Correa v. Pasquarell

This case was decided in the United States District Court for the Western District of Texas, San Antonio Division.

The matter arose when Mr. Raul Correa, an American citizen, filed an I-130 petition for his wife Dina. A citizen or lawful permanent resident of the United States files this form to establish the relationship to the alien relative who wishes to immigrate to the United States. For instance, a U.S. citizen husband may file for his non-citizen wife. The INS denied Mr. Correa's petition for his wife, informing the couple in a letter that their “marriage possesses a negative element of such extreme gravity that it tends, in and of itself, to demonstrate that it is fraudulent.” This was because the INS determined that Mr. And Mrs. Correa were homosexual and therefore could not have entered into a valid marriage. This conclusion was based mainly on an investigation conducted by the INS.

In their investigation, the INS had found that Mr. Correa “shares a bedroom not with his wife, but with Mr. Riki Korb, who is the brother of his wife. This bedroom …contains his clothing and other personal belongings, Mr. Korb’s clothing and other personal articles, but no clothing or other personal articles of the wife. The wife shares a bedroom containing one bed with a Ms. Limor Levi Korb. This bedroom …contains the wife’s clothing and other personal articles…” The letter stated that there was reasonable doubt as to the bona fides of the marriage and asked for submission of any evidence that would support the contention that the marriage was bona fide. After submission of affidavits and statements, the INS rejected the petition. Mr. and Mrs. Correa appealed.

While the appeal was pending, on February 14, 1995, Mr. Correa died of complications relating to AIDS. In April of 1995, the INS moved to dismiss the appeal on the ground that, upon Mr. Correa’s death, Mr. Correa (the plaintiff) was no longer entitled to immediate relative status as the spouse of a U.S. citizen. The BIA dismissed the appeal on the ground that only Mr. Correa had standing to pursue the appeal, so upon his death, the BIA lacked jurisdiction to hear the appeal.

Mrs. Correa filed a new petition, known as I-360, as the widow of a United States citizen. Initially this petition was approved. But eleven months later, the INS notified Mrs. Correa of their intent to revoke the I-360 on the basis of their previous denial of the I-130 petition.

Mrs. Correa responded, denying the allegation that her marriage had not been bona fide. She also clarified that the appeal was dismissed without a determination on the merits as a result of Mr. Correa’s death. But the INS denied her I-360 petition, stating, “the Service’s reasons for wishing to revoke your petition have not been fully and sufficiently overcome.”

Mrs. Correa appealed this decision to the BIA. While the appeal was pending, the INS initiated deportation proceedings against Mrs. Correa. The case then went up to District Court for the Western District of Texas as an appeal from the final determination that Mrs. Correa’s I-360 widow petition should be denied.

The United States District Court for the Western District of Texas, San Antonio Division, reversed the BIA’s decision. The court held that an abuse of discretion occurs when the INS decision is unsupported by reasonable, substantial evidence on the record considered as a whole. Under the abuse of discretion standard applicable in appeals from discretionary INS actions, the Service must “announce its decisions in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely acted.”

The court found the INS investigation and findings on Mrs. Correa’s sexual orientation dubious. The court found the record of the findings ambiguous, at best. The INS investigators had just made some cursory observations about where they assumed the people occupying the house slept; they did not ask any questions; they never opened any drawers or dressers; and they did not ask for any explanations of what they found to be suspicious. The court also dismissed allegations by the INS that wedding photographs of Mr. and Mrs. Correa were not verifiable. The court also held that the tax returns for the previous years, which were “married filing separately,” proved nothing as to lack of bona fides of the marriage.

The court held that because there were issues of fact in dispute between the parties in this case, a motion to dismiss by the INS would not be proper in this case. When there are issues of fact in dispute, the INS’s “motion to dismiss, construed as a motion for summary judgment, is denied.”

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Ramos v. Ashcroft

This case, a class action, was decided by the United States District Court for the Northern District of Illinois Eastern Division. The plaintiffs claimed that the acceptance and processing of their INS forms I-485, Application for Adjustment of Status, was unless a visa was immediately available to the applicants, based on their I-130 applications. Subsequent to the processing of the I-485 applications, the Chicago office relied on the information in the I-485 applications for adjustment of status to initiate investigations and removal proceedings against unsuccessful applicants.

Under § 245(i) of the INA, which was applicable to these class members, a qualifying family member could file an Immigrant Visa Petition (I-130) on behalf of the immigrant relative who sought lawful status. If the INS approved the petition, then the immigrant relative, who may have been unlawfully present, could submit the Application for Adjustment of Status (I-485).

The plaintiffs asserted that the statute and regulations required a visa to be immediately available under an approved I-130 application, before an I-485 application for Adjustment of Status could be processed. The defendant contended that there is no such prerequisite for processing the applications. Plaintiffs also argued that the defendants cannot rely on the information in the I-485 applications for Adjustment of Status to open an investigation against them.

The defendant challenged the district court’s subject matter jurisdiction to review this case, claiming that it was barred by 8 U.S.C. § 1252(g). Under this section of the statute, any court’s power, including the district court’s power, to review cases is barred when an alien challenges the Attorney General’s decision to (1) commence proceedings, (2) adjudicate cases, and (3) execute removal orders. In this case, the court found that the plaintiff’s claim does not fall into the three categories articulated in § 1252(g).

The defendant claimed that once the Attorney General initiated removal proceedings, subsequent to alleged improper processing of the I-485, plaintiffs could no longer challenge them.

The court held that the plaintiffs were challenging the procedures which related to the acceptance and processing of the I-485 applications, and they are not challenging the adjudication and denial of their applications. Therefore, § 1252(g) did not apply to the present case, and so the plaintiff’s challenge was not improper. In other words, § 1252(g) applied to the merits of the case and not the procedural steps involved.

The court also held that § 1252(g) bars aliens who are in proceedings from challenging the commencement of proceedings against them, but permits the same aliens to challenge the decision of the Attorney General to open an investigation. The court held that the present case did not qualify as a challenge to the adjudication of the plaintiff’s adjustment of status application and so was not barred by § 1252(g). Therefore, the court denied the 12(b)(1) motion to dismiss for lack of subject matter jurisdiction and allowed the case to proceed forward.