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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION TERESA D. PADILLA, JOSE LUIS and § MARIA EVA GUZMAN, JAIME SANCHEZ § MALDONADO, ANITA DE ALVA § MASCORRO, ROBERTO CARRERA, ISAIAS § TOSCANO MONTEMAYOR, ISAUL § TOSCANO MONTEMAYOR, ISAEL § TOSCANO MONTEMAYOR, MARIANELA § POLNICK, ANSELMO MEDINA REMIGIO, § YOMI BOMBATA, ROBERT CELOVSKY, § SAHCHART TANCOOMTONG, RICARDO § ROMERO-CABRERA, YORLINE ROMERO- § YANEZ, DIVYESHBHAI G. BHAKTA, § ISAAC S. GALICIA-GONZALEZ, HECTOR § MALDONADO, AYMAN MUSTAFA ALI § MAHMOUD, individually and on behalf of § all others similarly situated, § § Plaintiffs, § § vs. § CIVIL NO. § TOM RIDGE, Secretary for Homeland Security, § EDUARDO AGUIRRE, JR., Acting Director for § the Bureau of Citizenship and Immigration § Services, KENNETH PASQUARELL, Interim § Regional Director for the Bureau of Citizenship § and Immigration Services, MICHAEL § TROMINSKI, Interim District Director for § the Harlingen BCIS District, SHARON § HUDSON, Interim District Director for the § San Antonio BCIS District, and HIPOLITO § ACOSTA, Interim District Director for the § Houston BCIS District, § § Defendants. §
COMPLAINT FOR MANDAMUS, DECLARATORY
AND INJUNCTIVE RELIEF
Plaintiffs Teresa D. Padilla, Jose Luis and Maria Eva Guzman, Jaime Sanchez
Maldonado, Anita De Alva-Mascorro, Roberto Carrera, Isaias Toscano Montemayor, Isaul
2
Toscano Montemayor, Isael Toscano Montemayor, Marianela Polnick, Anselmo Medina
Remigio, Yomi Bombata, Robert Celovsky, Sahchart Tancoomtong, Ricardo Romero-
Cabrera, Yorline Romero-Yanez, Divyeshbhai G. Bhakta, Isaac S. Galicia-Gonzalez, Hector
Maldonado, Ayman Mustafa Ali Mahmoud, and a class of similarly situated persons file this
class action complaint for mandamus, declaratory and injunctive relief to protect the
constitutional and statutory rights of lawful permanent residents (LPRs) who were or will be
granted lawful permanent resident status by the Harlingen, Houston, and San Antonio
Immigration Courts.
Plaintiffs are immigrants in Texas who were granted LPR status in removal
proceedings.1 For a variety of reasons, Defendants placed Plaintiffs in removal proceedings
seeking to deport them.2 At their removal hearings, Plaintiffs were successful in securing
relief from removal through either cancellation of removal, Immigration and Nationality Act
(“INA”) § 240A(b), 8 U.S.C. §§ 1229b(b), or adjustment of status to that of LPRs, INA §
245, 8 U.S.C. § 1255. In granting relief from removal, an Immigration Judge considered
Plaintiffs’ eligibility to become lawful permanent residents and accorded them such status.
Although declared lawful permanent residents, Plaintiffs were provided with
inadequate documentation of their LPR status. Plaintiffs were given only the Immigration
Judge’s order granting them relief from removal. Such documentation is inadequate for the
purpose of demonstrating proof of their LPR status and right to work and violates Plaintiff’s
statutory and constitutional rights.
1 With the exception of Plaintiffs Isaias, Isaul and Isael Toscano Montemayor, all the named plaintiffs reside in Texas. The Toscano Montemayors’ immigration cases are under the administrative control of the Harlingen BCIS District Office. 2 As used herein, the term "removal" and “deportation” are used interchangeably to refer to the expulsion of immigrants who previously entered the United States.
3
As LPRs, Plaintiffs have acquired all the rights and obligations federal law accords
persons with legal permanent resident status. Plaintiffs are lawfully in the United States and
have the right to secure employment, apply for some public benefits, enroll in a public
college, and travel abroad. Plaintiffs, however, cannot fully enjoy these rights. Moreover,
Plaintiffs live in fear of being stopped by state or federal officials and required to
demonstrate lawful status in the United States. Plaintiffs fear that some officials will not
credit their claim to lawful status and that Plaintiffs will be detained for an indeterminate
amount of time.
Plaintiffs seek mandamus, declaratory and injunctive relief requiring Defendants to
issue Petitioners and class members with proper documentation of their LPR status pending
receipt of their permanent alien registration cards.
I. JURISDICTION
1. This action arises under the Constitution of the United States, the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., as amended by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L.
No. 104-208, 110 Stat. 1570, and the Administrative Procedure Act (“APA”), 5
U.S.C. § 701 et seq. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1361, and
2201. This Court may grant relief pursuant to 28 U.S.C. §§ 1361, 2202, and 5 U.S.C.
§ 702 et seq.
