Case: 1:18-cv-1135 As of: 02/22/2018 09:08 PM EST 1 of 2
ACO
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:18−cv−01135−RRM

Moreno et al v. Nielsen et al Assigned to: Judge Roslynn R. Mauskopf Cause: 05:702 Administrative Procedure Act Plaintiff Amado de Jesus Moreno
Plaintiff Nelda Yolanda Reyes
Plaintiff Jose Cantarero Argueta
Plaintiff Haydee Avilez Rojas

Date Filed: 02/22/2018 Jury Demand: None Nature of Suit: 465 Other Immigration Actions Jurisdiction: U.S. Government Defendant
represented by Trina A. Realmuto American Immigration Council 100 Summer Street 23rd Floor Boston, MA 02110 857−305−3600 Fax: 202−742−5619 Email: trealmuto@immcouncil.org ATTORNEY TO BE NOTICED
represented by Trina A. Realmuto (See above for address) ATTORNEY TO BE NOTICED
represented by Trina A. Realmuto (See above for address) ATTORNEY TO BE NOTICED
represented by Trina A. Realmuto (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Kirstjen Nielsen
Defendant U.S. Department of Homeland Security
Defendant L. Francis Cissna
Defendant U.S. Citizenship and Immigration Services

Date Filed 02/22/2018

# Docket Text
1 COMPLAINT Class Action Complaint for Declaratory, Injunctive, and Mandamus Relief against All Defendants filing fee $ 400, receipt number 0207−10219749 Was the Disclosure Statement on Civil Cover Sheet completed −Yes,, filed by Jose

Case: 1:18-cv-1135 As of: 02/22/2018 09:08 PM EST 2 of 2

02/22/2018
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Cantarero Argueta, Nelda Yolanda Reyes, Haydee Avilez Rojas, Amado de Jesus Moreno. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons Nielsen, # 3 Proposed Summons Cissna, # 4 Proposed Summons Sessions, # 5 Proposed Summons AUSA EDNY) (Realmuto, Trina) (Entered: 02/22/2018)
2 First MOTION to Certify Class by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Index of Exhibits, # 3 Declaration First Realmuto Dec, # 4 Declaration Cortes del Olmo Dec, # 5 Declaration Estrada Dec, # 6 Declaration Liberles Dec, # 7 Declaration Pilsbury Dec, # 8 Declaration Shafiqullah Dec, # 9 Declaration Friedland Dec, # 10 Declaration Nowak Dec, # 11 Declaration Hohenstein Dec, # 12 Declaration Miller Dec, # 13 Declaration Volpe Dec, # 14 Declaration Yang Dec, # 15 Declaration Taylor Dec, # 16 Declaration Garcia Dec, # 17 Declaration Goodwin Dec, # 18 Declaration Takhsh Dec, # 19 Declaration Sharma−Crawford Dec, # 20 Declaration Loesch Dec, # 21 Declaration Blackford Dec, # 22 Declaration Peterson Dec, # 23 Declaration Hall Dec, # 24 Declaration Kenney Dec, # 25 Declaration Second Realmuto Dec, # 26 Declaration Adams Dec, # 27 Exhibit Moreno MTR Denial, # 28 Exhibit Reyes AOS Denial, # 29 Exhibit Cantarero Argueta NOID, # 30 Proposed Order) (Realmuto, Trina) (Entered: 02/22/2018)
Case Assigned to Judge Roslynn R. Mauskopf. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Davis, Kimberly) (Entered: 02/22/2018)
3 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Davis, Kimberly) (Entered: 02/22/2018)
4 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Davis, Kimberly) (Entered: 02/22/2018)
5 Summons Issued as to L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summon, # 2 Summon, # 3 Summon) (Davis, Kimberly) (Entered: 02/22/2018)

 
 Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 1 of 25 PageID #: 1

UNITED STATES DISTRICT COURT

1

FOR THE EASTERN DISTRICT OF NEW YORK

2

3
4 Amado de Jesus MORENO; Nelda Yolanda REYES; Jose CANTARERO ARGUETA; Haydee AVILEZ
5 ROJAS,

Case No. ________

6

Plaintiffs,

7

v.

8 Kirstjen NIELSEN, Secretary, U.S. Department of Homeland Security, in her official capacity; U.S.
9
DEPARTMENT OF HOMELAND SECURITY; L. 10 Francis CISSNA, Director, U.S. Citizenship and
Immigration Services, in his official capacity; U.S. 11 CITIZENSHIP AND IMMIGRATION SERVICES,
12
Defendants.
13

CLASS ACTION COMPLAINT FOR DECLARATORY, INJUNCTIVE AND MANDAMUS RELIEF

14 15
16 1.

INTRODUCTION Plaintiffs and members of the proposed class (hereinafter Plaintiffs) reside within the

17 jurisdictions of the U.S. Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh,

18 Eighth, and Tenth Circuits. All entered the United States without inspection and subsequently
19
applied for and were granted Temporary Protected Status (TPS). After years of living in the country
20
in this lawful—although nonpermanent—status, they seek to become lawful permanent residents
21
22 based on visa petitions filed on their behalf. However, their applications have been, or will be,

23 denied due to Defendants’ erroneous interpretation of one provision of the TPS statute, 8 U.S.C. §

24 1254a(f).

25
2.
26

TPS provides a temporary haven for noncitizens living in the United States when natural

27 disasters or civil strife in their home countries render it unsafe for them to return. Noncitizens

28 granted TPS by Defendant U.S. Citizenship and Immigration Services (USCIS), a component of

1

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 2 of 25 PageID #: 2

Defendant U.S. Department of Homeland Security (DHS), have non-permanent lawful status. While
1
2 in TPS, beneficiaries are protected from removal and eligible for work authorization.

3 3. The Secretary of the Department of Homeland Security (DHS) is responsible for designating

4 countries for TPS and for periodically assessing whether to renew or terminate such designations.
5
At the start of 2017, ten countries were designated for TPS. For example, Somalia was designated in
6
1991, Sudan in 1997, Honduras and Nicaragua in 1999, and El Salvador in 2001, and these
7
8 designations were continuously renewed until 2017. Over the past year, DHS terminated TPS—i.e.

9 determined that there would be no further renewals of the country’s TPS designation—for four
10
countries, subject to deferred effective dates. As a result, TPS will permanently expire for El
11
Salvador, Nicaragua, Sudan, and Haiti between November 2018 and September 2019. Four more
12
13 designations (Honduras, Nepal, Somalia, and Yemen) are scheduled for review in 2018, and the final

14 two, South Sudan and Syria, will be reviewed in 2019. As a result, Plaintiffs and purported class

15 members are uncertain as to their future status in the United States.

16
4.

During their many years as TPS holders, Plaintiffs and proposed class members have

17

integrated fully into their communities in the United States. They marry, raise U.S. citizen children,
18

19 purchase homes, work, pursue training and education, and join churches and community groups. As

20 part of the TPS process, they undergo background checks and regular re-registration.

21 5. Plaintiffs and proposed class members wish to adjust their status to that of lawful permanent
22
residents so that they may continue to make the United States their home, despite the recent or
23
potential termination of their TPS. Each has an approved visa petition filed by a U.S. citizen spouse,
24
25 adult child, parent, or employer and thus independently qualifies to apply to adjust his or her status

26 to lawful permanent resident. But for Defendants’ erroneous interpretation of 8 U.S.C. § 1254a(f),
27
they would be eligible to do so.
28

2

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6. To adjust to lawful permanent resident status, Plaintiffs and class members must demonstrate
1
2 to Defendant USCIS that they were inspected and admitted to the United States. See 8 U.S.C. §
3 1255(a), (k). The TPS statute provides that, for purposes of adjustment of status under § 1255, a 4 TPS holder is “considered as being in, and maintaining, lawful status as a nonimmigrant.” 8 U.S.C.
5
§ 1255a(f)(4). Two Courts of Appeals have held that, pursuant to the plain language of this statute, a
6
TPS holder is deemed to have been inspected and admitted because he or she is deemed to be in
7
8 “lawful nonimmigrant status,” and an individual in such status necessarily has been inspected and
9 admitted. Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017); Flores v. USCIS, 718 F.3d 548 (6th Cir.
10
2013); but see Serrano v. U.S. Att’y Gen., 655 F.3d 1260 (11th Cir. 2011). Defendants comply with
11
the plain language of the statute when adjudicating the adjustment of status applications of TPS
12
13 holders residing within the geographic borders of the U.S. Courts of Appeals for the Sixth and Ninth
14 Circuits.
15 7. In the jurisdictions covered by the proposed class, Defendants have a policy of denying the
16
adjustment of status applications of TPS holders who initially entered without inspection and
17
admission, refusing to give effect to 8 U.S.C. § 1245a(f)(4) and refusing to acknowledge that a grant
18
19 of TPS constitutes the inspection and admission required to adjust status. Defendants have denied or
20 will deny the adjustment applications of all Plaintiffs and class members pursuant to this policy. 21 Plaintiffs and class members seek declaratory and injunctive relief to remedy Defendants’ violation
22
of the statute.
23
JURISDICTION AND VENUE
24
25 8. This case arises under the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq.,
26 the regulations implementing the INA, and the Administrative Procedure Act (APA), 5 U.S.C. § 701
27
et seq.
28
3

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9. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. § 1331, as a civil action arising
1
2 under the laws of the United States, and the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361.

3 The Court may grant declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201-2202, 5 U.S.C.

4 § 702, and 28 U.S.C. § 1361. The United States has waived its sovereign immunity pursuant to 5
5
U.S.C. § 702.
6
10. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e) because Defendants
7
8 are officers or employees of the United States, or agencies thereof, acting in their official capacities,

9 a substantial part of the events or omissions giving rise to the claims occurred in this district, and

10
Plaintiff Amado de Jesus Moreno resides in this district, as do many putative class members. In
11
addition, no real property is involved in this action.
12

13

PARTIES

14 11. Plaintiff Amado de Jesus Moreno is a national of El Salvador who entered the United States

15 without inspection in 2000. He was granted TPS in 2001 and has maintained that status ever since.
16
He is eligible to adjust to lawful permanent resident status based upon a visa petition filed by his
17
U.S. employer. Defendant USCIS denied his adjustment application solely based on its erroneous
18
19 policy that TPS does not constitute a qualifying inspection and admission to the United States.

20 Plaintiff Moreno resides in Brooklyn, New York.

21 12. Plaintiff Nelda Yolanda Reyes is a national of Honduras who first entered the United Statutes
22
without inspection in the late 1990s. She was granted TPS in 1999 and has maintained that status
23
ever since. She is eligible to adjust to lawful permanent resident status based upon her a visa
24
25 petition filed by her adult U.S. citizen son. Defendant USCIS denied her adjustment application

26 solely based on its erroneous policy that TPS does not constitute a qualifying inspection and
27
admission to the United States. Plaintiff Reyes resides in Green Bay, Wisconsin.
28

4

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13. Plaintiff Jose Cantarero Argueta is a national of Honduras who first entered the United States
1
2 without inspection in 1997. He was granted TPS in 1999 and has maintained that status ever since.
3 He is eligible to adjust to lawful permanent resident status based upon a visa petition filed by his 4 U.S. employer. Defendant USCIS has notified him of its intent to deny his pending adjustment
5
application solely based on its erroneous policy that TPS does not constitute a qualifying inspection
6
and admission to the United States. Plaintiff Cantarero Argueta Argueta resides in Mt. Airy,
7
8 Maryland.
9 14. Plaintiff Haydee Avilez Rojas Rojas is a national of Honduras who first entered the United
10
States without inspection in 1998. She was granted TPS in 2000 and has maintained that status ever
11
since. She is eligible to adjust to lawful permanent resident status based upon a visa petition filed by
12
13 her U.S. citizen husband. Plaintiff Rojas anticipates that Defendant USCIS will deny her pending
14 adjustment application based solely on its erroneous policy that TPS does not constitute a qualifying
15 inspection and admission to the United States. Plaintiff Rojas resides in Plainfield, New Jersey.
16
15. Defendant Kirstjen Nielsen is the Secretary of DHS, an “agency” within the meaning of the
17
APA, 5 U.S.C. § 551(1). In this capacity, she is responsible for the administration of the INA and
18
19 for overseeing, directing, and supervising all DHS component agencies, including USCIS. She is
20 sued in her official capacity. 21 16. Defendant DHS is an executive agency of the United States, and an “agency” within the
22
meaning of the APA, 5 U.S.C. § 551(1). Since March 1, 2003, DHS has been the agency
23
responsible for implementing the INA, including provisions relating to TPS and adjustment of status.
24
25 17. Defendant L. Francis Cissna is the Director of USCIS, an “agency” within the meaning of the
26 APA, 5 U.S.C. §551(1). In this capacity, he oversees the adjudication of immigration benefits and
27
establishes and implements governing policies. 6 U.S.C. § 271(a)(3) and (b). He has ultimate
28
5

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responsibility for the adjudication of adjustment of status applications and is sued in his official
1
2 capacity.

3 18. Defendant USCIS is a component of DHS, 6 U.S.C. § 271, and an “agency” within the

4 meaning of the APA, 5 U.S.C. § 551(1). USCIS is responsible for adjudicating immigration benefit
5
applications, including applications for TPS and adjustment of status.
6
FACTUAL ALLEGATIONS
7
8 Amado de Jesus Moreno

9 19. Plaintiff Amado de Jesus Moreno is a 45-year-old noncitizen from El Salvador who first
10
entered the United States without inspection on or about August 2000. In 2001, Defendant USCIS
11
granted him TPS. He has maintained that status for more than sixteen years, renewing it and the
12
13 attendant employment authorization regularly as required by USCIS.

14 20. Plaintiff Moreno resides in Brooklyn, New York with his wife and his two U.S. citizen

15 daughters, ages 6 and 12. He also has two sons, currently ages 19 and 24, who reside in El Salvador.
16
21. In 2011, USCIS granted Plaintiff Moreno advance permission to travel outside of the United
17
States. Upon his return, on or about July 26, 2011, DHS inspected and paroled him into the United
18
19 States as a TPS holder.

20 22. Plaintiff Moreno has worked as a telemarketer for Jersey Lynne Farms, a wholesale food

21 distributor, since August 2000. In 2008, his employer began the process of petitioning for a visa for
22
Plaintiff Moreno so that it could promote him to a customer services managerial position upon
23
receipt of lawful permanent resident status. In this managerial position, he would be responsible for
24
25 supervising four telemarketers, handling complaints, taking orders, and responding to Spanish

26 speaking customers.

27
23.
28

Jersey Lynne Farms took the first step in the visa application process in June 2008, filing an

6

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 7 of 25 PageID #: 7

application for a labor certification with the Department of Labor (DOL). DOL approved this
1
2 application on August 7, 2012. On or about January 30, 2013, Jersey Lynne Farms took the second

3 step in the process, filing a visa petition with USCIS on Plaintiff Moreno’s behalf. USCIS approved

4 this petition on November 13, 2014.

5
24.
6

With an approved visa petition, Plaintiff Moreno was able to file an application to adjust his

status to that of a lawful permanent resident with USCIS, which he did on or about January 15, 2015.
7

8 At the same time, he filed an application on behalf of his sons—both of whom were children as

9 defined in 8 U.S.C. § 1101(b)(a) at the time—to allow them to obtain visas as his derivatives.
10
25. USCIS denied his adjustment of status application on April 7, 2017, finding that Plaintiff
11
Moreno was ineligible for adjustment of status because he had entered without inspection and failed
12
13 to maintain a lawful status from the date of his entry until his receipt of TPS. Shortly thereafter,

14 Plaintiff Moreno filed a request to reopen the decision, arguing that, because he had been paroled

15 into the United States in 2011, he satisfied the “inspected and admitted or paroled” requirement of 8
16
U.S.C. § 1255(a). Additionally, he argued that, under 8 U.S.C. § 1255(k), he was exempt from the
17
unlawful presence bar to adjustment found in 8 U.S.C. § 1255(c) because—since his 2011 parole—
18
19 he had been lawfully present pursuant to TPS and, therefore, had not engaged in unauthorized

20 employment nor violated the terms or conditions of his parole.

21 26. On July 14, 2017, USCIS denied Plaintiff Moreno’s motion to reopen, finding him ineligible
22
for the 8 U.S.C. § 1255(k) exemption to the unlawful presence bar to adjustment because that section
23
applies only if the individual was “admitted” to the United States, and a parole is not an admission.
24
25 As a result, USCIS indicated that his period of unlawful presence prior to his grant of TPS

26 disqualified him for adjustment of status under 8 U.S.C. § 1255(a) and (c).

27
27.
28

But for Defendants’ unlawful policy Plaintiff Moreno’s adjustment application would not

7

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have been denied on this basis. Instead, had USCIS treated his grant of TPS as an inspection and
1
2 admission for purposes of his adjustment of status application, as required by the plain language of

3 the TPS statute, 8 U.S.C. § 1254a(f)(4), the agency would have found that he was eligible for the

4 exemption from the unlawful presence bar to adjustment of status found in § 1255(k) and also for
5
adjustment of status.
6
28. Plaintiff Moreno was and continues to be harmed by this denial. Without permanent resident
7
8 status, he has not received the promotion and accompanying pay raise promised by his employer.

9 His sons, as derivatives on his application, have not been able to get in the visa queue and move
10
forward with their own efforts to join their father and family in the United States. Finally, Plaintiff
11
Moreno will lose TPS and the attendant employment authorization in 18 months when the TPS
12
13 designation for El Salvador is terminated and will be at risk of deportation. Deportation would split

14 his family apart, depriving his minor U.S. citizen children of their father. For all of these reasons, he

15 wishes to have his adjustment application fairly adjudicated in accordance with the law.
16
Nelda Yolanda Reyes
17
29. Plaintiff Nelda Yolanda Reyes is a 64-year-old noncitizen from Honduras who first entered
18
19 the United States without inspection in the late 1990s. She subsequently was granted TPS, valid as

20 of July 7, 1999 and has maintained that status for eighteen years.

21 30. Plaintiff Reyes resides in Green Bay, Wisconsin. She has resided in the same home for close

22
to ten years. She has five adult children, some of whom are U.S. citizens.
23

.
24

Plaintiff Reyes’ adult U.S. citizen son, who resides near her in Green Bay, Wisconsin, filed a

25 visa petition on her behalf with USCIS on or about October 14, 2015. USCIS has not adjudicated

26 this visa petition yet.

27
31.
28

Concurrently with her son filing the visa petition, Plaintiff Reyes filed her adjustment of

8

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status application with USCIS. On or about November 12, 2015, USCIS sent Plaintiff Reyes a
1
2 request for evidence establishing that she had been admitted or paroled into the United States. Her
3 attorney responded on February 1, 2016, explaining that her grant of TPS constituted an inspection 4 and admission for purposes of adjustment, in accord with the plain language of 8 U.S.C. §
5
1254a(f)(4).
6
32. On September 5, 2015, USCIS denied the adjustment application, stating that Plaintiff Reyes
7
8 had failed to demonstrate eligibility when she failed to produce evidence that she had been inspected
9 and admitted or paroled into the United States. But for Defendants’ unlawful policy, Plaintiff
10
Reyes’ adjustment application would not have been denied on this basis. Instead, had USCIS treated
11
her grant of TPS as an inspection and admission for purposes of her adjustment of status application,
12
13 as required by the plain language of 8 U.S.C. § 1254a(f)(4), the agency would not have found her
14 ineligible for adjustment of status. 15 33. Plaintiff Reyes was and continues to be harmed by this denial. Because Defendant DHS
16
renewed the TPS designation for Honduras only until July 2018, she faces uncertainty regarding her
17
future protected status. Plaintiff Reyes seeks to become a lawful permanent resident to avoid any
18
19 future loss of her protected status and to remain near her family in Wisconsin. It is uncertain
20 whether DHS will renew the TPS designation for Honduras in July 2018 or—as has been true with 21 respect to several other TPS designated countries—terminate. Should DHS terminate the TPS
22
designation for Honduras, Plaintiff Reyes will lose her status, face deportation to a country in which
23
she has not resided for close to two decades and be separated from her U.S. citizen children. For all
24
25 of these reasons, she wishes to have her adjustment application fairly adjudicated in accordance with
26 the law.
27
28
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Jose Cantarero Argueta
1
2 34. Plaintiff Jose Cantarero Argueta is a 40-year-old noncitizen from Honduras who first entered

3 the United States without inspection on or about April 7, 1997. He subsequently was granted TPS in

4 2000 and has remained in that status for more than 17 years.
5
35. Plaintiff Cantarero Argueta resides in Mt. Airy, Maryland with his wife and his two U.S.
6
citizen children, ages 14 and 15.
7
8 36. In 2014, USCIS granted Plaintiff Cantarero Argueta advance permission to travel outside of

9 the United States. Upon his return, on or about March 9, 2014, he was paroled into the United States
10
as a TPS holder.
11
37. Plaintiff Cantarero Argueta is the primary wage earner in his family. He has worked as
12
13 kitchen manager since 2006, with two different employers. On or about November 13, 2014, his

14 then employer, Unlimited Ventures, took the first step in the visa application process for him, filing

15 an application for a labor certification with DOL. DOL approved this application on April 23, 2015.
16
Unlimited Ventures then filed a visa petition on his behalf with USCIS on July 31, 2015. At the
17
same time, Plaintiff Cantarero Argueta filed an application for adjustment of status with USCIS.
18
19 USCIS approved the visa petition on April 11, 2016.

20 38. While Plaintiff Cantarero Argueta’s adjustment application was pending, Unlimited Ventures

21 sold the company, and Plaintiff Cantarero Argueta returned to full-time employment with his prior
22
employer, MJJ Enterprises. He subsequently filed the necessary paperwork regarding this change in
23
employment with USCIS, thus demonstrating his continuing eligibility to adjust status based upon
24
25 the approved visa petition filed by Unlimited Ventures. He remains employed as a kitchen manager

26 by MJJ Enterprises.

27
39.
28

On February 9, 2018, USCIS sent Plaintiff Cantarero Argueta a Notice of Intent to Deny his

10

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adjustment application because his parole in 2014 is not an admission, and without an admission he
1
2 is not eligible for a waiver of the bar to adjustment for unlawful presence under § 1255(k). Plaintiff
3 Cantarero Argueta intends to respond to this Notice by explaining that he was inspected and 4 admitted when he was granted TPS and, therefore, is eligible for the § 1255(k) waiver.
5
Nevertheless, Plaintiff Cantarero Argueta anticipates that his adjustment application will be denied
6
based on USCIS’ policy of not treating a grant of TPS as an inspection and admission for purposes
7
8 of adjustment. But for Defendants’ unlawful policy, Plaintiff Cantarero Argueta would be found
9 eligible both for the exemption from the unlawful presence bar to adjustment of status found in §
10
1255(k) and also for adjustment of status.
11
40. Plaintiff Cantarero Argueta will be harmed when USCIS denies his adjustment application.
12
13 Because Defendant DHS renewed TPS for Honduras only until July 2018, he faces uncertainty
14 regarding his future status within the United States. He seeks to become a lawful permanent resident
15 to avoid any future loss of his protected status and to ensure that he can remain in the United States
16
with his family. It is uncertain whether DHS will renew the TPS designation for Honduras in July
17
2018 or—as has been true with respect to several other TPS designated countries—terminate.
18
19 Should DHS terminate the TPS designation for Honduras, Plaintiff Cantarero Argueta will lose his
20 status and face deportation to a country in which he has not resided for over 20 years. Deportation 21 would split his family apart, depriving his minor U.S. citizen children of their father, the primary
22
wage earner for the family. For all of these reasons, he wishes to have his adjustment application
23
fairly adjudicated in accordance with the law.
24
25 Haydee Avilez Rojas
26 41. Plaintiff Haydee Avilez Rojas is a 64-year-old noncitizen from Honduras who first entered
27
the United States without inspection on or about May 1998. On or about February 9, 2000, USCIS
28
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granted her TPS. She has maintained that status for 18 years, renewing it and the attendant
1
2 employment authorization as required by USCIS.
3 42. Plaintiff Avilez Rojas, who is retired, resides in Plainfield, New Jersey with her 70-year-old 4 U.S. citizen husband, Rigoberto Samayoa. She has lived at the same address for more than 15 years.
5
She has three adult children. Both she and her husband have medical problems. Plaintiff Avilez
6
Rojas suffers from high blood pressure and her husband has had to have two prostate surgeries.
7
8 43. Plaintiff Avilez Rojas’s husband filed a visa petition on her behalf with USCIS on or about
9 February 15, 2017. USCIS approved this petition on September 13, 2017.
10
44. On or about February 15, 2018, Plaintiff Avilez Rojas filed her adjustment of status
11
application by mailing it to USCIS. Although USCIS has not yet adjudicated the application,
12
13 Plaintiff Avilez Rojas anticipates that it will be denied based on USCIS’ policy of not treating a
14 grant of TPS as an inspection and admission for purposes of adjustment. But for Defendants’
15 unlawful policy, Plaintiff Avilez Rojas would be found eligible for adjustment of status.
16
45. Plaintiff Avilez Rojas will be harmed when USCIS denies her adjustment application.
17
Because Defendant DHS renewed TPS for Honduras only until July 2018, she faces uncertainty
18
19 regarding her future status within the United States. She seeks to become a lawful permanent
20 resident to avoid any future loss of her protected status and to ensure that she can remain in the 21 United States with her elderly husband. It is uncertain whether DHS will renew the TPS designation
22
for Honduras in July 2018 or—as has been true with respect to several other TPS designated
23
countries—terminate. Should DHS terminate the TPS designation for Honduras, Plaintiff Avilez
24
25 Rojas will lose her status and face deportation to a country in which she has not resided for close to
26 two decades. Deportation would split her family apart. Given her age and her high blood pressure,
27
she will be unable to support herself in Honduras. Furthermore, Plaintiff Avilez Rojas’s U.S.
28
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Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 13 of 25 PageID #: 13

citizen husband, who has had two prostate surgeries, will suffer extreme hardship if Plaintiff Avilez
1
2 Rojas is deported. For all of these reasons, he wishes to have his adjustment application fairly

3 adjudicated in accordance with the law.

4

BACKGROUND

5
46. This case involves noncitizens who have maintained lawful Temporary Protected Status for
6

years—in many cases, close to two decades—and who, during this time, established close
7

8 relationships with U.S. citizens and businesses. Relying upon these relationships, they now seek to

9 become lawful permanent residents pursuant to the adjustment of status statute, 8 U.S.C. § 1255. At
10
issue in this case is the interplay between that statute and the TPS statute, 8 U.S.C. § 1254a(f)(4).
11
Temporary Protected Status
12
13 47. Congress enacted the TPS statute in 1990 as a humanitarian program. Pursuant to 8 U.S.C. §

14 1254a(b), the DHS Secretary may designate a foreign country for TPS due to conditions in the

15 country that temporarily prevent its nationals from returning safely, or in certain circumstances,
16
where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS
17
to nationals of the designated countries who meet specific eligibility criteria, including presence in
18
19 the United States at the time of designation.

