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Gil v. Holston

United States District Court, W.D. North Carolina, Charlotte Division

August 23, 2019

ROSA GIL, DANTE GIL, ADA ARGUETA, Plaintiffs,
v.
LEANDER HOLSTON, KIRSTJEN NIELSEN, FRANCIS CISSNA, Defendants.

          ORDER

          Graham C. Mullen United States District Judge

         THIS MATTER COMES before this Court on both Plaintiffs' and Defendants' separate Motions for Reconsideration (Docs. No. 23, 25) of the Court's April 2, 2019 Order. (Doc. No. 19). On May 1, 2019, the Court entered an Order staying the April 2 Order pending resolution of the instant Motions for Reconsideration. Due to misapprehension in issuing the original Order, the Court will GRANT IN PART and DENY IN PART the pending Motions for Reconsideration. The Court WITHDRAWS the Order issued on April 2, 2019 (Doc. No. 19) and enters the following Order in its place.

         I. FACTUAL BACKGROUND

         The facts in this matter are undisputed. Plaintiff Dante Gil is the biological father of Plaintiff Ada Argueta. Plaintiff Rosa Gil is the ex-spouse of Plaintiff Dante Gil. All three Plaintiffs are citizens of the Dominican Republic. Dante and Rosa Gil entered the United States at San Juan, Puerto Rico, on March 10, 1999, on Temporary Nonimmigrant Religious Worker visas with authorization to remain in the United States until November 12, 1999. On November 8, 1999, Dante Gil's father filed a Form I-130, Petition for Alien Relative, on Gil's behalf, seeking to classify him as a 3rd preference married son of a U.S. citizen.

         On December 19, 2003, at the age of 14, Ada Argueta entered the United States on a B-2 visitor's visa, with authorization to remain in the United States until June 16, 2004. On May 25, 2005, the United States Citizenship and Immigration Services (“USCIS”) approved the 3rd preference I-130 petition filed on Dante Gil's behalf. On December 2, 2007, all three Plaintiffs filed Form I-485, Application to Register Permanent Residence or Adjust Status, pursuant to INA § 245(a). Each application indicated that the applicant had overstayed their prior visa. All three Plaintiffs were represented at the time by an immigration attorney. On September 23, 2008, USCIS approved all three I-485 applications.

         Each Plaintiff filed an N-400, Application for Naturalization, pursuant to the Immigration and Nationality Act (INA) § 316, 8 U.S.C. § 1427 (Ada Argueta on November 13, 2013, Rosa Gil on December 9, 2013, and Dante Gil on January 1, 2014). USCIS denied each N-400 application (Rosa Gil on March 17, 2014, Ada Argueta on March 21, 2014, Dante Gil on April 24, 2014) on the basis that Plaintiffs were not lawfully admitted for permanent residence as required by INA § 318, 8 U.S.C. § 1429, because each Plaintiff adjusted status under INA § 245(a), when in fact they were each ineligible to adjust status under that section of law due to their prior failure to maintain lawful immigration status in the United States since their entries. INA § 245(c); 8 U.S.C. § 1255(c). Plaintiffs did not pay the required fee under INA § 245(i) nor did they submit Supplement A.

         Despite being required by 8 C.F.R. § 245.10(d) to provide Plaintiffs with notice of the deficiency in their applications, Defendants never provided any notice that Plaintiffs' applications for adjustment of status were deficient. Rather, Defendants erroneously approved the applications.

         All three Plaintiffs filed a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Rosa Gil and Ada Argueta on April 10, 2014, Dante Gil on May 9, 2014). Plaintiffs each appeared for a hearing on November 10, 2014, and on December 4, 2017, USCIS issued decisions affirming the denials of the N-400 applications. This Court held a de novo hearing in this matter on April 2, 2019. Subsequently, the Court entered an Order in the matter. The Parties each filed Motions for Reconsideration of that Order. The Court will discuss the Motions below.

         II. MOTION FOR RECONSIDERATION

         A district court may reconsider a final order for a number of reasons, including mistake, inadvertence, or any reason that justifies such relief. Fed.R.Civ.P. 60(b). The court should reconsider an order if, for example, “the Court has patently misunderstood a party, … or has made an error not of reasoning but of apprehension.” Above the Belt, Inc. v. Mel Bohannan Roofing, Inc, 99 F.R.D. 99, 101 (E.D.VA. 1983). Motions to reconsider are not appropriate to ask the Court to rethink what the Court had already thought through-rightly or wrongly. Id.

         In the April 2, 2019 Order, the Court operated off the mistaken understanding that if Plaintiffs were allowed to refile for lawful permanent resident status (“LPR status”) under 8 U.S.C. §1255(i), Plaintiffs would be eligible for naturalization after the running of the appropriate statutory waiting period. However, for the reasons stated in the Motions to Reconsider, it is now apparent to the Court that the April 2 Order would not accomplish the Court's intent. Due to this misapprehension, the Court withdraws that Order. The Court enters the following Order in its place.

         III. ORDER ON NATURALIZATION

         “Courts review a decision denying a naturalization application de novo.” Injeti v. U.S. Citizenship & Immigration Servs., 737 F.3d 311, 315 (4th Cir. 2013).; see 8 U.S.C. § 1421(c). To qualify for naturalization, an applicant bears the burden of establishing, among other prerequisites, that she has resided continuously in the United States for at least five years after being “lawfully admitted for permanent residence.” 8 U.S.C. §1427(a).

         “The term ‘lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws.” 8 U.S.C. § 1101(a)(20). The Fourth Circuit has adopted the definition of “lawfully” as denoting “compliance with substantive legal requirements, not mere procedural regularity.” Injeti, 737 F.3d at 315. “Even in cases where there is no indication of fraud, an alien has not been lawfully admitted if her admission, at the time it was granted, was not in substantive compliance with the immigration laws.” Id. at 316 (internal quotations omitted). The Fourth Circuit cited approvingly of a case from the Eighth Circuit where the Court found ‚Äúthat ...


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