Lucero Osorio v. Sessions et al
Filing
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ORDER denying 24 Motion for Judgment on the Pleadings. Signed by Judge Timothy S. Black on 9/30/2020. (rrs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
IN THE MATTER OF DARWIN
LUCERO OSORIO,
Plaintiff,
vs.
WILLIAM P. BARR, United States
Attorney General, et al.,
Defendants.
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Case No. 1:18-cv-172
Judge Timothy S. Black
ORDER DENYING PLAINTIFF’S
MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. 24)
This civil action is before the Court upon Plaintiff Darwin Lucero Osorio’s motion
for judgment on the pleadings (Doc. 24), and the parties’ responsive memoranda. (Docs.
26, 30). Specifically, Plaintiff is seeking a de novo review of United States Citizenship
and Immigration Services’ (“USCIS”) denial of his Form N-400, Application for
Naturalization (“Form N-400”), pursuant to 8 U.S.C. § 1421(c).
I.
BACKGROUND
On December 14, 2018, this Court issued an Order denying Defendants’ motion to
dismiss. (Doc. 20). In reviewing that Rule 12(b)(6) motion, the Court construed all of
Plaintiff’s well-pleaded factual allegations as true. Here, in reviewing Plaintiff’s Rule
12(c) motion for judgment on the pleadings, the Court must construe all well-pleaded
allegations in favor of Defendants.
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On March 9, 2018, Plaintiff Darwin Lucero Osorio filed his complaint for
declaratory and injunctive relief and for a hearing on his naturalization application. (Doc.
1), seeking the Court to review de novo and grant his application for naturalization
pursuant to 8 U.S.C. § 1421(c).
Plaintiff Osorio is a native and citizen of Guatemala. On November 27, 1997,
Plaintiff’s stepmother, 1 who was a legal permanent resident (“LPR”) of the United States,
filed an application on his behalf pursuant to Form I-130, Petition for Alien Relative. (Id.
at ¶ 12; Doc. 12-1 at PAGEID# 59–60). The petition was approved on September 28,
1998. (Doc. 1 at ¶ 13). Defendants note that that Plaintiff could not apply to become a
lawful permanent resident until his priority date, which appears to have first become
current on or about March 1, 2003. (Doc. 12-1 at 2 ¶ 5).
On November 10, 2002, Osorio unlawfully entered the United States, along with
his brother and three family members. (Doc. 1 at ¶ 14). Defendants contend that
Plaintiff was not admitted or paroled after inspection by an Immigration Officer. (Doc.
12-1 at PAGEID# 64–65). Upon entering the United States, Osorio was detained and
issued a Notice to Appear (“NTA”) before an Immigration Judge. The box checked on
the NTA was “2. You are an alien present in the United States who has not been admitted
or paroled.” Defendants note that the arriving alien box on the NTA was not checked.
(Id. at PAGEID# 64).
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Defendants note that records show that Plaintiff’s stepmother, not his birth mother, submitted
the I-130 form in 1997. (Doc. 12-1 at PAGEID# 59–60).
2
Osorio was released from custody on November 11, 2002. (Id.). Osorio’s NTA
did not include a date or time of hearing. Osorio was unable to provide an address to the
officer who issued the NTA because he did not know where he was going. (Doc. 1 at
¶ 18). Osorio asserts that he was never informed of his Immigration Court hearing. (Id.
at ¶ 19). Osorio was ordered removed in abstentia on January 28, 2003. (Id. at ¶ 20;
Doc. 12-1 at PAGEID# 66). Osorio alleges that he was not informed of his order of
removal. (Doc. 1 at ¶ 21).
Osorio first filed an application for permanent residence on September 2, 2008.