20 48. The Secretary has designated countries for TPS following environmental disasters, such as an

21 earthquake or hurricane; epidemics; and ongoing armed conflicts, such as civil wars. On January 1,
22
2017, ten countries were designated for TPS: El Salvador, Haiti, Honduras, Nepal, Nicaragua,
23
Somalia, South Sudan, Sudan, Syria, and Yemen. Several of these were first designated close to or
24
25 more than two decades ago: Somalia, 1991; Sudan, 1997; Honduras, 1999; Nicaragua, 1999; and El

26 Salvador, 2001. The others were designated within the last seven years. See Temporary Protected
27
Status, https://www.uscis.gov/humanitarian/temporary-protected-status (last visited February 20,
28

13

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 14 of 25 PageID #: 14

2018).
1
2 49. Until 2017, the designations of each of these countries were extended continuously following

3 the Secretary’s periodic review. In 2017, Defendant Nielsen’s predecessor announced the

4 termination of the TPS designation for three countries—Haiti, Nicaragua, and Sudan. On January 9,
5
2018, Defendant Nielsen announced the termination of the TPS designation for El Salvador. With
6
respect to each termination, the Secretary deferred the effective date for between 12 to 18 months “to
7
8 provide time for individuals with TPS to seek an alternative lawful immigration status in the United

9 States, if eligible, or, if necessary, arrange for their departure.” Press Release, Department of
10
Homeland Security, Acting Secretary Elaine Duke Announcement on Temporary Protected Status
11
for Nicaragua And Honduras (Nov. 6, 2017), available at
12
13 https://www.dhs.gov/news/2017/11/06/acting-secretary-elaine-duke-announcement-temporary-

14 protected-status-nicaragua-and; see also Press Release, Department of Homeland Security, Secretary

15 of Homeland Security Kirstjen M. Nielsen Announcement on Temporary Protected Status for El
16
Salvador (Jan. 8, 2018), available at https://www.dhs.gov/news/2018/01/08/secretary-homeland-
17
security-kirstjen-m-nielsen-announcement-temporary-protected.
18
19 50. The Secretary will decide whether to terminate the designation of all other countries except

20 South Sudan and Syria in 2018, and a decision as to those remaining two countries in 2019. Given

21 the Trump Administration’s hostility to the TPS program, all countries with TPS designation are at
22
risk of termination. See, e.g., Nick Miroff and David Nakamura, 200,000 Salvadorans may be
23
forced to leave the U.S. as Trump ends immigration protection, Washington Post, Jan. 8, 2018
24
25 (reporting that “Trump administration officials have repeatedly said they considered the TPS

26 program an example of American immigration policy gone awry . . .”).

27
51.
28

Upon initial designation of a country for TPS, DHS issues a notice advising nationals of that

14

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 15 of 25 PageID #: 15

country of a period in which they may apply for TPS if they meet certain eligibility requirements,
1
2 including continuous presence in the United States since the date of the designation, continuous

3 residence in the United States since a date specified in the DHS notice, and being admissible to the

4 United States. With respect to the admissibility requirement, certain grounds of inadmissibility are
5
waived by statute and others may be waived at the discretion of DHS. 8 U.S.C. § 1254a(c)(1), (2).
6
Individuals convicted of certain crimes or found to be a security risk are not eligible for TPS. 8
7
8 U.S.C. § 1254a(c)(2)(B).

9 52. The application process is a rigorous one. Defendants screen applicants’ biometrics,
10
admissibility, and general eligibility for TPS. Only after applicants have been thoroughly screened
11
are they approved for TPS.
12
13 53. TPS provides temporary lawful status to beneficiaries. Pursuant to the statute, the Secretary

14 of DHS must review and either terminate or re-designate TPS designations every 6 to 18 months. 8

15 U.S.C. § 1254a(b)(3)(C). TPS holders must reapply after each re-designation to renew their status,
16
verifying that they continue to satisfy all eligibility requirements.
17
54. While noncitizens’ TPS is in effect, they cannot be removed from the United States or
18
19 detained by DHS for lack of immigration status, are entitled to employment authorization, and may

20 travel abroad with the prior consent of DHS. 8 U.S.C. § 1254a(a)(1), (d)(4), (f)(3).

21 .

Additionally, the TPS statute specifies that “for purposes of adjustment of status under [8

22
U.S.C. § 1245] and change of status under [8 U.S.C. § 1258], the [noncitizen] shall be considered as
23

being in, and maintaining, lawful status as a nonimmigrant.” 8 U.S.C. § 1254a(f)(4).
24

25 Adjustment of Status

26 55. Adjustment of status is the mechanism by which an eligible noncitizen who is present in the
27
United States applies for lawful permanent resident status based on a relationship to a U.S. citizen
28

15

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 16 of 25 PageID #: 16

family member or employer. Adjustment of status allows applicants to apply to obtain lawful status
1
2 while remaining in the United States, instead of requiring them to first return to their home countries

3 and apply for immigrant visas from a U.S. embassy or consulate abroad, which is often a lengthy

4 application process.

5
56.
6

In general, to apply for adjustment of status, an individual must demonstrate that he or she

has been “inspected and admitted or paroled into the United States.” 8 U.S.C. § 1255(a).
7

8 Additionally, an adjustment applicant must demonstrate that he or she is eligible to receive an

9 immigrant visa (based on the qualifying relationship) and has an immigrant visa immediately
10
available at the time the individual files an adjustment application. 8 U.S.C. § 1255(a). Finally, the
11
applicant must demonstrate admissibility to the United States; i.e., that he or she either is not subject
12
13 to an enumerated ground of inadmissibility set forth in 8 U.S.C. § 1182 or qualifies for a waiver of

14 any such ground. Id.

15 57. With exceptions relevant here, an otherwise eligible individual is barred from adjusting if,
16
inter alia, he or she has worked in the United States without authorization, is in unlawful
17
immigration status on the date of filing an adjustment application or has failed to maintain
18
19 continuously a lawful status since entry into the United States. 8 U.S.C. § 1255(c)(2).

20 58. Certain individuals are not subject to the § 1255(c)(2) bar to adjustment, including: (a)

21 “immediate relatives,” defined as the children and spouses of U.S. citizens and the parents of U.S.
22
citizens provided the citizen son or daughter is at least 21 years old, see 8 U.S.C. § 1151(b)(2)(A)(i);
23
and (b) employment-based visa beneficiaries who: (i) are present in the United States pursuant to a
24
25 lawful admission on the date of filing the adjustment application; and (ii) after such lawful

26 admission, have not, for an aggregate period of more than 180 days, failed to maintain continuous
27
lawful status, engaged in unauthorized employment, or otherwise violated the terms of admission. 8
28

16

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 17 of 25 PageID #: 17

U.S.C. §§ 1255(c)(2), (k).
1
2 Intersection of TPS and Adjustment of Status

3 59. Two Courts of Appeals have held that 8 U.S.C. § 1254a(f)(4) unambiguously requires that

4 TPS holders are deemed “inspected and admitted” for purposes of adjustment of status under 8
5
U.S.C. § 1255(a). Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017); Flores v. USCIS, 718 F.3d 548
6
(6th Cir. 2013). The plaintiffs in both cases and Plaintiffs and proposed class members here share
7
8 identical facts: they initially entered without inspection, subsequently were granted TPS, and then

9 became eligible to adjust to lawful permanent resident status based on a qualifying relationship. In
10
both Ramirez and Flores, USCIS denied the plaintiffs’ adjustment applications solely because they
11
allegedly failed to demonstrate that they had been inspected and admitted as required by 8 U.S.C. §
12
13 1255(a). Both circuit courts rejected USCIS’ position, holding instead that, because the TPS statute

14 specifically deems the TPS holder to be in lawful nonimmigrant status for purposes of adjustment of

15 status, the beneficiary is deemed to have met all requirements for nonimmigrant status, including
16
inspection and admission. In a per curiam decision, the Eleventh Circuit held the opposite,
17
ultimately deferring to USCIS without fully analyzing the interplay of the two statutory provisions.
18
19 Serrano v. U.S. Att’y Gen., 655 F.3d 1260 (11th Cir. 2011).

20 60. To date, no other Court of Appeals has ruled on the issue, and, on information and belief, no

21 cases are known to be pending.

22
61.
23

Two district courts followed the lead of the Sixth Circuit; in both cases, Defendants either

failed to appeal or withdrew their appeal. Bonilla v. Johnson, 149 F. Supp. 3d 1135 (D. Minn.
24

25 2016); Medina v. Beers, 65 F. Supp. 3d 419 (E.D. Pa. 2014). Another district court extended the

26 Ninth Circuit’s holding in Ramirez v. Brown; Defendants initially appealed but then withdrew their
27
appeal of this decision. Figueroa v. Rodriguez, No. 16-8218 PA, 2017 U.S. Dist. LEXIS 128120
28

17

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 18 of 25 PageID #: 18

(C.D. Cal. Aug. 10, 2017).
1
2 62. USCIS has a written policy rejecting the plain language of the statute, as interpreted by the

3 Sixth and Ninth Circuits and district courts discussed supra. In that policy, USCIS declares that “[a]

4 foreign national who enters the United States without inspection and subsequently is granted
5
temporary protected status (TPS) does not meet the inspected and admitted or inspected and paroled
6
requirement.” USCIS Policy Manual, Vol. 7, Part B, Ch. 2(A)(5) (Aug. 23, 2017), available at
7
8 https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter2.html. In a

9 footnote, the policy manual acknowledges that the Sixth Circuit has ruled to the contrary, but
10
clarifies that that court’s holding will only be given effect in the cases of applicants living within the
11
Sixth Circuit. Id. n.56.
12
13 63. As a direct consequence of Defendants’ policy, the applications of all Plaintiffs and proposed

14 class members who otherwise qualify for adjustment of status have been or will be denied by

15 Defendant USCIS.

16
17
64.
18

CLASS ALLEGATIONS Plaintiffs bring this action on behalf of themselves and all others who are similarly situated

19 pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). A class action is proper because

20 this action involves questions of law and fact common to the classes, the class is so numerous that

21 joinder of all members is impractical, Plaintiffs’ claims are typical of the claims of the class,
22
Plaintiffs will fairly and adequately protect the interests of the respective class, and Defendants have
23
acted on grounds that apply generally to the class, so that final injunctive relief or corresponding
24
25 declaratory relief is appropriate with respect to the class as a whole.

26 //
27
//
28

18

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 19 of 25 PageID #: 19

65. Plaintiffs seek to represent the following class:
1

2

All individuals with TPS who reside within the geographic boundaries of the

Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and

3

Tenth Circuits; whose initial entries into the United States were without inspection;

who have applied or will apply for adjustment of status to lawful permanent

4

residence with USCIS; and whose adjustment applications have been or will be

5

denied on the basis of USCIS’ policy that TPS does not constitute an admission for

purposes of adjusting status under 8 U.S.C. § 1255.

6

66. Plaintiffs Moreno, Reyes, Cantarero Argueta, and Avilez Rojas seek to represent this class.
7

8 The class is so numerous that joinder of all members is impracticable. Plaintiffs are not aware of the

9 precise number of potential class members because Defendants have sole possession of the

10 information needed to identify such persons. Upon information and belief, there are hundreds of
11
individuals who currently hold TPS and are eligible to adjust status, but whose applications USCIS
12
has denied or will deny claiming they were not inspected and admitted or paroled into the United
13
14 States.

15 67. A question of law common to the proposed class predominates over any questions affecting
16
only the individually named Plaintiffs, namely: whether USCIS’ policy of finding TPS holders
17
ineligible for adjustment of status under 8 U.S.C. § 1255(a) violates the INA and its implementing
18
19 regulations, and the APA. Like proposed class members who USCIS has found or will find

20 ineligible for adjustment of status under § 1255(a), Plaintiffs’ applications have been denied based

21 on this policy.
22
68. Plaintiffs’ claims are typical of the claims of the proposed class. Plaintiffs all entered the
23
United States without inspection, subsequently were granted TPS and continue to hold that status,
24
25 have applied for adjustment of status, and have been or will be denied adjustment by USCIS for the

26 purported reason that they were not inspected and admitted or paroled.

27 69. Plaintiffs will fairly and adequately protect the interests of the proposed class members
28
because they seek relief on behalf of the class as a whole and have no interest antagonistic to other

19

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 20 of 25 PageID #: 20

class members.
1
2 70. Plaintiffs are represented by competent counsel with extensive experience in complex class

3 actions and immigration law.

4 71. Defendants have acted on grounds generally applicable to the proposed class, thereby making
5
appropriate final declaratory and injunctive relief.
6
DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS
7
8 72. An actual and substantial controversy exists between the proposed classes and Defendants as

9 to their respective legal rights and duties. Plaintiffs contend that Defendants’ actions violate
10
Plaintiffs’ rights and the rights of the proposed class.
11
73. Defendants’ misinterpretation of the TPS and adjustment of status provisions of the INA and
12
13 corresponding policy of denying the adjustment applications of TPS holders for the alleged lack of

14 an inspection and admission, notwithstanding their receipt of TPS, has caused and will continue to

15 cause irreparable injury to Plaintiffs and proposed class members. Plaintiffs and proposed class
16
members have been denied, or are at risk of being denied, lawful permanent resident status solely on
17
the basis of alleged statutory ineligibility in violation of the INA.
18
19 74. Plaintiffs have no adequate remedy at law. They do not seek a favorable exercise of USCIS’

20 discretion to grant their adjustment of status applications, but instead seek an order declaring

21 USCIS’ policy unlawful and prohibiting USCIS from applying it.

22
75.
23

There are no administrative remedies that Plaintiffs are required to exhaust. Darby v.

Cisneros, 509 U.S. 137 (1993).
24

25 76. Under 5 U.S.C. §§ 702 and 704, Plaintiffs and proposed class members have suffered a

26 “legal wrong” and have been “adversely affected or aggrieved” by agency action for which there is
27
no other adequate remedy in a court of law.
28

20

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 21 of 25 PageID #: 21

77. Based on the foregoing, the Court should grant declaratory and injunctive relief under 28
1
2 U.S.C. §§ 2201-2202, 5 U.S.C. § 702, and 28 U.S.C. § 1361.

3

CAUSES OF ACTION

4
5
6
78.
7
8 79.

COUNT ONE (Violation of the Immigration and Nationality Act and the
Administrative Procedure Act)
All the foregoing allegations are repeated and realleged as though fully set forth herein.
The INA deems a TPS holder to be in lawful status as a nonimmigrant for purposes of

9 adjustment of status. 8 U.S.C. § 1254a(f)(4). Accordingly, all TPS holders are deemed to have been

10 inspected and admitted and to have maintained lawful nonimmigrant status for purposes of adjusting
11
status under 8 U.S.C. § 1255(a).
12
80. Defendants properly apply 8 U.S.C. §§ 1254a(f)(4) and 1255(a) when, by “consider[ing]” a
13
14 TPS holder “as being in, and maintaining, lawful status as a nonimmigrant” pursuant to 8 U.S.C. §

15 1255a(f)(4), they find that the grant of TPS satisfies the “inspected and admitted” requirement of 8

16 U.S.C. § 1255(a).

17
81.
18

Defendants have a policy of refusing to find that a grant of TPS constitutes an “inspection

and admission” for purposes of adjustment of status and, pursuant to this policy, deny adjustment
19

20 applications of current TPS holders who were not “inspected and admitted” other than through the

21 grant of TPS. Defendants’ policy applies to all TPS holders who reside within the geographic
22
boundaries of the Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and
23
Tenth Circuits.
24
25 82. Defendants violate the plain meaning of 8 U.S.C. § 1254a(f)(4) when they deny an

26 adjustment application of a TPS holder because the beneficiary has not been inspected and admitted

27 for purposes of adjustment of status.
28
83. Plaintiffs bring this claim pursuant to the Administrative Procedure Act, 5 U.S.C. § 701, et

21

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 22 of 25 PageID #: 22

seq.
1

2
3
84.
4

COUNT TWO (Violation of the Administrative Procedure Act)
All the foregoing allegations are repeated and realleged as though fully set forth herein.

5 85. Section 706(1) of Title 5 provides that a reviewing court shall compel agency action

6 unlawfully withheld. 5 U.S.C. § 706(1).
7
86. Plaintiffs and proposed class members have a statutory right to have Defendants follow the
8
statutory language and find that their status as TPS beneficiaries as having been “inspected and
9
10 admitted” for purposes of adjustment of status under 8 U.S.C. § 1255(a). See U.S.C. §§

11 1254a(f)(4).

12 87. Defendants have a duty to find that a current TPS beneficiary has been “inspected and
13
admitted” when adjudicating an adjustment of status application.
14
88. Defendants comply with this duty when adjudicating adjustment applications of TPS
15
16 beneficiaries living within the jurisdictions of the Sixth and the Ninth Courts of Appeals.

17 89. Defendants have a policy of refusing to find that a grant of TPS constitutes an “inspection

18 and admission” for purposes of adjustment of status and, pursuant to this policy, deny adjustment
19
applications of current TPS holders who were not “inspected and admitted” independent of their
20
grant of TPS. Defendants policy applies to all individuals in TPS status who reside within the
21
22 geographic boundaries of the Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh,

23 Eighth, and Tenth Circuits. Defendants’ policy deprives Plaintiffs and proposed class members of

24 a lawful adjudication of their adjustment of status applications in violation of the APA.

25
90.
26

Defendants’ policy harms Plaintiffs and class members.

27 91. There are no other adequate available remedies.

28 92. Defendants’ policy is in excess of its statutory authority and its actions in denying the

22

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 23 of 25 PageID #: 23

adjustment applications of Plaintiffs and proposed class members is contrary to law in violation of
1
2 the Administrative Procedure Act.

3 4
5 93.

COUNT TWO (Petition for Mandamus, 28 U.S.C. § 1361)
All the foregoing allegations are repeated and realleged as though fully set forth herein.

6 94. Mandamus is available to compel a federal official or agency to perform a duty if: (1) there is
7
a clear right to the relief requested; (2) defendant has a clear, non-discretionary duty to act; and (3)
8
there is no other adequate remedy available. See 28 U.S.C. § 1361.
9
10 95. Plaintiffs and proposed class members have a statutory right to have Defendants treat them as

11 having been “inspected and admitted” for purposes of adjustment of status under 8 U.S.C. § 1255(a)

12 by virtue of a grant of TPS. See 8 U.S.C. § 1254a(f)(4).
13
96. Defendants have a duty to find that a current TPS holder has been “inspected and admitted”
14
when adjudicating an adjustment of status application.
15
16 97. Defendants comply with this duty when adjudicating adjustment applications of TPS

17 holders living within the jurisdictions of the Sixth and Ninth Circuit Courts of Appeals.

18 98. Defendants have a policy of refusing to find that a grant of TPS constitutes an “inspection
19
and admission” for purposes of adjustment of status and, pursuant to this policy, deny adjustment
20
applications of current TPS holders who were not “inspected and admitted” independent of their
21
22 grant of TPS. Defendants’ policy applies to all TPS holders who reside within the geographic

23 boundaries of the Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and

24 Tenth Circuits.

25
99.
26

Defendants’ policy deprives Plaintiffs and proposed class members of a lawful adjudication

27 of their adjustment of status applications in violation of the INA and APA.

28 100. Defendants’ policy harms Plaintiffs and class members.

23

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 24 of 25 PageID #: 24

101. There are no other adequate available remedies.
1

2

PRAYER FOR RELIEF

3
WHEREFORE, Plaintiffs respectfully pray for this Court to:
4
a. Assume jurisdiction over this matter;
5

6

b. Certify the case as class action as proposed herein and in the accompanying motion for class

7 certification;

8

c. Declare that Defendants’ policy of refusing to find that a grant of TPS constitutes an

9
“inspection and admission” for purposes of adjustment of status and all adjustment decisions issued
10
based upon that policy are contrary to 8 U.S.C. § 1254a(f)(4);
11

12

d. Declare that all Plaintiffs and proposed class members have been “inspected and admitted”

13 for purposes of 8 U.S.C. § 1255(a) pursuant to their grant of TPS;

14

e. Order Defendants to immediately cease applying their policy that a grant of TPS does not

15
constitute an “inspection and admission” for purposes of 8 U.S.C. § 1254a(f)(4);
16

17

f. Order Defendants to find that, pursuant to 8 U.S.C. § 1254a(f)(4), Plaintiffs and proposed

18 class members were “inspected and admitted” for purposes of their adjustment of status applications;

19

g. Order Defendants to reopen and reconsider the adjustment applications of Plaintiffs and any

20
class members whose applications were denied based on an alleged lack of an inspection and
21
admission, and to re-adjudicate those applications pursuant to the new policy;
22

23

h. Award Plaintiffs reasonable attorneys’ fees under the Equal Access to Justice Act, and any

24 other applicable statute or regulation; and

25

i. Grant such further relief as the Court deems just, equitable, and appropriate.

26

27
Respectfully submitted,
28

24

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 25 of 25 PageID #: 25

s/ Trina Realmuto 1 Trina Realmuto, Bar No. TR3684 2 Kristin Macleod-Ball**
American Immigration Council 3 100 Summer Street, 23rd Floor
Boston, MA 02110 4 (857) 305-3600 5 trealmuto@immcouncil.org
kmacleod-ball@immcouncil.org
6
7
8
9
10

Mary Kenney* American Immigration Council 1331 G Street, NW, Suite 200 Washington, D.C. 20005 (202) 507-7512 mkenney@immcouncil.org
Matt Adams* Leila Kang* Northwest Immigrant Rights Project 615 2nd Avenue, Suite 400 Seattle, WA 98104 (206) 957-8611 matt@nwirp.org leila@nwirp.org

Attorneys for Plaintiffs
11

12 * Moving for pro hac vice admission
** Moving for admission
13

14
February 22, 2018
15

16

17

18

19

20

21

22

23

24

25

26

27

28

25

 
 Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 1 of 26 PageID #: 39

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF NEW YORK

3
Amado de Jesus MORENO; Nelda Yolanda REYES; 4 Jose CANTARERO ARGUETA; Haydee AVILEZ 5 ROJAS,

6

Plaintiffs,

v.
7

8 Kirstjen NIELSEN, Secretary, U.S. Department of Homeland Security, in her official capacity; U.S.
9 DEPARTMENT OF HOMELAND SECURITY; L. 10 Francis CISSNA, Director, U.S. Citizenship and
Immigration Services, in his official capacity; U.S. 11 CITIZENSHIP AND IMMIGRATION SERVICES,

Case No.________________
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

12

Defendants.

13

14

15

I. INTRODUCTION AND PROPOSED CLASS DEFINITION

16

This case involves noncitizens who have maintained lawful Temporary Protected

17 Status (TPS) for years—in many cases, close to two decades—and who, during this time,
18
established close relationships with U.S. citizens and businesses. Relying upon these
19
relationships, they now seek to become lawful permanent residents (LPRs) pursuant to the
20
21 adjustment of status statute, 8 U.S.C. § 1255. However, Defendants, the Department of

22 Homeland Security (DHS), its component agency U.S. Citizenship and Immigration Services

23 (USCIS), and the heads of both agencies, have or will deny their applications based on a

24
policy that Plaintiffs allege violates the TPS statute, 8 U.S.C. § 1254a(f)(4), and the
25
adjustment statute, § 1255.
26

27

Plaintiffs seek to certify a class on behalf of similarly situated TPS holders who

28 entered the United States without inspection, subsequently were granted TPS by USCIS, and

1

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 2 of 26 PageID #: 40

who have applied or will apply with USCIS to adjust to LPR status. To adjust their status,
1
2 Plaintiffs and class members must demonstrate that they were “inspected and admitted or

3 paroled” into the United States. See 8 U.S.C. § 1255(a); see also § 1255(k) (requiring a

4 lawful admission to be exempted from the bar to adjustment for unlawful presence).
5
Plaintiffs contend, in accord with the plain language of the TPS statute, 8 U.S.C. §
6
1254a(f)(4), that the grant of TPS constitutes an inspection and admission for purposes of
7
8 adjusting status; because all have been granted TPS—and thus have been inspected and

9 admitted for purposes of adjustment—their initial entries without inspection do not prevent
10
them from demonstrating eligibility under § 1255. The Courts of Appeals for the Sixth and
11
Ninth Circuits ruled that the plain language of the statute compels this interpretation. Ramirez
12
13 v. Brown, 852 F.3d 954 (9th Cir. 2017); Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013).

14

Defendants’ policy, found in the USCIS Policy Manual, Vol. 7, Part B, Ch. 2(A)(5)

15 (Aug. 23, 2017), available at https://www.uscis.gov/policymanual/HTML/PolicyManual-
16
Volume7-PartB-Chapter2.html, rejects this interpretation, stating that the grant of TPS does
17
not constitute an inspection and admission for purposes of adjustment. Defendants find
18
19 support for their position in the per curiam decision Serrano v. U.S. Att’y Gen., 655 F.3d 1260

20 (11th Cir. 2011), issued prior to the Ramirez and Flores decisions and rejected by both of

21 those courts. Defendants apply this policy throughout the United States, except within the
22
jurisdictions of the Courts of Appeals for the Sixth and Ninth Circuits. Pursuant to this
23
policy, Defendant USCIS has denied or will deny the adjustment applications of all Plaintiffs
24
25 and class members based upon an alleged lack of an inspection and admission.

26

Plaintiffs seek injunctive, declaratory, and mandamus relief to remedy Defendants’

27
unlawful interpretation of the TPS statute. The scope of the proposed class consists of TPS
28

2

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 3 of 26 PageID #: 41

holders within the jurisdictions of the Courts of Appeals for the First, Second, Third, Fourth,
1
2 Fifth, Seventh, Eighth, and Tenth,1 who initially entered without inspection, have applied or

3 will apply to adjust to LPR status, and whose adjustment applications have been or will be
4 denied based upon Defendants’ policy.
5
This case presents a question of law common to all Plaintiffs and class members:
6
whether USCIS’ policy of finding TPS holders ineligible for adjustment of status under 8
7
8 U.S.C. § 1255 violates the TPS statute and the Administrative Procedure Act. This question

9 can be resolved on a class-wide basis, making certification appropriate. Pursuant to Rules

10
23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, Plaintiffs respectfully move this
11
Court to certify the following class with named Plaintiffs as class representatives:
12

13

All individuals with TPS who reside within the geographic boundaries of the

Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and

14

Tenth Circuits; whose initial entries into the United States were without

inspection; who have applied or will apply for adjustment of status to lawful

15

permanent residence with USCIS; and whose adjustment applications have been

16

or will be denied on the basis of USCIS’ policy that TPS does not constitute an

admission for purposes of adjusting status under 8 U.S.C. § 1255.

17

Plaintiffs seek to ensure that Defendants timely adjudicate their and class members’
18

19 adjustment applications in accord with the plain language of the TPS statute.

20

II. BACKGROUND

21

In assessing whether Rule 23 requirements have been met, the court should consider

22
the merits “only to the extent they overlap with Rule 23’s inquiry.” Brooks v. Roberts, 251 F.
23

24 Supp. 3d 401, 415 n.4 (E.D.N.Y. 2017) (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

25

26 1

The class does not include TPS holders within the jurisdictions of the Sixth and Ninth

Circuits because Defendants do not apply the challenged policy within those Circuits pursuant
27
to Ramirez, supra and Flores, supra; it also does not include TPS holders within the

28 jurisdiction of the Eleventh Circuit because that court has upheld the policy. Serrano, supra.

3

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 4 of 26 PageID #: 42

351 (2011)). To facilitate any review that may be necessary, Plaintiffs provide a summary of
1
2 their merits claims here. See also Dkt. 1.

3

A. Overview of the Facts and Law

4

Plaintiffs and members of the proposed class reside within the jurisdictions of the U.S.

5
Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and Tenth
6

Circuits. All entered the United States without inspection but subsequently applied for and
7

8 were granted TPS by USCIS, after demonstrating that they did not have a disqualifying

9 criminal record and were otherwise admissible. After years of living in the country in this
10
lawful—although nonpermanent—status, they seek to become LPRs based on visa petitions
11
filed by U.S. citizen family members or employers on their behalf. However, USCIS has
12
13 denied or will deny their applications solely due to Defendants’ policy, which fails to

14 acknowledge a grant of TPS as an inspection and admission for purposes of adjustment of

15 status. Plaintiffs contend that this policy violates 8 U.S.C. §§ 1254a(f) and 1255.
16
TPS provides a temporary haven for noncitizens living in the United States when
17
natural disasters or civil strife render their home countries unsafe for return. Noncitizens
18
19 granted TPS by USCIS have non-permanent lawful status. While in TPS, beneficiaries are

20 protected from removal and eligible for work authorization. During their many years as TPS

21 holders, Plaintiffs and proposed class members have integrated fully into their communities in
22
the United States. Some were brought to the United States as children and have never left.
23
See, e.g., Exh. E, Shafiqullah Dec. ¶¶ 4-5 (describing Haitian client trafficked into United
24
25 States at age 14; Salvadoran client brought in at age 2 or 3); Exh. J, Volpe Dec. ¶ 4b (client

26 arrived at age 8); Exh. T, Hall Dec. ¶ 9 (client arrived at age 9); Exh. G, Nowak Dec. ¶ 3a
27
(client entered at about age 10). Others, like Plaintiff Cantarero Argueta, Dkt.1 ¶ 34, have
28

4

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 5 of 26 PageID #: 43

been here for most or all of their adult lives. See also, Exh. P, Sharma-Crawford Dec. ¶ 7
1
2 (describing 12 or more clients in their forties and fifties who have lived in the United States

3 for close to 20 years); Exh. C, Liberles Dec. ¶¶ 4-5 (describing clients living here since 1992

4 and 1995 respectively). Others are near retirement age, such as Plaintiffs Reyes and Avilez
5
Rojas. Dkt. 1 ¶¶ 29 and 41; see also Exh. M, Garcia Dec. ¶ 4 (describing 61-year-old client
6
who worked in United States in healthcare industry for many years).
7

8

During their time in the United States, Plaintiffs and class members marry, raise U.S.

