. Prior to the ChalyGarcia decision, the filing of an affirmative asylum application alone was
not viewed as evidence for satisfying the registration requirement.
Pursuant to the Ninth Circuit’s findings, however, a Guatemalan or
Salvadoran national, who affirmatively filed an I-589 application on or after
the date the court provisionally approved the Settlement Agreement and
prior to the conclusion of the designated registration period, has indicated
the intent to receive ABC benefits under the Settlement Agreement and
therefore should be considered “registered.”

6

Id., Langlois Memo II at 2. Furthermore, USCIS guidance provided that “asylum officers
should avoid relying extensively on technical questions such as whether the applicant
has ‘registered’ or if the applicant can provide detailed descriptions of the ABC
registration form or process.” See Jerez v. Holder, 2011 WL 7637808, *11 (D. Minn.
Sept. 1, 2011) (noting that official INS policy provided that the receipt for Guatemalans
should be dated no later than January 31, 1992, indicating that one month was added to
the filing deadline to account for delays in retrieving mail for the post office box.”)
(Report and Recommendation of Magistrate Judge), aff’d in part, Molina Jerez II, 2012
WL 1072581 at *7 (acknowledging that USCIS memoranda establish that immigration
authorities recognized and allowed for delays in postal processing).
Under the REAL ID Act, 8 U.S.C. § 1252(a)(5) & (b)(9), review of removal orders
is channeled to the courts of appeal. Skurtu v. Mukasey, 552 F.3d 651, 655 (8th Cir.
2008).
B. The Plaintiff’s Allegations
In his complaint, the plaintiff, a Guatemalan national who was in the United
States as of October 1, 1990, asserts he is a member of the ABC class and alleges that
on March 29, 2007, immigration authorities breached the ABC settlement. He alleges
that the only issue is whether the plaintiff timely expressed his intention to invoke the
benefits of the ABC Agreement in accordance with the agreement.
He alleges that he completed an I-589, Application for Asylum, an ABC
registration card, an I-765 Application for Employment Authorization, INS Form WR636, Biographic Information Form G-325, and Personal Identification Form (E-24) in
December 1991. In preparation for this filing, the plaintiff produced his Guatemalan

7

birth certificate in October of 1991, obtained his California driver’s license on November
12, 1991, and had his fingerprints taken for the purpose of filing his asylum application
on December 5, 1991.
He further alleges that his I-765 Application for Employment Authorization, which
indicates he is applying for asylum as an ABC class member, and his INS Form WR636, are both dated December 9, 1991.

He alleges he paid his notary, Mauricio

Castellon, $100 to file his asylum application and ABC registration form in December of
1991. He further alleges that Mauricio Castellon told him that he was registered for
ABC benefits on December 9, 1991.

Castellon also indicated to the plaintiff the

applications would be mailed the same day from his office in San Francisco, California.
The plaintiff alleges his asylum application and ABC registration were received
by the local INS Office in San Francisco, California, within 22 days of their mailing, no
later than December 31, 1991. The asylum application is date-stamped January 13,
1992. The plaintiff alleges that the INS Office in San Francisco failed to timely datestamp the application and misplaced the ABC registration due to its poor record-keeping
at the time, as the agency has subsequently acknowledged.
He also alleges that after he completed his ABC registration and Asylum
Application, he lived and worked lawfully in the United States from 1992 to the present.
He resides with his wife, Dominga Mazariegos, who is also an applicant for asylum.
Further, the plaintiff alleges that his Immigration file, in the possession of
defendants, contains plaintiff’s INS Form WR-636, submitted along with his Asylum
Application, bearing the date December 9, 1991.

He additionally alleges that his

immigration file contains a fingerprint card supplied by the INS office in San Francisco

8

that was signed, dated and verified by the agent who took plaintiff’s fingerprints on
December 5, 1991. Moreover, the card states that he was fingerprinted on that date for
the purposes of filing an 1-589. Also, his administrative immigration file lists him as
“Special Group: ABC” on a printout dated March 24, 1995.
On March 29, 2007, plaintiff appeared for his asylum interview in Omaha,
Nebraska, without legal representation. The interview was conducted by an Asylum
Officer from the Chicago Asylum Office before the issuance of the Chaly-Garcia memo
and without the benefit of its procedures. Following that interview, USCIS issued a
“Notice of Ineligibility for ABC Benefits” based on its conclusion that “[t]here is no
credible evidence that you registered for ABC benefits; either by filing directly or, if
Salvadoran, by applying for TPS.”