(Doc. 1 at ¶ 22). His application for permanent residence was denied twice. The first
denial was because he was no longer eligible to adjust as a child due to his age. The
second denial was because he had entered the United States without inspection. (Id. at
¶ 23). Osorio contended those denials were in error, and when he brought the errors to
USCIS’s attention, USCIS reopened his case and approved his application on May 27,
2010. (Id. at ¶¶ 24–25). At the time that Osorio’s application was approved, USCIS was
fully aware of Osorio’s in abstentia order of removal. (Id. at ¶ 27). In approving
Osorio’s application, Helaine Tasch, the USCIS Cincinnati Field Office Director,
specifically found that USCIS, not the Immigration Court, had jurisdiction over Osorio’s
application because he was an arriving alien:
The applicant was ordered removed by an immigration judge on
January 28, 2003, under file A078955225. However, the removal
order has never been carried out. Because the applicant was never
admitted to the United States, he is considered an arriving alien, and
the Service maintains jurisdiction over the I-485 application. See
CFR 245.2(a)(1), and 71 Fed. Reg. 27, 585-592. Because it is not
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clear if the applicant and his attorney know that the applicant was
ordered removed, a copy of the removal order is attached to this
notice.
(Doc. 16-1 at 3).
Based on USCIS’s granting of his application for permanent residency, Osorio
filed his application for naturalization on July 30, 2015. (Doc. 1 at ¶ 29). On December
8, 2015, during an interview related to his application for naturalization with USCIS,
USCIS informed Osorio that USCIS could not proceed with his application for
naturalization until the order of removal was rescinded and the case terminated. (Id. at
¶¶ 30–31). On May 5, 2016, Osorio’s counsel and JoAnne McLane, Chief Counsel for
the Department of Homeland Security (“DHS”), filed a joint motion to reopen and
dismiss his order of removal with the Immigration Court in Harlingen, Texas. (Doc. 162). Immigration Judge David Ayala vacated the in abstentia order of removal and
terminated the removal proceedings on May 11, 2016. (Id.). In that order, the
Immigration Judge vacated the order of removal because Osorio had “since adjusted to
that of a permanent resident.” (Id.).
On October 18, 2016, USCIS denied Osorio’s application for naturalization based
on a finding that he “had not lawfully acquired permanent resident status.” (Doc. 12-1 at
PAGEID# 43–45). Osorio filed a Form N-336 for a rehearing of the denial of his
application for naturalization on November 21, 2016. (Doc. 1 at ¶ 36). On February 13,
2018, USCIS reaffirmed its decision to deny Osorio’s naturalization application. (Id. at
¶ 37).
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II.
STANDARD OF REVIEW
A motion for judgment on the pleadings may be made “[a]fter the pleadings are
closed but within such time as not to delay the trial.” Fed. R. Civ. P. 12(c). The standard
of review for a Rule 12(c) motion is the same as for a motion under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted. Fritz v. Charter Twp. of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010). “For purposes of a motion for judgment on
the pleadings, all well-pleaded material allegations of the pleadings of the opposing party
must be taken as true, and the motion may be granted only if the moving party is
nevertheless clearly entitled to judgment.” Id. (citing JPMorgan Chase Bank v. Winget,
510 F.3d 577, 581 (6th Cir. 2007)). The Court is not required, however, to accept as true
mere legal conclusions unsupported by factual allegations, or unwarranted factual
inferences of the non-moving party's pleadings. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
III.
ANALYSIS
Based on the pleadings and public records referenced by the parties, and taking as
true all well-pleaded material allegations of the pleadings of the Defendant, the Court
cannot find that Plaintiff is clearly entitled to judgment.
Osorio requests review of USCIS’s denial of his naturalization application
pursuant to 8 U.S.C. § 1421(c), which provides as follows:
A person whose application for naturalization under this subchapter
is denied, after a hearing before an immigration officer under section
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1447(a) of this Title, may seek review of such denial before the
United States district court for the district in which such person
resides in accordance with chapter 7 of title 5. Such review shall be
de novo, and the court shall make its own findings of fact and
conclusions of law and shall, at the request of the petitioner, conduct
a hearing de novo on the application.
8 U.S.C. § 1421(c). “Even if the [agency] is allowed to make the initial decision on a
naturalization application, the district court has the final word and does not defer to any
of the [agency’s] findings or conclusions.” Bigure v. Hansen, No. 1:16-CV-808, 2017
WL 25503, at *3 (S.D. Ohio Jan. 3, 2017) (quoting United States v. Hovsepian, 359 F.3d
1144, 1162 (9th Cir. 2004)) (alterations in original).