9 citizen children, purchase homes, work, pursue training and education, and join churches and
10 community groups.2 Many work in construction, landscaping, health care, food services, and
11
retail jobs. See, e.g., Exh. D, Pilsbury Dec. ¶ 4 (describing generally jobs held by a large
12
13 number of her Salvadoran clients); Exh. L, Taylor Dec. ¶ 4 (client works in school cafeteria);

14 Exh. O, Takhsh Dec. ¶ 4 (client worked as nursing assistant and in housekeeping services);

15 Exh. S, Peterson Dec. ¶ 5 (client worked in bakery). Some have held their jobs for many
16
years. For example, Plaintiff Moreno has worked as a telemarketer for the same employer for
17
over 17 years, Dkt. 1 ¶ 22, while Plaintiff Cantarero Argueta has worked in the kitchens of
18
19 two employers for approximately 12 years. Dkt. 1 ¶ 37; see also, Exh. R, Blackford Dec. ¶ 4

20 (clients worked as manual laborers for approximately 10 and 25 years, respectively); Exh. Q,

21 Loesch Dec. ¶ 4 (client worked for 8 years at meat-processing plant and last 3 years at
22
cabinet-making company); Exh. J, Volpe Dec. ¶ 4a (client worked many years in
23

24

25

2

See, e.g., Center for American Progress, TPS Holders in the United States (2017),

26 https://cdn.americanprogress.org/content/uploads/2017/10/19125633/101717_TPSFactsheet-

USA.pdf; Robert Warren and Donald Kerwin, A Statistical and Demographic Profile of the
27
US Temporary Protected Status Populations from El Salvador, Honduras, and Haiti, 5 J.

28 MIGR. & HUM. SEC. 577 (2017), available at http://cmsny.org/publications/jmhs-tps-

elsalvador-honduras-haiti/.

5

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 6 of 26 PageID #: 44

construction); Exh. C, Liberles Dec. ¶ 4 (client worked at store for 5 years). In many cases,
1
2 such as that of Plaintiff Cantarero Argueta, Dkt. 1 ¶ 37, their families depend on them for

3 support. See also, Exh. B, Estrada Dec. ¶ 4 (describing two clients whose families depend on

4 them for support); Exh. O, Takhsh Dec. ¶ 4 (client is sole support for injured husband and 4-
5
year-old child); Exh. R, Blackford Dec. ¶ 4 (client is sole support for his disabled U.S. citizen
6
wife and three U.S. citizen children); Exh. C, Liberles Dec. ¶ 4 (widowed client is sole
7
8 support for her 3 U.S. citizen children).

9

Plaintiffs and proposed class members wish to adjust to LPR status to avoid being

10
forcibly separated from their family, homes, and employment. Each is eligible for a visa
11
based on their relationship with a U.S. citizen spouse, adult child, parent, or employer—a
12

13 prerequisite for adjustment of status. 8 U.S.C. § 1255(a) (requiring that an adjustment

14 applicant be eligible to receive an immigrant visa and that a visa be immediately available).

15

An applicant for adjustment of status generally must show that he or she was

16
“inspected and admitted or paroled.” 8 U.S.C. § 1255(a). The TPS statute provides that, for
17
purposes of adjustment of status, TPS holders are “considered as being in, and maintaining,
18

19 lawful status as a nonimmigrant.” 8 U.S.C. § 1254a(f)(4). Two Courts of Appeals have held

20 that, pursuant to the plain language of this provision, a TPS holder is deemed to have been

21 inspected and admitted because he or she is deemed to be in “lawful nonimmigrant status.”
22
Ramirez, 852 F.3d at 960; Flores, 718 F.3d at 553-554; but see Serrano, 655 F.3d 1266.
23
Defendants comply with the plain language of the statute when adjudicating the
24
25 adjustment applications of TPS holders within the Sixth and Ninth Circuits. However, in the

26 jurisdictions covered by the proposed class, Defendants have a policy of denying the
27
adjustment of status applications of TPS holders who initially entered without inspection and
28

6

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 7 of 26 PageID #: 45

admission, refusing to give effect to 8 U.S.C. § 1254a(f)(4) and refusing to acknowledge that
1
2 the grant of TPS constitutes the inspection and admission required to adjust status.

3 Defendants have denied, or will deny, the adjustment applications of all Plaintiffs and class
4 members pursuant to this policy. Plaintiffs seek declaratory and injunctive relief to remedy
5
Defendants’ violation of the statute.
6
B. Named Plaintiffs’ Factual Backgrounds
7
8 Amado De Jesus Moreno

9

Plaintiff Amado De Jesus Moreno is a 45-year-old noncitizen from El Salvador who

10 resides with his wife and two U.S. citizen children, ages 6 and 12, in Brooklyn, New York.3
11
He also has two sons, currently ages 19 and 24, who reside in El Salvador. He first entered
12

13 the United States without inspection in August 2000. The following year, USCIS granted him

14 TPS. He has maintained that status for more than sixteen years, renewing it and the attendant

15 employment authorization regularly as required by USCIS. In 2011, Plaintiff Moreno

16
traveled outside of the United States—with advance approval from USCIS—and DHS
17
inspected and paroled him into the country upon his return.
18

19

Plaintiff Moreno has worked as a telemarketer for the same employer, Jersey Lynne

20 Farms, for approximately 18 years. His employer has filed the necessary paperwork to obtain
21 a visa for him, which has been approved. His employer intends to promote him as a customer
22
services manager upon his receipt of lawful permanent residence. In this managerial position,
23
he would be responsible for supervising four telemarketers, handling complaints, taking
24
25 orders, and responding to Spanish speaking customers.

26

27

28 3

All facts related to Plaintiff Moreno are taken from Dkt. 1, ¶¶ 19-28.

7

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 8 of 26 PageID #: 46

With an approved visa petition, Plaintiff Moreno filed an application to adjust his
1
2 status to that of a lawful permanent resident with USCIS on or about January 15, 2015. At the

3 same time, he filed an application on behalf of his sons in El Salvador—both of whom were

4 children as defined in 8 U.S.C. § 1101(b)(a) at the time—to allow them to obtain visas as his
5
derivatives. USCIS denied his adjustment application, contending that he was ineligible to
6
adjust his status because he had entered without inspection and failed to maintain a lawful
7
8 status from the date of his entry until his receipt of TPS. Plaintiff Moreno requested that

9 USCIS reopen its decision, arguing that he was eligible to adjust because he had been
10
inspected and paroled and, additionally, that he was eligible for an exemption from the
11
unlawful presence bar to adjustment pursuant to 8 U.S.C. § 1255(k). On July 14, 2017,
12
13 USCIS denied Plaintiff Moreno’s reopening request, finding him ineligible for the § 1255(k)

14 exemption because that section applies only if the individual was “admitted” to the United

15 States, and a parole is not an admission. Exh. X (USCIS denial). As a result, USCIS

16
indicated that his period of unlawful presence prior to his grant of TPS disqualified him for
17
adjustment of status.
18

19

But for Defendants’ unlawful policy, Plaintiff Moreno’s adjustment application would

20 not have been denied on this basis. Instead, had USCIS treated his grant of TPS as an

21 inspection and admission for purposes of his adjustment of status application, the agency
22
would have found that he was eligible for the § 1255(k) exemption and adjustment of status.
23
Plaintiff Moreno was and continues to be harmed by this denial. Without permanent
24
25 resident status, he has not received the promotion and accompanying pay raise promised by

26 his employer. His sons, as derivatives on his application, have not been able to get in the visa
27
queue and move forward with their own efforts to join their father and family in the United
28

8

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 9 of 26 PageID #: 47

States. Finally, Plaintiff Moreno will lose TPS and the attendant employment authorization in
1
2 18 months when the TPS designation for El Salvador is terminated. At that point, without a

3 status adjustment, he will be at risk of deportation to a country in which he has not resided for
4 over 16 years. Deportation would split his family apart, depriving his minor U.S. citizen
5
children of their father. For all of these reasons, he wishes to have his adjustment application
6
fairly adjudicated in accordance with the law.
7
8 Nelda Yolanda Reyes

9

Plaintiff Nelda Yolanda Reyes is a 64-year-old noncitizen from Honduras who resides

10 in Green Bay, Wisconsin.4 She has five adult children. She was granted TPS valid as of July
11
1999, after her initial entry without inspection. She has maintained her TPS status for
12

13 eighteen years.

14

Plaintiff Reyes’ adult U.S. citizen son filed a visa petition on her behalf with USCIS

15 on or about October 14, 2015. USCIS has not adjudicated this visa petition yet. Concurrently
16
with her son filing the visa petition, Plaintiff Reyes filed her adjustment of status application
17
with USCIS. On or about November 12, 2015, USCIS sent Plaintiff Reyes a request for
18
19 evidence establishing that she had been admitted or paroled into the United States. Her

20 attorney responded on February 1, 2016, explaining that her grant of TPS constituted an
21 inspection and admission for purposes of adjustment, in accord with the plain language of 8
22
U.S.C. § 1254a(f)(4).
23
On September 5, 2015, USCIS denied the adjustment application, stating that Plaintiff
24
25 Reyes had failed to demonstrate eligibility when she failed to produce evidence that she had

26 been inspected and admitted or paroled into the United States. Exh. Y (USCIS denial). But
27

28 4

All facts related to Plaintiff Reyes are taken from Dkt. 1, ¶¶ 29-33.

9

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 10 of 26 PageID #: 48

for Defendants’ unlawful policy, Plaintiff Reyes’ adjustment application would not have been
1
2 denied on this basis. Instead, had USCIS treated her grant of TPS as an inspection and

3 admission for purposes of her adjustment application, it would not have found her ineligible.

4

Plaintiff Reyes was and continues to be harmed by this denial. Because Defendant

5
DHS renewed the TPS designation for Honduras only until July 2018, she faces uncertainty
6

regarding her future protected status. It is uncertain whether DHS will renew the TPS
7

8 designation for Honduras in July 2018 or—as has been true with respect to several other TPS

9 designated countries—terminate. Should DHS terminate the TPS designation for Honduras,
10
Plaintiff Reyes will lose her status and face deportation to a country in which she has not
11
resided for close to two decades. For all of these reasons, she wishes to have her adjustment
12
13 application fairly adjudicated in accordance with the law.

14 Jose Cantarero Argueta

15

Plaintiff Jose Cantarero Argueta is a 40-year-old noncitizen from Honduras who

16
resides in Mt. Airy, Maryland with his wife and two U.S. citizen children, ages 14 and 15.5
17
He first entered the United States without inspection on or about April 7, 1997, and
18

19 subsequently USCIS granted him TPS in 2000. He has remained in that status for more than

20 17 years. In 2014, he traveled outside of the United States, with advance permission from
21 USCIS; upon his return, DHS inspected and paroled him back into the country.
22
Plaintiff Cantarero Argueta has worked as kitchen manager since 2006, with two
23
different employers. In 2014 and 2015, his then employer, Unlimited Ventures, took the
24
25 necessary steps to sponsor him for a visa. USCIS subsequently approved his visa petition.

26 Plaintiff Cantarero Argueta also filed an application for adjustment of status based upon the
27

28 5

All facts related to Plaintiff Cantarero Argueta are taken from Dkt. 1, ¶¶ 34-40.

10

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 11 of 26 PageID #: 49

then-pending visa petition in 2015. While his application was pending, Unlimited Ventures
1
2 sold the company, and Plaintiff Cantarero Argueta returned to full-time employment with his

3 prior employer, MJJ Enterprises. He subsequently filed the necessary paperwork regarding

4 this change in employment with USCIS, thus demonstrating his continuing eligibility to
5
adjust status based upon the approved visa petition filed by Unlimited Ventures. He remains
6
employed as a kitchen manager by MJJ Enterprises.
7

8

On February 9, 2018, USCIS sent Plaintiff Cantarero Argueta a Notice of Intent to

9 Deny his adjustment application because his parole in 2014 is not an admission, and without
10
an admission he is not eligible for a waiver of the bar to adjustment for unlawful presence
11
under § 1255(k). Exh. Z (USCIS Notice of Intent to Deny). Plaintiff Cantarero Argueta
12
13 intends to respond to this Notice by explaining that he was inspected and admitted when he

14 was granted TPS and therefore is eligible for the § 1255(k) waiver. Nevertheless, Plaintiff

15 Cantarero Argueta’s adjustment application will be denied based on USCIS’ policy of not
16
treating a grant of TPS as an inspection and admission for purposes of adjustment. But for
17
Defendants’ unlawful policy, USCIS would find Plaintiff Cantarero Argueta eligible both for
18
19 the exemption from the unlawful presence bar to adjustment of status found in § 1255(k).

20

Plaintiff Cantarero Argueta will be harmed when USCIS denies his adjustment

21 application. Because Defendant DHS renewed TPS for Honduras only until July 2018, he
22
faces uncertainty regarding his future status within the United States. It is uncertain whether
23
DHS will renew the TPS designation for Honduras in July 2018 or—as has been true with
24
25 respect to several other TPS designated countries—terminate. Should DHS terminate the TPS

26 designation for Honduras, Plaintiff Cantarero Argueta will lose his status and face deportation
27
to a country in which he has not resided for over 20 years. Deportation would split his family
28

11

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 12 of 26 PageID #: 50

apart, depriving his minor U.S. citizen children of their father, the primary wage earner for the
1
2 family. For all of these reasons, he wishes to have his adjustment application fairly

3 adjudicated in accordance with the law.
4 Haydee Avilez Rojas
5
Plaintiff Haydee Avilez Rojas is a 64-year-old noncitizen from Honduras who resides
6
7 in Plainfield, New Jersey with her 70-year-old U.S. citizen husband.6 She has lived at the
8 same address for more than 15 years. She has three adult children. She suffers from high

9 blood pressure and her husband has had two prostate surgeries.
10
Plaintiff Avilez Rojas first entered the United States without inspection on or about
11
May 1998. In February 2000, USCIS granted her TPS. She has maintained that status for 18
12
13 years, renewing it and the attendant employment authorization as required by USCIS.

14

Plaintiff Avilez Rojas’ husband filed a visa petition on her behalf with USCIS on or

15 about February 15, 2017. USCIS approved this petition on September 13, 2017. On or about
16
February 15, 2018, Plaintiff Avilez Rojas filed her adjustment of status application by mailing
17
it to USCIS. Although USCIS has not yet adjudicated the application, Plaintiff Avilez Rojas
18
19 application will be denied based on USCIS’ policy of not treating a grant of TPS as an

20 inspection and admission for purposes of adjustment. But for Defendants’ unlawful policy,
21 USCIS would find Plaintiff Avilez Rojas eligible for adjustment of status.
22
Plaintiff Avilez Rojas will be harmed when USCIS denies her adjustment application.
23
Because Defendant DHS renewed TPS for Honduras only until July 2018, she faces
24
25 uncertainty regarding her future status within the United States. It is uncertain whether DHS

26 will renew the TPS designation for Honduras in July 2018 or—as has been true with respect
27

28 6

All facts related to Plaintiff Avilez Rojas are taken from Dkt. 1, ¶¶ 41-45.

12

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 13 of 26 PageID #: 51

to several other TPS designated countries—terminate. Should DHS terminate the TPS
1
2 designation for Honduras, Plaintiff Avilez Rojas will lose her status and face deportation to a

3 country in which she has not resided for close to two decades. Deportation would separate

4 her from her husband. Given her age and medical problems, she will be unable to support
5
herself in Honduras. Furthermore, Plaintiff Avilez Rojas’ U.S. citizen husband will suffer
6
hardship if she is deported. For all of these reasons, she wishes to have her adjustment
7
8 application fairly adjudicated in accordance with the law.

9

III. THE COURT SHOULD CERTIFY THE CLASS

10
Plaintiffs and proposed class members seek certification under FED. R. CIV. P. 23(a)
11
and (b)(2) to challenge Defendants’ policy of refusing to treat the grant of TPS as an
12

13 inspection and admission for purposes of adjustment of status.

14

While a plaintiff must satisfy all Rule 23 requirements for class certification, the

15 Second Circuit employs a “liberal rather than restrictive construction of Rule 23, adopt[ing] a
16
standard of flexibility in deciding whether to grant certification.” Bourlas v. Davis Law
17
Assocs., 237 F.R.D. 345, 350 (E.D.N.Y. 2006) (citation omitted). In fact, “the Second
18
19 Circuit’s general preference is for granting rather than denying class certification.” Gortat v.

20 Capala Bros., Inc., 257 F.R.D. 353, 361 (E.D.N.Y. 2009) (citation omitted).

21

Under Rule 23(a), the party seeking class certification must establish that: (1) “the

22
class is so numerous that joinder of all members is impracticable;” (2) “there are questions of
23

law or fact common to the class;” (3) “the claims or defenses of the representative parties are
24

25 typical of the claims or defenses of the class;” and (4) “the representative parties will fairly

26 and adequately protect the interests of the class.” In this case, Plaintiffs also must show that
27
“the party opposing the class has acted or refused to act on grounds that apply generally to the
28

13

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 14 of 26 PageID #: 52

class, so that final injunctive relief or corresponding declaratory relief is appropriate
1
2 respecting the class as a whole.” FED. R. CIV. P. 23(b)(2).

3

Certification here is consistent with FED. R. CIV. PROC. 23(a) and 23(b)(2). “Rule

4 23(b)(2) is designed to assist and is most commonly relied upon by litigants seeking
5
institutional reform in the form of injunctive relief.” Hill v. City of New York, 136 F. Supp.
6
3d 304, 357 (E.D.N.Y. 2015) (quoting Marisol A. v. Giuliani, 929 F. Supp. 662, 692
7

8 (S.D.N.Y.1996), aff'd, 126 F.3d 372 (2d Cir.1997)). Moreover, “[c]lass certification under

9 Rule 23(b)(2) is particularly appropriate in civil rights litigation.” Id. (citations omitted).

10
Here, Plaintiffs seek only such relief and, absent class certification, most class members never
11
will be eligible to adjust to lawful permanent residence.
12

13 A.
14

This Action Satisfies the Class Certification Requirements of Rule 23(a)
1. The Proposed Class Members Are So Numerous That Joinder Is Impracticable

15
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is
16
impracticable.” Impracticable does not mean impossible, but “only that the difficulty or
17

18 inconvenience of joining all members of the class make use of the class action appropriate.”

19 Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, LLC,

20 504 F.3d 229, 244-45 (2d Cir. 2007). “[N]umerosity is presumed at a level of 40 members[.]”
21
Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (citing 1 NEWBERG
22
ON CLASS ACTIONS §3.05 (2d ed. 1985); see also Betrand v. Sava, 684 F.2d 204, 219 (2d Cir.
23
24 1981) (leaving “undisturbed” a district court’s certification of a class of 53); Shahriar v. Smith

25 & Wolinsky Rest. Group, Inc., 659 F.3d 234, 252 (2d Cir. 2011) (finding 275 sufficient); V.W.
26

27

28

14

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 15 of 26 PageID #: 53

v. Conway, 236 F. Supp. 3d 554, 574 (N.D.N.Y. 2017) (finding class of 86 sufficient).7
1

2

While a plaintiff must “show some evidence of or reasonably estimate the number of

3 class members,” a precise quantification is not required. Kalkstein v. Collecto, Inc., 304
4 F.R.D. 114, 119 (E.D.N.Y. 2015) (citations omitted). Moreover, district courts “may make
5
‘common sense assumptions’ to support a finding of numerosity.” Id. (citations omitted).
6
Plaintiffs do not know the precise size of the proposed class but allege that there are
7
8 hundreds of potential class members. Dkt. 1 ¶ 66. As of October 2017, there were more than

9 275,000 TPS holders living within the geographic boundaries of the proposed class.8 The
10
majority of all TPS holders entered without inspection and have held that status for more than
11
15 years.9 See, e.g., Exh. J, Volpe Dec. ¶ 3 (estimating that “significantly more” than 50
12
13 percent of her organization’s 1,800 plus TPS clients entered without inspection); Exh. I,

14 Miller Dec. ¶ 3 (indicating that the majority of her organization’s 500 TPS clients entered

15 without inspection). Numerous studies demonstrate that TPS holders are well-integrated into
16
the United States.10 As a result of their longstanding presence in U.S. communities, many
17

18

7 19

This is consistent with cases in other jurisdictions. See, e.g., Arkansas Educ. Ass’n v.

Bd. Of Educ., 446 F.2d 763, 765-66 (8th Cir. 1971) (finding 20 class members sufficient);

20 Jones v. Diamond, 519 F.2d 1090, 1100 & n.18 (5th Cir. 1975) (class membership of 48);

Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 275 (10th Cir. 1977) (41-46 class 21 members); McCluskey v. Trs. Of Red Dot Corp. Emp. Stock Ownership Plan & Trust, 268

22 F.R.D. 670, 673-76 (W.D. Wash. 2010) (certifying class with 27 known members).

8

Relying on a report from the Congressional Research Service, Plaintiffs arrived at this

23 figure by subtracting from the total number of TPS holders those who reside within the Sixth,

Ninth and Eleventh Circuits. See Jill H. Wilson, Temporary Protected Status: Overview and 24 Current Issues, CONGRESSIONAL RESEARCH SERV. 4-5, 12, Table 1 (Jan. 17, 2018),

25 https://fas.org/sgp/crs/homesec/RS20844.pdf.

9

Id. at 5, Table 1.

26 10 See, e.g., Center for American Progress, TPS Holders in the United States (2017),

https://cdn.americanprogress.org/content/uploads/2017/10/19125633/101717_TPSFactsheet-
27
USA.pdf; Robert Warren and Donald Kerwin, A Statistical and Demographic Profile of the

28 US Temporary Protected Status Populations from El Salvador, Honduras, and Haiti, 5 J.

MIGR. & HUM. SEC. 577 (2017), available at http://cmsny.org/publications/jmhs-tps-

15

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 16 of 26 PageID #: 54

have U.S. citizen spouses, adult U.S. citizen children, or employers who have petitioned or
1
2 will petition for a visa on their behalf, a prerequisite to the TPS holder filing an adjustment of

3 status application. 8 U.S.C. § 1255(a). Defendants easily can ascertain the exact number visa

4 petitions filed on behalf of TPS holders, as well as adjustment applications filed by TPS
5
holders. Accord Barahona-Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir. 1999)
6
(“[Immigration officials are] uniquely positioned to ascertain class membership.”).
7

8

Plaintiffs’ estimate is further confirmed by the declarations of 20 immigration

9 attorneys who, collectively, attest to knowledge of more than 700 current or potential clients
10
who fall within the class. See, e.g., Exh. K., Yang Dec. ¶¶ 3, 7 [sic] (approximately 188
11
current and 250 former clients); Exh. D, Pilsbury Dec. ¶ 5 (at least 200 clients who are class
12
13 members); Exh. A, Cortes del Olmo Dec. ¶ 4 (30-40 potential clients); Exh. P, Sharma-

14 Crawford Dec. ¶ 5 (10-15 clients); Exh. B, Estrada Dec. ¶ 3 (12 clients); Exh. C, Liberles

15 Dec. ¶ 3 (12 clients). These numbers support a presumption that the class is so numerous that
16
joinder would be impractical. Consol. Rail Corp., 47 F.3d at 483.
17
Moreover, as the Second Circuit has explained, “the numerosity inquiry is not strictly
18
19 mathematical but must take into account the context of the particular case, in particular

20 whether a class is superior to joinder based on other relevant factors including: (i) judicial

21 economy, (ii) geographic dispersion, (iii) the financial resources of class members, (iv) their
22
ability to sue separately, and (v) requests for injunctive relief that would involve future class
23
members.” Pennsylvania Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., Inc., 772 F.3d
24
25 111, 120 (2d Cir. 2014) (citing Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993)). Here,

26

27
elsalvador-honduras-haiti/; Cecilia Menjivar, Temporary Protected Status in the United 28 States: The Experiences of Honduran and Salvadoran Immigrants, U. KAN. CENTER FOR
MIGR. RESEARCH (2017), http://ipsr.ku.edu/migration/pdf/TPS_Report.pdf.

16

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 17 of 26 PageID #: 55

these factors—both alone and in combination—demonstrate that joinder is impractical.
1

2

First, the geographic spread is large, covering the geographic boundaries of the Courts

3 of Appeals for the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and Tenth Circuits.
4 See Robidoux, 987 F.2d at 936 (finding that the fact that class members were dispersed
5
throughout Vermont weighed in favor of certification); Brooks v. Roberts, 251 F. Supp. 3d
6
401, 417-18 (N.D.N.Y. 2017) (“Plaintiffs’ class includes low income residents spread across
7
8 New York, the sort of population that makes joinder of individual members a difficult

9 proposition due to their geographic dispersion, limited if not non-existent financial resources,
10
and the impracticability of each obtaining legal representation for their individual claims.”).
11
Moreover, Plaintiffs’ evidence demonstrates that there are potential class members within
12
13 each of these Circuits.11

14

A class action will preserve judicial resources, saving district courts throughout the

15 United States from litigating the same question of statutory interpretation in individual
16
lawsuits. It similarly will ensure that the issue is resolved for all TPS holders, regardless of
17
their financial resources or ability to pursue an individual action. See, e.g., Exh. H,
18
19 Hohenstein Dec. ¶ 6 (explaining why individual suits are prohibitive for many clients); Exh.

20 D, Pilsbury Dec. ¶ 4 (indicating that many of her clients are low income). Moreover, timing
21 is critical for Plaintiffs and class members, since the majority will lose their TPS status within
22
a year to eighteen months and then become vulnerable to removal. However, USCIS can take
23

24

11 25

Specifically, for the First Circuit, see Exhs. A, Cortes del Olmo Dec., B, Estrada Dec.,

and C, Liberles Dec.; Second Circuit, see Exhs. D, Pilsbury Dec., E, Shafiqullah Dec., F,

26 Friedland Dec., and G, Nowak Dec.; Third Circuit, see Exhs. H, Hohenstein Dec. and I,

Miller Dec.; Fourth Cir., see Exh. J, Volpe Dec.; Fifth Circuit, see Exhs. K, Yang Dec., L,
27
Taylor Dec., M, Garcia Dec., and N, Goodwin Dec.; Seventh Circuit, see Exh. O, Takhsh

28 Dec.; Eighth Circuit, see Exhs. P, Sharma-Crawford Dec., Q, Loesch Dec.; R, Blackford Dec.,

and S, Peterson Dec.; Tenth Circuit, see Exh. T, Hall Dec., and P, Sharma-Crawford Dec.

17

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 18 of 26 PageID #: 56

a year or more to adjudicate an adjustment application. See, e.g., Exh. A, Cortes del Olmo
1
2 Dec. ¶ 6 (9 to 18 months in Boston, Massachusetts); Exh. J, Volpe Dec. ¶ 9 (more than a year

3 in Washington, DC, Maryland and Virginia region); Exh. N, Goodwin ¶ 5 (same, in

4 Harlingen, Texas); Exh. T, Hall Dec. ¶ 6 (14 to 24 months in Aurora, Colorado). Given the
5
urgency for a speedy resolution of the statutory interpretation issue, class litigation makes the
6
most sense.
7

8

Finally, Plaintiffs seek prospective injunctive relief on behalf of future, unknown class

9 members. Robidoux, 987 F.2d at 936; see also Hawker v. Consovoy, 198 F.R.D. 619, 625
10
(D.N.J. 2001) (“The joinder of potential future class members who share a common
11
characteristic, but whose identity cannot be determined yet is considered impracticable.”)
12
13 (citation omitted).

14

Plaintiffs have demonstrated the large number of current and future class members and

15 the many reasons why “joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1).

