MEMORANDUM OPINION
As modernist architect Ludwig Mies van der Rohe once reflected, “It is not possible to go forward while looking back.” Yet that is exactly what Plaintiff Armando Moya
Garcia came to the U.S. by boat in 1980, and in 1981, while he was a minor living in Florida, his mother applied on his behalf for lawful-permanent-resident (LPR) status with the predecessor agency of what is now U.S. Citizenship and Immigration Services. After years of waiting without a decision on that application, Garcia filed a second application as an adult in 1990. Initially successful in obtaining LPR status on that one, he was later ordered deporta-ble, in large part because of a cocaine-trafficking conviction. He subsequently sought — and was denied — a discretionary waiver from deportation; as a result, he has been under an order of supervision ever since. Garcia has two goals in bringing this suit: to obtain through the Freedom of Information Act a record of any adjudication of his 1981 application and, barring that, to secure a reconsideration of his LPR request under the facts and law as they stood in 1981 — before his criminal conviction — so that he may seek another chance at a deportation waiver.
On his FOIA cause of action, the Court ultimately concludes that USCIS has adequately searched — albeit in vain — for a record of a 1981 adjudication. As to his LPR-reconsideration claim, Plaintiffs theory of relief is both too speculative and too spectral to establish that he has standing. It would require the exercise of extraordinary nunc pro tunc equitable remedies— ones the Court doubts it has the authority to grant — to bend time in the manner Garcia seeks, rewinding 20 years of changes to immigration laws and 35 years of facts relating to him. As such relief is not warranted here, the Court will grant Defendants’ combined Motion for Summary Judgment and Motion to Dismiss.
I. Background
Because the relevant parts of Plaintiffs story take place in both the past (his claim for adjustment of status under his 1981 Application for LPR status) and the present (his FOIA inquiry), the Court will recount them separately.
A. Adjustment of Status and Order of Deportation
• “[0]ur Byzantine immigration laws and administrative regulations are second or third in complexity [only] to the Internal Revenue Code.” Santiago v. Holder,
Plaintiff Armando Garcia Moya is a citizen of Cuba who currently resides in Falls Church, Virginia. See Compl., ¶ 9. Although the parties do not account for his early childhood, on October 19, 1981— when Plaintiff was nine — his mother filed on his behalf a Form I-485A, an Application by Cuban Refugee for Permanent Residence, with Immigration and Naturalization Services (INS), the predecessor agency to USCIS. Id., ¶ 15; see also Notice (ECF No. 13), Exh. 8 (I-485A Application (Oct. 19, 1981)). Plaintiffs mother appears to have filed his 1981 application in person, and Garcia seems to have been interviewed by INS that same day, see Compl., ¶ 15, but his family never received notification of the resolution of his application. Id., ¶ 16. Once Garcia reached the age of majority in 1990, he filed a second Form I-485A application, on November 19, 1990. Id.;.see also Notice, Exh. 10 (I-485A Application (Nov. 19, 1990)). While his 1981 application omitted the date and location of his arrival in the United States, his 1990 application suggests he arrived in Miami, Florida, by boat on August 11,1980. See I-
This was only the beginning of Garcia’s interactions with federal agencies. Six months after he filed his 1990 application, Plaintiff was convicted on May 31, 1991, of distribution and possession with intent to distribute more than 500 grams of cocaine. See Notice, Exh. 11 (Order to Show Cause and Notice of Hearing (Nov. 21, 1995)) at 6; id., Exh. 7 (Decision of Immigration Judge (Jan. 23, 1996)) at 2. Around that same time, his status was adjusted to that of lawful permanent resident by INS. To the Court’s initial confusion, Plaintiffs pleadings never specify the date this adjustment took place, and the record evidence and Defendants’ briefings contradict themselves as to whether it occurred on April 19, 1991, or April 19, 1992. 1 Because the Memorandum of Creation of Record of Lawful Permanent Residence for Plaintiff is dated April 19, 1991, in multiple places on the document, and because that document is the official record of his adjustment of status, the Court will assume the 1991 date is accurate. See Notice, Exh. 12 (Memorandum of Creation of Record of Lawful Permanent Residence). In any case, at the time his status was adjusted, it was also made administratively retroactive to January 1, 1982, a fact the parties do agree on. Id.; see also Compl., ¶ 16; Reply at 19. Absent any other explanation, the retroactive status appears to have been made in recognition of his earlier — and then-outstanding — 1981 application.
