Richardson et al v. Kerry

Filing 25

MEMORANDUM AND ORDER GRANTED 16 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Upon Which Relief Can Be Granted (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SONIA ALICIA RICHARDSON
and ARACELY DELGADO CRUZ,
Plaintiffs,
v.
JOHN F. KERRY, United States
Secretary of State,
Defendant.

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CIVIL ACTION NO. H-14-0742

MEMORANDUM AND ORDER
This immigration case is before the Court on Defendant John F. Kerry’s
(“Defendant”) Motion to Dismiss [Doc. # 16] (“Motion”). Plaintiffs Sonia Alicia
Richardson (“Richardson”) and Aracely Delgado Cruz (“Cruz,” and together with
Richardson, “Plaintiffs”) filed a Response [Doc. # 19], to which Defendant replied
[Doc. # 20]. In briefing Defendant’s Motion, the parties relied extensively on
evidence outside of the pleadings, which the Court generally may not consider in
ruling on a motion to dismiss. Accordingly, the Court sua sponte converted
Defendant’s Motion into a motion for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure, and permitted the parties additional time to file
supplemental briefing and additional evidence. See Order dated July 28, 2014 [Doc.

# 21]. Plaintiffs thereafter filed Supplemental Exhibits in Support of its Opposition
to Defendant’s Motion to Dismiss [Doc. # 22], and Defendant filed a Supplemental
Reply [Doc. # 24]. Having reviewed the parties’ briefing, the applicable legal
authorities, and the evidence of record, the Court grants Defendant’s Motion.
I.

BACKGROUND
On or about October 19, 1993, Richardson, a naturalized U.S. citizen, filed a

Petition for Alien Relative (“I-130” or “Visa Petition”) for her sister, Cruz, who is a
Mexican national. Plaintiffs’ Original Complaint [Doc. # 1] (“Complaint”), ¶¶ 2, 3,
8; Notice of Action [Doc. # 1-2], at ECF page 1. An I-130 is used to establish a
relationship between a U.S. citizen (the “petitioner”) and an alien relative (the
“beneficiary”). When an I-130 is filed, a visa priority date is established that
determines when the beneficiary may apply for an immigrant visa and adjust status
within the United States.1 Complaint, ¶ 9. On January 3, 1994, the Immigration and
Naturalization Service (“INS”) approved Richardson’s I-130, and mailed her notice
of approval a week later. See Declaration of Matthew McNeil [Doc. # 16-8]
(“McNeil Decl.”), ¶ 4;2 Complaint, ¶ 8; Screenshot from United States Citizenship

1

Filing an I-130 does not grant the beneficiary a visa, nor does it establish any
particular status for the beneficiary in the United States.

2

Plaintiffs argue that the McNeil Declaration should not be considered because of the
“Best Evidence Rule,” F ED. R. E VID. 1002. The Best Evidence Rule requires that an
(continued...)
2

and Immigration Services (“USCIS”) Website [Doc. # 1-2], at ECF page 2.
On November 4, 2006, the National Visa Center (“NVC”) sent a Modified
Followup Letter to Richardson, Cruz, and their legal counsel of record, Howard
Thompson (“Thompson”),3 at the address the NVC had on file at the time, stating that
a visa was available for Cruz.4 McNeil Decl., ¶ 8; see also Motion, at 6. The address
the NVC had on record at that time for both Richardson and Cruz was 1251 Wilcrest,
Apt. 308, Houston, Texas 77042. McNeil Decl., ¶¶ 5-6. The address of record for
Thompson (“Thompson”) was 2900 N. Loop W. Ste. 740, Houston, Texas, 77092.
Id., ¶ 7. The NVC does not have any other address on record for Richardson or Cruz.
See id., ¶¶ 5-6. Each copy of the Modified Followup Letter was returned as

2

(...continued)
“original writing” is required to “prove the content of a writing.” See id. Because
Defendant is not attempting to prove the content of any writing through McNeil’s
Declaration, but instead seeks to show a chain of events that may otherwise be
provable through certain records, the Best Evidence Rule is inapplicable.

3

According to Cruz, her attorney was Ramon Cuevas (“Cuevas”). Complaint, ¶ 11; see
also Letter from Cruz dated January 22, 2014 [Doc. # 19-2], at ECF page 20. Cuevas
apparently was an attorney at Thompson’s law firm or someone who held himself out
as an attorney at that firm. See Letter from Richardson dated August 8, 2014 [Doc.
# 22-2], at 1.

4

This information is available in the Consular Consolidated Database (“CCD”). See
McNeil Decl., ¶¶ 1, 3. “The CCD contains replicated electronic data recording
pending visa applications, visa interviews, and visas issued and refused at U.S.
diplomatic and consular posts, including Ciudad Juarez, Mexico. The CCD also
contains electronic data related to immigrant visa cases processed by the National
Visa Center (“NVC”).” Id., ¶ 2.