16
2. Because Plaintiffs’ Claims Derive from Defendants’ Common Practice, the

17

Class Presents Common Questions of Law and Fact

18

Rule 23(a)(2) requires that there be questions of law or fact that are common to the

19
class. “Commonality requires the plaintiff to demonstrate that the class members have
20
suffered the same injury.” Wal-Mart Stores, 564 U.S. at 349-50 (internal quotation omitted).
21

22 “Courts have found that, despite differing individual circumstances of class members,

23 commonality exists where injuries derive from a unitary course of conduct by a single
24 system.” Kurtz v. Kimberly-Clark Corp., 321 F.R.D. 482, 530 (E.D.N.Y. 2017) (internal
25
quotations and citations omitted). Moreover, “‘even a single common question’” will satisfy
26
27 the rule. Id. (quoting Wal-Mart Stores, 564 U.S. at 359).

28

18

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 19 of 26 PageID #: 57
To establish the existence of a common question of law, the proposed class members’
1
2 claims “must depend upon a common contention” that is “of such a nature that it is capable of
3 classwide resolution—which means that determination of its truth or falsity will resolve an 4 issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores,
5
564 U.S. at 350. Thus, “[w]hat matters to class certification . . . is not the raising of common
6
‘questions’ . . . but, rather the capacity of a classwide proceeding to generate common
7
8 answers apt to drive the resolution of the litigation.” Id. (internal quotation and citation
9 omitted).
10
Here, the central common legal question is whether Defendants’ policy of not treating
11
a grant of TPS as a qualifying inspection and admission for purposes of adjustment of status
12
13 violates 8 U.S.C. §§ 1254a(f)(4) and 1255. The Court’s answer to this question will “drive
14 the resolution” of the case, and a favorable resolution for Plaintiffs will remedy the problem
15 for all class members. Wal-Mart Stores, 564 U.S. at 350 (internal quotation omitted); see also
16
Shahriar, 659 F.3d at 252 (finding plaintiffs’ allegations that defendants’ policies violated the
17
Fair Labor Standards Act demonstrated commonality); Dover v. British Airways, PLC (UK),
18
19 321 F.R.D. 49, 54 (E.D.N.Y. 2017) (finding “one common question that is central to
20 Plaintiffs' case and undisputedly capable of common resolution: the proper interpretation of 21 the term ‘fuel surcharges’ in the Contract.”); Hill, 136 F. Supp. 3d at 354 (“Another common
22
question exists as to whether the City Defendants breached the [collective bargaining
23
agreement] through its leave policies.”). The proposed class members thus have raised a
24
25 “common contention . . . of such a nature that it is capable of classwide resolution—which
26 means that determination of its truth or falsity will resolve an issue that is central to the
27
validity of each one of the claims in one stroke.” Wal-Mart Stores, 564 U.S. at 350.
28
19

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 20 of 26 PageID #: 58

There are no factual differences in the circumstances of the proposed class members
1
2 that are relevant. The salient common facts that all class members, by definition, share—that

3 they have been, or will be, subject to the Defendants’ unlawful policy—are central to the case.

4 Notably, Plaintiffs do not ask this Court to order Defendants to grant their adjustment of
5
status applications; they are simply requesting that this Court review whether Defendants’
6
policy—which is rendering them and all class members ineligible for adjustment of status—
7
8 violates the Immigration and Nationality Act (INA). As such, the questions presented apply

9 equally to all class members regardless of any other factual differences. The commonality

10
requirement is satisfied because all class members allege the same injuries and raise the same
11
set of common questions, and because the relief sought by all class members is the same.
12

13

3. Plaintiffs’ Claims Are Typical of the Claims of the Members of the

Proposed Class

14

15

Rule 23(a)(3) requires that the claims of the class representatives be “typical of the

16 claims . . . of the class.” To establish typicality, “a class representative must be part of the
17 class and possess the same interest and suffer the same injury as the class members.” Gen.
18
Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 156 (1982) (internal quotation and citations
19
20 omitted). The “typicality requirement is satisfied when each class member’s claim arises
21 from the same course of events and each class member makes similar legal arguments to

22 prove the defendant’s liability.” Robidoux, 987 F.2d at 936 (citations omitted); see also

23
Shahriar, 659 F.3d at 252 (finding typicality where plaintiffs’ evidence showed that all class
24
members were subject to the challenged policies of the defendants).
25

26

In this way, commonality and typicality “tend to merge” because both “serve as

27 guideposts for determining whether, under the particular circumstances presented by the case,

28 maintenance of a class action is economical and whether the named plaintiff’s claim and the

20

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 21 of 26 PageID #: 59

class claims are so interrelated that the interests of the class members will be fairly and
1
2 adequately protected in their absence.” Gen. Tel. Co. of the Sw., 457 U.S. at 157 n.13.

3

Here, Plaintiffs’ claims are typical of the proposed class because they proceed under

4 the same legal theories, seek the same relief, and have suffered the same injuries. Like each
5
proposed class member, Plaintiffs have been subject to Defendants’ policy, which has resulted
6
or will result in the denial of Plaintiffs’ adjustment applications. Indeed, “the factual situation
7
8 and the legal theories upon which the Plaintiff[s] bring[] this action are not only typical of the

9 entire class, but are nearly identical. Therefore, the Plaintiffs ha[ve] established that the

10
typicality requirement is met in this case.” Assif v. Titleserv, Inc., 288 F.R.D. 18, 24
11
(E.D.N.Y. 2012).
12

13

4. The Named Plaintiffs Will Adequately Protect the Interests of the

Proposed Class Members, and Counsel Are Qualified to Litigate this

14

Action

15

Rule 23(a)(4) requires that “the representative parties will fairly and adequately

16
protect the interests of the class.” “Adequacy is twofold: the proposed class representative
17
must have an interest in vigorously pursuing the claims of the class, and must have no
18

19 interests antagonistic to the interests of other class members.” Denny v. Deutsche Bank AG,

20 443 F.3d 253, 268 (2d Cir. 2006) (citations omitted). To defeat certification, any conflict

21 must be “fundamental.” Id. (citation omitted).
22
The named Plaintiffs and all class members are subjected to the same challenged
23
USCIS policy. All have the same interest in ensuring that USCIS recognize that their grant of
24
25 TPS constitutes an inspection and admission for purposes of adjustment of status under 8

26 U.S.C. § 1255. Their mutual goal is to have this Court declare unlawful Defendants’
27
challenged policy and issue injunctive relief that requires USCIS to treat a grant of TPS as an
28

21

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 22 of 26 PageID #: 60
inspection and admission for purposes of adjustment of status. The named Plaintiffs are not
1
2 seeking any monetary damages, but instead seek the same injunctive relief for themselves and
3 the class as a whole. They have no interests antagonistic to those of other class members. 4 Therefore, they will fairly and adequately protect the interests of the class members they seek
5
to represent.
6
Plaintiffs’ counsel also “will fairly and adequately protect the interests of the class.”
7
8 Fed. R. Civ. P. 23(a)(4). “The adequacy of counsel requirement is satisfied ‘where the class
9 attorneys are experienced in the field or have demonstrated professional competence in other
10
ways, such as by the quality of the briefs and the arguments during the early stages of the
11
case.’” D.S. ex rel. S.S. v. New York City Dep’t of Educ., 255 F.R.D. 59, 74 (E.D.N.Y. 2008)
12
13 (quoting Schwab v. Philip Morris, 449 F. Supp. 2d 992, 1106 (E.D.N.Y. 2006), rev’d on other
14 grounds sub nom. McLaughlin v. Am. Tobacco Co., 522 F.3d 215 (2d Cir. 2008)). Plaintiffs
15 are represented by attorneys from the American Immigration Council and the Northwest
16
Immigrant Rights Project. Counsel have a demonstrated commitment to protecting the rights
17
and interests of noncitizens and have experience in handling complex and class action
18
19 litigation, including in the immigration field. See Exhs. U, Kenney Dec., V, Second Realmuto
20 Dec., and W, Adams Dec. Class counsel have the experience and ability to zealously and 21 effectively represent both named and absent class members. Id.
22
5. Plaintiffs’ Class Definition Is Ascertainable
23
The Second Circuit also recognizes an implied requirement of ascertainability under
24
25 Rule 23. In In re Petrobras Sec., the Court “clarif[ied] the scope” of the ascertainability
26 doctrine, holding that “a class is ascertainable if it is defined using objective criteria that
27
establish a membership with definite boundaries.” 862 F.3d 250, 257 (2d Cir. 2017); see also
28
22

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 23 of 26 PageID #: 61

id. at 265 (“[D]eclin[ing] to adopt a heightened ascertainability theory that requires a showing
1
2 of administrative feasibility at the class certification stage.”).

3

Here, objective criteria clearly define the boundaries of the class. Membership is

4 defined by type of initial entry into the United States, current immigration status, and
5
application of Defendants’ policy to a class member’s adjustment application. “[N]either the
6
parties nor the properties that are the subject of this litigation are fundamentally
7
8 indeterminate,” and thus the ascertainability requirement has been met. Id. at 270.

9 B. Plaintiffs Satisfy the Requirements of Rule 23(b)
10
Rule 23(b)(2), under which Plaintiffs seek certification, requires that Defendants have
11
“acted or refused to act on grounds that apply generally to the class, so that final injunctive
12
13 relief or corresponding declaratory relief is appropriate respecting the class as a whole.” The

14 underlying premise of subsection (b)(2) is “the indivisible nature of the injunctive or

15 declaratory remedy warranted—the notion that the conduct at issue can be enjoined or
16
declared unlawful only as to all of the class members or as to none of them.” Wal-Mart
17
Stores, 564 U.S. at 360 (internal quotation and citation omitted). In other words, Rule
18
19 23(b)(2) is met where “a single injunction or declaratory judgment would provide relief to

20 each member of the class.” Id. Rule 23(b)(2) “is only applicable where the relief sought is

21 exclusively or predominantly injunctive or declaratory.” Coco v. Inc. Vill. of Belle Terre, 233
22
F.R.D. 109, 115 (E.D.N.Y. 2005) (citations omitted).
23
This suit falls directly within the ambit of Rule 23(b)(2). Plaintiffs challenge a policy
24
25 that is applicable to both Plaintiffs and all class members. Because this policy concerns a

26 threshold eligibility requirement for adjustment of status, it bars review of the merits of any
27
individual adjustment application; thus, it applies without regard to any differences in
28

23

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 24 of 26 PageID #: 62

Plaintiffs’ and class members’ cases. Plaintiffs primarily seek declaratory and injunctive
1
2 relief to remedy Defendants’ statutory violations. They ask the Court to declare that

3 Defendants’ policy violates the INA; to declare that, pursuant to 8 U.S.C. § 1254a(f)(4), a

4 grant of TPS constitutes an inspection and admission for purposes of adjustment of status; to
5
order Defendants to give effect to the plain language of the statute, acknowledging the grant
6
of TPS as an inspection and admission for purposes of adjudicating Plaintiffs’ and class
7
8 members’ adjustment applications; and to reopen cases in which they erroneously applied the

9 challenged policy. Plaintiffs seek no monetary damages for the substantial harms
10
Defendants’ actions cause Plaintiffs and their families. The requested declaratory and
11
injunctive relief would apply to Plaintiffs and all proposed class members in identical
12
13 fashion. Therefore, Defendants’ actions have made appropriate final injunctive relief or

14 corresponding declaratory relief with respect to the class as a whole. Fed. R. Civ. P.

15 23(b)(2); see also Nicholson v. Williams, 205 F.R.D. 92, 99 (E.D.N.Y. 2001) (“Rule 23(b)(2)

16
is designed to assist litigants seeking institutional change in the form of injunctive relief.”)
17
(citing cases).
18

19

IV. CONCLUSION

20

Plaintiffs respectfully request that the Court grant their Motion for Class Certification

21 and enter the accompanying proposed certification order.
22
Dated February 22, 2018
23
Respectfully submitted,
24

25 /s/ Trina Realmuto Trina Realmuto, TR3684
26 Kristin Macleod-Ball** 27 American Immigration Council
100 Summer Street, 23rd Floor 28 Boston, MA 02110

Mary A. Kenney* American Immigration Council 1331 G St., NW Washington, DC 20005 (202) 507-7512

24

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 25 of 26 PageID #: 63

(857) 305-3600 1 trealmuto@immcouncil.org 2 kmacleod-ball@immcouncil.org
3 4 5 6

mkenney@immcouncil.org
Matt Adams* Leila Kang* Northwest Immigrant Rights Project 615 Second Avenue, Suite 400 Seattle, WA 98104 (206) 957-8611 matt@nwirp.org leila@nwirp.org

7
Attorneys for Plaintiffs
8
* Moving for pro hac vice admission 9 ** Moving for admission

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

25

Case 1:18-cv-01135 Document 2-1 Filed 02/22/18 Page 26 of 26 PageID #: 64
CERTIFICATE OF SERVICE
1
2 I, Trina Realmuto, hereby certify that on February 22, 2018, I electronically filed the foregoing notice of motion for class certification, memorandum of law in support of motion
3 for class certification, index of exhibits, authenticating declaration of Trina Realmuto, exhibits in support of motion for class certification, and proposed order granting class
4 certification, with the Clerk of the Court using the CM/ECF system. In addition, I caused to 5 copies of these documents to be served by U.S. certified mail, return receipt requested to each
of the following:
6
United States Attorney
7
Eastern District of New York 8 Attn: Civil Process Clerk
271 Cadman Plaza East 9 Brooklyn NY 11201
10
Jefferson B. Sessions, U.S. Attorney General 11 U.S. Department of Justice
950 Pennsylvania Avenue, NW 12 Washington, DC 20530-0001
13
Kirstjen Nielsen, Secretary 14 U.S. Department of Homeland Security
c/o Office of the General Counsel 15 Department of Homeland Security 16 Mail Stop 3650
Washington, DC 20528
17
L. Francis Cissna, Director 18 U.S. Citizenship and Immigration Services 19 20 Massachusetts Avenue, NW
Washington, DC 20529
20
Executed in Boston, Massachusetts.
21
22 s/ Trina Realmuto 23 Trina Realmuto
American Immigration Council 24 100 Summer Street, 23rd Floor
Boston, MA 02110 25 (857) 305-3600
26
27
28
26

 
 Eastern District of New York - LIVE Database 1.3 (Revision 1.3.6)
Query Reports Utilities Help Log Out
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:18-cv-01135-RRM

8/1/20, 10(11 AM
ACO

Moreno et al v. Nielsen et al Assigned to: Judge Roslynn R. Mauskopf Cause: 05:702 Administrative Procedure Act
Plaintiff Amado de Jesus Moreno

Date Filed: 02/22/2018 Jury Demand: None Nature of Suit: 465 Other Immigration Actions Jurisdiction: U.S. Government Defendant
represented by Kristin Arina Macleod-Ball American Immigration Council 1318 Beacon Street Brookline, MA 02446 857-305-3722 Email: kmacleod-ball@immcouncil.org ATTORNEY TO BE NOTICED

Leila Kang Northwest Immigrant Rights Project 615 Second Ave Suite 400 Seattle, WA 98104 (206)957-8608 Fax: (206)587-4025 Email: leila@immdefense.org ATTORNEY TO BE NOTICED

Mary Kenney National Immigration Litigation Alliance 10 Griggs Terrace Brookline, MA 02446 617-819-4681 Email: mary@immigrationlitigation.org PRO HAC VICE ATTORNEY TO BE NOTICED

Matt Adams Northwest Immigrant Rights Project 615 Second Ave, Ste 400 Seattle

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Eastern District of New York - LIVE Database 1.3 (Revision 1.3.6)

8/1/20, 10(11 AM

Plaintiff Nelda Yolanda Reyes
Plaintiff Jose Cantarero Argueta

Seattle, WA 98104 UNITED STA 206-957-8611 Fax: 206-587-4025 Email: matt@nwirp.org ATTORNEY TO BE NOTICED
Trina A. Realmuto National Immigration Litigation Alliance 10 Griggs Terrace Brookline, MA 02446 617-513-0802 Email: trina@immigrationlitigation.org ATTORNEY TO BE NOTICED
represented by Kristin Arina Macleod-Ball (See above for address) ATTORNEY TO BE NOTICED
Leila Kang (See above for address) ATTORNEY TO BE NOTICED
Mary Kenney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
Trina A. Realmuto (See above for address) ATTORNEY TO BE NOTICED
represented by Kristin Arina Macleod-Ball (See above for address) ATTORNEY TO BE NOTICED
Leila Kang (See above for address) ATTORNEY TO BE NOTICED
Mary Kenney

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Eastern District of New York - LIVE Database 1.3 (Revision 1.3.6)
Plaintiff Haydee Avilez Rojas
V. Defendant Kirstjen Nielsen

8/1/20, 10(11 AM
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
Trina A. Realmuto (See above for address) ATTORNEY TO BE NOTICED
represented by Kristin Arina Macleod-Ball (See above for address) ATTORNEY TO BE NOTICED
Leila Kang (See above for address) ATTORNEY TO BE NOTICED
Mary Kenney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
Trina A. Realmuto (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph Anthony Marutollo U. S. Attorney's Ofﬁce 271 Cadman Plaza East Brooklyn, NY 11201 718-254-6288 Fax: 718-254-7489 Email: joseph.marutollo@usdoj.gov ATTORNEY TO BE NOTICED

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Eastern District of New York - LIVE Database 1.3 (Revision 1.3.6)

8/1/20, 10(11 AM

Defendant U.S. Department of Homeland Security
Defendant L. Francis Cissna

Sheldon A. Smith U.S. Attorney's Ofﬁce for the Eastern District of NY 271 Cadman Plaza East Brooklyn, NY 11201 718-254-6011 Fax: 718-254-6381 Email: sheldon.smith@usdoj.gov ATTORNEY TO BE NOTICED
Ubaid Ul-Haq U.S. Department of Justice Civil Division Ofﬁce Of Immigration Litigation District Court Se Po Box 868 Ben Franklin Station Washington, DC 20044 (202)532-4112 Fax: (202)305-7000 Email: ubaid.ul-haq@usdoj.gov ATTORNEY TO BE NOTICED
represented by Joseph Anthony Marutollo (See above for address) ATTORNEY TO BE NOTICED
Sheldon A. Smith (See above for address) ATTORNEY TO BE NOTICED
Ubaid Ul-Haq (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph Anthony Marutollo (See above for address) ATTORNEY TO BE NOTICED
Sheldon A. Smith (See above for address) ATTORNEY TO BE NOTICED
Ubaid Ul-Haq (See above for address) ATTORNEY TO BE NOTICED

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Eastern District of New York - LIVE Database 1.3 (Revision 1.3.6)
Defendant U.S. Citizenship and Immigration Services
Amicus Commonwealth of Massachusetts
Amicus Asian Americans Advancing Justice AAJC

8/1/20, 10(11 AM
represented by Joseph Anthony Marutollo (See above for address) ATTORNEY TO BE NOTICED
Sheldon A. Smith (See above for address) ATTORNEY TO BE NOTICED
Ubaid Ul-Haq (See above for address) ATTORNEY TO BE NOTICED
represented by David Urena Urban Justice Center 123 William Street 16th Floor New York, NY 10038 646-459-3037 Fax: 212-533-4598 Email: david.urena@mass.gov ATTORNEY TO BE NOTICED
Jonathan B. Miller Ofﬁce of the Attorney General One Ashburton Place Boston, MA 02108 617-963-2073 Fax: 617-727-5762 Email: jonathan.miller@state.ma.us ATTORNEY TO BE NOTICED
represented by Eric Hui-Chieh Huang Quinn Emanuel Urquhart & Sullivan LLP 51 Madison Ave 22nd Floor New York, NY 10010 (212)849-7000 Fax: (212)849-7100 Email: erichuang@quinnemanuel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Eastern District of New York - LIVE Database 1.3 (Revision 1.3.6)

8/1/20, 10(11 AM

Date Filed 02/22/2018 02/22/2018
02/22/2018 02/22/2018
02/22/2018 02/22/2018

# Docket Text
1 COMPLAINT Class Action Complaint for Declaratory, Injunctive, and Mandamus Relief against All Defendants ﬁling fee $ 400, receipt number 0207-10219749 Was the Disclosure Statement on Civil Cover Sheet completed -Yes,, ﬁled by Jose Cantarero Argueta, Nelda Yolanda Reyes, Haydee Avilez Rojas, Amado de Jesus Moreno. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons Nielsen, # 3 Proposed Summons Cissna, # 4 Proposed Summons Sessions, # 5 Proposed Summons AUSA EDNY) (Realmuto, Trina) (Entered: 02/22/2018)
2 First MOTION to Certify Class by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Index of Exhibits, # 3 Declaration First Realmuto Dec, # 4 Declaration Cortes del Olmo Dec, # 5 Declaration Estrada Dec, # 6 Declaration Liberles Dec, # 7 Declaration Pilsbury Dec, # 8 Declaration Shaﬁqullah Dec, # 9 Declaration Friedland Dec, # 10 Declaration Nowak Dec, # 11 Declaration Hohenstein Dec, # 12 Declaration Miller Dec, # 13 Declaration Volpe Dec, # 14 Declaration Yang Dec, # 15 Declaration Taylor Dec, # 16 Declaration Garcia Dec, # 17 Declaration Goodwin Dec, # 18 Declaration Takhsh Dec, # 19 Declaration Sharma-Crawford Dec, # 20 Declaration Loesch Dec, # 21 Declaration Blackford Dec, # 22 Declaration Peterson Dec, # 23 Declaration Hall Dec, # 24 Declaration Kenney Dec, # 25 Declaration Second Realmuto Dec, # 26 Declaration Adams Dec, # 27 Exhibit Moreno MTR Denial, # 28 Exhibit Reyes AOS Denial, # 29 Exhibit Cantarero Argueta NOID, # 30 Proposed Order) (Realmuto, Trina) (Entered: 02/22/2018)
Case Assigned to Judge Roslynn R. Mauskopf. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Davis, Kimberly) (Entered: 02/22/2018)
3 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notiﬁed that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a ﬁnal judgment. Attached to the Notice is a blank copy of the consent form that should be ﬁlled out, signed and ﬁled electronically only if all parties wish to consent. The form may also be accessed at the following link: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or ﬁle the consent unless all parties have signed the consent. (Davis, Kimberly) (Entered: 02/22/2018)
4 This attorney case opening ﬁling has been checked for quality control. See the attachment for corrections that were made, if any. (Davis, Kimberly) (Entered: 02/22/2018)
5 Summons Issued as to L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summon, # 2 Summon, # 3 Summon) (Davis, Kimberly) (Entered: 02/22/2018)

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02/26/2018 02/26/2018
03/06/2018 03/06/2018 03/08/2018 03/15/2018 03/26/2018 04/10/2018 05/02/2018 05/04/2018 05/04/2018 05/07/2018

6 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 020710229771. by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes. (Attachments: # 1 Admission Information, # 2 Afﬁdavit) (Adams, Matt) (Entered: 02/26/2018)
7 MOTION for Leave to Appear Pro Hac Vice Mary Kenney Filing fee $ 150, receipt number 0207-10231079. by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes. (Attachments: # 1 Afﬁdavit, # 2 WV Certiﬁcate of Good Standing, # 3 DC Certiﬁcate of Good Standing) (Kenney, Mary) (Entered: 02/26/2018)
8 NOTICE of Appearance by Joseph Anthony Marutollo on behalf of All Defendants (aty to be noticed) (Marutollo, Joseph) (Entered: 03/06/2018)
9 Letter in accordance with Judge Mauskopf's Standing Order by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Marutollo, Joseph) (Entered: 03/06/2018)
10 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 020710258762. by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes. (Attachments: # 1 Afﬁdavit in Support, # 2 WA Certiﬁcate of Good Standing) (Kang, Leila) (Entered: 03/08/2018)
11 SUMMONS Returned Executed by Jose Cantarero Argueta, Nelda Yolanda Reyes, Haydee Avilez Rojas, Amado de Jesus Moreno. L. Francis Cissna served on 2/26/2018, answer due 4/27/2018; Kirstjen Nielsen served on 2/26/2018, answer due 4/27/2018. (Attachments: # 1 Exhibit) (Kenney, Mary) (Entered: 03/15/2018)
12 AMENDED COMPLAINT against All Defendants, ﬁled by Jose Cantarero Argueta, Nelda Yolanda Reyes, Haydee Avilez Rojas, Amado de Jesus Moreno. (Realmuto, Trina) (Entered: 03/26/2018)
13 Joint MOTION for Extension of Time to File - Request for the Court to endorse the parties' proposed brieﬁng schedule by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Marutollo, Joseph) (Entered: 04/10/2018)
14 Joint MOTION for Extension of Time to File - Request for the Court to endorse the parties' proposed amended brieﬁng schedule by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Marutollo, Joseph) (Entered: 05/02/2018)
15 NOTICE of Appearance by Jonathan B. Miller on behalf of Commonwealth of Massachusetts (aty to be noticed) (Miller, Jonathan) (Entered: 05/04/2018)
16 Letter MOTION for Leave to File Brief as Amici Curiae on behalf of Amici States by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 05/04/2018)
ORDER re: 2 Motion to Certify Class; 13 Motion for Extension of Time to File; 14 Motion for Extension of Time to File; 16 Motion for Leave to File: The Court will hold a pre-motion conference on Wednesday May 30 at 12:00 noon. Counsel fully familiar

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05/22/2018 05/22/2018 05/22/2018 05/23/2018

with this action shall appear. By May 15, 2018, the parties shall submit pre-motion conference letters outlining brieﬂy, but with sufﬁcient particularity, the bases for their respective motions, and by May 22, the opposing party shall respond. The parties shall also address their respective positions with respect to the need for and scope of any discovery in this action, as well as why the proposed class certiﬁcation motion should proceed at this juncture. Counsel for the Commonwealth of Massachusetts, representing proposed amici, may appear, and shall advise the Court by letter no later than May 22 as to the "other interested states" that seek to join the proposed brief in support of plaintiffs' cross-motion for summary judgment. The Court will hold in abeyance any decision on the need for such brieﬁng pending receipt of further information on the scope of the parties' proposed motions. Ordered by Judge Roslynn R. Mauskopf on 5/7/2018. (Mauskopf, Roslynn) (Entered: 05/07/2018)
17 Consent MOTION for Leave to File Brief as Amicus Curaie in support of Plaintiffs' Motion for Summary Judgment by Asian Americans Advancing Justice - AAJC. (Huang, Eric) (Entered: 05/09/2018)
18 NOTICE of Appearance by Ubaid Ul-Haq on behalf of All Defendants (aty to be noticed) (Ul-Haq, Ubaid) (Entered: 05/15/2018)
19 Letter in Advance of May 30 Pre-Motion Conference by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Ul-Haq, Ubaid) (Entered: 05/15/2018)
20 Letter in Advance of May 30, 2018 Pre-Motion Conference by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes (Realmuto, Trina) (Entered: 05/15/2018)
21 Letter Advising the Court of Amici States by Commonwealth of Massachusetts (Miller, Jonathan) (Entered: 05/21/2018)
ORDER: By May 25, 2018, plaintiffs shall respond by letter to the government's premotion conference letter ﬁled on May 15, 2018 (Doc. No. 19 ), setting forth the bases for opposing the proposed motion to dismiss, and setting forth their response to the government's opposition to class certiﬁcation. Ordered by Judge Roslynn R. Mauskopf on 5/22/2018. (Taronji, Robert) (Entered: 05/22/2018)
ORDER: The Court's previous order dated 5/22/2018 is hereby VACATED. The parties shall adhere to the deadlines set forth in the Court's order dated 5/7/2018. Ordered by Judge Roslynn R. Mauskopf on 5/22/2018. (Taronji, Robert) (Entered: 05/22/2018)
22 Letter Response to Plaintiffs' Pre-Motion Conference Letter by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Ul-Haq, Ubaid) (Entered: 05/22/2018)
23 Letter Response to Defendants' Pre-Motion Conference Letter by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes (Realmuto, Trina) (Entered: 05/22/2018)
24 NOTICE of Appearance by Sheldon A. Smith on behalf of All Defendants (aty to be noticed) (Smith, Sheldon) (Entered: 05/23/2018)