4
II. VENUE
2. Venue lies in the United States District Court for the Southern District of Texas
because at least one defendant in this action resides in such district. 28 U.S.C. §
1391(e).
III. PARTIES
3. Plaintiffs and class members are lawful permanent residents of the United States and
are protected by the Due Process Clause of the Fifth Amendment. Plaintiffs acquired
their LPR status while in removal proceedings. However, they have not been given
adequate documentation evidencing their LPR status and their right to work in the
United States.
4. Michael Trominski is the Interim Bureau of Citizenship and Immigration Services
(“BCIS”) District Director of the Harlingen District of the BCIS. In his capacity as
Interim BCIS District Director, Mr. Trominski administers the immigration laws on
behalf of the Secretary for Homeland Security (hereinafter “Department of Homeland
Security or DHS”) in the seven (7) southernmost counties in Texas that are served by
the Harlingen District. In his position, he has decision-making authority with respect
to the matters alleged in this complaint by Plaintiffs and class members whose
immigration cases are in the control of the Harlingen District Office.
5. Hipolito Acosta is the Interim BCIS District Director of the Houston District of the
BCIS. In his capacity as Interim BCIS District Director, Mr. Acosta administers the
immigration laws on behalf of the Secretary for DHS in the 30 counties in south-
eastern Texas that are served by the Houston District. In his position, he has
decision-making authority with respect to the matters alleged in this complaint by
5
Plaintiffs and class members whose immigration cases are in the control of the
Houston District Office.
6. Sharon Hudson is the Interim BCIS District Director of the San Antonio District of
the BCIS. In her capacity as Interim BCIS District Director, Ms. Hudson administers
the immigration laws on behalf of the Secretary for DHS in the 78 counties in central
and south Texas that are served by the San Antonio District. In her position, she has
decision-making authority with respect to the matters alleged in this complaint by
Plaintiffs and class members whose immigration cases are in the control of the San
Antonio District Office.
7. Kenneth Pasquarell is the Interim BCIS Regional Director for the central region. In
his capacity as Interim BCIS Regional Director, Mr. Pasquarell administers the
immigration laws on behalf of the Secretary for DHS in several states, including
Texas. As such, he has decision-making authority with respect to the matters alleged
in this complaint by Plaintiffs and class members whose immigration cases are in the
control of the Harlingen, Houston and San Antonio district offices.
8. Eduardo Aguirre, Jr., is the Acting Director of BCIS of the DHS. In his capacity as
Acting Director of BCIS, Mr. Aguirre is responsible for the administration of
immigration benefits and services including the processing of citizenship
applications, family and employment-based petitions, alien registration, asylum and
refugee processing, and issuance of documentation evidencing immigration status of
immigrants residing in the United States. As such, he has decision-making authority
over the matters alleged in this complaint, specifically BCIS’s failure to provide
6
documentation to Plaintiffs and class members of their LPR status in the United
States and authorization to work.
9. Tom Ridge is the Secretary of Homeland Security. Secretary Ridge is charged with,
among other things, administering the BCIS and the implementation and enforcement
of the Immigration and Nationality Act. As such, he has ultimate decision-making
authority over the matters alleged in this complaint, specifically BCIS’s failure to
provide documentation to Plaintiffs and class members of their LPR status in the
United States.
IV. CLASS ALLEGATIONS
10. Pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), Plaintiffs bring this action on behalf of
themselves and all other similarly situated individuals. The plaintiff-class consists of:
A. All persons who were or will be granted lawful permanent resident
status in removal proceedings in the Harlingen, Houston and San Antonio
Districts of the BCIS and to whom BCIS fails to issue temporary
documentation evidencing lawful permanent resident status.
11. The class is so numerous that joinder of all members is impracticable. The number of
individuals within the Harlingen, Houston and San Antonio BCIS Districts who are
granted relief from deportation is not known with precision and fluctuates. In
addition, Petitioners seek to define the class to include future class members so the
actual number will continue to increase.
12. Moreover, class members reside anywhere in the 115 counties served by the
Harlingen, Houston and San Antonio BCIS Districts. The Harlingen District serves
7
the 7 counties in the southern tip of Texas; the Houston District serves 30 counties in
south-eastern Texas; and, the San Antonio District serves 78 counties in central and
south Texas. The resultant difficulties in contacting and communicating with
members of the class make joinder of all class members impractical.
13. There are questions of law and fact that are common to the named plaintiffs and class
members. Common questions of law include whether BCIS may deny proof
evidencing LPR status to persons granted such status in removal proceedings and
whether Defendants’ delays in granting proof of LPR status to class members are
unreasonable and unlawful. Common questions of fact include whether BCIS is
failing to provide class members with documentation evidencing their LPR status and
whether the BCIS is delaying in granting documentation of LPR status to class
members.
14. The claims of the named plaintiffs are typical of the claims of the class. Plaintiffs
know of no conflict between their interests and those of the class they seek to
represent. In defending their own rights, the individual plaintiffs will defend the
rights of all proposed class members.