Plaintiffs honeymoon with LPR status did not last long, however. In 1995, he was issued an Order to Show Cause and Notice of Hearing, in which he was informed that he was subject to deportation under several provisions of.the Immigration and Naturalization Act. See Order to Show Cause. The grounds for his deportation included his involvement with illegal drug trafficking, his conviction related to a controlled substance, and the procurement of immigration benefits (his LPR status) based on fraudulent or willful misrepresentation by attesting in his 1990 application that he was not then involved in drug trafficking or narcotics distribution. Id. at 3, 6.
The subsequent events are legally complicated, but reciting them with precision is critical to the disposition of Plaintiffs case. At his January 4, 1996, hearing on the issue of deportation, Garcia admitted all of the allegations of fact contained in the Order to Show Cause, and he was consequently found to be “deportable as charged.” See Decision of Immigration Judge at 2. Although both the parties’ briefs and the documentary record fail to establish this, the parties appear to agree that Garcia’s LPR status was terminated as a result of the immigration judge’s order that he be deported. See Compl., ¶ 16; Defendants’ Statement of Material Facts (ECF No. 11-2) at 7. At a minimum, the ease law supports this conclusion. See Matter of Lok, 18 I.
&
N. Dec. 101, 101 (BIA 1981) (“The lawful permanent resident status of an alien terminates within the meaning of section 101(a)(20) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(20), with the entry of a final administrative order of deportation .... ”); Rivera v. I.N.S.,
What happened next involves considerable legal time travel, given the changing and fluid nature of this country’s immigration laws. Having been ordered deportable, Garcia applied for a discretionary waiver from deportation under § 212(c) of the INA (then codified as amended at 8 U.S.C. § 1182(c), and since repealed). See Decision of Immigration Judge at 2. Confusingly, at the time Garcia applied, the plain text of § 212(c) suggested such a waiver was available only in instances of exclusion proceedings — that is, when an LPR who had left the country returned and was denied re-entry. See 8 U.S.C. §§ 1182(a), (c), repealed by Omnibus Consolidated Appropriations Act, 1997, Pub. L. 104-208, § 304(b), 110 Stat. 3009, 3009-597 (Sept. 30, 1996) (setting out conditions under which “excludable aliens ... shall be excluded from admission into the United States”). The parties do not provide any evidence suggesting Garcia entered exclusion proceedings after returning from abroad, and the address listed in his 1995 order to show cause, as well as that listed in the immigration judge’s 1996 decision, suggest he was incarcerated at the time he applied for the waiver. See Order to Show Cause at 1 (listing Plaintiffs address as “Avoyelles Parish Jail” in Marksville, LA); Decision of Immigration Judge at 1 (same). At first blush, then, Garcia’s seeking a § 212(c) exclusion waiver would seem to have been improper.
The Court presumes that the reason Garcia sought such a waiver is that at the time (1996), the relevant statute — 8 U.S.C. § 1182(c) — granted immigration judges considerably more discretion in waiving deportation or exclusion orders than did the equivalent waiver for aliens ordered deported from within the United States, then known as a § 244 waiver (since moved to § 237 of the INA and re-codified as amended at 8 U.S.C. § 1227). See Zamora-Mallari v. Mukasey,
The Court thus assumes that this is why Garcia’s immigration judge entertained his § 212(c) waiver absent any evidence of his having been found excludable. While § 212(c) has since been repealed in its entirety, see § 304(b),
So what has changed to motivate his suit today, nearly 20 years later? Although his Complaint does not say so, the recent reestablishment of diplomatic relations between Cuba and the United States — and the concomitant threat of deportation — is a likely catalyst. In any event, Garcia here does not challenge anything related to the adjudication of his second (and successful) 1990 I-485A application for adjustment of status to LPR. Instead, he claims that had the 1981 1-485A application been adjudicated “in 1981, [he] could have sought relief under [§ 212(e) ] to preserve his lawful permanent residence status at his deportation hearing.” Compl., ¶ 16. That date is crucial because if he had achieved permanent-resident status in 1981, it would have preceded his participation in criminal activities related to cocaine trafficking. He therefore would not have had to commit fraud or misrepresentation by lying about his criminal activities in order to qualify for LPR status during his 1981 adjustment-of-status process. Absent the fraud or misrepresentation, in turn, he may have been eligible to do the time warp again and apply for the discretionary § 212(c) waiver denied him in 1996, which could curtail his 1995 deportation order.