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05/30/2018

Minute Entry for proceedings held before Judge Roslynn R. Mauskopf: Pre Motion Conference held on 5/30/2018. Joseph Martuollo The Court grants the pending motions for admission Pro Hac Vice Admission. Mary Kenney and Trina Realmuto for plaintiffs. Eric Huang for proposed Amici AAJC. Joseph Marutollo and Ubaid Ul-Haq with Sheldon Smith for defendants. Argumrnt heard on the parties' proposed motions. The Court defers ruling on intervention by Amici pending the review of the fully briefed motions. All defendants' time to answer is extended nunc pro tunc from April 10, 2018 until 21 days after the Court's decision on any motion or until further order of the Court. The parties shall confer and submit a joint proposed brieﬁng schedule no later than Friday June 1. (Court Reporter Anthony Mancuso) (Taronji, Robert) (Entered: 05/30/2018)

05/31/2018 06/01/2018 06/04/2018 06/11/2018 06/12/2018
07/20/2018

25 Letter pursuant to the Court's May 30, 2018 order, regarding a joint proposed brieﬁng schedule, for the Court's endorsement by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Marutollo, Joseph) (Entered: 05/31/2018)
ORDER: The parties' proposed brieﬁng schedule at 25 is so ordered. Any request to modify the schedule shall be made in writing in accordance with this Court's individual rules. Ordered by Judge Roslynn R. Mauskopf on 6/1/2018. (Taronji, Robert) (Entered: 06/01/2018)
26 NOTICE of Change of Telephone number by Sheldon A. Smith 718-254-6011 (Smith, Sheldon) (Entered: 06/04/2018)
27 NOTICE of Appearance by Kristin Arina Macleod-Ball on behalf of All Plaintiffs (aty to be noticed) (Macleod-Ball, Kristin) (Entered: 06/11/2018)
28 MOTION to Dismiss for Lack of Jurisdiction under Fed. R. Civ. P. 12(b)(1) and (b)(3), Motion to Dismiss for Failure to State a Claim under Fed. R. Civ. P. 12(b)(6), MOTION for Summary Judgment under Fed. R. Civ. P. 56 by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Attachments: # 1 Memorandum in Support of Defendants' Motion to Dismiss, Alternative Motion for Summary Judgment, # 2 Declaration, Ubaid ul-Haq re: Exhibits, # 3 Exhibit 1, USCIS AAO Decision Rejecting Reyes I-290B, # 4 Exhibit 2, Argueta's NOID Response, # 5 Exhibit 3, USCIS Decision Denying Rojas I-485) (Ul-Haq, Ubaid) (Entered: 06/12/2018)
29 First MOTION for Summary Judgment by Plaintiffs by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes. (Attachments: # 1 Rule 56.1 Statement Rule 56.1 Statement, # 2 Memorandum in Support Memo ISO Plaintiffs' Motion for Summary Judgment, # 3 Index of Exhibits, # 4 Declaration Fourth Realmuto Declaration, # 5 Exhibit EE - Moreno Adv. Parole Approval, # 6 Exhibit FF Moreno I-94, # 7 Exhibit GG - Moreno I-140 Approval, # 8 Exhibit HH - Moreno I-485 Decision, # 9 Exhibit II - Reyes I-130 Receipt, # 10 Exhibit JJ - Reyes I-485 Receipt, # 11 Exhibit KK - Reyes I-130 Approval, # 12 Exhibit LL - Cantarero Argueta I-94, # 13 Exhibit MM - Cantarero Argueta I-140 Approval, # 14 Exhibit NN - Cantarero Argueta I-485 Receipt, # 15 Exhibit OO - Cantarero Argueta Response to NOID, # 16 Exhibit PP - Avilez Rojas I-485 Receipt, # 17 Exhibit QQ - Garnica Silva Decision, # 18

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Exhibit RR - DHS Brief in Garnica Silva, # 19 Proposed Order Proposed Summary Judgment Order) (Realmuto, Trina) (Entered: 07/20/2018)
30 MEMORANDUM in Opposition re 29 First MOTION for Summary Judgment by Plaintiffs -- Defendants' Memorandum of Law In Opposition ﬁled by All Plaintiffs. (Realmuto, Trina) (Entered: 07/20/2018)
31 REPLY in Support re 29 First MOTION for Summary Judgment by Plaintiffs ﬁled by All Plaintiffs. (Realmuto, Trina) (Entered: 07/20/2018)
32 Second MOTION to Certify Class by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes. (Attachments: # 1 Memorandum in Support of Plaintiffs' Amended Motion for Class Certiﬁcation, # 2 Index of Exhibits, # 3 Declaration Third Realmuto Declaration, # 4 Exhibit A - Cortes del Olmo Dec., # 5 Exhibit B - Estrada Dec., # 6 Exhibit C - Liberles Dec., # 7 Exhibit D - Pilsbury Dec., # 8 Exhibit E - Shaﬁqullah Dec., # 9 Exhibit F - Friedland Dec., # 10 Exhibit G - Nowak Dec., # 11 Exhibit H - Hohenstein Dec., # 12 Exhibit I - Miller Dec., # 13 Exhibit J Volpe Dec., # 14 Exhibit K - Yang Dec., # 15 Exhibit L - Taylor Dec., # 16 Exhibit M Garcia Dec., # 17 Exhibit N - Goodwin Dec., # 18 Exhibit O - Takhsh Dec., # 19 Exhibit P - Sharma-Crawford Dec., # 20 Exhibit Q - Loesch Dec., # 21 Exhibit R Blackford Dec., # 22 Exhibit S - Peterson Dec., # 23 Exhibit T - Hall Dec., # 24 Exhibit U - Kenney Dec., # 25 Exhibit V - Second Realmuto Dec., # 26 Exhibit W - Adams Dec., # 27 Exhibit X - Moreno Motion to Reopen Denial, # 28 Exhibit Y - Reyes I-485 Denial, # 29 Exhibit Z - Cantarero Argueta NOID, # 30 Exhibit AA - Moreno Dec., # 31 Exhibit BB - Reyes Dec., # 32 Exhibit CC - Cantarero Argueta Dec., # 33 Exhibit DD - Avilez Rojas Dec., # 34 Proposed Order Granting Amended Motion for Class Certiﬁcation) (Realmuto, Trina) (Entered: 07/20/2018)
33 MEMORANDUM in Opposition re 32 Second MOTION to Certify Class -Defendants' Memorandum of Law in Opposition ﬁled by All Plaintiffs. (Realmuto, Trina) (Entered: 07/20/2018)
34 REPLY in Support re 32 Second MOTION to Certify Class ﬁled by All Plaintiffs. (Realmuto, Trina) (Entered: 07/20/2018)
35 MEMORANDUM in Opposition re 28 MOTION to Dismiss for Lack of Jurisdiction under Fed. R. Civ. P. 12(b)(1) and (b)(3) Motion to Dismiss for Failure to State a Claim under Fed. R. Civ. P. 12(b)(6) MOTION for Summary Judgment under Fed. R. Civ. P. 56 - Plaintiffs' Memorandum of Law in Opposition - ﬁled by All Defendants. (Attachments: # 1 Declaration, # 2 Appendix (Index), # 3 Exhibit SS) (Marutollo, Joseph) (Entered: 07/20/2018)
36 REPLY in Support re 28 MOTION to Dismiss for Lack of Jurisdiction under Fed. R. Civ. P. 12(b)(1) and (b)(3) Motion to Dismiss for Failure to State a Claim under Fed. R. Civ. P. 12(b)(6) MOTION for Summary Judgment under Fed. R. Civ. P. 56 ﬁled by All Defendants. (Marutollo, Joseph) (Entered: 07/20/2018)
37 Letter regarding service of courtesy copies by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Marutollo, Joseph) (Entered: 07/20/2018)

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01/24/2019

38 Letter of Continued Interest in Submitting Amicus Brief by Commonwealth of Massachusetts (Miller, Jonathan) (Entered: 08/13/2018)
39 Letter of Continued Interest in Filing Amicus Brief by Asian Americans Advancing Justice - AAJC (Huang, Eric) (Entered: 08/22/2018)
40 Letter Request to approve brieﬁng schedule for motion for preliminary injunction by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes (Kenney, Mary) (Entered: 09/20/2018)
Order: The parties' proposed brieﬁng schedule at 40 is so ordered. Plaintiffs' motion for a preliminary injunction shall be served on or before October 26, 2018. Defendants' response shall be served on or before November 9, 2018. Plaintiffs' reply, if any, as well as the fully briefed motion, shall be ﬁled on or before November 16, 2018. Ordered by Judge Roslynn R. Mauskopf on 9/22/2018. (Wechsler, Simon) (Entered: 09/22/2018)
41 First MOTION for Preliminary Injunction by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Index of Exhibits, # 3 Declaration Cantarero Argueta Decl., # 4 Declaration Avilez Rojas Decl., # 5 Declaration Reyes Decl., # 6 Declaration Moreno Decl., # 7 Proposed Order) (Realmuto, Trina) (Entered: 11/16/2018)
42 RESPONSE in Opposition re 41 First MOTION for Preliminary Injunction Defendants' Memorandum of Law In Opposition ﬁled by All Plaintiffs. (Attachments: # 1 Declaration ul-Haq Decl., # 2 Exhibit Ex. A - Neufeld Decl., # 3 Exhibit Ex. B - Ramos Order) (Realmuto, Trina) (Entered: 11/16/2018)
43 REPLY in Support re 41 First MOTION for Preliminary Injunction ﬁled by All Plaintiffs. (Realmuto, Trina) (Entered: 11/16/2018)
44 Letter regarding service of courtesy copies by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes (Realmuto, Trina) (Entered: 11/16/2018)
45 NOTICE of Change of Attorney address for Kristin Macleod-Ball (Macleod-Ball, Kristin) (Entered: 12/21/2018)
46 NOTICE of Change of address for Trina Realmuto (Realmuto, Trina) (Entered: 12/21/2018)
47 MOTION to Stay - the Government respectfully requests a stay of this matter, including its opposition to Plaintiffs' anticipated motion, on account of the current lapse in appropriations. In the event that the Court denies the Government's stay request, the Government alternatively requests the endorsement of the revised brieﬁng schedule. by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Marutollo, Joseph) (Entered: 01/23/2019)
48 RESPONSE in Opposition re 47 MOTION to Stay - the Government respectfully requests a stay of this matter, including its opposition to Plaintiffs' anticipated motion, on account of the current lapse in appropriations. In the event that the Court denies the

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Government​ ﬁled by All Plaintiffs. (Realmuto, Trina) (Entered: 01/24/2019)
49 First MOTION for Temporary Restraining Order or, In the Alternative, Preliminary Injunction by Amado de Jesus Moreno. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Index of Exhibits, # 3 Declaration Sixth Realmuto Decl., # 4 Exhibit Exh. XX - Rodriguez Soloranzo v. Nielsen decision, # 5 Declaration Exh. YY - Third Moreno Decl., # 6 Exhibit Exh. ZZ - Jan. 17, 2013 Laconte Ltr., # 7 Exhibit Exh. AAA Permanent Employment Certiﬁcation, # 8 Exhibit Exh. BBB - Dec. 26, 2018 Laconte Ltr., # 9 Proposed Order) (Realmuto, Trina) (Entered: 01/24/2019)
50 MOTION to Withdraw 47 MOTION to Stay - the Government respectfully requests a stay of this matter, including its opposition to Plaintiffs' anticipated motion, on account of the current lapse in appropriations. In the event that the Court denies the Government​ and MOTION to request the Court's endorsement of the revised brieﬁng schedule by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Marutollo, Joseph) (Entered: 01/29/2019)
51 MEMORANDUM in Opposition re 49 First MOTION for Temporary Restraining Order or, In the Alternative, Preliminary Injunction ﬁled by All Defendants. (Ul-Haq, Ubaid) (Entered: 02/13/2019)
52 MEMORANDUM AND ORDER: For the reasons set forth in the attached written order, it is ORDERED: 1) Moreno's request for a temporary restraining order is denied. 2) Moreno's reply papers shall address the standing issue raised in section II.B. His time to reply is extended from February 18, 2019, to February 22, 2019. 3) Defendants are granted leave to ﬁle a sur-reply, which shall address only the standing issue. That surreply, if any, shall be ﬁled on or before February 28, 2019. Ordered by Judge Roslynn R. Mauskopf on 2/15/2019. (Taronji, Robert) (Entered: 02/15/2019)
53 REPLY in Support of Plaintiff Moreno's Motion for a Temporary Restraining Order, or in the Alternative, Preliminary Injunction ﬁled by Amado de Jesus Moreno. (Kang, Leila) (Entered: 02/22/2019)
54 REPLY in Opposition to Plaintiff Amado Moreno's Reply in Support of Motion for TRO and PI and Sur-Reply in Response to Court's February 15, 2019 Order ﬁled by All Defendants. (Ul-Haq, Ubaid) (Entered: 02/28/2019)
55 Letter respectfully informing the Court of an update regarding Plaintiff Moreno by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Marutollo, Joseph) (Entered: 03/08/2019)
56 Letter responding to Dkt. No. 55 by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes (Macleod-Ball, Kristin) (Entered: 03/12/2019)
57 Letter respectfully informing the Court of an update regarding Plaintiff Moreno, 03.26.19 by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Attachments: # 1 Exhibit Moreno Decision on Reopening, 03.25.19) (Ul-Haq, Ubaid) (Entered: 03/26/2019)

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58 Letter respectfully informing the Court of supplemental authority by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Marutollo, Joseph) (Entered: 06/27/2019)
59 Letter respectfully informing the Court of supplemental authority by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes (Realmuto, Trina) (Entered: 07/02/2019)
60 Letter respectfully informing the Court of supplemental authority by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes (Realmuto, Trina) (Entered: 08/02/2019)
61 Letter respectfully informing the Court of supplemental authority by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Attachments: # 1 Exhibit Matter of H-G-G-) (Smith, Sheldon) (Entered: 10/03/2019)
62 Letter responding to Defendants' October 3, 2019 letter by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes (Realmuto, Trina) (Entered: 10/08/2019)
63 Letter Clarifying the Applicability of Matter of H-G-G- by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Smith, Sheldon) (Entered: 10/15/2019)
64 MOTION to Withdraw as Attorney by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Attachments: # 1 Declaration in Support of Withdrawal) (Ul-Haq, Ubaid) (Entered: 11/05/2019)
65 MOTION to Withdraw as Attorney by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes. (Kang, Leila) (Entered: 12/10/2019)
66 NOTICE of Appearance by David Urena on behalf of Commonwealth of Massachusetts (aty to be noticed) (Urena, David) (Entered: 01/02/2020)
67 MOTION to Withdraw as Attorney by Commonwealth of Massachusetts. (Attachments: # 1 Afﬁdavit, # 2 Proposed Order) (Miller, Jonathan) (Entered: 01/02/2020)
68 Letter MOTION for Hearing re 31 Reply in Support, 34 Reply in Support, 36 Reply in Support, 53 Reply in Support, 43 Reply in Support by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes. (Realmuto, Trina) (Entered: 02/24/2020)
69 Letter informing the Court of supplemental authority by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes (Realmuto, Trina) (Entered: 03/18/2020)
70 NOTICE of Change of ﬁrm, address, email, and telephone for Trina Realmuto Once the ﬁling has been made, you must login to www.pacer.gov and update your account. (Realmuto, Trina) (Entered: 05/05/2020)

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71 MOTION to Withdraw as Attorney by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Attachments: # 1 Declaration of Sheldon Smith) (Smith, Sheldon) (Entered: 05/15/2020)
72 MEMORANDUM AND ORDER: For the reasons set forth in the attached Order, Plaintiffs' motion for a preliminary injunction is denied. (Taronji, Robert) (Entered: 05/18/2020)
73 NOTICE of Change of ﬁrm and address Once the ﬁling has been made, you must login to www.pacer.gov and update your account. (Kenney, Mary) (Entered: 06/02/2020)
74 Letter respectfully notifying the Court of supplemental authority - Jose Santos Sanchez, et al., v. Secretary of Homeland Security, No. 19-1311 (3d Cir. July 22, 2020) by L. Francis Cissna, Kirstjen Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Attachments: # 1 Exhibit Copy of Third Circuit Decision) (Marutollo, Joseph) (Entered: 07/22/2020)
75 Letter letter response to Dkt. 74 by Haydee Avilez Rojas, Jose Cantarero Argueta, Amado de Jesus Moreno, Nelda Yolanda Reyes (Kenney, Mary) (Entered: 07/28/2020)

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 Moreno v. Nielsen, Slip Copy (2019) 2019 WL 653139
2019 WL 653139 Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Amado de Jesus MORENO; Nelda Yolanda Reyes; Jose Cantarero Argueta; Haydee Avilez Rojas, Plaintiffs, v.
Kirstjen NIELSEN, Secretary, U.S. Department of Homeland Security, in Her Official Capacity; U.S.
Department of Homeland Security; L. Francis Cissna, Director, U.S. Citizenship and
Immigration Services, in His Official Capacity; U.S. Citizenship and Immigration Services, Defendants.
18-CV-1135 (RRM) |
Signed 02/15/2019
Attorneys and Law Firms
Kristin Arina MacLeod-Ball, Trina A. Realmuto, American Immigration Council, Brookline, MA, Leila Kang, Matt Adams, Northwest Immigrant Rights Project, Seattle, WA, Mary Kenney, Pro Hac Vice, American Immigration Council, Washington, DC, for Plaintiffs.
Joseph Anthony Marutollo, Sheldon A. Smith, U.S. Attorney’s Office, Brooklyn, NY, Ubaid Ul-Haq, U.S. Department of Justice Civil Division, Washington, DC, for Defendants.
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF, United States District Judge
*1 By notice of motion filed on January 24, 2019, plaintiff Amado de Jesus Moreno (“Moreno”) moves for a temporary restraining order (“TRO”) or, in the alternative, a preliminary injunction, directing Defendants to reopen and re-adjudicate Moreno’s application for adjustment of status prior to March 30, 2019, the date on which Jersey Lynne Farms Inc. – Moreno’s current employer and the entity which successfully petitioned for an immigration
1

visa on his behalf – will cease operations. Since the motion was filed during a lapse in appropriations, Defendants requested a stay of Moreno’s motion or, in the alterative, entry of a briefing schedule under which their opposition papers would be served on February 13, 2019, and Moreno’s reply would be served on February 18, 2019. (Letter to Hon. Roslynn R. Mauskopf from AUSA Joseph A. Marutollo, dated Jan. 23, 2019 (Doc. 47) ). Defendants withdrew their stay application on January 29, 2019 – shortly after the lapse in appropriations ended. (Letter to Hon. Roslynn R. Mauskopf from AUSA Joseph A. Marutollo, dated Jan. 29, 2019 (Doc. 50) ). Defendants have now responded to Moreno’s motion. (Doc. No. 51).
For the reasons set forth below, the Court denies Moreno’s request for a TRO. The Court directs Moreno to address in his reply papers the issue discussed in section II.B, below, of whether he has standing to challenge the policy set forth in volume 7, part B, chapter 2(A)(5) of the USCIS Policy Manual – the only policy specifically mentioned in the amended complaint. In addition, the Court extends Moreno’s time to file said reply papers to February 22, 2019, and grants Defendants leave to file a sur-reply with respect to the standing issue by February 28, 2019.
I. Background
A. Facts Concerning Moreno The following facts are not in dispute.1 In 2000, Moreno, a citizen of El Salvador, entered the United States without inspection. (Declaration of Amado de Jesus Moreno (Doc. No. 49-5), attached as Ex. YY to the Sixth Declaration of Trina Realmuto in Support of Moreno’s Motion for a TRO, ¶ 4). On March 9, 2001, El Salvador was designated for Temporary Protected Status (“TPS”). See https://www.uscis.gov/humanitarian/temporary-protectedstatus/temporary-protected-status-designated-country-elsalvador. Moreno applied for, and was granted, TPS later that year and has maintained that status ever since. (Second Declaration of Amado de Jesus Moreno (“Second Moreno Dec.”) (Doc. No. 46-1), ¶ 4).
In 2011, Moreno applied for and was granted advance parole so that he could travel to El Salvador. (Id., ¶ 5). He returned to the United States on July 26, 2011, and was inspected and paroled into the United States as a TPS Holder. (Id.).

Moreno v. Nielsen, Slip Copy (2019) 2019 WL 653139
*2 On or about January 30, 2013, Moreno’s employer, Jersey Lynne Farms Inc., filed an immigrant visa petition on Moreno’s behalf with U.S. Citizenship and Immigration Services (“USCIS”). (Notice Approving Application for Immigrant Visa (Doc. 29-7), attached as Ex. GG to Fourth Declaration of Trina Realmuto in Support of Plaintiffs’ Motion for Summary Judgment (“Fourth Realmuto Dec.”) ). USCIS granted that petition on November 13, 2014, making Moreno eligible for an immigrant visa as a “skilled worker” under § 203(b)(3)(A)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1153(b)(3)(A)(i). In January 2015, Moreno filed an application to adjust his status to that of a lawful permanent resident. (Second Moreno Dec., ¶ 7).
Moreno’s application for adjustment of status was denied on April 7, 2017. (USCIS Decision (Doc. No. 29-8), attached as Ex. HH to Fourth Realmuto Dec.). USCIS ruled that Moreno was ineligible for adjustment of status because he had failed to maintain lawful immigration from the time of his first entry into the United States. (Id.).2 Moreno then filed a request to reopen this decision, arguing that because he had been paroled into the United States in 2011, he satisfied § 1255(k)’s requirements and was exempt from the unlawful presence bar to adjustment found in 8 U.S.C. § 1255(c). (See USCIS Decision dated Jul. 14, 2017 (Doc. No. 32-27), attached as Ex. X to Third Declaration of Trina Realmuto in Support of Plaintiffs’ Amended Motion for Class Certification).
In a decision dated July 14, 2017, USCIS denied Moreno’s request to reopen, ruling: “Reentry into the United States based on an advanced parole is not considered an admission into the United States.” (Id., p. 2). The USCIS reasoned that because Moreno “initially entered the United States without inspection,” he was not eligible for the exemption set forth in INA § 245(k), 8 U.S.C. § 1255(k). (Id.).
B. This Action On February 22, 2018, Moreno and three other individuals – Nelda Yolanda Reyes, Jose Cantarero Argueta, and Haydee Avilez Rojas – commenced this class action against the U.S. Department of Homeland Security (“DHS”); DHS Secretary Kirstjen Nielsen; USCIS; and USCIS Director Francis Cissna. As amended, Plaintiffs’ pleading alleges that pursuant to “a policy of refusing to find that a grant of TPS constitutes an ‘inspection and admission’ for purposes of adjustment of status,” USCIS denies applications for adjustment of
2

status filed by “current TPS holders who were not ‘inspected and admitted’ other than through the grant of TPS.” (Am. Compl., (Doc. No. 12), ¶ 81; see also ¶¶ 89, 98). The amended complaint specifically identifies that “policy” as a portion of volume 7, part B, chapter 2(A)(5) of the USCIS Policy Manual, which provides, in part: “A foreign national who enters the United States without inspection and subsequently is granted temporary protected status (TPS) does not meet the inspected and admitted or inspected and paroled requirement.” (Am. Compl., ¶ 62).
This policy is consistent with the holding in Serrano v. U.S. Atty. Gen., 655 F.3d 1260 (11th Cir. 2011), but inconsistent with the holding in other cases, including Flores v. U.S. Citizenship & Immigration Servs., 718 F.3d 548 (6th Cir. 2013), and Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), which hold that the plain language of 8 U.S.C. § 1254a(f)(4) requires that TPS holders be deemed “inspected and admitted” for purposes of adjustment of status under 8 U.S.C. § 1255(a). The USCIS Policy Manual cites to Flores in a footnote acknowledging that a different policy applies in the Sixth Circuit:
*3 The 6th Circuit Court of Appeals has ruled that TPS status meets the inspected and admitted requirement for adjustment of status under INA 245 [8 U.S.C. § 1255] even if a foreign national granted TPS status entered the United States without inspection. See Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). This decision is only binding on cases within the jurisdiction of the 6th Circuit: Kentucky, Michigan, Ohio, and Tennessee.
USCIS Policy Manual, vol. 7, pt. B, ch. 2(A)(5) n.56. It does not mention Ramirez because volume 7 of the USCIS Policy Manual became effective in February 2016, before the Ninth’s Circuit’s 2017 decision in Ramirez.
In their amended complaint, Plaintiffs assert that Flores and Ramirez were correctly decided, stating: “Defendants properly apply 8 U.S.C. §§ 1254a(f)(4) and 1255(a) when, by ‘consider[ing]’ a TPS holder ‘as being in, and maintaining, lawful status as a nonimmigrant’ pursuant to 8 U.S.C. § 1255a(f)(4), they find that the grant of TPS satisfies the ‘inspected and admitted’ requirement of 8

Moreno v. Nielsen, Slip Copy (2019)
2019 WL 653139
U.S.C. § 1255(a).” (Am. Compl., ¶ 80). Plaintiffs seek to compel USCIS to abandon its reliance on Serrano and to adopt a policy consistent with Flores and Ramirez. Specifically, Plaintiffs seek an order declaring 1) “that Defendants’ policy of refusing to find that a grant of TPS constitutes an ‘inspection and admission’ for purposes of adjustment of status and all adjustment decisions issued based upon that policy are contrary to 8 U.S.C. § 1254a(f)(4),” and 2) “that all Plaintiffs and proposed class members have been ‘inspected and admitted’ for purposes of 8 U.S.C. § 1255(a) pursuant to their grant of TPS.” (Am. Compl., p. 24). Plaintiffs also request injunctive relief: a prohibitory injunction directing “Defendants to immediately cease applying their policy that a grant of TPS does not constitute an ‘inspection and admission’ for purposes of 8 U.S.C. § 1254a(f)(4),” and a mandatory injunction directing “Defendants to find that, pursuant to 8 U.S.C. § 1254a(f)(4), Plaintiffs and proposed class members were ‘inspected and admitted’ for purposes of their adjustment of status applications.” (Id.).
C. The Instant Motion for Injunctive Relief On January 24, 2019, Moreno filed a motion for a temporary restraining order or, in the alternative, a preliminary injunction. In his motion, Moreno states that Jersey Lynne Farms – the employer that successfully petitioned for an immigrant visa on Moreno’s behalf – is ceasing operations on March 30, 2019. Moreno represents that he will no longer be eligible for adjustment of status when he loses his job and will have to begin the lengthy, multi-step process of applying for an immigrant visa all over again. He claims that “even if he were fortunate enough to be hired by ... an employer” willing to sponsor him for an immigrant visa, “the multi-step immigration process takes years, as illustrated by his past experience, which took nine years from the first step (filing the Labor Certification application with [the Department of Labor] ) until USCIS’ denial of his adjustment application in 2017.” (Memorandum of Law in Support of Moreno’s Motion for a TRO (“Moreno’s Memo”) (Doc. No. 49-1), p. 8). Accordingly, Moreno seeks a mandatory injunction directing defendants to “[r]eopen and re-adjudicate ... [his] application for adjustment of status prior to March 30, 2019.” (Proposed Order granting Moreno’s Motion for a TRO (“Proposed Order”) (Doc. No. 49-9), p. 2).
*4 With respect to the re-adjudication, Moreno seeks mandatory injunctive relief that differs from the relief requested in the amended complaint. Moreno requests an order directing defendants to:
3

a) treat [him] as being in lawful nonimmigrant status for purposes of adjustment of status under 8 U.S.C. § 1255;
b) treat [him] as having been “inspected and admitted” for the purposes of adjustment of status under all of 8 U.S.C. § 1255; [and]
c) find that [his] grant of Temporary Protected Status satisfies the “lawful admission” requirement of 8 U.S.C. § 1255(k).
(Id., pp. 2–3).
In their response to Moreno’s motion, Defendants point out that USCIS’ approval of Moreno’s petition for an immigrant visa will not “be revoked solely because the petitioning employer went out of business....” (Defendants’ Memorandum of Law in Opposition to Moreno’s Motion for a TRO (“Defendants’ Opposition”) (Doc. No. 51), p. 12). They argue that if Moreno obtains a “new offer of employment from a different U.S. employer in the same or similar occupational classification as his employment with Jersey Lynne Farms” and his application for adjustment of status is reopened, his new employer will not need to re-commence the process of petitioning for an immigrant visa. (Id.) Rather, Moreno will only have to file an additional document: Supplement J to Form I-485. (See id.).
II. Discussion
A. Injunctive Relief “The standard for an entry of a TRO is essentially the same as for a preliminary injunction.” Free Country Ltd. v. Drennen, 235 F. Supp. 3d 559, 565 (S.D.N.Y. 2016) (citing Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) ). “A party seeking a ... TRO ... or a preliminary injunction must demonstrate: (1) irreparable harm; (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits of the case to make it a fair ground for litigation, and a balance of hardships tipping decidedly in its favor; and (3) that a preliminary injunction is in the public interest.” Residents & Families United to Save Our Adult Homes v. Zucker, No. 16-CV-1683 (NGG) (RER), 2017 WL 3446805, at *1 (E.D.N.Y. Aug. 10, 2017) (citing N.Y. ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015) ). However, the Second Circuit has “held the