An LPR seeking to become a United States Citizen through naturalization must
meet every requirement of the Immigration and Nationality Act (“INA”). The
requirements for naturalization are set forth in the Immigration and Nationality Act:
No person, except as otherwise provided in this title, shall be
naturalized, unless such applicant, (1) immediately preceding the
date of filing his application for naturalization has resided
continuously, after being lawfully admitted for permanent residence,
within the United States for at least five years and during the five
years immediately preceding the date of filing his application has
been physically present therein for periods totaling at least half of
that time, and who has resided within the State or within the district
of the Service in the United States in which the applicant filed the
application for at least three months, (2) has resided continuously
within the United States from the date of the application up to the
time of admission to citizenship, (3) during all the periods referred to
in this subsection has been and still is a person of good moral
character, attached to the principles of the Constitution of the United
States, and well disposed to the good order and happiness of the
United States.
(INA § 316(a); 8 U.S.C. § 1427(a)).
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As Defendants correctly note, it has been over two years since USCIS denied
Plaintiff’s Form N-336. (Doc. 26 at 15). At this time, Osorio’s has not provided
sufficient information to establish that he is currently eligible for naturalization.
Osorio’s naturalization application will be required to establish that he meets all of the
eligibility requirements.
Moreover, the INA provides that “no person shall be naturalized unless he has
been lawfully admitted to the United States for permanent residence in accordance with
all applicable provisions of this chapter.” 8 U.S.C. § 1429. The INA defines “lawfully
admitted for permanent residence” as meaning “the status of having been lawfully
accorded the privilege of residing permanently in the United States as an immigrant in
accordance with the immigration laws, such status not having changed.” 8 U.S.C.
§ 1101(a)(20).
Defendants argue that Osorio was not a lawfully admitted to the United States for
permanent residence because he was not an arriving alien. If Osorio was not an arriving
alien, then USCIS may not have had jurisdiction to grant his legal permanent residence
status in 2010. Defendants point to the NTA to support its contention that Osorio was not
an arriving alien. (Doc. 12-1 at PAGEID# 64–65). Nevertheless, based on the facts
presented to USCIS, the Cincinnati Field Office Director determined that Osorio was an
arriving alien and that he was lawfully admitted for permanent residence. (Doc. 16-1).
Moreover, both the Immigration Judge who issued Osorio’s in abstentia removal order
and the Chief Counsel for DHS found that Osorio had been lawfully admitted for
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permanent residence. The evidence currently before the Court suggests that Osorio will
be able to show that he was a lawfully admitted permanent resident—as finding
otherwise will require finding that the USCIS Cincinnati Field Officer, Chief Counsel for
DHS, and an Immigration Judge erred in their findings.
Additionally, Defendants seem to contend that when the Immigration Judge
vacated the in absentia order, the judge did not rescind the order. (Doc. 26 at 13–14).
Yet, “[t]o vacate, as the parties should well know, means to annul; to cancel or rescind; to
declare, to make, or to render, void; to defeat; to deprive of force; to make of no authority
or validity; to set aside[.]” Action on Smoking & Health v. C.A.B., 713 F.2d 795, 797
(D.C. Cir. 1983) (per curiam). Therefore, it is also necessary to determine the effect of
the Immigration Judge vacating the in abstentia removal order, which decision the Court
cannot reach in the context of a motion for judgment on the pleadings.
Accordingly, viewing the pleadings in the light most favorable to Defendants, the
Court finds that Plaintiff’s motion for judgment on the pleadings is not well-taken. As
the Court stated in its Order denying Defendants’ motion to dismiss, “[t]he ultimate issue
in this case is whether Osorio is eligible to become a naturalized citizen.” (Doc. 20 at 6).
IV.
CONCLUSION
For the foregoing reasons,
1) Plaintiff’s motion for judgment on the pleadings (Doc. 24) is DENIED.
2) Forthwith, the parties SHALL confer and jointly contact Chambers via email
(black_chambers@ohsd.uscourts.gov) to propose a date for a status conference
by telephone.
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IT IS SO ORDERED.
Date: 9/30/2020
/s/ Timothy S. Black
Timothy S. Black
United States District Judge
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