15. The named plaintiffs are adequate representatives of the class.
16. Defendants have acted on grounds generally applicable to each member of the class
insofar as they have failed to provide to class members adequate documentation of
their LPR status.
V. LEGAL FRAMEWORK
17. Plaintiffs are immigrants who were placed in removal proceedings as provided under
the INA.
8
18. Removal proceedings are conducted under the auspices of the Executive Office for
Immigration Review which is under the U.S. Department of Justice. 8 C.F.R. §§ 3.0
(describing the organizational structure of EOIR), 3.9-3.44 (describing the
Immigration Court and the rules of procedure for removal proceedings).
19. Generally, removal proceedings are initiated with the service of a “Notice to Appear”
to the immigrant where he or she is advised of, among other things, the nature of the
proceedings, the charges of deportability against him or her, the time and place at
which the proceedings will be held, and the consequences for failing to appear. 8
U.S.C. § 1229(a).
20. The “Notice to Appear” is then filed with the Immigration Court by representatives of
the Attorney General. 8 C.F.R. § 3.14. The filing of the “Notice to Appear” vests
jurisdiction on the Immigration Court. Id.
21. The immigrant, and her counsel if represented, makes an appearance at a master
calendar hearing and the case is set for a merits hearing at a later date. 8 C.F.R. §§
3.17-3.21.
22. If the immigrant is determined to be deportable, she may seek several forms of relief
from deportation. Adjustment of status and cancellation of removal under 8 U.S.C. §
1229b(b) are the primary forms of relief relevant to this litigation.
23. An immigrant in removal proceedings can obtain relief from deportation by adjusting
her status to that of a lawful permanent resident. 8 U.S.C. § 1255, 8 C.F.R. §
240.11(a)(1). Section 1255 of 8 U.S.C. sets forth the different types of persons who,
in the discretion of the Attorney General, may adjust their status to that of lawful
permanent resident.
9
24. Generally, an immigrant in removal proceedings can adjust if s/he was inspected and
admitted or paroled into the U.S. or is eligible under § 1255(i), has a visa immediately
available, has maintained lawful status (except for § 1255(i) applicants) and is
otherwise not statutorily ineligible. Thus, parents, spouses, and children of United
States citizen adults are eligible to adjust so long as they are not statutorily ineligible.
If they meet the requirements of 8 U.S.C. § 1255, lawful permanent residents can also
adjust their status in removal proceedings to defeat deportation.
25. Second, an immigrant can seek cancellation of removal and adjustment of status to
that of lawful permanent resident. 8 U.S.C. §1229b(b).
26. Generally, cancellation of removal under 8 U.S.C. § 1229b(b)(1) is available to
nonpermanent residents who have resided for a long period of time in the U.S. and
whose deportation would cause exceptional and unusual hardship to the immigrant’s
spouse, parent or child who is a U.S. citizen or lawful permanent resident.
27. Victims of domestic abuse, whether they are legal permanent residents or
nonpermanent residents, can obtain cancellation of removal if they meet certain
criteria. 8 U.S.C. §§ 1229b(b)(2).
28. For both adjustment and cancellation, the immigrant must affirmatively request the
relief by filing the proper forms, relevant evidence, and filing fees. 8 C.F.R. §§
240.11(a), 240.20, 240.21 (describing procedures for adjustment of status and
cancellation of removal). The immigrant must also submit to fingerprinting at a
facility designated by the local BCIS district office.
29. After the required forms have been submitted, the fees paid, and the fingerprints have
cleared through the Federal Bureau of Investigation (“FBI”), the immigrant appears
10
before the Immigration Judge who approves or denies the request for adjustment of
status or cancellation of removal.
30. If the application for adjustment of status is granted, the immigrant acquires lawful
permanent residence status as of the date of the Immigration Judge’s order. 8 U.S.C.
§ 1255(b).
31. An Immigration Judge’s grant of cancellation of removal under 8 U.S.C. § 1229b(b) is
recorded, or effective, as of the date of the order of cancellation and on that date, the
immigrant acquires lawful permanent resident status. 8 U.S.C. § 1229b(b)(3).
32. Except when certified to the Board of Immigration Appeals, the decision of the
Immigration Judge becomes final upon waiver of appeal or upon expiration of the
time to appeal if no appeal is taken. 8 C.F.R. § 3.39. The BCIS is bound to give full
effect to final decisions of the Executive Office of Immigration Review.
33. There are no regulations that specifically address the manner in which persons who
are granted LPR status in removal proceedings are to be provided with temporary
proof of their status in the United States.
34. After granting adjustment or cancellation, the Immigration Court issues a written
order to the immigrant indicating the section of the law under which relief was
provided. No other documentation or picture identification is given to the immigrant
that shows he or she is an LPR.
35. The Immigration Courts do not have the capacity to issue temporary documentation
evidencing LPR status to immigrants granted cancellation or adjustment.
36. Only the local BCIS district offices have the capacity to issue temporary
documentation of LPR status. Indeed, local BCIS district offices issue such
11
documentation on a daily basis to immigrants who are not in proceedings and who
adjust their status to that of lawful permanent residents at the district level.