B. FOIA Request
To complicate matters still further, Plaintiff does not know what actually happened with his 1981 application. That mystery, in turn, led to a 2013 FOIA request, in which he sought a “complete copy of [his] Alien File (A-File),” the official record of all immigration transactions involving Garcia. See MTD/MSJ at 5 (quoting Notice (EOF No. 13), Exh. 1 (Decl. of Jill A. Eggleston), ¶ 8). Upon receipt of his request, USCIS conducted a computerized search and located Plaintiffs physical A-File, which it then scanned and reviewed. Id. On August 30, 2013, USCIS informed Garcia it had identified 419 pages responsive to his request; 263 were released in their entirety, 15 were released in part, and 5 were withheld in full. See Compl., ¶ 17. The balance of pages (136) originated with other federal agencies, and so USCIS referred 8 to the Federal Bureau of Prisons and 128 to Immigration and Customs Enforcement for their own responses. Id.; see also MTD/MSJ at 5-6.
Among the responsive documents in his A-File that USCIS released was a copy of the 1981 I-485A application, but no documentation demonstrating whether or how
Plaintiff did file an administrative appeal with USCIS on October 8, 2013, however, arguing that “a reasonably conducted search would have revealed the ultimate disposition of’ his case. See Compl., ¶ 17. USCIS in response released 3 additional pages, all entirely redacted but for the heading “Supplemental Release” and the page numbers. Id. Still dissatisfied, Garcia sought mediation by the Office of Government Information Services (OGIS), the federal FOIA Ombudsman that mediates disputes between FOIA requesters and federal agencies. Id., ¶ 18; Notice, Exh. 4 (OGIS Letter). On September 4, 2014, OGIS concluded the mediation without being able to assist Plaintiff in finding any record of an adjudication of his 1981 application. Id., ¶ 18; see also OGIS Letter.
C. Federal Lawsuit
Frustrated by his inability both to uncover what happened to his 1981 I-485A application and to forestall deportation, Plaintiff brought this suit against USCIS, Léon Rodriguez in his official capacity as Director of USCIS, and Jeh Johnson in his official capacity as Secretary of the Department of Homeland Security, the federal agency within which USCIS is housed. Garcia claims that USCIS has fallen short in one of its duties: either it has not satisfied its FOIA obligations to perform an adequate search for responsive documents, see Compl., ¶¶ 19-22, or, if no records exist, it has failed to fulfill its responsibility to adjudicate his 1981 1-485A application in a reasonable time. Id., ¶¶ 23-26. Plaintiff thus seeks relief under FOIA regarding records of his unresolved I-485A application, id., ¶ 5, and, in the alternative, he brings causes of action arising under the INA, the APA, and the federal mandamus provision to have this Court compel US-CIS to adjudicate his 1981 application. Id., ¶¶ 5-8.
Defendants respond with a combined Motion for Summary Judgment and Motion to Dismiss. Under the former, they seek judgment on Garcia’s FOIA claim, arguing that they have “satisfied all of their statutory obligations under the FOIA to conduct a reasonable search and produce all” relevant and non-exempt documents. See MTD/MSJ at 1. Under the latter, Defendants maintain that the Court lacks subject-matter jurisdiction over — and Plaintiff has failed to state a claim for relief on — the non-adjudication of his 1981 I-485A application. Id. The Court deals with each in turn.
Before doing so, it notes that a full month after Defendants filed their Reply, Plaintiff moved for leave to file a Sur-Reply. See ECF No. 20. Although this appears untimely, and Defendants oppose it, see ECF No. 22, the Court will nonetheless grant it and consider the arguments raised therein where relevant.