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undeliverable. Id., ¶ 7.
On November 24, 2007, the NVC sent a “Term Letter 1” to Plaintiffs and
Thompson, indicating their intent to terminate Richardson’s I-130. Id., ¶ 9; see also
Motion, at 7. It is uncontested that these letters were returned as undeliverable. On
December 27, 2008, the NVC sent a “Term Letter 2” to Plaintiffs and Thompson, all
of which were returned “due to bad addresses for all recipients.” McNeil Decl., ¶ 10;
see

also

Termination

Letter

2

Exemplar,

available

at

http://www.state.gov/documents/organization/87929.pdf. On December 27, 2008, the
Department of State (“State Department”) revoked approval of the I-130 filed by
Richardson on Cruz’s behalf pursuant to 8 U.S.C. § 1153(g). See Complaint,
¶ 12; Decision Letter [Doc. # 16-9], at 1. Plaintiffs complain that they were never
advised of the State Department’s decision to revoke Richardson’s I-130. Complaint,
¶ 12. On February 5, 2009, the physical file for Cruz’s I-130 was destroyed in
accordance with law and government document retention policies. McNeil Decl.,
¶ 11; see Park v. Gonzales, 450 F. Supp. 2d 1153, 1163 (D. Or. 2006), aff’d, Park v.
Mukasey, 514 F.3d 1384 (9th Cir. 2008) (stating that immigration service’s policy to
destroy visa petitions after termination of registration is a permissible interpretation
of Section 1153(g) under Chevron).
On July 9, 2013, Cruz submitted a Form 1-485 application to adjust her

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immigration status. See Complaint, ¶ 13; Decision Letter [Doc. # 16-9], at 1; Form
I-485 [Doc. # 16-6]. On October 31, 2013, Cruz appeared for an interview with
USCIS “to determine [her] eligibility for adjustment of status.” Decision Letter [Doc.
# 16-9], at 1. On December 20, 2013, USCIS denied Cruz’s I-485 application
because the I-130 filed on her behalf had previously been revoked. Complaint, ¶ 13;
Decision Letter [Doc. # 16-9], at 1-2.
Plaintiffs filed the Complaint in this case on March 21, 2014. In their
Complaint, Plaintiffs seek a writ of mandamus compelling Defendant to rescind
termination of the Visa Petition and request a declaratory judgment that Defendant’s
denial “of their approved petition for immigrant visa” was invalid. Complaint, ¶¶ 1819.
II.

SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides for the entry of

summary judgment against a plaintiff who fails to make a sufficient showing of the
existence of an element essential to her case and on which she will bear the burden
at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Curtis v. Anthony, 710 F.3d
587, 594 (5th Cir. 2013). Summary judgment “should be rendered if the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there is

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no genuine issue as to any material fact and that the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a); Celotex, 477 U.S. at 322-23; Curtis, 710
F.3d at 594.
In deciding whether a genuine and material fact issue has been created, the
court reviews the facts and inferences to be drawn from them in the light most
favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A genuine issue of material fact
exists when the evidence is such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The non-movant’s burden is not
met by mere reliance on the allegations or denials in the non-movant’s pleadings. See
Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 545 n.13 (5th Cir. 2002);
Chambers v. Sears, Roebuck and Co., 428 F. App’x 400, 407 (5th Cir. June 15,
2011). Likewise, “conclusory allegations” or “unsubstantiated assertions” do not
meet the non-movant’s burden. Delta & Pine Land Co. v. Nationwide Agribusiness
Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008). Instead, the nonmoving party must
present specific facts which show “the existence of a genuine issue concerning every
essential component of its case.” Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 538
(5th Cir. 2012) (citation and internal quotation marks omitted). In the absence of any

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proof, the court will not assume that the non-movant could or would prove the
necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S.
871, 888 (1990)).
III.

ANALYSIS
Plaintiffs seek a declaratory judgment that Defendant improperly terminated

Richardson’s Visa Petition and seek a writ of mandamus requiring Defendant to
rescind his termination of that Petition.
A United States citizen may file a Form I-130 petition on behalf of an alien
relative who wishes to immigrate to the United States.

See 8 U.S.C.

§ 1154(a)(1)(A)(i) (“Any citizen of the United States claiming that an alien is entitled
to classification by reason of a relationship . . . may file a petition with the Attorney
General for such classification.”). The Form I-130 requires the petitioner to provide
information both about herself and about her alien relative (the “beneficiary”),
including

the

relative’s

address.