37. For immigrants who are granted LPR status in removal proceedings, the usual practice
in the Harlingen, Houston and San Antonio BCIS districts for obtaining temporary
proof of LPR status and permanent alien registration cards is to visit the local BCIS
district office and request ADIT (“Alien Documentation, Identification and
Telecommunication”) processing.
38. In ADIT processing, BCIS collects a fingerprint and photographs from the immigrant.
The local BCIS office sends the photographs and fingerprints to an off-site facility to
produce the permanent alien registration cards. Receipt of the permanent alien card
by the immigrant may take an extended period of time.
39. While waiting for their permanent alien registration card, immigrants can be issued
temporary proof of their LPR status.
40. The temporary proof of LPR status usually takes the form of an I-94 card (commonly
referred to as the temporary I-551) or an I-551 stamp on the immigrant’s passport.
41. Although local BCIS offices should conduct ADIT processing in a reasonable time
period, months often elapse before immigrants are called into the local BCIS office
for ADIT processing and issuance of temporary evidence of LPR status. As a result,
immigrants are without adequate documentation of their LPR status for an
inordinately lengthy period of time.
42. The Immigration Judge’s order granting relief is not adequate documentation for
immigrants to engage in employment, obtain a Social Security number, travel abroad,
and to register for school.
12
43. An Immigration Judge’s order is not proper documentation evidencing employment
eligibility or identity. 8 U.S.C. § 1324a(b)(1)(B),(C) and (D); 8 C.F.R. 274a.2(b)(v).
Indeed, the Immigration Judge’s order granting LPR status lacks important qualities
required by federal law such as a photograph of the immigrant and security features
making it resistant to tampering, counterfeiting, or fraudulent use.
44. The Immigration Judge’s order granting LPR status also is insufficient evidence of
identity and alien status for the purpose of obtaining a Social Security card. 8 C.F.R.
§ 422.107.
45. Immigrants granted LPR status by an Immigration Judge cannot travel abroad because
upon their return, the Immigration Judge’s order is not a valid documentation to
obtain admission into the United States. 8 C.F.R. § 211.1(a).
46. Immigrants granted LPR status by an Immigration Judge cannot enroll in community
colleges because most schools request a Social Security number and proof of lawful
status in the United States.
47. Finally, immigrants who lack adequate documentation of their LPR status are in
violation of federal law which requires lawful permanent residents to carry at all times
a “certificate of alien registration or alien registration receipt card” or else be guilty of
a misdemeanor and be subject to a fine, imprisonment or both. 8 U.S.C. § 1304(e).
48. As a result of having inadequate documentation evidencing lawful status in the United
States, these immigrants live in constant fear of being detained by law enforcement
officials for failing to prove their status in the United States.
13
VI. STATEMENT OF FACTS
Teresa D. Padilla
49. Teresa D. Padilla is a native and citizen of Mexico. She resides in Eagle Pass, Texas
with her four children.
50. Ms. Padilla was married to a lawful permanent resident who physically and mentally
abused Ms. Padilla and her children.
51. On April 20, 2000, Ms. Padilla was placed in removal proceedings. She requested
relief under INA 240A(b)(2), 8 U.S.C. § 1229b(b)(2), because she was a victim of
domestic abuse and her removal would cause great hardship to her U.S. citizen
children.
52. She also applied for and was granted an employment authorization document
(“EAD”) during the pendency of her removal proceedings. The EAD was issued on
April 24, 2002, and expired on April 25, 2003.
53. After submitting the required forms and her fingerprints cleared through the FBI, the
Immigration Judge granted Ms. Padilla’s application for cancellation on October 31,
2002. As per 8 U.S.C. § 1229b(b)(3), the Immigration Judge’s order of cancellation
also accorded LPR status to Ms. Padilla.
54. After the Immigration Judge granted her relief from deportation, Ms. Padilla presented
herself at the San Antonio BCIS office to request ADIT processing and temporary
proof of her LPR status. San Antonio BCIS officials told Ms. Padilla that they would
not initiate ADIT processing or provide her with temporary proof of her LPR status.
Instead, she would be notified by mail of a return date to complete ADIT processing
and get her temporary I-551 card or an I-551 stamp in her passport.
14
55. Seven months later and Ms. Padilla still has not been called for ADIT processing and
Defendants have not issued temporary proof of LPR status to Ms. Padilla.
56. As a result, Ms. Padilla cannot travel to Piedras Negras, Coahuila, Mexico and see her
dying brother for the last time.
57. In addition, Ms. Padilla is at risk of losing her job. Although she received an EAD on
April 24, 2002, the document has expired and she is not authorized to receive another
EAD because she is now an LPR. Her employer has requested proof that Ms. Padilla
can legally work in the United States, but the only document she has is the
Immigration Judge’s order granting her cancellation of removal. The Immigration
Judge’s order, however, is not one of the documents that is proof of employment
eligibility and/or identity. 8 C.F.R. 274a.2(b)(v).
58. Because she lacks proof of her LPR status, Ms. Padilla was not allowed to enroll in
Southwest Texas Junior College in the spring and summer of 2003.