II. FOIA Claim
A. Legal Staridard
Defendants here move for summary judgment on Plaintiffs FOIA claim, which may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc.,
FOIA cases typically and appropriately are decided on motions for summary judgment. See Defenders of Wildlife v. Border Patrol,
Congress enacted the Freedom of Information Act in order “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose,
“Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’ ” Reporters Comm.,
B. Merits
Garcia’s only proper FOIA challenge is that USCIS failed to perform an adequate search for responsive documents. See Compl., ¶¶ 19-22. In such a circumstance, “[a]n agency fulfills its obligations
The adequacy of an agency’s search for documents requested under FOIA “is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To meet its burden, the agency may submit affidavits or declarations that explain the scope and method of its search “in reasonable detail.” Perry v. Block,
The undisputed facts in this case show that on July 30, 2013, Garcia submitted a FOIA request to USCIS for a “complete copy of Plaintiffs Alien File (A-File),” which is “the official government record that contains information regarding transactions involving an individual as he/she passes through the U.S. immigration and inspection process.” Eggleston Decl., ¶¶ 8, 10 n.2; see also 76 Fed. Reg. 34,233, 34,234 (June 13, 2011) (describing A-File record-keeping system). As explained above, US-CIS located the file, scanned it, identified 419 pages of responsive materials, and released the vast majority to Plaintiff. Garcia here challenges neither the referral of certain of these records to other agencies nor the specific exemptions USCIS and ICE relied on in withholding certain documents.
Instead, Plaintiffs claim relates solely to the adequacy of the search. See Compl. at 8. He remains convinced that USCIS has not conducted a thorough search for responsive documents because among the documents the agency released to Garcia was his 1981 Form I-485A Application, dated October 19, 1981, and stamped “UPFRONT PROCESSED,” “indicating that Mr. Garcia was interviewed in connection with the application.” Eggleston Deck, Exh. D (FOIA Appeal (October 8, 2013)) at 1. Yet “the 278 pages released by USCIS contain no indication of adjudication of the application.” Id. Plaintiff thus contends that a “reasonably conducted search would have revealed the ultimate disposition of Plaintiff Garcia’s application.” Compl., ¶ 17.
In so arguing, Plaintiff heavily relies on an apparent disparity between the assertions of USCIS, the agency that initially handled his FOIA request, and OGIS, the agency to which he appealed USCIS’s FOIA productions. OGIS informed Plaintiff in a September 4, 2014, letter that it had conducted an inquiry with USCIS and had confirmed both that the original search determined that “the A-file did not contain the Form I-485A,” and that “US-CIS ran another search and did not locate any documents responsive to [Plaintiffs] request, including Mr. Garcia’s Form I-485A.” OGIS Letter at 2. Plaintiff explains that “OGIS’s statement that the Form I-
Given the other language of the letter, and letter’s acknowledgement that counsel’s request for review was only concerned with “the disposition of the Form I-485A filed on behalf of [Plaintiff],” see Exhibit — [sic] at p. 2, it is far more likely that OGIS was stating that a Form I-485A with approval was not located.”
MTD/MSJ at 7 n.3.
Whether this reasonable explanation is true or not, OGIS has no independent access to the underlying records in question; “OGIS has no investigatory or enforcement power, nor can [it] compel an agency to release documents. OGIS serves as the Federal FOIA Ombudsman and [its] jurisdiction is limited to assisting with the FOIA process.” OGIS Letter at 1. Whatever records OGIS reviewed, then, are the same records USCIS reviewed — and the same ones USCIS either provided to Plaintiff or withheld under a FOIA exemption. And as shown by USCIS’s Vaughn Index — the document that provides a description of each partially or fully withheld page and the exemption claimed for such withholding — none of the 18 pages withheld in part or 2 pages withheld in full is a document related to the ultimate disposition of Plaintiffs 1981 I-485A application. See Eggleston Deck, Exh. G (Vaughn Index). OGIS’s statement thus has no bearing on whether USCIS fulfilled its legal obligations under FOIA.
At bottom, what USCIS must demonstrate “beyond material doubt is that it has conducted a search reasonably calculated to uncover all relevant documents.” Weisberg v. Dep’t of Justice,
Garcia puts forward two additional arguments for the inadequacy of USCIS’s search in his Response, but each falls equally short. First, he contends that the agency searched only for the paper copy of his A-File, not a possible electronic copy. See Response at 5-6. As Defendants explain in their Reply, however, not all A-Files are digitized. See Reply at 7 (citing Notice of Update and Reissuance of Privacy Act System of Records, 78 Fed. Reg. 69,864 (Nov. 21, 2013)). Indeed, when US-CIS searched the NFTS database for Plaintiffs A-File, it obtained the physical location of the file, and there was no indication it had been digitized; had it been,
Plaintiff also raises concerns about other possibly missing documents, including any potential contents of his T-File — a temporary file — and the scan of the “hard jacket cover” folder of his A-File. See Response at 6. Defendants respond that if a T-File existed for Plaintiff, USCIS’s search for his A-File would have yielded it, because when an A-File is created, documents in the T-File are permanently consolidated into it. See Welsh Decl., ¶5. As to the “hard jacket cover,” it was not scanned initially because such jackets are scanned only if they “contain[] substantive information ....” Id., ¶ 11; see also Reply at 8-9. It was subsequently released, however, and inspection of the document confirms that it yields no substantive information. See Reply, Exh. 14 (File Folder).