See

Form

I-130,

available

at http://www.uscis.gov/sites/default/files/files/ form/i-130.pdf.5
The Form I-130 is used to “establish the existence of a relationship to certain
alien relatives who wish to immigrate to the United States.” See Form I-130
5

The current instructions for filling out a Form I-130 warn the petitioner to inform
USCIS of any address changes. See Form I-130 Instructions, at 6, available at
http://www.uscis.gov/sites/default/files/files/ form/i-130instr.pdf.
There is no
contention that these instructions have changed over time.

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Instructions, at 1, available at http://www.uscis.gov/sites/default/files/files/
form/i-130instr.pdf. Submitting a Form I-130 does not alone allow an alien to be
admitted into or stay in the United States. See Park, 450 F. Supp. 2d at 1156. If the
Visa Petition is approved, the alien beneficiary may apply to register as a lawful
permanent resident by filling out Immigration Form I-485. Id. Allocation of visas
for alien relatives is limited by statute. See 8 U.S.C. § 1153(a).
Under Section 1153(g), the Secretary of State is required to “terminate the
registration of any alien who fails to apply for an immigrant visa within one year
following notification to the alien of the availability of such visa.” Id. § 1153(g).
However, the Secretary of State “shall reinstate the registration of any such alien who
establishes within 2 years following the date of notification of the availability of such
visa that such failure to apply was due to circumstances beyond the alien’s control.”
Id. An alien is deemed “registered” for a visa from the time either when the alien
files a Form DS-230 or Form DS-260 or when the State Department transmits to the
alien “notification of the availability of an immigrant visa.” 22 C.F.R. § 42.67(b).
If the Secretary of State terminates an alien’s registration, a Form I-130 filed on her
behalf is automatically revoked. 8 C.F.R. § 205.1(a)(1); see Park, 450 F. Supp. 2d
at 1157.
In the case at bar, the undisputed evidence of record reveals that on November

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4, 2006, the NVC sent a letter to each Plaintiff individually and to their counsel
stating that a visa was available. Cruz was thus “registered” on that date. Cruz had
one year from that date—or until November 4, 2007—to apply for a visa. Cruz failed
to do so.6 The NVC sent Plaintiffs and their counsel two letters indicating their intent
to terminate Cruz’s registration and to revoke the Visa Petition. Defendant properly
terminated Cruz’s registration on December 27, 2008, after Cruz failed to apply for
a visa or to contact NVC. See 8 U.S.C. § 1153(g). Similarly, Defendant properly
revoked Richardson’s Visa Petition after Cruz’s registration was terminated. See 8
C.F.R. § 205.1(a)(1); see also Park, 450 F. Supp. 2d at 1162-63.
Plaintiffs contend that Defendant improperly terminated Cruz’s registration
because Defendant failed to give Cruz notice of visa availability. Plaintiffs’ argument
fails for two reasons. First, the evidence of record establishes that the NVC notified
Cruz that a visa was available, and sent her two follow-up letters prior to terminating
her registration and revoking Richardson’s Visa Petition. The NVC mailed the
notification letters to both Plaintiffs and to their counsel, Thompson, to the addresses
Plaintiffs provided at the time Richardson submitted her Visa Petition. Plaintiffs have
not disputed that neither they nor their counsel provided Defendant, USCIS, the
NVC, or INS with an updated mailing address. Indeed, Cruz concedes, through a

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There is no evidence that Cruz filed a Form DS-230 or Form DS-260.

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letter recently drafted and addressed to Thompson, that neither she nor her attorney
ever updated her address with the government. See Letter from Cruz dated August
8, 2014 [Doc. # 22-2], at 1.7
It is well settled that Cruz had an obligation to notify the government of a
change of address. State Department guidelines require applicants to maintain an
updated address with the Department.

9 FAM § 42.83 n.5, available at

http://www.state.gov/documents/organization/87925.pdf

(“The

applicant

responsible for providing the visa-issuing post with a current address.

is
The

applicant’s failure to receive the notice of termination because he or she neglected to
notify post of his or her change of address will not be considered as a reason ‘beyond
the applicant’s control’ for not pursuing the application.”); see also, e.g., Singh v.
Clinton, 618 F.3d 1085, 1093 (9th Cir. 2010) (“Third, because visa applicants are
responsible for maintaining a current address with the State Department, sending
notice to Sukhwinder’s last known address would have made him plainly responsible
for failing to apply after the government properly transmitted notice to his address in
India.”); see also Kasyupa v. Keisler, 252 F. App’x 106, 108 (8th Cir. 2007) (stating

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In her letter, Cruz states: “My sister and I never received any details of the case as we
moved and only advised Mr. Cuevas of our move. Mr. Cuevas failed to advise
USCIS/NVC of our move. Additionally, your office relocated and failed to update
my file with USCIS/NVC of your new address.” Letter from Cruz dated August 8,
2014 [Doc. # 22-2], at 1.

