Lavariega v. Johnson et al

Filing 10

OPINION & ORDER: For the foregoing reasons, Lavariega's petition for a Writ of Habeas Corpus and a Writ of Mandamus is dismissed; and as further set forth in this order. (Signed by Judge John F. Keenan on 9/24/2015) (tn)

Case 1:09-md-02013-PAC Document 57

Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: Sept. 24, 2015

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES DISTRICT COURT
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SOUTHERN
JUAN LAVARIEGA, DISTRICT OF NEW YORK
:
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:
In re FANNIE MAE 2008 SECURITIES:
:
08 Civ. 7831 (PAC)
Petitioner,
LITIGATION
:
09 MD 2013 (PAC)
:
:
-against:
: No. 14OPINION & ORDER
:
Civ. 5008 (JFK)
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JEH JOHNSON, Secretary for The
:
Department of Homeland Security,
:
OPINION & ORDER
U.S. Immigration and Customs
:
Enforcement and U.S. Citizenship
:
HONORABLE PAUL A. CROTTY,
and Immigration Service, divisionUnited States District Judge:
:
of Department of Homeland Security;:
and the United States of America, :
BACKGROUND1
:
Respondent.
:
The early years of this decade saw a boom in home financing which was fueled, among
:
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other things, by low interest rates and lax credit conditions. New lending instruments, such as
JOHN F. KEENAN, United States District Judge:
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
In this action, Petitioner Juan Lavariega’s (“Petitioner”)
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
moves for a Writ of Habeas Corpus and a Writ of Mandamus
assumption that the market would continue to rise and that refinancing options would always be
pursuant to 28 U.S.C. § 2241 and § 2242. Respondents Jeh
available in the future. Lending discipline was lacking in the system. Mortgage originators did
Johnson, Secretary of the Department of Homeland Security; U.S.
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
Immigration and Customs Enforcement; U.S. Citizenship and
originators sold their loans into the secondary mortgage market, often as securitized packages
Immigration Services; and the United States (collectively,
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
“Respondents” or the “Government”) oppose the petition on the

But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
ground that the Court lacks subject matter jurisdiction to
and home prices began to fall. In light of the changing housing market, banks modified their
address Lavariega’s claims. The Court agrees.
lending practices and became unwilling to refinance home mortgages without refinancing.
I.
Background
Lavariega is a citizen of Mexico who, according to the
1

Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,

Petition, resides withpurposes children all allegations in the Amended Complaint are taken as true.
dated June 22, 2009. For his of this Motion, and grandchild in

1

Poughkeepsie, New York.

He is also a beneficiary of an I-130

Petition for Alien Relative, which was filed by his wife—a
United States citizen—on his behalf in 1997.

After his I-130

Petition was approved by the former Immigration and
Naturalization Service (“INS”) in 1998, Lavariega filed an I-485
Application in order to adjust his status to lawful permanent
resident.
While his I-485 application was pending, Lavariega left the
United States and returned to Mexico.

On February 14, 2000,

Petitioner was detained by INS officers after attempting to
reenter the United States at a border crossing at San Ysidro,
California through a lane designated for U.S. citizens.

While

detained, Lavariega signed a declaration stating that he falsely
claimed to be a U.S. citizen at the time of entry.

Thereafter,

on February 15, 2000, the INS issued an expedited removal order
against Lavariega pursuant to 8 U.S.C. § 1225(b)(1).

The order

stated that Lavariega was inadmissible to the United States
because he (1) falsely claimed U.S. citizenship and (2) lacked
valid immigration documents entitling him to entry into the
United States. See 8 U.S.C. §§ 1182(a)(6)(C)(ii),
1182(a)(7)(A)(i)(I).

Lavariega was subsequently released from

INS custody and returned to Mexico.1

1

Although not addressed in the instant petition, it appears from
Lavariega’s statement that he “live[s] in Poughkeepsie” that—
2

The instant petition was filed on June 3, 2014.

In it,

Lavariega asserts that he did not falsely claim U.S.
citizenship; rather, he claims that he entered the lane for U.S.
citizens at the San Ysidro border crossing because he mistakenly
believed that it was for all persons with a legal right to enter
the United States.

Further, Petitioner contends that he signed

the declaration stating that he had falsely claimed U.S.
citizenship without understanding it, because it was in English.
Finally, Lavariega also alleges that he was not given access to
counsel before being removed.

Accordingly, Lavariega moves

pursuant to 28 U.S.C. §§ 2241 and 2242 for (1) an order granting
the Writ of Habeas Corpus and (2) an order granting the Writ of
Mandamus against Respondents “so that a determination on
[P]etitioner’s immigration applications can be made.” (Pet. at
4.)

Alternatively, Lavariega seeks an order granting the Writ

of Mandamus as against Respondents “to issue and file a Notice
to Appear before the Immigration Court.” (Id.)
II.
A.

Discussion

Writ of Habeas Corpus

As an initial matter, the Court notes that Lavariega’s
petition fails to state a claim under 28 U.S.C. §§ 2241
and 2242.

Section 2241 provides federal courts with authority

despite being ordered removed by the INS—he later returned to
the United States.
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to grant writs of habeas corpus on behalf of persons who are “in
custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241(c)(3); see Poindexter v.
Nash, 333 F.3d 372, 377 (2d Cir. 2003).

Thus, applications for

habeas relief under § 2241 must “allege the facts concerning the
applicant’s commitment or detention, the name of the person who
has custody over him and by virtue of what claim or authority,
if known.” Id. § 2242.