Moreno v. Nielsen, Slip Copy (2019)
2019 WL 653139
movant to a heightened standard where: (i) an injunction is ‘mandatory,’ or (ii) the injunction ‘will provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits.’ ” N.Y. ex rel. Schneiderman, 787 F.3d at 650 (quoting Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 33–34 (2d Cir. 1995) ). “When either condition is met, the movant must show a ‘clear’ or ‘substantial’ likelihood of success on the merits, Beal v. Stern, 184 F.3d 117, 123 (2d Cir. 1999), and make a ‘strong showing’ of irreparable harm, Doe v. N.Y. Univ., 666 F.2d 761, 773 (2d Cir. 1981), in addition to showing that the preliminary injunction is in the public interest.” Id.
Although the standards for granting a TRO and a preliminary injunction are essentially the same, a TRO “serves a purpose different from that of a preliminary injunction.” Garcia v. Yonkers Sch. Dist., 561 F.3d 97, 107 (2d Cir. 2009). “The purpose of a temporary restraining order is to preserve an existing situation in statu quo until the court has an opportunity to pass upon the merits of the demand for a preliminary injunction.” Id. (quoting Pan Am. World Airways, Inc. v. Flight Eng’rs’ Int’l Ass’n, PAA Chapter, 306 F.2d 840, 842 (2d Cir. 1962) ). In accordance with this purpose, Rule 65(b)(2) of the Federal Rules of Civil Procedure sets restrictions on how long a TRO can remain in effect. “A TRO cannot exceed fourteen days unless the district court, ‘for good cause,’ extends it for another period of no more than fourteen days.” U.S. D.I.D. Corp. v. Windstream Commc’ns, Inc., 775 F.3d 128, 132 n.2 (2d Cir. 2014) (citing Fed. R. Civ. P. 65(b)(2) ). Moreover, “a TRO lasting longer than twenty-eight days requires that the adverse party consent....” Id.
*5 In this case, Moreno’s request for preliminary injunctive relief is premised on the belief that the USCIS’ approval of his immigrant visa petition will be automatically rescinded when Jersey Lynne Farms ceases to operate. This fear is unfounded. The immigration regulations specifically provide that “[i]f a petitioning employer’s business terminates 180 days or more after petition approval, or 180 days or more after an associated adjustment of status application has been filed, the petition remains approved unless its approval is revoked on other grounds.” 8 C.F.R. § 205.1(a)(3)(iii)(D). Jersey Lynne Farms will cease operations on March 30, 2019 – more than five years after Jersey Lynne Farms’ petition for an immigrant visa on Moreno’s behalf was approved and Moreno filed his application to adjust his immigration status. Accordingly, the USCIS should not revoke its approval of Moreno’s immigrant visa petition just because Jersey Lynne Farms ceases operations.
4

To be sure, Moreno will have to obtain a valid offer of employment before the date, if ever, that his application for adjustment of status is reopened. The immigration regulations provide:
An alien who has a pending application to adjust status to that of a lawful permanent resident based on an approved employmentbased immigrant visa petition filed under section 204(a)(1)(F) of the [INA] on the applicant’s behalf must have a valid offer of employment based on a valid petition at the time the application to adjust status is filed and at the time the alien’s application to adjust status is adjudicated, and the applicant must intend to accept such offer of employment.
8 C.F.R. § 245.25. Defendants represent that after March 30, 2019, Moreno will still be eligible for adjustment of status if he obtains a new offer of employment “in the same or a similar occupational classification” as the job for which the petition was filed and files an additional document – Supplement J to Form I-485 – to establish his new offer of employment. (Defendants’ Opposition, p. 12). Of note, Moreno does not claim that he will be unable to obtain a new offer of employment which meets these criteria.
While the Court will not rule on the preliminary injunction motion until the motion is fully briefed, there is clearly no valid basis for a TRO at this juncture. As noted above, a TRO serves only to maintain the status quo, Garcia, 561 F.3d at 107, and cannot last for more than 28 days without the consent of the party against whom the TRO is sought. U.S. D.I.D. Corp., 775 F.3d at 132 n.2. Even if Moreno were to become ineligible for adjustment of status on March 30, 2019, it would be futile to grant a TRO at this juncture since a TRO issued today would expire before March 30, 2019.
B. Standing In his reply, in addition to addressing the issues raised in the body of Defendants’ Opposition, Moreno must also

Moreno v. Nielsen, Slip Copy (2019)
2019 WL 653139
address a standing issue suggested by footnote 2 on page 13 of Defendants’ Opposition. The Court reads the amended complaint as challenging only that policy set forth in volume 7, part B, chapter 2(A)(5) of the USCIS Policy Manual, which provides: “A foreign national who enters the United States without inspection and subsequently is granted temporary protected status (TPS) does not meet the inspected and admitted or inspected and paroled requirement.” As Plaintiffs note, that policy is consistent with Serrano, 655 F.3d 1260, but inconsistent with Ramirez, 852 F.3d 954, and Flores, 718 F.3d 548, both of which “held that 8 U.S.C. § 1254a(f)(4) unambiguously requires that TPS holders are deemed ‘inspected and admitted’ for purposes of adjustment of status under 8 U.S.C. § 1255(a).” (Am. Compl., ¶ 59). Plaintiffs opine that Ramirez and Flores were correctly decided, stating: “Defendants properly apply 8 U.S.C. §§ 1254a(f)(4) and 1255(a) when, by ‘consider[ing]’ a TPS holder ‘as being in, and maintaining, lawful status as a nonimmigrant’ pursuant to 8 U.S.C. § 1255a(f)(4), they find that the grant of TPS satisfies the ‘inspected and admitted’ requirement of 8 U.S.C. § 1255(a).” (Am. Compl., ¶ 80).
*6 Plaintiffs are seeking declaratory and injunctive relief that would force USCIS to extend the benefit of Ramirez and Flores to TPS holders nationwide (except in the Eleventh Circuit). Plaintiffs’ amended complaint specifically alleges:
USCIS has a written policy rejecting the plain language of the statute, as interpreted by the Sixth and Ninth Circuits.... In that policy, USCIS declares that “[a] foreign national who enters the United States without inspection and subsequently is granted temporary protected status (TPS) does not meet the inspected and admitted or inspected and paroled requirement.”
(Id., ¶ 62 (quoting USCIS Policy Manual, vol. 7, part B, ch. 2(A)(5) ) ). The pleading alleges that, “[a]s a direct consequence of Defendant’s policy, the applications of all Plaintiffs and proposed class members who otherwise qualify for adjustment of status have been or will be denied by Defendant USCIS.” (Id., ¶ 63).
Although the three causes of action in the amended complaint do not cite to USCIS Policy Manual, Vol. 7, Part B, Ch. 2(A)(5), the allegations appear to reference this policy. Count One alleges that “Defendants have a policy of refusing to find that a grant of TPS constitutes an ‘inspection and admission’ for purposes of adjustment of status and, pursuant to this policy, deny adjustment applications of current TPS holders who were not ‘inspected and admitted’ other than through the grant of TPS,” which policy applies to all TPS holders residing
5

outside the Sixth and Ninth Circuits. (Am. Compl., ¶ 81). This same “policy” is alleged in nearly identical terms in the two other causes of action, which seek mandamus relief under 5 U.S.C. § 706(1) and 28 U.S.C. § 1361. (See id., ¶¶ 89, 98).
However, Defendants’ Opposition concedes that Moreno, having been paroled into the United States following his trip in 2011, meets the “inspected and admitted or paroled requirement” of § 1255(a). (Defendants’ Opposition, p. 13 n.2). Defendants point out that Moreno was denied adjustment of status under § 1255(c), which provides, in pertinent part, that § 1255(a) “shall not be applicable to ... (2) subject to subsection (k), an alien ... who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States.” Subsection (k) provides, in relevant part:
An alien who is eligible to receive an immigrant visa under paragraph ... (3) of section 1153(b) of this title ... may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2) ... if –
(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission.
Defendants contend that Moreno did not qualify for the § 1255(k) exemption because he was paroled, rather than “lawfully admitted,” into the United States following the overseas trip he took in 2011 after being granted TPS.
Although Defendants’ Opposition does not question Moreno’s standing, these facts suggest that Moreno may not have standing to challenge the policy set forth in volume 7, part B, chapter 2(a)(5) of the USCIS Policy Manual. “To establish standing under Article III of the Constitution, a plaintiff must allege ‘(1) injury-in-fact, which is a concrete and particularized harm to a legally protected interest; (2) causation in the form of a fairly traceable connection between the asserted injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a non-speculative likelihood that the injury can be remedied by the requested relief.’ ” Harry v. Total Gas & Power N. Am., Inc., 889 F.3d 104, 110 (2d Cir. 2018) (quoting W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, 106–07 (2d Cir. 2008) ) (emphasis in W.R. Huff Asset Mgmt. Co., LLC). “The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016) (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990) ). “Because the standing issue goes to this Court’s subject matter jurisdiction, it can be raised

Moreno v. Nielsen, Slip Copy (2019)
2019 WL 653139
sua sponte.” Peck v. Baldwinsville Cent. Sch. Dist., 351 F. App’x. 477, 479 (2d Cir. 2009) (quoting Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco, 433 F.3d 181, 198 (2d Cir. 2005) ).
*7 The undisputed facts in this case suggest that Moreno may be unable to establish causation or redressability. Since Moreno was not denied adjustment of status based on the policy challenged in the amended complaint, causation appears to be lacking. Indeed, a different part of volume 7, part B, chapter 2(A)(5) of the USCIS Policy Manual expressly provides that TPS holders like Moreno, who traveled abroad after being granted TPS status and were paroled back into the United States, meet the “inspected and admitted or inspected and paroled” requirement.3
In addition, Moreno may be unable to establish redressability because the relief requested in the amended complaint would not redress Moreno’s injury. USCIS never expressly considered the question of whether Moreno met the “inspected and admitted or paroled” requirement of § 1255(a) because it found that he was ineligible for adjustment of status under that subsection. Accordingly, an order declaring Moreno had been “ ‘inspected and admitted’ for purposes of 8 U.S.C. § 1255(a) pursuant to [his] ... grant of TPS,” (Am. Compl., p. 24), or an injunction directing USCIS to so find, would not affect USCIS’s decision. Similarly, an order declaring “that Defendants’ policy of refusing to find that a grant of TPS constitutes an ‘inspection and admission’ for purposes of adjustment of status and all adjustment decisions issued based upon that policy are contrary to 8 U.S.C. § 1254a(f)(4),” (Am. Compl., p. 24), and enjoining that policy, would be superfluous since, under other portions of volume 7, part B, chapter 2(A)(5) of the USCIS Policy Manual, Moreno met the “inspected and admitted or inspected and paroled requirement” by virtue of having been inspected and paroled into the United States following his 2011 trip.

Indeed, the Court notes that the relief Moreno is requesting in the instant motion is subtly different from the injunctive relief requested in the amended complaint. Moreno now requests a mandatory injunction directing that USCIS “treat ... Moreno has having been ‘inspected and admitted’ for the purposes of adjustment of status under all of 8 U.S.C. § 1255,” and “find that ... Moreno’s grant of Temporary Protected Status satisfies the ‘lawful admission’ requirement of 8 U.S.C. § 1255(k).” (Proposed Order, p. 3). This change in the injunctive relief requested suggests that Moreno himself recognizes that the injunctive relief sought in the amended complaint would be insufficient to redress his claims.
III. Conclusion and Order For the reasons set forth above, it is ORDERED:
1. Moreno’s request for a temporary restraining order is denied.
2. Moreno’s reply papers shall address the standing issue raised in section II.B, above. His time to reply is extended from February 18, 2019, to February 22, 2019.
*8 3. Defendants are granted leave to file a sur-reply, which shall address only the standing issue. That surreply, if any, shall be filed on or before February 28, 2019.
SO ORDERED.
All Citations
Slip Copy, 2019 WL 653139

Footnotes

1

While the following facts are drawn from Moreno’s submissions, most are substantiated by documentary evidence submitted in

support of Plaintiffs’ other motions. Those facts which are not substantiated by documentary evidence are essentially identical to

those set forth in the Local Rule 56.1 Statement of Undisputed Material Facts (Doc. No. 29-1), which Plaintiffs filed with their

motion for summary judgment. Since Defendants did not file a Rule 56.1 counterstatement, these facts are deemed admitted.

See Local Civil Rule 56.1(c).

2

Although the USCIS Decision states that Moreno did not “meet the requirements of INA § 245(a),” 8 U.S.C. § 1255(a), that ruling

was actually based on 8 U.S.C. § 1255(c)(2), which makes an applicant ineligible for adjustment of status under § 1255(a) if he or

she “has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since

entry into the United States.”

6

Moreno v. Nielsen, Slip Copy (2019) 2019 WL 653139

3

The last two paragraphs of that policy state:

If a foreign national under TPS departs the United States and is admitted or paroled upon return to a port of entry, the foreign

national meets the inspected and admitted or inspected and paroled requirement provided the inspection and parole occurred

before he or she filed an adjustment application. The applicant, however, must still meet all other requirements to be eligible

for adjustment.

DHS has authority to admit rather than parole TPS beneficiaries who travel and return with TPS-related advance parole

documents. For purposes of adjustment eligibility, it does not matter whether the TPS beneficiary was admitted or paroled. In

either situation, once the foreign national is inspected at a port of entry and permitted to enter to the United States, the

foreign national meets the inspected and admitted or inspected and paroled requirement.

End of Document

7

 
 Case 1:18-cv-01135-RRM Document 72 Filed 05/18/20 Page 1 of 15 PageID #: 1168

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------------x AMADO DE JESUS MORENO; NELDA YOLANDA REYES; JOSE CANTARERO ARGUETA; HAYDEE AVILEZ ROJAS,

- against -

Plaintiffs,

MEMORANDUM AND ORDER 18-CV-1135 (RRM)

KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, in her official capacity; U.S. DEPARTMENT OF HOMELAND SECURITY; L. FRANCIS CISSNA, Director, U.S. Citizenship and Immigration Services, in his official capacity; U.S. CITIZENSHIP AND IMMIGRATION SERVICES,

Defendants. --------------------------------------------------------------------x ROSLYNN R. MAUSKOPF, Chief United States District Judge.

Plaintiffs Amado de Jesus Moreno, Nelda Yolanda Reyes, Jose Cantarero Argueta, and

Haydee Avilez Rojas (collectively, “Plaintiffs”) bring this putative class action against the

United States Department of Homeland Security (“DHS”), the DHS Secretary, the United States

Customs and Immigration Service (“USCIS”), and the Director of USCIS (collectively,

“Defendants”), alleging that their applications to adjust from Temporary Protected Status

(“TPS”) to Lawful Permanent Residents (“LPR”) status were improperly denied pursuant to an

unlawful USCIS policy of refusing to find that a grant of TPS constitutes an “inspection and

admission” for purposes of adjustment of status. Plaintiffs now move for a preliminary

injunction directing Defendants to re-open and re-adjudicate their adjustment applications

without applying that allegedly unlawful policy. For the reasons set forth below, Plaintiffs’

motion is denied.

Case 1:18-cv-01135-RRM Document 72 Filed 05/18/20 Page 2 of 15 PageID #: 1169
BACKGROUND
The following facts are not in dispute. Plaintiffs are foreign nationals who entered the
United States without inspection sometime before their native countries – El Salvador in the case
of plaintiff Moreno and Honduras in the case of the other three plaintiffs – were designated for
TPS. After their countries were so designated, plaintiffs applied for, and were granted, TPS.
At some point after gaining TPS, all four plaintiffs applied for adjustment of status under
8 U.S.C. § 1255. Subsection (a) of this section provides:
The status of an alien who was inspected and admitted or paroled into the United States … may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
However, subsection (c) makes certain aliens ineligible for adjustment of status under subsection
(a). As relevant here, subsection (c) provides:
[S]ubsection (a) shall not be applicable to … (2) subject to subsection (k), an alien (other than an immediate relative as defined in section 1151(b) of this title or a special immigrant described in section 1101(a)(27)(H), (I), (J), or (K) of this title) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States ….
Subsection (k) makes the provisions of subsection (c)(2) inapplicable to “certain
employment-based immigrants.” Specifically, it provides, in pertinent part:
An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of [8 U.S.C.] section 1153(b) … may
2

Case 1:18-cv-01135-RRM Document 72 Filed 05/18/20 Page 3 of 15 PageID #: 1170
adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2) … if — (1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission …. Aliens who are eligible to receive an immigrant visa under § 1153(b)(3) include “skilled workers” and other workers “who are capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States.” All four plaintiffs had their applications denied. The USCIS ruled that Moreno and Cantarero Argueta, both of whom had obtained immigrant visas under §1153(b)(3), were ineligible for adjustment of status under § 1255(c)(2) because they had failed to maintain continuously a lawful status since entry into the United States. Moreno had been in the country illegally from the time of his entry in 2000 until he was granted TPS status in 2001, (see Am. Compl. (Doc. No. 12) ¶ 25), and Cantarero Argueta had “failed to maintain a lawful status between April 7, 1997[,] when [he] entered the United States without inspection and April 11, 2000, when [he was] granted TPS.” (Notice of Intent to Deny (attached to Third Declaration of Trina Realmuto in Support of Plaintiff’s Amended Motion for Class Certification as Ex. Z) (Doc. No. 32-29).) The USCIS ruled that Moreno and Cantarero Argueta – both of whom traveled abroad after being granted TPS and were then paroled back into the United States (Am. Compl., ¶¶ 21, 36) – were not eligible for the exception set forth in § 1255(k) because they were not present in the United States pursuant to a “lawful admission” on the date they filed for adjustment of status. With respect to Moreno, the USCIS ruled: “Reentry into the United States based on an advanced parole is not considered an admission into the United States.” (USCIS Decision dated July 14, 2017 (attached to Third Declaration of Trina Realmuto in Support of
3

Case 1:18-cv-01135-RRM Document 72 Filed 05/18/20 Page 4 of 15 PageID #: 1171
Plaintiffs’ Amended Motion for Class Certification as Ex. X) (Doc. No. 32-27).) Similarly, the USCIS sent Cantarero Argueta a “Notice of Intent to Deny” which stated that being paroled into the country was “not an admission, and without an admission he [was] not eligible for a waiver of the bar to adjustment for unlawful presence under § 1255(k).” (Am. Compl., ¶ 39.)
Reyes’ application appears to have been rejected on different grounds: because she could not adduce evidence that she had been “inspected and admitted or paroled,” as required by § 1255(a). After Reyes applied for adjustment of status, USCIS sent Reyes a Request for Information, demanding evidence that she had been admitted or paroled into the United States. (Am. Compl., ¶ 31.) Reyes’ attorney responded by arguing “that her grant of TPS constituted an inspection and admission for purposes of adjustment, in accord with the plain language of 8 U.S.C. § 1254a(f)(4).” (Id.) The USCIS implicitly rejected that argument in its Notice of Decision, ruling that Reyes had failed to adduce the evidence necessary to establish her eligibility for adjustment of status. (Id.)
While Plaintiffs have provided a declaration in which Avilez Rojas states that her application for adjustment of status was denied on or about June 7, 2018, (Declaration of Haydee Avilez Rojas (Doc. No. 41-4) at ¶ 5), the basis for that denial is unclear. The amended complaint, which was filed on March 26, 2018 – more than two months before the USCIS denied her application – merely speculates that it would “be denied based on USCIS’ policy of not treating a grant of TPS as an inspection and admission for purposes of adjustment.” (Am. Compl., ¶ 44.) However, Avilez Rojas’s declaration does not allege the basis for the denial.
This Action On February 22, 2018, Plaintiffs commenced this putative class action against DHS; USCIS; then DHS Secretary Kirstjen Nielsen and then USCIS Director L. Francis Cissna – both
4

Case 1:18-cv-01135-RRM Document 72 Filed 05/18/20 Page 5 of 15 PageID #: 1172
of whom were sued in their official capacities. Approximately one month later, Plaintiffs filed an amended complaint, which principally alleges that pursuant to “a policy of refusing to find that a grant of TPS constitutes an ‘inspection and admission’ for purposes of adjustment of status,” USCIS denies applications for adjustment of status filed by “current TPS holders who were not ‘inspected and admitted’ other than through the grant of TPS.” (Am. Compl., ¶ 81; see also ¶¶ 89, 98.) That policy is set forth in volume 7, part B, chapter 2(A)(5) of the USCIS Policy Manual, and provides, in part: “A foreign national who enters the United States without inspection and subsequently is granted temporary protected status (TPS) does not meet the inspected and admitted or inspected and paroled requirement.” Plaintiffs allege that this policy is contrary to 8 U.S.C. § 1254a(f)(4), which states that “[d]uring a period in which an alien is granted temporary protected status under this section – for purposes of adjustment of status under section 1255 of this title … , the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.”
In support of this contention, Plaintiffs point to two cases – Flores v. U.S. Citizenship & Immigration Servs., 718 F.3d 548 (6th Cir. 2013), and Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017) – which hold that the plain language of 8 U.S.C. § 1254a(f)(4) requires that TPS holders be deemed “inspected and admitted” for purposes of adjustment of status under 8 U.S.C. § 1255(a). However, Plaintiffs also acknowledge that there is authority to the contrary, noting that “the Eleventh Circuit held the opposite” in Serrano v. U.S. Att’y Gen., 655 F.3d 1260 (11th Cir. 2011) (per curiam). In their amended complaint, Plaintiffs principally allege that Flores and Ramirez were correctly decided, stating: “Defendants properly apply 8 U.S.C. §§ 1254a(f)(4) and 1255(a) when, by ‘consider[ing]’ a TPS holder ‘as being in, and maintaining, lawful status as a
5

Case 1:18-cv-01135-RRM Document 72 Filed 05/18/20 Page 6 of 15 PageID #: 1173
nonimmigrant’ pursuant to 8 U.S.C. § 1255a(f)(4), they find that the grant of TPS satisfies the ‘inspected and admitted’ requirement of 8 U.S.C. § 1255(a).” (Am. Compl., ¶ 80).
In this action, Plaintiffs seek to compel USCIS to abandon its reliance on Serrano and to adopt a policy consistent with Flores and Ramirez. Specifically, Plaintiffs seek an order declaring 1) “that Defendants’ policy of refusing to find that a grant of TPS constitutes an ‘inspection and admission’ for purposes of adjustment of status and all adjustment decisions issued based upon that policy are contrary to 8 U.S.C. § 1254a(f)(4),” and 2) “that all Plaintiffs and proposed class members have been ‘inspected and admitted’ for purposes of 8 U.S.C. § 1255(a) pursuant to their grant of TPS.” (Am. Compl., p. 24.) Plaintiffs also request injunctive relief: a prohibitory injunction directing “Defendants to immediately cease applying their policy that a grant of TPS does not constitute an ‘inspection and admission’ for purposes of 8 U.S.C. § 1254a(f)(4),” and a mandatory injunction directing “Defendants to find that, pursuant to 8 U.S.C. § 1254a(f)(4), Plaintiffs and proposed class members were ‘inspected and admitted’ for purposes of their adjustment of status applications.” (Id.)
The Instant Motion for Preliminary Injunctive Relief Plaintiffs now move for “a preliminary injunction requiring Defendants to properly apply the law with respect to their LPR applications.” (Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction (“Plaintiffs’ Memo”) (Doc. No. 41-1) at 1.) Specifically, Plaintiffs seek an order 1) directing Defendants to re-open and re-adjudicate their adjustment of status applications and 2) enjoining Defendants from applying the policy of refusing to a) treat TPS holders as being in lawful immigration status and b) consider TPS holders as being inspected and admitted for the purposes of adjustment of status under 8 U.S.C. §1255.
6

Case 1:18-cv-01135-RRM Document 72 Filed 05/18/20 Page 7 of 15 PageID #: 1174
(Plaintiffs’ Proposed Order (Doc. No. 41-7) at 2.) Plaintiffs’ motion for a preliminary injunction essentially seeks the mandatory injunction requested in their amended complaint.
Plaintiffs argue that without a preliminary injunction they will suffer irreparable harm in two respects. First, plaintiffs argue that they “are suffering and will continue to suffer irreparable harm in the absence of a preliminary injunction given their loss of the opportunity to stabilize their status.” (Plaintiff’s Memo at 2.) Plaintiffs note that persons with LPR status are not only “afforded the opportunity to permanently reside and work in the United States,” but are eligible to apply for citizenship after five years (three for spouses of U.S. citizens such as plaintiff Alivez Rojas). (Id. at 15.) Citing to Kirwa v. U.S. Dep’t of Defense, 285 F. Supp. 3d 21 (D.D.C. 2017); Vargas v. Meese, 682 F. Supp. 591 (D.D.C. 1987); and two other district court cases, Plaintiffs argue that “[c]ourts have recognized that delaying the ability to apply for citizenship constitutes irreparable harm.” (Plaintiffs’ Memo at 15.)
Second, Plaintiffs argue that they face the “imminent loss” of their TPS unless they are granted injunctive relief. (Id. at 2.) Plaintiffs note that the loss of TPS could result in deportation, which would cause Plaintiffs to be separated from friends and family in the United States. It would also result in a loss of work authorizations, which would result in a “loss of income and the ability to provide for themselves and their family members.” (Id.) In the case of plaintiff Avilez Rojas, a retiree, loss of TPS would cause her to lose her Social Security benefits. (Id. at 19.)
Plaintiffs acknowledge that a district court in the Ninth Circuit has enjoined Defendants from terminating TPS for citizens of El Salvador. (Id. at 1.) However, Plaintiffs note that this injunction does not cover citizens of Honduras and that Defendants are appealing that decision.
7

Case 1:18-cv-01135-RRM Document 72 Filed 05/18/20 Page 8 of 15 PageID #: 1175
(Id. at 1, 16–17.) They speculate that they may not have time to reapply for adjustment of status if the Ninth Circuit reverses the lower court. (Id. at 16–17.)
STANDARD OF REVIEW “A party seeking a preliminary injunction must ordinarily establish (1) ‘irreparable harm’; (2) ‘either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party’; and (3) ‘that a preliminary injunction is in the public interest.’” New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015) (quoting Oneida Nation of New York v. Cuomo, 645 F.3d 154, 164 (2d Cir. 2011)). However, the Second Circuit has “held the movant to a heightened standard where: (i) an injunction is ‘mandatory,’ or (ii) the injunction ‘will provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits.’” Id. (quoting Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 33–34 (2d Cir. 1995)). “When either condition is met, the movant must show a ‘clear’ or ‘substantial’ likelihood of success on the merits, Beal v. Stern, 184 F.3d 117, 123 (2d Cir. 1999), and make a ‘strong showing’ of irreparable harm, Doe v. N.Y. Univ., 666 F.2d 761, 773 (2d Cir. 1981), in addition to showing that the preliminary injunction is in the public interest.” Id. “Irreparable harm ‘is the single most important prerequisite’ for injunctive relief, and ‘in the absence of a showing of irreparable harm, a motion for a preliminary injunction should be denied.’” Uppal v. New York State Dep’t of Health, 756 F. App’x 95, 96 (2d Cir. 2019) (summary order) (quoting Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir. 1999)). “Irreparable harm is defined as ‘certain and imminent harm for which a monetary award does not adequately compensate.’” Allstate Ins. Co. v. Harvey Family Chiropractic, 677 F.
8