The Court thus concludes that USCIS has conducted an adequate search. After all, “the relevant issue ‘is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.’ ” Schrecker v. U.S. Dep’t of Justice,
One other note. Plaintiff also seeks in
camera
review of agency records, arguing that inconsistencies in what US-CIS has released suggests that it is holding something back. See Response at 8-9. The parties trade arguments as to whether Garcia failed to exhaust administratively his
in camera
request in his FOIA agency appeal. See Reply 12-13; Sur-Reply at 1-8. Yet the Court need not resolve this dispute, because a larger problem emerges: Plaintiff has never claimed that documents specified in the Vaughn Index were improperly withheld under particular FOIA exemptions. Instead, Count I of his Complaint is titled “The USCIS Failed to Perform an Adequate Search for Responsive Documents.” Compl. at 8. He nonetheless now seeks blanket
in camera
review of “all agency records.” Response at 8 (emphasis added). This is plainly not how
in camera
review should
be
entertained in the context of FOIA. Rather, such review is only appropriate where a litigant properly challenges specific exemptions used to justify withholdings, something Plaintiff has not done here. See Ray v. Turner,
Garcia instead simply recites documents he would
like
— e.g., “electronic files maintained about the plaintiff’ and any documents anywhere located that relate to his 1981 I-485A application — ignoring Defendants’ answers that such documents could not be found in the places he asked to be
The Court consequently holds that whether or not Plaintiffs I-485A application was actually adjudicated, summary judgment will be entered for Defendants on Plaintiffs FOIA cause of action alleging inadequate search.
III. Duty to Adjudicate 1981 Application
Assuming, then, that no document exists indicating that a decision on Garcia’s 1981 application was ever rendered, the Court next turns to his claims concerning the application itself. To reiterate, Plaintiff seeks a Court order requiring USCIS to adjudicate his 1981 I-485A application under the facts and law as they existed in that year. See Compl. at 9-10. Garcia brings causes of action arising under the INA itself, the APA, and the statutory mandamus provision. Id., ¶¶ 5-8. As to the first of these, Plaintiff asserts that the INA, 8 U.S.C. § 1103, imposes on USCIS a “duty to adjudicate applications for adjustment status within a reasonable time,” id., ¶ 8, something he believes the agency has not done with his 1981 I-485A application. Id., ¶ 4. Second, Garcia relies on the APA, which “empowers district courts to ‘compel agency action unlawfully withheld or unreasonably delayed.’ ” Id., ¶ 6 (quoting 5 U.S.C. § 706(1)). Finally, he alleges a claim under the federal mandamus provision, which grants federal district courts original jurisdiction over “ ‘any action in the nature of mandamus.’ ” Id., ¶ 7 (quoting 28 U.S.C. § 1361). As the Court decides this issue on jurisdictional grounds, it sets forth that legal standard before proceeding to its analysis.
A. Legal Standard
In evaluating Defendants’ Motion to Dismiss, the Court' must “treat the complaint’s factual allegations as true ... and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc.,
To survive a motion to dismiss under Rule 12(b)(1), a plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear his claims. See DaimlerChrysler Corp. v. Cuno,
B. Jurisdiction
In seeking dismissal here, Defendants raise a host of jurisdictional arguments, but the Court need only address the first, which concerns standing. See Am. Library Ass’n v. FCC,
1. Standing and Mootness
Defendants’ first line of defense relates to Garcia’s ability to maintain his lawsuit altogether: they argue that “Plaintiffs immigration-related claim became moot when, on April 19, 1991, USCIS’s predecessor organization (the INS) adjudicated Plaintiffs 1990 1-485 Application.” MTD/MSJ at 24. While they are correct in stating that where “the relief a plaintiff seeks has already been obtained, a federal court must dismiss the action as moot,” id. the Court believes the circumstances of this case are more properly characterized as issues of standing rather than mootness.