Filing No. 1, Complaint at 14. On July 5, 2007,

USCIS likewise issued a “Referral Notice,” finding plaintiff ineligible for asylum. USCIS
issued a Notice to Appear (“NTA”) on the same day, ordering Mr. Mazariegos
Hernandez to appear before the Omaha Immigration Court on September 11, 2007.
The Notice to Appear was filed with the Immigration Court on April 16, 2008.
The plaintiff alleges he continued to assert that he was a registered ABC class
member and that he was eligible for asylum during removal proceedings and filed form
1-881, Application for Suspension of Deportation or Special Rule Cancellation of
Removal, under NACARA § 203 with the Immigration Court on February 4, 2009. The
immigration judge denied his applications for relief and granted voluntary departure in a
decision and order dated July 27, 2011, finding that he had not met his burden of
showing that he timely registered for ABC benefits, and refusing to adjudicate his claim
for relief under NACARA.

9

The immigration judge also denied Mr. Mazariegos Hernandez’s application for
asylum and withholding of removal, finding, over the government’s objection, that he
had jurisdiction to consider whether the plaintiff had timely registered for ABC benefits.
The plaintiff timely filed an appeal of the immigration judge’s decision regarding
eligibility for asylum and whether he had timely registered for ABC benefits to the Board
of Immigration Appeals on August 18, 2011. On March 7, 2013, the Board dismissed
his appeal. He filed this action for breach of the ABC Settlement Agreement within 30
days of the date of the Board’s decision dismissing his appeal.
In support of their motion to dismiss, the defendants submit the immigration
judge’s July 27, 2011 decision and the Board of Immigration Appeals March 7, 2013
decision. Filing No. 23, Index of Evid., Exs. A & B. The immigration judge considering
plaintiff’s testimony at the hearing on his petition for cancellation of removal found the
plaintiff’s testimony credible. Id., Ex. A at 8. The court denied the plaintiff the benefit of
NACARA finding that he did not prove by a preponderance of evidence that he had
timely registered for ABC benefits. Id. at 9. On appeal of the order, the Board similarly
credited the plaintiff’s testimony, but found that he had not established that the ABC
application was timely. Id., Ex. B at 6. The Board noted that the Government “[does]
not actually claim to know when the notary filed the documents.”

Id.

Given that

disposition, the Board did not address the plaintiff’s alleged involvement in persecution.
Id. at 4.
In response to the defendants’ motion, the plaintiff submits the Langlois
memoranda and briefs submitted by the government in the Molina Jerez case. Filing
No. 26, Exs. 1-4.

The plaintiff argues that he is not challenging the Board of

10

Immigration Appeals’ March 2013 decision, but rather he challenges the initial March
29, 2007, U.S. Citizenship and Immigration Services (“USCIS”) Notice of Ineligibility for
benefits under the settlement reached in American Baptist Churches v. Thornburgh, 760
F. Supp. 796 (N.D. Cal. 1991) (the “ABC Agreement”). He characterizes the complaint
as an action for breach of the settlement agreement and assert this court has
jurisdiction under the ABC Agreement and 28 U.S.C. § 1346. Further, he contends that
this court has jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 702 et
seq. (“APA”), over a claim from an individual who has suffered a “legal wrong” or has
been “adversely affected or aggrieved” by agency actions.
II.

LAW

A district court has authority to consider matters outside the pleadings when
subject matter jurisdiction is challenged under Fed. R. Civ. P. 12(b)(1). Harris v. P.A.M.
Transp., Inc., 339 F.3d 635, 637, n. 4 (8th Cir. 2003) (quoting Osborn v. United States,
918 F.2d 724, 728 n. 4 (8th Cir. 1990). For the court to dismiss for lack of subject
matter jurisdiction under rule 12(b)(1), “the complaint must be successfully challenged
either on its face or on the factual truthfulness of its averments.” Titus v. Sullivan, 4
F.3d 590, 593 (8th Cir. 1993). “In a facial challenge to jurisdiction, all of the factual
allegations regarding jurisdiction would be presumed true and the motion could succeed
only if the plaintiff had failed to allege an element necessary for subject matter
jurisdiction.” Id. In a factual attack on the jurisdictional allegations of the complaint,
however, the court can consider competent evidence such as affidavits, deposition
testimony, and the like in order to determine the factual dispute.

Id.

In such a

challenge, this court is “free to weigh the evidence and satisfy itself as to the existence

11

of its power to hear the case.” Osborn, 918 F.2d at 730. “No presumptive truthfulness
attaches to the plaintiff’s allegations, and the existence of disputed material facts will not
preclude the court from evaluating for itself the merits of jurisdictional claims.” Id. The
plaintiff has the burden of proving that jurisdiction does in fact exist. Id.
When considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the
court conducts a two-part analysis. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
First, the court must accept all the complaint’s factual allegations as true. Id. at 678.
Second, the court must then “determine whether the . . . [factual allegations] plausibly
give rise to an entitlement to relief.” Id. at 679. This “plausibility” analysis is a “contextspecific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. Properly pled factual allegations are taken as true, without regard
to the likelihood of actual proof of those facts, even if the ultimate chances of recovery
seem “remote.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).
III. Discussion
The court first finds it has jurisdiction to consider the plaintiff’s breach of the ABC
Agreement claim.