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that alien who had an I-130 petition and did not update his address with the
government or his attorney could not challenge an in abstentia removal hearing based
on a claim that he failed to receive notice of the hearing). Moreover, immigration
statutes require registered aliens to update the Attorney General with any address
changes and makes it a misdemeanor to fail to do so. See 8 U.S.C. §§ 1305(a),
1306(b). Aliens in removal proceedings must also provided the Attorney General
“with a written record of any change of the alien’s address or telephone number.” 8
U.S.C. § 1229(a)(1)(F)(ii). The Fifth Circuit has held, like other Circuits, that an
alien cannot challenge an in abstentia removal order due to the lack of notice when
the alien failed to update his address with the immigration court. See GomezPalacios v. Holder, 560 F.3d 354, 360-61 (5th Cir. 2009); see also, e.g., United States
v. Zelaya, 293 F.3d 1294, 1298 (11th Cir. 2002); Ohajah v. U.S. I.N.S., 953 F.2d 638,
at *3 (4th Cir. 1992) (unpublished); Lopez v. Gonzales, 181 F. App’x 573, 576 (7th
Cir. 2006). Both statutes and regulations make it evident that registered aliens and
those applying to register are under a continuing obligation to update the government
regarding any change of address. The State Department guidelines that require visa
applicants to maintain a current address with the Department are entitled to deference.
See United States v. Mead Corp., 533 U.S. 218, 234-35 (2001) (noting that agency
interpretive documents that are not entitled to Chevron deference may still “merit

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some deference whatever its form, given the specialized experience and broader
investigations and information available to the agency and given the value of
uniformity in its administrative and judicial understandings of what a national law
requires”); see also Skidmore v. Swift, 323 U.S. 134, 139-40 (1944). Cruz’s failure
to keep the government apprised of a change to her address thus prevents Plaintiffs
from now claiming that Defendant’s revocation of Richardson’s Visa Petition was
improper because of a “failure to notify.”
Second, Plaintiffs’ claims fail to the extent that Plaintiffs assert that Defendant
should “reinstate” Cruz’s registration under Section 1153(g) because of
“circumstances beyond [Cruz’s] control” (i.e., a lack of notice). Section 1153(g)
mandates reinstatement of a terminated registration if an alien establishes “within 2
years of the date of notification” that failure to apply for a visa resulted from
“circumstances beyond the alien’s control.” 8 U.S.C. § 1153(g) (emphasis added).
Here, the NVC sent Cruz a letter stating that a visa was available on November 4,
2006. Plaintiffs filed this case on March 21, 2014, nearly 8 years after notification.
Thus, Section 1153(g) cannot serve as a basis for reinstatement of Cruz’s registration
or termination of the rescission of Richardson’s Visa Petition.
Plaintiffs also argue that Defendant could not have sent a letter of visa

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availability on November 4, 2006,8 because other State Department documents
(specifically, the “Visa Bulletin”) indicated that on that date the State Department was
not processing I-130 applications of people who had filed the form in 1993 on behalf
of a brother or sister. Even if Plaintiffs are correct about the general unavailability
of certain visas at that time, they have not contested Defendant’s evidence that the
NVC in fact sent Cruz notice indicating a visa was available for her.9 Plaintiffs’
evidence fails to create a disputed issue of material fact that would prevent the Court
from granting summary judgment in Defendant’s favor.
Accordingly, because Defendant properly terminated Cruz’s registration and
revoked Richardson’s Visa Petition pursuant to Section 1153(g) and because Cruz
failed to maintain a current address with the government, Defendant is entitled to
summary judgment on Plaintiffs’ claims.

8

There appears to be some confusion about the date that the NVC sent the “Modified
Follow-up Letter” to Plaintiffs. The evidence of record indicates that the letter was
sent on November 4, 2006. See McNeil Decl., ¶ 8. Both Plaintiffs and Defendant,
however, state that the letter was sent on November 4, 2005. See Defendant’s Motion
[Doc. # 16], at 6; Plaintiffs’ Response [Doc. # 19], at 7. This inconsistency is not
material to the Court’s disposition of Plaintiffs’ claims because Plaintiffs never
contested the termination, let alone within two years of that administrative action.

9

Because Plaintiffs have not asserted any claim under the Constitution, the Court does
not address Defendant’s arguments seeking dismissal of putative Constitutional
claims.

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IV.

CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Defendant John F. Kerry’s Motion to Dismiss [Doc. # 16] is

GRANTED. This case is DISMISSED WITH PREJUDICE.
The Court will issue a separate final judgment.
SIGNED at Houston, Texas, this _____ day of September, 2014.
4th

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