The two concepts are “inter-related judicial doctrines” that “ensure that federal courts assert jurisdiction only over ‘Cases’ and ‘Controversies.’ ” Worth v. Jackson,
Given that both doctrines implicate the need for a plaintiff to demonstrate he has standing, the Court will briefly recite the constitutionally required tripartite standard. First, he “must have suffered an injury in fact — an invasion of a legally-protected interest which is (a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical .... ” Lujan v. Defenders of Wildlife,
As stated above, whereas a standing inquiry is concerned with the presence of injury, causation, and redressability at the time a complaint is filed, a mootness inquiry scrutinizes the presence of these elements after
filing
— ie., at the time of a court’s decision. See La Botz v. Fed. Election Comm’n,
In light of this distinction, the Court finds USCIS’s defense is more properly construed as one of standing rather than mootness, inasmuch as Garcia’s 1990 application was processed on April 19, 1991, long before he filed his federal lawsuit seeking to have his 1981 application adjudicated. See Compl. (filed May 18, 2015). Neither his legal status nor the status of his 1981 application appears to have changed since he initiated suit. Since the alleged actions that “moot” Plaintiffs claim all took place before he brought his lawsuit, therefore, Defendants’ justiciability argument is better characterized as one of standing. See Advanced Mgmt. Tech., Inc. v. FAA,
2. Injury and Redressability
The thrust of Defendants’ justiciability argument is that Plaintiff has no cognizable injury because an I-485A application for his adjustment of status to LPR has already been adjudicated. See MTD/MSJ at 24. They contend that the adjudication of his 1990 application vitiated any remaining need he had for adjudication of the earlier 1981 application. Id. at 25 (“Here, there is no action left to perform because the 1981 1-485 Application became moot at the very moment the INS issued a decision on Plaintiffs subsequent 1-485 Application [in 1991].”). In other words, because the relief he sought in his 1981 application was the relief he actually received from his 1990 application — albeit short-lived — there is nothing left for the Court to do. Bolstering this position is the fact that when INS adjusted Garcia’s status to that of LPR in 1991, it made this adjustment retroactive to January 1, 1982. See MTD/MSJ at 4; Decision of Immigration Judge at 2. There would be no reason — and Plaintiff has offered none — for his 1990 application to warrant retroactive adjustment to that date unless INS had credited the fact of his previous 1981 application. See Compl., ¶ 6.
Plaintiffs alleged injury, in fact, is more nuanced than the mere lack of a hearing on an I-485A application. He pleads that
[i]f [his] application filed in 1981 had been adjudicated within a reasonable time, it would have been adjudicated when he was clearly eligible for the adjustment and before his disqualifying criminal activity in 1990. In deportation proceedings as a permanent resident, Mr. Garcia would have been eligible to seek relief under [§ 212(c) ] to avoid a deportation order.
Id., ¶ 25. In other words, INS’s delay on his 1981 application caused him harm because it ultimately deprived him of subsequent eligibility for a discretionary § 212(c) waiver today. But his injury consists of more than INS’s failure to adjudicate his 1981 application; after all, a grant of LPR status would not by itself cancel his order of deportation. Such LPR status must also be accompanied by a grant of the discretionary § 212(c) waiver for Garcia to avoid deportation.
Given this more specific harm that Plaintiff alleges, the Court believes his standing problem is better articulated as one of redressability rather than one of injury. Garcia’s ultimate harm — his looming deportation — cannot be avoided unless he obtains a § 212(c) waiver, and he needs the Court’s help in getting it. Absent an eventual grant of such waiver, the mere adjudication of his 1981 application would not alter his status as deportable. At the end of the day, however, since the Court cannot force USCIS to provide the relief Plaintiff seeks — it can only offer him an outside chance — it cannot redress his injury. The Court now explains how far-flung Plaintiffs theory of relief is because “it must be likely, as opposed to merely speculative, that [his] injury will be redressed by a favorable decision.” Lujan,
Preliminarily, there is no guarantee that his 1981 application would yield a successful adjustment of status to LPR; for any number of reasons, USCIS could deny it. No applicant is assured adjustment of status, and this Court has no power to order USCIS to issue it, given the lack of jurisdiction federal courts have over all discretionary decisions made by the Attorney General and the Secretary of Homeland Security concerning immigration status matters. See 8 U.S.C. § 1252(a)(2)(B) (“[N]o court shall have jurisdiction to review — (i) any judgment regarding the granting of relief under section ... 1255 of this title [“Adjustment of status of nonim-migrant to that of person admitted for permanent residence”], or (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security ... for which is specified ... to be in the discretion of the Attorney General or the Secretary of Homeland Security ....”).