59. Finally, Ms. Padilla lives in fear of being arrested and detained because she does not
have adequate proof of her LPR status.
Jose Luis and Maria Eva Guzman
60. On January 27, 2003, Jose Luis Guzman-Arrellano and his wife, Maria Eva Guzman,
were granted cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1). Their
application was based on their long residence in the United States and the exceptional
and extreme hardship which would be suffered by their United States citizen daughter
if they were deported. The Guzmans’ daughter, Jessica, suffers from cerebral palsy.
She is severely mentally retarded, confined to a wheelchair, and legally blind.
15
61. Prior to the final hearing on their applications, the Guzmans were fingerprinted by the
Immigration and Naturalization Service and an FBI check revealed no arrests and no
other derogatory information. Neither Mr. nor Mrs. Guzman has any criminal record.
The INS did not oppose the granting of the Guzmans’ application and waived appeal.
62. On January 28, 2003, the Guzmans’ attorney submitted a request for ADIT processing
to the Examinations Section of the Houston District BCIS (then INS) office.
63. To date, the Guzmans have not received an appointment for ADIT processing and
have not received adequate evidence of their lawful permanent resident status.
64. Because the Guzmans’ cancellation case was heard by the Court approximately one
month after they submitted their cancellation applications, they did not receive
temporary employment authorization while their cases were pending. Neither of the
Guzmans has a valid Social Security number, and they are unable to obtain Social
Security numbers because they lack adequate documentation of their immigration
status.
65. The Guzmans would like to travel outside of the Houston area to attend trainings
offered by the Texas Commission for the Blind which would help them learn to
provide better care for Jessica, but they are afraid to travel outside of the Houston area
because they do not have adequate evidence of their legal status.
66. Mr. Guzman is employed, and his employer withholds federal income tax and Social
Security payments from his pay, but Mr. Guzman has not been properly credited for
the taxes he has paid because he does not have a Social Security number and is unable
to obtain one.
16
67. Mrs. Guzman would like to work but cannot do so because she lacks adequate
documentation to show potential employers that she is eligible to work and cannot
obtain a Social Security number.
68. Because they lack Social Security numbers, the Guzmans cannot file their 2002 tax
return and receive their earned income credit.
69. The Guzmans would like to visit their family members in Mexico. Mr. Guzman’s
parents are over 80 years old and Ms. Guzman’s parents are over 70 years old.
Neither of the Guzmans have seen their parents for more than 10 years. However, the
Guzmans cannot travel abroad because they do not have adequate documentation to
allow their return to the United States.
Jaime Sanchez Maldonado
70. Mr. Jaime Sanchez Maldonado is a native and citizen of Mexico and has lived in the
United States since 1991. He currently resides in Round Rock, Texas with his U.S.
citizen wife and two children.
71. On May 23, 2002, Defendants placed Mr. Sanchez Maldonado in removal
proceedings. Prior to being placed in removal proceedings, Mr. Sanchez Maldonado
had applied to adjust his status to that of lawful permanent resident. Once in removal
proceedings, he requested relief from removal in the form of adjustment of status due
to his marriage to a U.S. citizen.
72. In support of his application, Mr. Sanchez Maldonado submitted all the necessary
forms, evidence, and fees.
17
73. Prior to the final hearing on his application, Mr. Sanchez Maldonado was
fingerprinted by the Immigration and Naturalization Service and an FBI check
revealed no derogatory information which rendered him ineligible to adjust.
74. On February 12, 2003, the Immigration Judge granted Mr. Sanchez Maldonado’s
application to adjust his status to that of a lawful permanent resident. The grant of
LPR status, however, was conditional because Mr. Sanchez Maldonado and his wife
had been married less than two years before the date he acquired LPR status. 8 U.S.C.
§ 1186a(a), (g).
75. A conditional LPR shares the same rights and obligations as other LPRs. Two years
from the date he acquired LPR status and if he is still married, Mr. Sanchez
Maldonado can petition to remove the conditions on his LPR status. 8 U.S.C. §
1186a(c).
76. After acquiring lawful permanent residence, Mr. Sanchez Maldonado was not given
any proof of his LPR status other than the Immigration Judge’s order.
77. In March 2002, Mr. Sanchez Maldonado was issued an EAD but it expired on March
25, 2003. Under federal regulations, he is not entitled to renew his EAD. His
employer is aware that the EAD expired and is expecting additional proof of
employment authorization.
78. Mr. Sanchez Maldonado would like to travel to Mexico to visit his father, who is
seriously ill, but cannot do so because Mr. Sanchez Maldonado has no documentation
that allows him return to the United States.
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79. Mr. Sanchez Maldonado lives in fear of being detained by law enforcement officials
because he does not have adequate documentation of his lawful status in the United
States.
Anita De Alva-Mascorro
80. Anita De Alva-Mascorro is a native and citizen of Mexico. She is a single parent and
resides with her two U.S. citizen children in Houston, Texas. Both her children have
severe kidney problems and need dialysis on a regular basis.