Here, however, Lavariega does not claim

to be detained by the U.S. Government.

As a result, §§ 2241

and 2242 are inapplicable to his petition.
Instead, Lavariega appears to be seeking judicial review of
his February 2000 expedited removal order, which was issued
pursuant to 8 U.S.C. § 1225(b)(1).

Judicial review of orders of

removal is governed by 8 U.S.C. § 1252(a), which permits habeas
proceedings to be commenced where a petitioner seeks relief from
“determination[s] made under section 1225(b)(1).” See id.
§ 1252(e)(2).

The scope of federal jurisdiction in such cases

is strictly limited, however, “to determinations of—(A) whether
the petitioner is an alien, (B) whether the petitioner was
ordered removed under [§ 1225(b)(1)], and (C) whether the
petitioner can prove by a preponderance of the evidence that the
petitioner is an alien lawfully admitted for permanent
residence, has been admitted as a refugee . . . , or has been
granted asylum.” Id.; see also Kabenga v. Holder, 76 F. Supp. 3d
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480, 482 (S.D.N.Y. 2015) (“Put otherwise, federal courts are not
authorized to decide whether an alien should be admitted to the
United States.

They are only authorized to decide whether an

alien in fact has been admitted to the United States.”).
Here, Lavariega’s petition for habeas relief does not
challenge any of the three determinations that the Court has
jurisdiction to review under § 1252(e)(2).

Specifically, the

petition does not dispute that Lavariega, a citizen of Mexico,
is an alien (Pet. ¶ 10; Return, Ex. D at 2) or that he was
ordered removed under 8 U.S.C. § 1225(b)(1) on February 15, 2000
(Pet. ¶ 12-13; Return Ex. E).

Further, Lavariega has made no

showing that he is an alien lawfully admitted for permanent
residence, has been admitted as a refugee, or has been granted
asylum. See 8 U.S.C. § 1252(e)(2)(C).

Instead, the petition

merely alleges that Lavariega was the beneficiary of an I-130
Petition and that he had a pending application for permanent
residency at the time he was detained. (Pet. ¶ 15; see also
Return, Ex. B, G (noting that Lavarieg’s I-485 application was
later denied).)

But an I-130 petition for alien relative is not

an immigration visa; rather, it is filed by a citizen or lawful
permanent resident of the United States in order to establish
that person’s relationship to certain alien relatives who wish
to immigrate to the United States. See U.S. CITIZENSHIP
IMMIGRATION SERVICES, 1-130 PETITION

FOR

5

ALIEN RELATIVE,

AND

http://www.uscis.gov/i-130 (last visited Sept. 23, 2015)
(“Filing and approval of an I-130 is only the first step in
helping a relative immigrate to the United States.”).
Accordingly, because Lavariega has failed to allege any basis
upon which the Court could grant relief, his application for a
writ of habeas corpus must be dismissed.
B.

Writ of Mandamus

Lavariega’s petition also seeks a writ of mandamus.

As a

general matter, “mandamus is an extraordinary remedy, intended
to aid only those parties to whom an official or agency owes a
clear and nondiscretionary duty.” See Escaler v. U.S.
Citizenship & Immigration Servs., 582 F.3d 292 (2d Cir. 2009)
(citation and internal quotation marks omitted).

In seeking a

writ of mandamus, a petitioner must therefore “show a clear and
indisputable right to its issuance.” Id. (citation and internal
quotation marks omitted).
Once again, Lavariega’s petition fails to meet this
standard.

Although Lavariega contends that a writ of mandamus

is needed “so that a determination on [P]etitioner’s immigration
applications can be made,” he has identified no applications or
other claims that are outstanding.

Nor has he shown that an

order directing Respondents to appear before the Immigration
Court is warranted.

Instead, as the Government notes, the I-130

Petition filed on Lavariega’s behalf by his wife was approved by
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the INS in 1998, while his I-485 Application was denied in 2001.
(See Return Exs. A, B, G.)

Similarly, although the Government

has identified two additional applications related to Lavariega—
a second I-130 Petition filed by his wife in June 1998 and an
Application for Employment Authorization filed by Lavariega in
March 2001—these applications were already approved in January
2001 and denied in April 2001, respectively.
Thus, Petitioner has not shown—and the Government has not
identified—any pending applications relating to Lavariega that
an official or agency of the United States has a clear and
nondiscretionary duty to adjudicate. See Lihua Jiang v. Clinton,
No. 08 Civ. 4477, 2011 WL 5983353, at *3 (E.D.N.Y. Nov. 28,
2011) (concluding that a petition for a writ of mandamus was
“moot” because the Government “discharged any non-discretionary
duty” when it processed the plaintiff’s application and
subsequently denied her son’s visa request); see also Altman v.
Bedford Cent. School Dist., 245 F.3d 49, 69 (2d Cir. 2001)
(noting that federal courts lack subject matter jurisdiction
over claims that are moot).

Accordingly, in the absence of an

actual and ongoing controversy, Lavariega’s petition is moot and
must be dismissed for lack of subject matter jurisdiction.

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III. Conclusion
For the foregoing reasons, Lavariega's petition for a Writ
of Habeas Corpus and a Writ of Mandamus is dismissed.

SO ORDERED.

Dated:

'4- tf',

September
2015
New York, New York

~Jr~

John F. Keenan
United States District Judge

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