Even if Garcia did obtain adjustment of status to LPR, furthermore, that would not get him across home plate. He would still need his order of deportation nullified via the § 212(c) waiver. Like adjustments of status, waivers from deportation under § 212(c) were granted discretionar-ily. Even if an immigration judge finds that Plaintiff has lawfully obtained his permanent-resident status — and therefore is at least not ineligible for a § 212(c) waiver on that basis — there is no guarantee she would grant him the waiver on the equities. And without it, Garcia remains deportable. This discretion renders too speculative the possibility that the relief Plaintiff can obtain here will redress the injury he has suffered, as he has not established any reason to believe he would be successful in obtaining the waiver.
For § 212(c) waivers, “[t]he burden [was] on the applicant to establish that a grant of a waiver ... [was] warranted in the exercise of discretion,” In re Mendez-Moralez, 21 I. & N. Dec. 296, 299 (BIA
The Court is doubtful — given Plaintiffs previous record- of fraudulent and misleading behavior, coupled with his criminal conviction for drug trafficking — that an immigration judge would grant such discretionary relief. Plaintiff himself has not alleged that such judge could turn a blind eye to his cocaine-trafficking conviction and his previous mistruths in his 1990 I-485A application. The Court thus does not find it likely that the order he asks for— adjudication of his 1981 application — would ultimately remediate the harm he seeks to prevent — viz., his deportation. As such, Plaintiff has not stated an injury redressa-ble by the Court and thus cannot establish that he has standing to bring this suit.
3. Nunc Pro Tunc
Garcia faces yet another Roadblock in seeking to establish the redressability of his claim — namely, the extraordinary remedy he seeks from this Court. He cannot even roll the dice for his longshot discretionary bid unless this Court grants him a far-reaching equitable reprieve in the form of
nunc pro .tunc.
This is because the law and facts as of 2016 preclude Garcia from both applying for and obtaining LPR status as well as seeking and obtaining a § 212(c) waiver.
“Nunc pro tunc,
Latin for ‘now for then,’ refers to a court’s inherent power to enter an order having retroactive effect.” Iouri v. Ashcroft,
a. Availability
As a threshold matter, the reach of federal courts to grant
nunc pro tunc
relief in immigration cases is unsettled. It remains an open question whether federal courts sitting in equity may use
nunc pro tunc
as broadly as the BIA itself does in immigration matters, for outside of the immigration context,
nunc pro tunc
has been an “equitable remedy traditionally used to apply to a court’s own [prior] order or judgment retroactively.” Ethyl Corp. v. Browner,
Although the D.C. Circuit has not ruled on the propriety of
nunc pro tunc
relief in the quest for since-repealed § 212(c) waivers, other circuits have split as to the availability of such a remedy. Compare Edwards v. I.N.S.,
This leads to another problem for Garcia. As one Circuit put it:
[T]he instances in which such [nunc pro tunc] relief could be granted have been limited to those in which the grant would effect a complete disposition of the case, i.e., where the only ground of deportability or inadmissibility would thereby be eliminated or where the alien would receive a grant of adjustment of status in conjunction with the grant of any appropriate waivers of inadmissibility.
Perez-Gonzalez v. Ashcroft,
Here, by contrast, the error Plaintiff alleges is unrelated to the relief he ultimately seeks. The error is that USCIS wrongly failed to adjudicate his 1981 I-485A application, but the injury Garcia ultimately seeks to redress is his denial of access to a § 212(c) waiver. Ordering US-CIS to adjudicate the 1981 application
nunc pro tunc
would not “effect a complete disposition” of his claim, see Perez-Gonzalez,
Given these considerations, the Court does not believe nunc pro tunc relief is available to remediate the harm Plaintiff hopes to avoid, and so any order from this Court would do nothing to redress his narrowly alleged injury.