81. On August 16, 2001, Defendants placed Ms. De Alva-Mascorro in removal
proceedings. While in proceedings, Ms. De Alva Mascorro applied for cancellation of
removal because her deportation would cause extreme hardship to her U.S. citizen
children.
82. Prior to the final hearing on her application, Ms. De Alva Mascorro was fingerprinted
by the Immigration and Naturalization Service and an FBI check revealed no arrests
and no other derogatory information.
83. On November 27, 2002, an Immigration Judge approved Ms. De Alva-Mascorro’s
application for cancellation and granted her lawful permanent residence status.
84. Other than the Immigration Judge’s order, Ms. De Alva-Mascorro was not provided
with any other documentation evidencing her LPR status.
85. Because Ms. De Alva-Mascorro needed proof of her right to work in the United States
to secure employment, her immigration lawyer wrote Houston BCIS District Office
on January 6, 2003, requesting employment authorization for Ms. De Alva-Mascorro.
On April 15, 2003, Houston BCIS district office responded to Ms. De Alva-
19
Mascorro’s request for employment authorization by asking for additional
documentation.
86. On April 16, 2003, Ms. De Alva-Mascorro’s immigration lawyer responded to
Houston BCIS’s request for additional information by advising the agency that Ms.
De Alva-Mascorro had LPR status and needed proof of such status. To date, Houston
BCIS has not responded.
87. As a single parent, Ms. De Alva-Mascorro needs to work but cannot do so because she
lacks documentation evidencing her LPR status.
88. Ms. De Alva-Mascorro has family in Mexico whom she has not seen in many years.
She wants to travel to Mexico but cannot do so because she lacks documentation that
allows her to return to the United States.
Roberto Carrera
89. Roberto Carrera is a native and citizen of Mexico. Mr. Carrera is 21 years old and has
lived in the United States since the age of 3 months. Currently, he lives in Temple,
Texas with his family.
90. Sometime in 2002, Defendants placed Mr. Carrera in removal proceedings. Because
his removal would have caused extreme and unusual hardship to his legal permanent
resident parents, Mr. Carrera applied for cancellation of removal.
91. Prior to the final hearing on his application, Mr. Carrera was fingerprinted by the
Immigration and Naturalization Service and an FBI check revealed no arrests and no
other derogatory information that prevented him from adjusting his status.
92. On February 11, 2003, the Immigration Judge granted Mr. Carrera’s application for
cancellation and adjusted his status to that of lawful permanent resident. Defendants
20
did not appeal the Immigration Judge’s order and the order became final on March 13,
2003.
93. Other than the Immigration Judge’s order, Mr. Carrera was given no other proof of his
legal status in the United States. Shortly after he gained legal status, Mr. Carrera
sought ADIT processing at the San Antonio BCIS district office but was denied such
processing and temporary proof of his legal status.
94. To date, Mr. Carrera has not been scheduled for ADIT processing and has not
received any temporary proof of his LPR status.
95. Mr. Carrera would like to work but cannot do so because he has no evidence of his
lawful status in the United States. In addition, he is unable to secure a Social Security
number or a driver’s license.
96. Mr. Carrera also would like to join the military but cannot do so because he cannot
show that he is lawfully in the United States.
97. Mr. Carrera lives in fear of being detained by law enforcement officials because he
does not have adequate documentation of his lawful status in the United States.
Isaias Toscano Montemayor, Isaul Toscano Montemayor, and Isael Toscano Montemayor
98. Isaias, Isaul and Isael Toscano Montemayor (the “Toscano Montemayor family
members”) are natives and citizens of Mexico. Since July 12, 1993, they have resided
continuously in the United States. Currently, they live in Metaire, Louisiana with
their parents.
99. The immigration cases of the Toscano Montemayor family members are in the
administrative control of the Harlingen BCIS District Office.
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100. On January 28, 1997, the Immigration and Naturalization Serviced placed the Toscano
Montemayor family members in deportation proceedings in Harlingen, Texas. Prior
to being placed in deportation proceedings, Isaias Toscano-Gil, the boys’ father, had
filed the necessary documents to adjust the Toscano Montemayor family members’
status to that of lawful permanent residents.
101. Through their immigration attorney, the Toscano Montemayor family members filed
the necessary forms, evidence, and fees to adjust their status in deportation
proceedings.
102. Prior to the final hearing on their adjustment application, the Toscano Montemayor
family members were fingerprinted by the Immigration and Naturalization Service
and an FBI check revealed no arrests and no other derogatory information that
prevented them from adjusting to LPRs.
103. On January 17, 2003, an Immigration Judge in Harlingen, Texas granted the Toscano
Montemayor family members’ applications to adjust their status to that of lawful
permanent residents. They were not, however, provided adequate proof of their LPR
status.
104. Prior to the Immigration Judge’s grant of adjustment, the Toscano Montemayor
family members applied for and received employment authorization documents.
105. The Toscano Montemayor family members would like to travel to Mexico to visit
relatives they have not seen for almost 10 years. However, they cannot travel abroad
because they lack documentation that allows them to return to the United States.