Case 1:18-cv-01135-RRM Document 72 Filed 05/18/20 Page 9 of 15 PageID #: 1176
App’x 716, 718 (2d Cir. 2017) (summary order) (quoting Wisdom Imp. Sales Co. v. Labatt Brewing Co., 339 F.3d 101, 113 (2d Cir. 2003)). In order “[t]o satisfy the irreparable harm requirement, [p]laintiffs must demonstrate that absent a preliminary injunction they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (quoting Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007)).
DISCUSSION In this case, Plaintiffs are not only seeking a mandatory injunction, but are seeking injunctive relief that will provide them “with substantially all the relief sought” in this case and that “cannot be undone” even if Defendants ultimately prevail on the merits. New York ex rel. Schneiderman, 787 F.3d at 650; Tom Doherty Assocs., 60 F.3d at 33–34. The injunctive relief Plaintiffs seek would require USCIS to reconsider their applications for adjustment of status and to apply policies that would result in granting those applications. To obtain this injunctive relief, Plaintiffs must make a “‘strong showing’ of irreparable harm.” New York ex rel. Schneiderman, 787 F.3d at 650 (quoting Doe v. N.Y. Univ., 666 F.2d at 773). They have failed to make this showing. First, as Plaintiffs themselves acknowledge in their motion for a preliminary injunction, United States District Judge Edward M. Chen of the North District of California has already entered a preliminary injunction enjoining Defendants “from engaging in, committing, or performing, directly or indirectly, by any means whatsoever, implementation and/or enforcement of the decisions to terminate TPS for Sudan, Haiti, El Salvador, and Nicaragua pending resolution” of that case on the merits. Ramos v. Nielsen, 336 F. Supp. 3d 1075, 1108 (N.D. Cal.
9

Case 1:18-cv-01135-RRM Document 72 Filed 05/18/20 Page 10 of 15 PageID #: 1177
2018). Judge Chen also ordered Defendants to take “all steps needed to ensure the continued validity of documents that prove lawful status and employment authorization” for these TPS holders “pending completion of discovery and a ruling on the merits of the action.” Id. at 1108– 09. Although the Ramos defendants have appealed Judge Chen’s ruling, that appeal remains pending before the Ninth Circuit.
While Plaintiffs’ Memo correctly notes that Judge Chen’s ruling did not prohibit the termination of TPS for Honduras, the scope of the injunction has been expanded by recent developments. First, in March 2019, the DHS Secretary entered into a stipulation in another district court case – Bhattarai v. Nielsen – ensuring that Honduran TPS holders will retain their TPS while the preliminary injunction in Ramos remains in effect, provided that the alien’s TPS is not withdrawn because of individual ineligibility. Bhattarai v. Nielsen, No. 19-cv-00731 (N.D. Cal. Mar. 12, 2019). That stipulation was reflected in a notice published by the DHS in the Federal Register on November 4, 2019, which stated: “Beneficiaries under the Temporary Protected Status (TPS) designations for El Salvador, Honduras, Nepal, Nicaragua, and Sudan will retain their TPS while the preliminary injunction in Ramos remains in effect, provided that an alien’s TPS is not withdrawn because of individual ineligibility.” Continuation of Documentation for Beneficiaries of Temporary Protected Status Designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan, 84 Fed. Reg. 59,403, 59,403, 2019 WL 5683994 (Nov. 4, 2019).
That same Federal Register notice also provided assurances that TPS would not be terminated precipitously regardless of the outcome of the appeal in Ramos. Specifically, it provided:
Should the Government prevail in its challenge to the Ramos preliminary injunction, the Secretary’s determination to terminate
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TPS for Honduras, Nepal, Nicaragua, and Sudan will take effect no earlier than 120 days from the issuance of any appellate mandate to the district court. The Secretary’s determination to terminate TPS for El Salvador will take effect no earlier than 365 days from the issuance of any appellate mandate to the Ramos district court. Id. at 59,405. DHS also announced that it was “automatically extending the validity of TPSrelated documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan … through January 4, 2021.” Id. at 59,403. That documentation included certain Employment Authorization Documents (EADs), which permitted the TPS holders to work legally in the United States. In light of this Federal Register notice, the argument that Plaintiffs face the “imminent loss” of their TPS and EADs unless they are granted injunctive relief is unpersuasive. The Ninth Circuit has yet to issue a ruling on the Government’s appeal, and Plaintiffs have offered no analysis to suggest that the Court of Appeals is likely to overturn Judge Chen’s decision. Moreover, even if the Ninth Circuit were to reverse and vacate the injunction, Plaintiffs would not be subject to immediate loss of their TPS and TPS-related benefits. Plaintiff Moreno’s status and benefits would continue for at least a year, and the other three plaintiffs’ status and benefits would continue for at least 120 days, from the date on which the Ninth Circuit issues its mandate. During that period, Plaintiffs could renew their request for injunctive relief and would not be at risk of deportation. Moreover, regardless of what the Ninth Circuit does, Plaintiff are authorized to continue working until, at a minimum, January 4, 2021. Accordingly, Plaintiffs have not established that they are in imminent danger of being deported or deprived of their ability to earn a living. Plaintiffs also assert that, absent injunctive relief, they will be delayed in their ability to apply for citizenship and that this delay alone is sufficient to establish irreparable harm. That
11

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assertion is not supported by the four cases they cite. Plaintiffs principally rely on Kirwa v. United States Dep’t of Def., 285 F. Supp. 3d 21 (D.D.C. 2017), a case brought by non-citizens service members who enlisted in the Army Reserve under the United States Department of Defense’s Military Accessions Vital to the National Interest (“MAVNI”) program. The DOD initially “represented to plaintiffs that, in exchange for 8 years of military service, they would be able to pursue an expedited path to citizenship shortly after enlistment” but subsequently withheld a certificate that plaintiffs needed in order to file their applications, making it impossible for them to pursue citizenship for “two or three years.” Id. at 43. Principally relying on a line of cases holding that “delaying naturalization applications after applicants have been promised an expedited path to citizenship constitutes irreparable harm,” id. at 42 (citing cases), the district court held that the DOD’s refusal to promptly provide the certificates constituted irreparable harm.
One of the cases cited by Kirwa is Vargas v. Meese, 682 F. Supp. 591, 595 (D.D.C. 1987), another of the cases on which Plaintiffs rely. In Vargas, the plaintiffs were Mexican agricultural workers who had entered the United States before early July 1987 on temporary H-2 or H-2A visas to work on a harvest that was expected to end in October 1987. By statute, holders of such visas were “eligible to apply for a change of status and to be accorded … rights and benefits includ[ing] employment authorization and immunity from deportation or exclusion, pending the adjudication of their … applications.” Id. at 591. However, “[o]n July 31, 1987, without notice or comment, defendants published an amendment to the regulations” which provided that those aliens who entered the United States on June 26, 1987, or thereafter could file their applications “only at foreign processing offices having jurisdiction over their place of foreign residence.” Id. at 593–94. In an opinion dated October 5, 1987, the district court
12

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enjoined the Government from refusing to accept applications from plaintiffs while they were still in the United States, stating, among other things: “[A]ccording to the plain language of the statute, applicants may file for a change of status in the United States. That statutory right to file will be mooted if their applications are not accepted in this country.” Id. at 595.
In both Kirwa and Vargas, the failure to grant injunctive relief would not have merely delayed the path to citizenship but would have denied plaintiffs the time-sensitive rights to which they were entitled. The only way to enforce the promise that the Kirwa plaintiffs would “be able to pursue an expedited path to citizenship shortly after enlistment” was to grant injunctive relief ordering the Government to provide the certificates needed to apply for citizenship immediately, not at the conclusion of the litigation. Similarly, the only way to give effect to the statutory provision allegedly violated by the new regulation in Vargas was an injunction forcing the Government to accept the agricultural workers’ applications before their visas expired at the end of the harvest. In contrast, the denial of injunctive relief in this case will not eviscerate some time-sensitive right.
The other two district court cases cited by Plaintiffs do not involve preliminary injunctive relief and are factually distinguishable. In You, Xiu Qing v. Nielsen, 321 F. Supp. 3d 451 (S.D.N.Y. 2018), District Judge Analisa Torres held that denying a stay of removal “would result in irreparable injury” to the petitioner in that case and to other parties interested in the proceeding. Id. at 468. While acknowledging that “removal is ‘not categorically irreparable,’” id. (citing Nken v. Holder, 556 U.S. 418, 435 (2009)), Judge Torres held that that petitioner had “demonstrated irreparable injury in this specific case” by adducing proof that his detainment and threat of deportation was causing his wife to “show[ ] symptoms of severe depression and anxiety.” Id. The judge found that the petitioner’s removal might “perpetuate grave emotional
13

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and psychological harm to his wife and children by splitting apart their family, perhaps forever,” and that “this factor weigh[ed] in favor of a stay of removal and release.” However, this factspecific holding, which was expressly limited to that case, has no implications for this case.
The other case cited by Plaintiffs – Al Karim v. Holder, No. 08-CV-671 (REB), 2010 WL 1254840, (D. Colo. Mar. 29, 2010) – is even more inapposite. That opinion does not relate to a motion for preliminary injunctive relief, but rather a motion for summary judgment brought by a plaintiff whose application for adjustment of status had not been decided for six years. The district court in that case noted that the “indefinite nature of the delay in adjudicating [Al Karim’s] application” had “real and not insubstantial effects on [his] life and livelihood, including limitations on his ability to travel, potential negative consequences on his legal status as a refugee, and the financial and bureaucratic burdens of regularly filing travel and work applications.” However, Al Karim did not hold or imply that the delay constituted “irreparable harm” for purpose of a motion for injunctive relief. Even if it did, this case would be distinguishable because Defendants promptly adjudicated Plaintiff’s applications, rather than delaying decision indefinitely.
As Plaintiffs correctly note, Defendants’ rejection of their applications for adjustment of status has cost Plaintiffs “the opportunity to stabilize their status” at this juncture. The Court does not doubt that this instability is worrisome and unsettling to Plaintiffs. However, this psychic harm arising from the loss of the “abilit[y] to plan for the future and make commitments, whether familial, career-based, academic, or otherwise” is not irreparable harm and not a basis for injunctive relief. Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 434 (E.D.N.Y. 2018).
Because Plaintiffs have failed to make a “strong showing” of irreparable harm, their motion for a preliminary injunction is denied. See Uppal, 756 F. App’x at 96; Rodriguez ex rel.
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Rodriguez, 175 F.3d at 234. Accordingly, the Court need not determine whether Plaintiffs have shown a clear or substantial likelihood of success on the merits, or whether the preliminary injunction is in the public interest.
CONCLUSION For the reasons set forth above, Plaintiffs’ motion for a preliminary injunction is denied.
SO ORDERED.

Dated: Brooklyn, New York May 18, 2020

Roslynn R. Mauskopf
________________________________ ROSLYNN R. MAUSKOPF Chief United States District Judge

15

 
 Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 1 of 25 PageID #: 1

UNITED STATES DISTRICT COURT

1

FOR THE EASTERN DISTRICT OF NEW YORK

2

3
4 Amado de Jesus MORENO; Nelda Yolanda REYES; Jose CANTARERO ARGUETA; Haydee AVILEZ
5 ROJAS,

Case No. ________

6

Plaintiffs,

7

v.

8 Kirstjen NIELSEN, Secretary, U.S. Department of Homeland Security, in her official capacity; U.S.
9
DEPARTMENT OF HOMELAND SECURITY; L. 10 Francis CISSNA, Director, U.S. Citizenship and
Immigration Services, in his official capacity; U.S. 11 CITIZENSHIP AND IMMIGRATION SERVICES,
12
Defendants.
13

CLASS ACTION COMPLAINT FOR DECLARATORY, INJUNCTIVE AND MANDAMUS RELIEF

14 15
16 1.

INTRODUCTION Plaintiffs and members of the proposed class (hereinafter Plaintiffs) reside within the

17 jurisdictions of the U.S. Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh,

18 Eighth, and Tenth Circuits. All entered the United States without inspection and subsequently
19
applied for and were granted Temporary Protected Status (TPS). After years of living in the country
20
in this lawful—although nonpermanent—status, they seek to become lawful permanent residents
21
22 based on visa petitions filed on their behalf. However, their applications have been, or will be,

23 denied due to Defendants’ erroneous interpretation of one provision of the TPS statute, 8 U.S.C. §

24 1254a(f).

25
2.
26

TPS provides a temporary haven for noncitizens living in the United States when natural

27 disasters or civil strife in their home countries render it unsafe for them to return. Noncitizens

28 granted TPS by Defendant U.S. Citizenship and Immigration Services (USCIS), a component of

1

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 2 of 25 PageID #: 2

Defendant U.S. Department of Homeland Security (DHS), have non-permanent lawful status. While
1
2 in TPS, beneficiaries are protected from removal and eligible for work authorization.

3 3. The Secretary of the Department of Homeland Security (DHS) is responsible for designating

4 countries for TPS and for periodically assessing whether to renew or terminate such designations.
5
At the start of 2017, ten countries were designated for TPS. For example, Somalia was designated in
6
1991, Sudan in 1997, Honduras and Nicaragua in 1999, and El Salvador in 2001, and these
7
8 designations were continuously renewed until 2017. Over the past year, DHS terminated TPS—i.e.

9 determined that there would be no further renewals of the country’s TPS designation—for four
10
countries, subject to deferred effective dates. As a result, TPS will permanently expire for El
11
Salvador, Nicaragua, Sudan, and Haiti between November 2018 and September 2019. Four more
12
13 designations (Honduras, Nepal, Somalia, and Yemen) are scheduled for review in 2018, and the final

14 two, South Sudan and Syria, will be reviewed in 2019. As a result, Plaintiffs and purported class

15 members are uncertain as to their future status in the United States.

16
4.

During their many years as TPS holders, Plaintiffs and proposed class members have

17

integrated fully into their communities in the United States. They marry, raise U.S. citizen children,
18

19 purchase homes, work, pursue training and education, and join churches and community groups. As

20 part of the TPS process, they undergo background checks and regular re-registration.

21 5. Plaintiffs and proposed class members wish to adjust their status to that of lawful permanent
22
residents so that they may continue to make the United States their home, despite the recent or
23
potential termination of their TPS. Each has an approved visa petition filed by a U.S. citizen spouse,
24
25 adult child, parent, or employer and thus independently qualifies to apply to adjust his or her status

26 to lawful permanent resident. But for Defendants’ erroneous interpretation of 8 U.S.C. § 1254a(f),
27
they would be eligible to do so.
28

2

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6. To adjust to lawful permanent resident status, Plaintiffs and class members must demonstrate
1
2 to Defendant USCIS that they were inspected and admitted to the United States. See 8 U.S.C. §
3 1255(a), (k). The TPS statute provides that, for purposes of adjustment of status under § 1255, a 4 TPS holder is “considered as being in, and maintaining, lawful status as a nonimmigrant.” 8 U.S.C.
5
§ 1255a(f)(4). Two Courts of Appeals have held that, pursuant to the plain language of this statute, a
6
TPS holder is deemed to have been inspected and admitted because he or she is deemed to be in
7
8 “lawful nonimmigrant status,” and an individual in such status necessarily has been inspected and
9 admitted. Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017); Flores v. USCIS, 718 F.3d 548 (6th Cir.
10
2013); but see Serrano v. U.S. Att’y Gen., 655 F.3d 1260 (11th Cir. 2011). Defendants comply with
11
the plain language of the statute when adjudicating the adjustment of status applications of TPS
12
13 holders residing within the geographic borders of the U.S. Courts of Appeals for the Sixth and Ninth
14 Circuits.
15 7. In the jurisdictions covered by the proposed class, Defendants have a policy of denying the
16
adjustment of status applications of TPS holders who initially entered without inspection and
17
admission, refusing to give effect to 8 U.S.C. § 1245a(f)(4) and refusing to acknowledge that a grant
18
19 of TPS constitutes the inspection and admission required to adjust status. Defendants have denied or
20 will deny the adjustment applications of all Plaintiffs and class members pursuant to this policy. 21 Plaintiffs and class members seek declaratory and injunctive relief to remedy Defendants’ violation
22
of the statute.
23
JURISDICTION AND VENUE
24
25 8. This case arises under the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq.,
26 the regulations implementing the INA, and the Administrative Procedure Act (APA), 5 U.S.C. § 701
27
et seq.
28
3

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 4 of 25 PageID #: 4

9. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. § 1331, as a civil action arising
1
2 under the laws of the United States, and the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361.

3 The Court may grant declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201-2202, 5 U.S.C.

4 § 702, and 28 U.S.C. § 1361. The United States has waived its sovereign immunity pursuant to 5
5
U.S.C. § 702.
6
10. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e) because Defendants
7
8 are officers or employees of the United States, or agencies thereof, acting in their official capacities,

9 a substantial part of the events or omissions giving rise to the claims occurred in this district, and

10
Plaintiff Amado de Jesus Moreno resides in this district, as do many putative class members. In
11
addition, no real property is involved in this action.
12

13

PARTIES

14 11. Plaintiff Amado de Jesus Moreno is a national of El Salvador who entered the United States

15 without inspection in 2000. He was granted TPS in 2001 and has maintained that status ever since.
16
He is eligible to adjust to lawful permanent resident status based upon a visa petition filed by his
17
U.S. employer. Defendant USCIS denied his adjustment application solely based on its erroneous
18
19 policy that TPS does not constitute a qualifying inspection and admission to the United States.

20 Plaintiff Moreno resides in Brooklyn, New York.

21 12. Plaintiff Nelda Yolanda Reyes is a national of Honduras who first entered the United Statutes
22
without inspection in the late 1990s. She was granted TPS in 1999 and has maintained that status
23
ever since. She is eligible to adjust to lawful permanent resident status based upon her a visa
24
25 petition filed by her adult U.S. citizen son. Defendant USCIS denied her adjustment application

26 solely based on its erroneous policy that TPS does not constitute a qualifying inspection and
27
admission to the United States. Plaintiff Reyes resides in Green Bay, Wisconsin.
28

4

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 5 of 25 PageID #: 5
13. Plaintiff Jose Cantarero Argueta is a national of Honduras who first entered the United States
1
2 without inspection in 1997. He was granted TPS in 1999 and has maintained that status ever since.
3 He is eligible to adjust to lawful permanent resident status based upon a visa petition filed by his 4 U.S. employer. Defendant USCIS has notified him of its intent to deny his pending adjustment
5
application solely based on its erroneous policy that TPS does not constitute a qualifying inspection
6
and admission to the United States. Plaintiff Cantarero Argueta Argueta resides in Mt. Airy,
7
8 Maryland.
9 14. Plaintiff Haydee Avilez Rojas Rojas is a national of Honduras who first entered the United
10
States without inspection in 1998. She was granted TPS in 2000 and has maintained that status ever
11
since. She is eligible to adjust to lawful permanent resident status based upon a visa petition filed by
12
13 her U.S. citizen husband. Plaintiff Rojas anticipates that Defendant USCIS will deny her pending
14 adjustment application based solely on its erroneous policy that TPS does not constitute a qualifying
15 inspection and admission to the United States. Plaintiff Rojas resides in Plainfield, New Jersey.
16
15. Defendant Kirstjen Nielsen is the Secretary of DHS, an “agency” within the meaning of the
17
APA, 5 U.S.C. § 551(1). In this capacity, she is responsible for the administration of the INA and
18
19 for overseeing, directing, and supervising all DHS component agencies, including USCIS. She is
20 sued in her official capacity. 21 16. Defendant DHS is an executive agency of the United States, and an “agency” within the
22
meaning of the APA, 5 U.S.C. § 551(1). Since March 1, 2003, DHS has been the agency
23
responsible for implementing the INA, including provisions relating to TPS and adjustment of status.
24
25 17. Defendant L. Francis Cissna is the Director of USCIS, an “agency” within the meaning of the
26 APA, 5 U.S.C. §551(1). In this capacity, he oversees the adjudication of immigration benefits and
27
establishes and implements governing policies. 6 U.S.C. § 271(a)(3) and (b). He has ultimate
28
5

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 6 of 25 PageID #: 6

responsibility for the adjudication of adjustment of status applications and is sued in his official
1
2 capacity.

3 18. Defendant USCIS is a component of DHS, 6 U.S.C. § 271, and an “agency” within the

4 meaning of the APA, 5 U.S.C. § 551(1). USCIS is responsible for adjudicating immigration benefit
5
applications, including applications for TPS and adjustment of status.
6
FACTUAL ALLEGATIONS
7
8 Amado de Jesus Moreno

9 19. Plaintiff Amado de Jesus Moreno is a 45-year-old noncitizen from El Salvador who first
10
entered the United States without inspection on or about August 2000. In 2001, Defendant USCIS
11
granted him TPS. He has maintained that status for more than sixteen years, renewing it and the
12
13 attendant employment authorization regularly as required by USCIS.

14 20. Plaintiff Moreno resides in Brooklyn, New York with his wife and his two U.S. citizen

15 daughters, ages 6 and 12. He also has two sons, currently ages 19 and 24, who reside in El Salvador.
16
21. In 2011, USCIS granted Plaintiff Moreno advance permission to travel outside of the United
17
States. Upon his return, on or about July 26, 2011, DHS inspected and paroled him into the United
18
19 States as a TPS holder.

20 22. Plaintiff Moreno has worked as a telemarketer for Jersey Lynne Farms, a wholesale food

21 distributor, since August 2000. In 2008, his employer began the process of petitioning for a visa for
22
Plaintiff Moreno so that it could promote him to a customer services managerial position upon
23
receipt of lawful permanent resident status. In this managerial position, he would be responsible for
24
25 supervising four telemarketers, handling complaints, taking orders, and responding to Spanish

26 speaking customers.

27
23.
28

Jersey Lynne Farms took the first step in the visa application process in June 2008, filing an

6

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 7 of 25 PageID #: 7

application for a labor certification with the Department of Labor (DOL). DOL approved this
1
2 application on August 7, 2012. On or about January 30, 2013, Jersey Lynne Farms took the second

3 step in the process, filing a visa petition with USCIS on Plaintiff Moreno’s behalf. USCIS approved

4 this petition on November 13, 2014.

5
24.
6

With an approved visa petition, Plaintiff Moreno was able to file an application to adjust his

status to that of a lawful permanent resident with USCIS, which he did on or about January 15, 2015.
7

8 At the same time, he filed an application on behalf of his sons—both of whom were children as

9 defined in 8 U.S.C. § 1101(b)(a) at the time—to allow them to obtain visas as his derivatives.
10
25. USCIS denied his adjustment of status application on April 7, 2017, finding that Plaintiff
11
Moreno was ineligible for adjustment of status because he had entered without inspection and failed
12
13 to maintain a lawful status from the date of his entry until his receipt of TPS. Shortly thereafter,

14 Plaintiff Moreno filed a request to reopen the decision, arguing that, because he had been paroled

15 into the United States in 2011, he satisfied the “inspected and admitted or paroled” requirement of 8
16
U.S.C. § 1255(a). Additionally, he argued that, under 8 U.S.C. § 1255(k), he was exempt from the
17
unlawful presence bar to adjustment found in 8 U.S.C. § 1255(c) because—since his 2011 parole—
18
19 he had been lawfully present pursuant to TPS and, therefore, had not engaged in unauthorized

20 employment nor violated the terms or conditions of his parole.

21 26. On July 14, 2017, USCIS denied Plaintiff Moreno’s motion to reopen, finding him ineligible
22
for the 8 U.S.C. § 1255(k) exemption to the unlawful presence bar to adjustment because that section
23
applies only if the individual was “admitted” to the United States, and a parole is not an admission.
24
25 As a result, USCIS indicated that his period of unlawful presence prior to his grant of TPS

26 disqualified him for adjustment of status under 8 U.S.C. § 1255(a) and (c).

27
27.
28

But for Defendants’ unlawful policy Plaintiff Moreno’s adjustment application would not

7

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 8 of 25 PageID #: 8

have been denied on this basis. Instead, had USCIS treated his grant of TPS as an inspection and
1
2 admission for purposes of his adjustment of status application, as required by the plain language of

3 the TPS statute, 8 U.S.C. § 1254a(f)(4), the agency would have found that he was eligible for the

4 exemption from the unlawful presence bar to adjustment of status found in § 1255(k) and also for
5
adjustment of status.
6
28. Plaintiff Moreno was and continues to be harmed by this denial. Without permanent resident
7
8 status, he has not received the promotion and accompanying pay raise promised by his employer.

9 His sons, as derivatives on his application, have not been able to get in the visa queue and move
10
forward with their own efforts to join their father and family in the United States. Finally, Plaintiff
11
Moreno will lose TPS and the attendant employment authorization in 18 months when the TPS
12
13 designation for El Salvador is terminated and will be at risk of deportation. Deportation would split

14 his family apart, depriving his minor U.S. citizen children of their father. For all of these reasons, he

15 wishes to have his adjustment application fairly adjudicated in accordance with the law.
16
Nelda Yolanda Reyes
17
29. Plaintiff Nelda Yolanda Reyes is a 64-year-old noncitizen from Honduras who first entered
18
19 the United States without inspection in the late 1990s. She subsequently was granted TPS, valid as

20 of July 7, 1999 and has maintained that status for eighteen years.

21 30. Plaintiff Reyes resides in Green Bay, Wisconsin. She has resided in the same home for close

22
to ten years. She has five adult children, some of whom are U.S. citizens.
23

.
24

Plaintiff Reyes’ adult U.S. citizen son, who resides near her in Green Bay, Wisconsin, filed a

25 visa petition on her behalf with USCIS on or about October 14, 2015. USCIS has not adjudicated

26 this visa petition yet.

27
31.
28

Concurrently with her son filing the visa petition, Plaintiff Reyes filed her adjustment of

8

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 9 of 25 PageID #: 9
status application with USCIS. On or about November 12, 2015, USCIS sent Plaintiff Reyes a
1
2 request for evidence establishing that she had been admitted or paroled into the United States. Her
3 attorney responded on February 1, 2016, explaining that her grant of TPS constituted an inspection 4 and admission for purposes of adjustment, in accord with the plain language of 8 U.S.C. §
5
1254a(f)(4).
6
32. On September 5, 2015, USCIS denied the adjustment application, stating that Plaintiff Reyes
7
8 had failed to demonstrate eligibility when she failed to produce evidence that she had been inspected
9 and admitted or paroled into the United States. But for Defendants’ unlawful policy, Plaintiff
10
Reyes’ adjustment application would not have been denied on this basis. Instead, had USCIS treated
11
her grant of TPS as an inspection and admission for purposes of her adjustment of status application,
12
13 as required by the plain language of 8 U.S.C. § 1254a(f)(4), the agency would not have found her
14 ineligible for adjustment of status. 15 33. Plaintiff Reyes was and continues to be harmed by this denial. Because Defendant DHS
16
renewed the TPS designation for Honduras only until July 2018, she faces uncertainty regarding her
17
future protected status. Plaintiff Reyes seeks to become a lawful permanent resident to avoid any
18
19 future loss of her protected status and to remain near her family in Wisconsin. It is uncertain
20 whether DHS will renew the TPS designation for Honduras in July 2018 or—as has been true with 21 respect to several other TPS designated countries—terminate. Should DHS terminate the TPS
22
designation for Honduras, Plaintiff Reyes will lose her status, face deportation to a country in which
23
she has not resided for close to two decades and be separated from her U.S. citizen children. For all
24
25 of these reasons, she wishes to have her adjustment application fairly adjudicated in accordance with
26 the law.
27
28
9

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 10 of 25 PageID #: 10

Jose Cantarero Argueta
1
2 34. Plaintiff Jose Cantarero Argueta is a 40-year-old noncitizen from Honduras who first entered

3 the United States without inspection on or about April 7, 1997. He subsequently was granted TPS in

4 2000 and has remained in that status for more than 17 years.
5
35. Plaintiff Cantarero Argueta resides in Mt. Airy, Maryland with his wife and his two U.S.
6
citizen children, ages 14 and 15.
7
8 36. In 2014, USCIS granted Plaintiff Cantarero Argueta advance permission to travel outside of

9 the United States. Upon his return, on or about March 9, 2014, he was paroled into the United States
10
as a TPS holder.
11
37. Plaintiff Cantarero Argueta is the primary wage earner in his family. He has worked as
12
13 kitchen manager since 2006, with two different employers. On or about November 13, 2014, his

14 then employer, Unlimited Ventures, took the first step in the visa application process for him, filing

15 an application for a labor certification with DOL. DOL approved this application on April 23, 2015.
16
Unlimited Ventures then filed a visa petition on his behalf with USCIS on July 31, 2015. At the
17
same time, Plaintiff Cantarero Argueta filed an application for adjustment of status with USCIS.
18
19 USCIS approved the visa petition on April 11, 2016.