b. Breadth of Relief Sought
Even assuming the availability of
nunc pro tunc
here, the form of relief Garcia seeks is exceptionally broad, as he faces several timing-related challenges. His first hurdle is that, as of today, he would not even be eligible for adjustment
This remedy is not only extraordinary, but it would also require USCIS to ignore its own adjustment-of-status procedures. As Defendants point out in their Reply, DHS’s regulations require that “[a]n application or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication.” 8 C.F.R. § 103.2(b)(1) (emphasis added); see also Reply at 16. An “immigration benefit application” includes “any application or petition to confer, certify, change, adjust, or extend any status granted under the Immigration and Nationalization Act.” 8 U.S.C. § 1572(2) (emphasis added). This includes applications to adjust an alien’s status to that of permanent resident. As a result, even if Garcia were eligible for the immigration benefit — LPR status- — as of the time he filed (in 1981), the regulation requires that he continue to be eligible until the time the status is granted — ie., today. The Court would therefore also have to order USCIS to turn a blind eye to his subsequent criminal activities.
And Garcia’s need for
nunc pro tunc
relief does not stop there. Even if he did obtain LPR status, he would remain ineligible for a § 212(c) waiver today because such waivers no longer exist, having been repealed in 1996. See 8 U.S.C. § 1182(e), repealed by § 304(b),
c. Equities
Even if it were proper for the Court to grant
“nunc pro tunc
relief[, it] ‘should be granted or refused[ only] as justice may require.’ ” Edwards,
Plaintiff does not come before this Court with clean hands, a chief consideration in the weighing of equitable remedies. See Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co.,
Plaintiffs equitable claim is also weakened by his own delays, limiting his ability to contend that the injustice arose due only to agency delay. Cf. Iouri v. Ashcroft,
Garcia tries to shift the balance of the equities by arguing that “the fault in failing to adjudicate plaintiffs application lies solely with the defendants,” see Sur-Reply at 15, but this is not true. Plaintiff has not provided any evidence that he or his family ever contacted INS between 1981 and 1990 to determine the status of the 1981 application, or that he raised the issue at his deportation hearing or during his § 212(c) waiver hearing. Indeed, rather than seek adjudication of his first application in 1990, he effectively abandoned it by applying anew with a second application, obtaining retroactive relief under that later application all the way back to January 1, 1982. By all accounts, Plaintiff was satisfied with the outcome of his adjustment of status until it was revoked on account of his drug-trafficking activities. Whatever injury Plaintiff has experienced from the delay on his 1981 application, he appears to have made no effort until this lawsuit to remediate it. To now come into court decades later and claim injustice seems a stretch. The weighing of the equities, therefore, tilts decidedly in Defendants’ favor.
When all is said ■ and done, Plaintiffs only hope for relief requires the Court to string together a considerable series of counterfactuals so that Garcia can retroactively obtain LPR status at a time before his drug conviction rendered him ineligible. To wit, he needs the Court in 2016 to grant him an adjustment of status as if it were 1981, so that he can pursue a waiver that was repealed in 1996 — without being disqualified by unlawful actions he engaged in back in 1990. And even if the Court did weave such a complex legal rewriting of history, there is no guarantee such a discretionary remedy would be granted to him, particularly given the demonstrable evidence that he has previously been dishonest in seeking adjustment of
Because the Court finds that Plaintiff lacks standing to seek relief, it need not tackle the complicated legal arguments as to whether it hás jurisdiction under the INA, APA, or federal mandamus provision, nor resolve the statute-of-limitations issues raised by Defendants. See Am. Library Ass’n v. FCC,
IV. Conclusion
While the Court’s path through this country’s immigration laws has been tortuous, the outcome is straightforward: no remedy is available to Plaintiff here. Defendants have demonstrated that they have fulfilled their search obligations on Garcia’s FOIA request, and Plaintiff lacks standing to ask this Court to order USCIS to adjudicate his outstanding 1981 I-485A application for adjustment of status. The Court will, accordingly, issue a contemporaneous Order granting Defendants’ Motion to Dismiss and Motion for Summary Judgment.
Notes
. In Defendants' Combined Motion to Dismiss and Motion for Summary Judgment, they state that Plaintiff’s I-485A application was granted on April 19, 1991, see MTD/MSJ at 4, although they point to the date of April 19, 1992, in their Reply. See Reply at 19. Other documents including the 1995 Order to Show Cause and the 1996 Decision of Immigration Judge, also use the April 19, 1992, date.