22
106. The Toscano Montemayor family members live in fear of being detained by law
enforcement officials because they lack adequate documentation of their lawful status
in the United States.
Marianela Polnick
107. Marianela Polnick is a native and citizen of Ecuador. She is married to a United
States citizen and they reside in Houston, Texas.
108. On August 24, 1998, her husband filed an immigrant visa petition on her behalf.
109. On February 4, 2003, an Immigration Judge in Houston, Texas granted her application
for lawful permanent residence based on her marriage to a U.S. citizen. The INS did
not oppose the approval of Ms. Polnick’s application and did not file an appeal.
110. Before the application was granted, Ms. Polnick had submitted her fingerprints to the
INS, and the FBI indicated that there was no record of any arrest or criminal activity
on her part.
111. On February 4, 2003, Ms. Polnick requested, through her attorney, that she be
scheduled for ADIT processing and that she be issued temporary proof of lawful
admission for permanent residence. To date she has not been scheduled for ADIT
processing and she has not received temporary evidence of her status.
112. Ms. Polnick has not seen her family in Ecuador for more than eight years and has
several nieces and nephews whom she has never seen. She is unable to travel outside
the United States because she does not have a document which will allow her to re-
enter the United States.
Anselmo Medina Remigio
23
113. Anselmo Medina Remigio is a native and citizen of Mexico. He is married to a U.S.
citizen and has two U.S. citizen children. He currently resides in Austin, Texas.
114. Mr. Medina Remigio was admitted as a temporary resident on April 12, 1988, and as a
legal permanent resident on December 1, 1990.
115. On March 15, 1999, Mr. Medina Remigio was placed in removal proceedings. At the
time, his wife was not a U.S. citizen, and Mr. Medina Remigio could not apply for the
relief of adjustment of status.
116. Mr. Medina Remigio was ordered removed by the Immigration Judge on April 9,
1999. He subsequently appealed and sought habeas relief.
117. Mrs. Medina became a U.S. citizen on May 30, 2001. She subsequently filed an I-130
visa petition on behalf of her husband. On July 26, 2002, the Board of Immigration
Appeals granted Mr. Medina Remigio’s motion to reopen proceedings in order to
allow him the opportunity to apply for adjustment of status.
118. Prior to the final hearing on his application, Mr. Medina Remigio was fingerprinted by
the Immigration and Naturalization Service and an FBI check revealed no arrests and
no other derogatory information that prevented him from adjusting his status.
119. On April 11, 2003, the Immigration Judge granted Mr. Medina Remigio’s application
for adjustment of status. The BICE waived appeal and the order became final. On the
same day, Mr. Medina Remigio went to the San Antonio District Office of the BCIS
to initiate ADIT processing. He was told to await further notice from BCIS.
120. To date, Mr. Medina Remigio has not been scheduled for ADIT processing and has
not received any temporary proof of his LPR status.
24
121. Mr. Medina Remigio is an independent trucker by profession and has in the past
traveled throughout the state of Texas and the border region as part of his business.
Mr. Medina Remigio lives in fear of being stopped and detained by law enforcement
officials because he lacks adequate proof of his lawful status in the United States.
Yomi Bombata
122. Yomi Bombata is a native of Nigeria. He has lived in the United States since June
1993. Currently, he resides in Houston, Texas with this United States citizen wife and
son.
123. Mr. Bombata was placed in deportation proceedings in October 1993 and was ordered
deported in absentia on February 17, 1994.
124. On October 16, 2000, Mr. Bombata moved to re-opened his immigration case and
transferred the case to Houston, Texas.
125. Once his immigration case was reopened, Mr. Bombata applied for adjustment of
status because of his marriage to a United States citizen. In support of his application
for adjustment, he submitted all the required forms, evidence, and fees.
126. Prior to the final hearing on his application, Mr. Bombata was fingerprinted by the
Immigration and Naturalization Service and an FBI check revealed no arrests and no
other derogatory information that prevented him from adjusting his status.
127. On February 21, 2003, the Immigration Judge granted Mr. Bombata’s application for
adjustment of status.
128. On March 28, 2003, Mr. Bombata, through his immigration attorney, requested ADIT
processing from the local BCIS office. No action was taken on his request.
25
129. Mr. Bombata would like to travel to Nigeria and visit his family whom he has not seen
for almost ten years. He cannot travel abroad, however, because he lacks adequate
documentation to return to the United States.
130. Mr. Bombata lives in fear of being detained by law enforcement officials because he
does not have adequate documentation of his LPR status.
Robert Celovsky
131. Robert Celovsky is a native of Slovakia. He has lived in the United States since June
1998. He currently lives in Houston, Texas with his United States citizen father.
132. Mr. Celovsky was placed in removal proceedings on April 13, 2000. While in
proceedings, Mr. Celovsky applied for but was denied withholding of removal.
133. While the case was on appeal to the Board of Immigration Appeals, Mr. Celovsky’s
father naturalized and Mr. Celovsky became eligible for adjustment of status.