The defendants’ jurisdictional challenge is premised on the

contention that the plaintiff’s action is essentially a challenge to a final order of removal
that is barred by the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(5) and (b)(9), or,
alternatively, a challenge to the Board’s determination that the plaintiff is not eligible for
special rule cancellation of removal under NACARA, which is not reviewable.4

4

The plaintiff acknowledges that he can only seek review of the Board’s removal decision in the
Court of Appeals, and has filed a petition for review with the Eighth Circuit. See Filing No. 25, Plaintiff’s
Brief at 7.
12

The court agrees with the plaintiff that the defendants mischaracterize his
complaint. The plaintiff challenges the Board’s conclusion that he is not a member of
the ABC class. This court has jurisdiction over that claim under the ABC Agreement.
See Molina Jerez, 625 F.3d at 1068 (rejecting the government’s claim that the Eighth
Circuit Court of Appeals had jurisdiction under 8 U.S.C. § 1252(a)).

The ABC

Agreement provides that district courts are the proper forum in which to raise a breach
of ABC Agreement claim.

Like the plaintiff in Molina Jerez, resolution of the case

hinges on a critical factual determination: Whether the plaintiff registered for ABC
benefits on or before December 31, 1991. A favorable finding by this court on that issue
would open up availability to apply for other forms of relief, i.e., NACARA. That an
action may tangentially affect an order of removal does not mean it is a challenge to an
order of removal so as to come within the purview of the REAL ID Act. Similarly, the
jurisdiction-stripping provision contained in NACARA § 203(a) does not apply to ABC
class members seeking special cancellation of removal.

NACARA § 203(a)(5)(C);

Cuadra, 417 F.3d at 948 (ABC class members placed in removal proceedings after
IIRIRA’s effective date are eligible for Special Rule Cancellation of Removal).
Accordingly, the court finds the defendants’ motion to dismiss for lack of jurisdiction
should be denied.
The court similarly rejects the defendants’ argument that the allegations of the
plaintiff’s complaint fail to state a claim for relief. The government’s argument in this
respect is that the allegations of the complaint show that plaintiff failed to timely apply

13

for ABC benefits and is accordingly not entitled to the benefit of the ABC Settlement.5
In his complaint, the plaintiff alleges that the defendants breached the ABC settlement,
and continue to do so, by not affording him the benefits of the agreement. He states in
his complaint that he filed his asylum application during the registration period, which
must be assumed true in the context of a motion to dismiss. Additionally, the plaintiff’s
“immigration file contains a fingerprint card supplied by the INS office in San Francisco
that was . . . required for the asylum application . . . , signed not only by the plaintiff, but
. . . also signed, dated and verified by the agent who took Plaintiff’s fingerprints on
December 5, 1991.” Filing No. 1, Complaint at 17. The card “states that Plaintiff was
fingerprinted on that date for the purposes of filing an 1-589.” Id. The plaintiff also
produced multiple additional written indications of his intent to receive the benefits of the
agreement. Id. at 20. There is apparently no dispute that the application was filestamped on January 13, 1992. There is caselaw to the effect that “[t]he plain meaning
of the ABC Agreement, relevant policy memoranda, and regulations all favor an
interpretation that the ABC registration form had to be mailed—but not received—by
December 31, 1991.” Molina Jerez II, 2012 WL 1072581 at *8. The facts outlined in the
complaint—including the allegations of contacting a notary, presenting the fingerprint
card, and the INS’s ultimate receipt of the application—nudge the plaintiff’s allegations
that his ABC registration form was timely “across the line from conceivable to plausible.”

5

In their reply brief, the defendants assert for the first time that the plaintiff’s action is barred by
the statute of limitations found in 28 U.S.C. § 2401. See Filing No. 30, Reply Brief at 2. They argue that
a suit challenging final agency action pursuant to 5 U.S.C. § 704 (the APA) must be commenced within
six years after the right of action first accrues. Because this court does not base jurisdiction on the APA,
the argument lacks merit. Further, the defendants allegedly continued to breach the agreement by failing
to recognize him as an ABC class member and failing to give him the benefit of a Chaly-Garcia hearing
throughout the course of his immigration proceedings.
14

Iqbal, 556 U.S. at 680. The plaintiff’s plausible allegation that the form was timely states
a claim for relief for breach of the ABC Agreement.
IT IS ORDERED that the defendants’ motion to dismiss for lack of subject matter
jurisdiction and for failure to state claim on which relief can be granted (Filing No. 21) is
denied.
Dated this 17th day of December, 2013.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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