20 38. While Plaintiff Cantarero Argueta’s adjustment application was pending, Unlimited Ventures

21 sold the company, and Plaintiff Cantarero Argueta returned to full-time employment with his prior
22
employer, MJJ Enterprises. He subsequently filed the necessary paperwork regarding this change in
23
employment with USCIS, thus demonstrating his continuing eligibility to adjust status based upon
24
25 the approved visa petition filed by Unlimited Ventures. He remains employed as a kitchen manager

26 by MJJ Enterprises.

27
39.
28

On February 9, 2018, USCIS sent Plaintiff Cantarero Argueta a Notice of Intent to Deny his

10

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 11 of 25 PageID #: 11
adjustment application because his parole in 2014 is not an admission, and without an admission he
1
2 is not eligible for a waiver of the bar to adjustment for unlawful presence under § 1255(k). Plaintiff
3 Cantarero Argueta intends to respond to this Notice by explaining that he was inspected and 4 admitted when he was granted TPS and, therefore, is eligible for the § 1255(k) waiver.
5
Nevertheless, Plaintiff Cantarero Argueta anticipates that his adjustment application will be denied
6
based on USCIS’ policy of not treating a grant of TPS as an inspection and admission for purposes
7
8 of adjustment. But for Defendants’ unlawful policy, Plaintiff Cantarero Argueta would be found
9 eligible both for the exemption from the unlawful presence bar to adjustment of status found in §
10
1255(k) and also for adjustment of status.
11
40. Plaintiff Cantarero Argueta will be harmed when USCIS denies his adjustment application.
12
13 Because Defendant DHS renewed TPS for Honduras only until July 2018, he faces uncertainty
14 regarding his future status within the United States. He seeks to become a lawful permanent resident
15 to avoid any future loss of his protected status and to ensure that he can remain in the United States
16
with his family. It is uncertain whether DHS will renew the TPS designation for Honduras in July
17
2018 or—as has been true with respect to several other TPS designated countries—terminate.
18
19 Should DHS terminate the TPS designation for Honduras, Plaintiff Cantarero Argueta will lose his
20 status and face deportation to a country in which he has not resided for over 20 years. Deportation 21 would split his family apart, depriving his minor U.S. citizen children of their father, the primary
22
wage earner for the family. For all of these reasons, he wishes to have his adjustment application
23
fairly adjudicated in accordance with the law.
24
25 Haydee Avilez Rojas
26 41. Plaintiff Haydee Avilez Rojas is a 64-year-old noncitizen from Honduras who first entered
27
the United States without inspection on or about May 1998. On or about February 9, 2000, USCIS
28
11

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 12 of 25 PageID #: 12
granted her TPS. She has maintained that status for 18 years, renewing it and the attendant
1
2 employment authorization as required by USCIS.
3 42. Plaintiff Avilez Rojas, who is retired, resides in Plainfield, New Jersey with her 70-year-old 4 U.S. citizen husband, Rigoberto Samayoa. She has lived at the same address for more than 15 years.
5
She has three adult children. Both she and her husband have medical problems. Plaintiff Avilez
6
Rojas suffers from high blood pressure and her husband has had to have two prostate surgeries.
7
8 43. Plaintiff Avilez Rojas’s husband filed a visa petition on her behalf with USCIS on or about
9 February 15, 2017. USCIS approved this petition on September 13, 2017.
10
44. On or about February 15, 2018, Plaintiff Avilez Rojas filed her adjustment of status
11
application by mailing it to USCIS. Although USCIS has not yet adjudicated the application,
12
13 Plaintiff Avilez Rojas anticipates that it will be denied based on USCIS’ policy of not treating a
14 grant of TPS as an inspection and admission for purposes of adjustment. But for Defendants’
15 unlawful policy, Plaintiff Avilez Rojas would be found eligible for adjustment of status.
16
45. Plaintiff Avilez Rojas will be harmed when USCIS denies her adjustment application.
17
Because Defendant DHS renewed TPS for Honduras only until July 2018, she faces uncertainty
18
19 regarding her future status within the United States. She seeks to become a lawful permanent
20 resident to avoid any future loss of her protected status and to ensure that she can remain in the 21 United States with her elderly husband. It is uncertain whether DHS will renew the TPS designation
22
for Honduras in July 2018 or—as has been true with respect to several other TPS designated
23
countries—terminate. Should DHS terminate the TPS designation for Honduras, Plaintiff Avilez
24
25 Rojas will lose her status and face deportation to a country in which she has not resided for close to
26 two decades. Deportation would split her family apart. Given her age and her high blood pressure,
27
she will be unable to support herself in Honduras. Furthermore, Plaintiff Avilez Rojas’s U.S.
28
12

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 13 of 25 PageID #: 13

citizen husband, who has had two prostate surgeries, will suffer extreme hardship if Plaintiff Avilez
1
2 Rojas is deported. For all of these reasons, he wishes to have his adjustment application fairly

3 adjudicated in accordance with the law.

4

BACKGROUND

5
46. This case involves noncitizens who have maintained lawful Temporary Protected Status for
6

years—in many cases, close to two decades—and who, during this time, established close
7

8 relationships with U.S. citizens and businesses. Relying upon these relationships, they now seek to

9 become lawful permanent residents pursuant to the adjustment of status statute, 8 U.S.C. § 1255. At
10
issue in this case is the interplay between that statute and the TPS statute, 8 U.S.C. § 1254a(f)(4).
11
Temporary Protected Status
12
13 47. Congress enacted the TPS statute in 1990 as a humanitarian program. Pursuant to 8 U.S.C. §

14 1254a(b), the DHS Secretary may designate a foreign country for TPS due to conditions in the

15 country that temporarily prevent its nationals from returning safely, or in certain circumstances,
16
where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS
17
to nationals of the designated countries who meet specific eligibility criteria, including presence in
18
19 the United States at the time of designation.

20 48. The Secretary has designated countries for TPS following environmental disasters, such as an

21 earthquake or hurricane; epidemics; and ongoing armed conflicts, such as civil wars. On January 1,
22
2017, ten countries were designated for TPS: El Salvador, Haiti, Honduras, Nepal, Nicaragua,
23
Somalia, South Sudan, Sudan, Syria, and Yemen. Several of these were first designated close to or
24
25 more than two decades ago: Somalia, 1991; Sudan, 1997; Honduras, 1999; Nicaragua, 1999; and El

26 Salvador, 2001. The others were designated within the last seven years. See Temporary Protected
27
Status, https://www.uscis.gov/humanitarian/temporary-protected-status (last visited February 20,
28

13

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 14 of 25 PageID #: 14

2018).
1
2 49. Until 2017, the designations of each of these countries were extended continuously following

3 the Secretary’s periodic review. In 2017, Defendant Nielsen’s predecessor announced the

4 termination of the TPS designation for three countries—Haiti, Nicaragua, and Sudan. On January 9,
5
2018, Defendant Nielsen announced the termination of the TPS designation for El Salvador. With
6
respect to each termination, the Secretary deferred the effective date for between 12 to 18 months “to
7
8 provide time for individuals with TPS to seek an alternative lawful immigration status in the United

9 States, if eligible, or, if necessary, arrange for their departure.” Press Release, Department of
10
Homeland Security, Acting Secretary Elaine Duke Announcement on Temporary Protected Status
11
for Nicaragua And Honduras (Nov. 6, 2017), available at
12
13 https://www.dhs.gov/news/2017/11/06/acting-secretary-elaine-duke-announcement-temporary-

14 protected-status-nicaragua-and; see also Press Release, Department of Homeland Security, Secretary

15 of Homeland Security Kirstjen M. Nielsen Announcement on Temporary Protected Status for El
16
Salvador (Jan. 8, 2018), available at https://www.dhs.gov/news/2018/01/08/secretary-homeland-
17
security-kirstjen-m-nielsen-announcement-temporary-protected.
18
19 50. The Secretary will decide whether to terminate the designation of all other countries except

20 South Sudan and Syria in 2018, and a decision as to those remaining two countries in 2019. Given

21 the Trump Administration’s hostility to the TPS program, all countries with TPS designation are at
22
risk of termination. See, e.g., Nick Miroff and David Nakamura, 200,000 Salvadorans may be
23
forced to leave the U.S. as Trump ends immigration protection, Washington Post, Jan. 8, 2018
24
25 (reporting that “Trump administration officials have repeatedly said they considered the TPS

26 program an example of American immigration policy gone awry . . .”).

27
51.
28

Upon initial designation of a country for TPS, DHS issues a notice advising nationals of that

14

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 15 of 25 PageID #: 15

country of a period in which they may apply for TPS if they meet certain eligibility requirements,
1
2 including continuous presence in the United States since the date of the designation, continuous

3 residence in the United States since a date specified in the DHS notice, and being admissible to the

4 United States. With respect to the admissibility requirement, certain grounds of inadmissibility are
5
waived by statute and others may be waived at the discretion of DHS. 8 U.S.C. § 1254a(c)(1), (2).
6
Individuals convicted of certain crimes or found to be a security risk are not eligible for TPS. 8
7
8 U.S.C. § 1254a(c)(2)(B).

9 52. The application process is a rigorous one. Defendants screen applicants’ biometrics,
10
admissibility, and general eligibility for TPS. Only after applicants have been thoroughly screened
11
are they approved for TPS.
12
13 53. TPS provides temporary lawful status to beneficiaries. Pursuant to the statute, the Secretary

14 of DHS must review and either terminate or re-designate TPS designations every 6 to 18 months. 8

15 U.S.C. § 1254a(b)(3)(C). TPS holders must reapply after each re-designation to renew their status,
16
verifying that they continue to satisfy all eligibility requirements.
17
54. While noncitizens’ TPS is in effect, they cannot be removed from the United States or
18
19 detained by DHS for lack of immigration status, are entitled to employment authorization, and may

20 travel abroad with the prior consent of DHS. 8 U.S.C. § 1254a(a)(1), (d)(4), (f)(3).

21 .

Additionally, the TPS statute specifies that “for purposes of adjustment of status under [8

22
U.S.C. § 1245] and change of status under [8 U.S.C. § 1258], the [noncitizen] shall be considered as
23

being in, and maintaining, lawful status as a nonimmigrant.” 8 U.S.C. § 1254a(f)(4).
24

25 Adjustment of Status

26 55. Adjustment of status is the mechanism by which an eligible noncitizen who is present in the
27
United States applies for lawful permanent resident status based on a relationship to a U.S. citizen
28

15

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 16 of 25 PageID #: 16

family member or employer. Adjustment of status allows applicants to apply to obtain lawful status
1
2 while remaining in the United States, instead of requiring them to first return to their home countries

3 and apply for immigrant visas from a U.S. embassy or consulate abroad, which is often a lengthy

4 application process.

5
56.
6

In general, to apply for adjustment of status, an individual must demonstrate that he or she

has been “inspected and admitted or paroled into the United States.” 8 U.S.C. § 1255(a).
7

8 Additionally, an adjustment applicant must demonstrate that he or she is eligible to receive an

9 immigrant visa (based on the qualifying relationship) and has an immigrant visa immediately
10
available at the time the individual files an adjustment application. 8 U.S.C. § 1255(a). Finally, the
11
applicant must demonstrate admissibility to the United States; i.e., that he or she either is not subject
12
13 to an enumerated ground of inadmissibility set forth in 8 U.S.C. § 1182 or qualifies for a waiver of

14 any such ground. Id.

15 57. With exceptions relevant here, an otherwise eligible individual is barred from adjusting if,
16
inter alia, he or she has worked in the United States without authorization, is in unlawful
17
immigration status on the date of filing an adjustment application or has failed to maintain
18
19 continuously a lawful status since entry into the United States. 8 U.S.C. § 1255(c)(2).

20 58. Certain individuals are not subject to the § 1255(c)(2) bar to adjustment, including: (a)

21 “immediate relatives,” defined as the children and spouses of U.S. citizens and the parents of U.S.
22
citizens provided the citizen son or daughter is at least 21 years old, see 8 U.S.C. § 1151(b)(2)(A)(i);
23
and (b) employment-based visa beneficiaries who: (i) are present in the United States pursuant to a
24
25 lawful admission on the date of filing the adjustment application; and (ii) after such lawful

26 admission, have not, for an aggregate period of more than 180 days, failed to maintain continuous
27
lawful status, engaged in unauthorized employment, or otherwise violated the terms of admission. 8
28

16

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 17 of 25 PageID #: 17

U.S.C. §§ 1255(c)(2), (k).
1
2 Intersection of TPS and Adjustment of Status

3 59. Two Courts of Appeals have held that 8 U.S.C. § 1254a(f)(4) unambiguously requires that

4 TPS holders are deemed “inspected and admitted” for purposes of adjustment of status under 8
5
U.S.C. § 1255(a). Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017); Flores v. USCIS, 718 F.3d 548
6
(6th Cir. 2013). The plaintiffs in both cases and Plaintiffs and proposed class members here share
7
8 identical facts: they initially entered without inspection, subsequently were granted TPS, and then

9 became eligible to adjust to lawful permanent resident status based on a qualifying relationship. In
10
both Ramirez and Flores, USCIS denied the plaintiffs’ adjustment applications solely because they
11
allegedly failed to demonstrate that they had been inspected and admitted as required by 8 U.S.C. §
12
13 1255(a). Both circuit courts rejected USCIS’ position, holding instead that, because the TPS statute

14 specifically deems the TPS holder to be in lawful nonimmigrant status for purposes of adjustment of

15 status, the beneficiary is deemed to have met all requirements for nonimmigrant status, including
16
inspection and admission. In a per curiam decision, the Eleventh Circuit held the opposite,
17
ultimately deferring to USCIS without fully analyzing the interplay of the two statutory provisions.
18
19 Serrano v. U.S. Att’y Gen., 655 F.3d 1260 (11th Cir. 2011).

20 60. To date, no other Court of Appeals has ruled on the issue, and, on information and belief, no

21 cases are known to be pending.

22
61.
23

Two district courts followed the lead of the Sixth Circuit; in both cases, Defendants either

failed to appeal or withdrew their appeal. Bonilla v. Johnson, 149 F. Supp. 3d 1135 (D. Minn.
24

25 2016); Medina v. Beers, 65 F. Supp. 3d 419 (E.D. Pa. 2014). Another district court extended the

26 Ninth Circuit’s holding in Ramirez v. Brown; Defendants initially appealed but then withdrew their
27
appeal of this decision. Figueroa v. Rodriguez, No. 16-8218 PA, 2017 U.S. Dist. LEXIS 128120
28

17

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 18 of 25 PageID #: 18

(C.D. Cal. Aug. 10, 2017).
1
2 62. USCIS has a written policy rejecting the plain language of the statute, as interpreted by the

3 Sixth and Ninth Circuits and district courts discussed supra. In that policy, USCIS declares that “[a]

4 foreign national who enters the United States without inspection and subsequently is granted
5
temporary protected status (TPS) does not meet the inspected and admitted or inspected and paroled
6
requirement.” USCIS Policy Manual, Vol. 7, Part B, Ch. 2(A)(5) (Aug. 23, 2017), available at
7
8 https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter2.html. In a

9 footnote, the policy manual acknowledges that the Sixth Circuit has ruled to the contrary, but
10
clarifies that that court’s holding will only be given effect in the cases of applicants living within the
11
Sixth Circuit. Id. n.56.
12
13 63. As a direct consequence of Defendants’ policy, the applications of all Plaintiffs and proposed

14 class members who otherwise qualify for adjustment of status have been or will be denied by

15 Defendant USCIS.

16
17
64.
18

CLASS ALLEGATIONS Plaintiffs bring this action on behalf of themselves and all others who are similarly situated

19 pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). A class action is proper because

20 this action involves questions of law and fact common to the classes, the class is so numerous that

21 joinder of all members is impractical, Plaintiffs’ claims are typical of the claims of the class,
22
Plaintiffs will fairly and adequately protect the interests of the respective class, and Defendants have
23
acted on grounds that apply generally to the class, so that final injunctive relief or corresponding
24
25 declaratory relief is appropriate with respect to the class as a whole.

26 //
27
//
28

18

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 19 of 25 PageID #: 19

65. Plaintiffs seek to represent the following class:
1

2

All individuals with TPS who reside within the geographic boundaries of the

Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and

3

Tenth Circuits; whose initial entries into the United States were without inspection;

who have applied or will apply for adjustment of status to lawful permanent

4

residence with USCIS; and whose adjustment applications have been or will be

5

denied on the basis of USCIS’ policy that TPS does not constitute an admission for

purposes of adjusting status under 8 U.S.C. § 1255.

6

66. Plaintiffs Moreno, Reyes, Cantarero Argueta, and Avilez Rojas seek to represent this class.
7

8 The class is so numerous that joinder of all members is impracticable. Plaintiffs are not aware of the

9 precise number of potential class members because Defendants have sole possession of the

10 information needed to identify such persons. Upon information and belief, there are hundreds of
11
individuals who currently hold TPS and are eligible to adjust status, but whose applications USCIS
12
has denied or will deny claiming they were not inspected and admitted or paroled into the United
13
14 States.

15 67. A question of law common to the proposed class predominates over any questions affecting
16
only the individually named Plaintiffs, namely: whether USCIS’ policy of finding TPS holders
17
ineligible for adjustment of status under 8 U.S.C. § 1255(a) violates the INA and its implementing
18
19 regulations, and the APA. Like proposed class members who USCIS has found or will find

20 ineligible for adjustment of status under § 1255(a), Plaintiffs’ applications have been denied based

21 on this policy.
22
68. Plaintiffs’ claims are typical of the claims of the proposed class. Plaintiffs all entered the
23
United States without inspection, subsequently were granted TPS and continue to hold that status,
24
25 have applied for adjustment of status, and have been or will be denied adjustment by USCIS for the

26 purported reason that they were not inspected and admitted or paroled.

27 69. Plaintiffs will fairly and adequately protect the interests of the proposed class members
28
because they seek relief on behalf of the class as a whole and have no interest antagonistic to other

19

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 20 of 25 PageID #: 20

class members.
1
2 70. Plaintiffs are represented by competent counsel with extensive experience in complex class

3 actions and immigration law.

4 71. Defendants have acted on grounds generally applicable to the proposed class, thereby making
5
appropriate final declaratory and injunctive relief.
6
DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS
7
8 72. An actual and substantial controversy exists between the proposed classes and Defendants as

9 to their respective legal rights and duties. Plaintiffs contend that Defendants’ actions violate
10
Plaintiffs’ rights and the rights of the proposed class.
11
73. Defendants’ misinterpretation of the TPS and adjustment of status provisions of the INA and
12
13 corresponding policy of denying the adjustment applications of TPS holders for the alleged lack of

14 an inspection and admission, notwithstanding their receipt of TPS, has caused and will continue to

15 cause irreparable injury to Plaintiffs and proposed class members. Plaintiffs and proposed class
16
members have been denied, or are at risk of being denied, lawful permanent resident status solely on
17
the basis of alleged statutory ineligibility in violation of the INA.
18
19 74. Plaintiffs have no adequate remedy at law. They do not seek a favorable exercise of USCIS’

20 discretion to grant their adjustment of status applications, but instead seek an order declaring

21 USCIS’ policy unlawful and prohibiting USCIS from applying it.

22
75.
23

There are no administrative remedies that Plaintiffs are required to exhaust. Darby v.

Cisneros, 509 U.S. 137 (1993).
24

25 76. Under 5 U.S.C. §§ 702 and 704, Plaintiffs and proposed class members have suffered a

26 “legal wrong” and have been “adversely affected or aggrieved” by agency action for which there is
27
no other adequate remedy in a court of law.
28

20

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 21 of 25 PageID #: 21

77. Based on the foregoing, the Court should grant declaratory and injunctive relief under 28
1
2 U.S.C. §§ 2201-2202, 5 U.S.C. § 702, and 28 U.S.C. § 1361.

3

CAUSES OF ACTION

4
5
6
78.
7
8 79.

COUNT ONE (Violation of the Immigration and Nationality Act and the
Administrative Procedure Act)
All the foregoing allegations are repeated and realleged as though fully set forth herein.
The INA deems a TPS holder to be in lawful status as a nonimmigrant for purposes of

9 adjustment of status. 8 U.S.C. § 1254a(f)(4). Accordingly, all TPS holders are deemed to have been

10 inspected and admitted and to have maintained lawful nonimmigrant status for purposes of adjusting
11
status under 8 U.S.C. § 1255(a).
12
80. Defendants properly apply 8 U.S.C. §§ 1254a(f)(4) and 1255(a) when, by “consider[ing]” a
13
14 TPS holder “as being in, and maintaining, lawful status as a nonimmigrant” pursuant to 8 U.S.C. §

15 1255a(f)(4), they find that the grant of TPS satisfies the “inspected and admitted” requirement of 8

16 U.S.C. § 1255(a).

17
81.
18

Defendants have a policy of refusing to find that a grant of TPS constitutes an “inspection

and admission” for purposes of adjustment of status and, pursuant to this policy, deny adjustment
19

20 applications of current TPS holders who were not “inspected and admitted” other than through the

21 grant of TPS. Defendants’ policy applies to all TPS holders who reside within the geographic
22
boundaries of the Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and
23
Tenth Circuits.
24
25 82. Defendants violate the plain meaning of 8 U.S.C. § 1254a(f)(4) when they deny an

26 adjustment application of a TPS holder because the beneficiary has not been inspected and admitted

27 for purposes of adjustment of status.
28
83. Plaintiffs bring this claim pursuant to the Administrative Procedure Act, 5 U.S.C. § 701, et

21

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 22 of 25 PageID #: 22

seq.
1

2
3
84.
4

COUNT TWO (Violation of the Administrative Procedure Act)
All the foregoing allegations are repeated and realleged as though fully set forth herein.

5 85. Section 706(1) of Title 5 provides that a reviewing court shall compel agency action

6 unlawfully withheld. 5 U.S.C. § 706(1).
7
86. Plaintiffs and proposed class members have a statutory right to have Defendants follow the
8
statutory language and find that their status as TPS beneficiaries as having been “inspected and
9
10 admitted” for purposes of adjustment of status under 8 U.S.C. § 1255(a). See U.S.C. §§

11 1254a(f)(4).

12 87. Defendants have a duty to find that a current TPS beneficiary has been “inspected and
13
admitted” when adjudicating an adjustment of status application.
14
88. Defendants comply with this duty when adjudicating adjustment applications of TPS
15
16 beneficiaries living within the jurisdictions of the Sixth and the Ninth Courts of Appeals.

17 89. Defendants have a policy of refusing to find that a grant of TPS constitutes an “inspection

18 and admission” for purposes of adjustment of status and, pursuant to this policy, deny adjustment
19
applications of current TPS holders who were not “inspected and admitted” independent of their
20
grant of TPS. Defendants policy applies to all individuals in TPS status who reside within the
21
22 geographic boundaries of the Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh,

23 Eighth, and Tenth Circuits. Defendants’ policy deprives Plaintiffs and proposed class members of

24 a lawful adjudication of their adjustment of status applications in violation of the APA.

25
90.
26

Defendants’ policy harms Plaintiffs and class members.

27 91. There are no other adequate available remedies.

28 92. Defendants’ policy is in excess of its statutory authority and its actions in denying the

22

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 23 of 25 PageID #: 23

adjustment applications of Plaintiffs and proposed class members is contrary to law in violation of
1
2 the Administrative Procedure Act.

3 4
5 93.

COUNT TWO (Petition for Mandamus, 28 U.S.C. § 1361)
All the foregoing allegations are repeated and realleged as though fully set forth herein.

6 94. Mandamus is available to compel a federal official or agency to perform a duty if: (1) there is
7
a clear right to the relief requested; (2) defendant has a clear, non-discretionary duty to act; and (3)
8
there is no other adequate remedy available. See 28 U.S.C. § 1361.
9
10 95. Plaintiffs and proposed class members have a statutory right to have Defendants treat them as

11 having been “inspected and admitted” for purposes of adjustment of status under 8 U.S.C. § 1255(a)

12 by virtue of a grant of TPS. See 8 U.S.C. § 1254a(f)(4).
13
96. Defendants have a duty to find that a current TPS holder has been “inspected and admitted”
14
when adjudicating an adjustment of status application.
15
16 97. Defendants comply with this duty when adjudicating adjustment applications of TPS

17 holders living within the jurisdictions of the Sixth and Ninth Circuit Courts of Appeals.

18 98. Defendants have a policy of refusing to find that a grant of TPS constitutes an “inspection
19
and admission” for purposes of adjustment of status and, pursuant to this policy, deny adjustment
20
applications of current TPS holders who were not “inspected and admitted” independent of their
21
22 grant of TPS. Defendants’ policy applies to all TPS holders who reside within the geographic

23 boundaries of the Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and

24 Tenth Circuits.

25
99.
26

Defendants’ policy deprives Plaintiffs and proposed class members of a lawful adjudication

27 of their adjustment of status applications in violation of the INA and APA.

28 100. Defendants’ policy harms Plaintiffs and class members.

23

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 24 of 25 PageID #: 24

101. There are no other adequate available remedies.
1

2

PRAYER FOR RELIEF

3
WHEREFORE, Plaintiffs respectfully pray for this Court to:
4
a. Assume jurisdiction over this matter;
5

6

b. Certify the case as class action as proposed herein and in the accompanying motion for class

7 certification;

8

c. Declare that Defendants’ policy of refusing to find that a grant of TPS constitutes an

9
“inspection and admission” for purposes of adjustment of status and all adjustment decisions issued
10
based upon that policy are contrary to 8 U.S.C. § 1254a(f)(4);
11

12

d. Declare that all Plaintiffs and proposed class members have been “inspected and admitted”

13 for purposes of 8 U.S.C. § 1255(a) pursuant to their grant of TPS;

14

e. Order Defendants to immediately cease applying their policy that a grant of TPS does not

15
constitute an “inspection and admission” for purposes of 8 U.S.C. § 1254a(f)(4);
16

17

f. Order Defendants to find that, pursuant to 8 U.S.C. § 1254a(f)(4), Plaintiffs and proposed

18 class members were “inspected and admitted” for purposes of their adjustment of status applications;

19

g. Order Defendants to reopen and reconsider the adjustment applications of Plaintiffs and any

20
class members whose applications were denied based on an alleged lack of an inspection and
21
admission, and to re-adjudicate those applications pursuant to the new policy;
22

23

h. Award Plaintiffs reasonable attorneys’ fees under the Equal Access to Justice Act, and any

24 other applicable statute or regulation; and

25

i. Grant such further relief as the Court deems just, equitable, and appropriate.

26

27
Respectfully submitted,
28

24

Case 1:18-cv-01135 Document 1 Filed 02/22/18 Page 25 of 25 PageID #: 25

s/ Trina Realmuto 1 Trina Realmuto, Bar No. TR3684 2 Kristin Macleod-Ball**
American Immigration Council 3 100 Summer Street, 23rd Floor
Boston, MA 02110 4 (857) 305-3600 5 trealmuto@immcouncil.org
kmacleod-ball@immcouncil.org
6
7
8
9
10

Mary Kenney* American Immigration Council 1331 G Street, NW, Suite 200 Washington, D.C. 20005 (202) 507-7512 mkenney@immcouncil.org
Matt Adams* Leila Kang* Northwest Immigrant Rights Project 615 2nd Avenue, Suite 400 Seattle, WA 98104 (206) 957-8611 matt@nwirp.org leila@nwirp.org

Attorneys for Plaintiffs
11

12 * Moving for pro hac vice admission
** Moving for admission
13

14
February 22, 2018
15

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