134. In support of his application for adjustment, Mr. Celovsky submitted all the required
forms, evidence, and fees.
135. Prior to the final hearing on his application, Mr. Celovsky was fingerprinted by the
Immigration and Naturalization Service and an FBI check revealed no arrests and no
other derogatory information that prevented him from adjusting his status.
136. On March 28, 2003, an Immigration Judge granted Mr. Celovsky’s application for
adjustment of status. That same day, Mr. Celovsky, through his immigration attorney,
requested ADIT processing from the local BCIS district office. To date, no action has
been taken on his request.
137. Mr. Celovsky would like to travel to Slovakia to visit his family. He has not seen his
mother since 1998 and has been separated from his younger brother for several years.
26
Also, Mr. Celovsky’s grandparents are very ill. He cannot travel abroad, however,
because he lacks adequate documentation to return to the United States.
138. Mr. Celovsky lives in fear of being detained by law enforcement officials because he
does not have adequate documentation of his LPR status.
Sahchart Tancoomtong
139. Sahchart Tancoomtong is a native of Thailand. He has lived in the United States since
September 1988. Currently, he resides in Houston, Texas with his United States
citizen wife and two step-daughters.
140. On February 18, 2000, Defendants placed Mr. Tancoomtong in removal proceedings.
He sought cancellation of removal because his deportation would cause hardship to
his lawful permanent resident wife, but his request for cancellation was denied.
141. While the case was on appeal to the Board of Immigration Appeals, Mr.
Tancoomtong’s wife naturalized and his case was remanded to the Immigration Court
for adjustment of status.
142. In support of his application for adjustment of status, Mr. Tancoomtong submitted all
the required forms, evidence, and fees.
143. Prior to the final hearing on his application, the INS fingerprinted Mr. Tancoomtong
and an FBI check revealed no arrests and no other derogatory information that
prevented him from adjusting his status.
144. On March 7, 2003, the Immigration Judge granted Mr. Tancoomtong’s application for
adjustment of status. On March 11, 2003, he requested, through his immigration
attorney, ADIT processing. No action has been taken on his request.
27
145. Mr. Tancoomtong would like to travel abroad to visit his family but cannot do so
because he lacks adequate documentation to re-enter the United States.
146. Mr. Tancoomtong lives in fear of being detained by law enforcement because he does
not have adequate documentation of his LPR status.
Ricardo Romero-Cabrera
147. Mr. Ricardo Romero-Cabrera is a native of Mexico. He has lived in the United States
since November 1996. Currently, he resides in Houston, Texas with his United States
citizen wife and two children.
148. In July 2000, the INS placed Mr. Romero-Cabrera in removal proceedings.
149. While in removal proceedings, Mr. Romero-Cabrera married his United States citizen
girlfriend and he became eligible to adjust his status to that of a lawful permanent
resident.
150. In support of his application, Mr. Romero-Cabrera filed the required forms, evidence,
and fees.
151. Prior to the final hearing on his application, Mr. Romero Cabrera was fingerprinted by
the Immigration and Naturalization Service and an FBI check revealed no derogatory
information that prevented him from adjusting his status.
152. On December 31, 2002, an Immigration Judge reviewed Mr. Romero-Cabrera’s
application for adjustment and granted his application, thereby adjusting his status to
that of an LPR.
153. While in proceedings, Mr. Romero-Cabrera applied for and was given an employment
authorization document (EAD). The EAD, however, is due to expire in June 2003.
28
154. Because he is now a LPR, Mr. Romero-Cabrera cannot renew his EAD. He works
two jobs to support his wife and 2 children and fears losing his jobs if after June 2003,
he does not have documentary proof of his LPR status and/or his right to work.
155. Mr. Romero-Cabrera has no other documentation evidencing his LPR status. On
February 27, 2003, he requested, through his immigration attorney, ADIT processing.
No action has been taken on that request.
156. Mr. Romero-Cabrera lives in constant fear of being detained by law enforcement
officials because he does not have adequate documentation of his LPR status.
Yorline Romero-Yanez
157. Yorline Romero-Yanez is a native and citizen of Mexico. She has lived in the United
States since January 1992. Currently, she resides in Houston, Texas with her United
States citizen daughter, son, and father.
158. On April 5, 2002, the INS placed Ms. Romero-Yanez in removal proceedings.
159. During proceedings, Ms. Romero-Yanez applied for cancellation of removal under 8
U.S.C. § 1229b(b)(1) because her deportation would cause exceptional and unusual
hardship to her U.S. citizen children. She has no family in Mexico and her complete
support system is in Houston, including both family and strong church ties.
160. In support of her request for cancellation, she submitted the required forms, evidence,
and fees.
161. Prior to the final hearing on her cancellation application, Ms. Romero-Yanez was
fingerprinted by the Immigration and Naturalization Service and an FBI check
revealed no arrests and no other derogatory information that prevented her from
adjusting her status.
29
162. On February 5, 2003, an Immigration Judge granted Ms. Romero-Yanez’s application
for cancellation and adjusted her status to that of a lawful permanent resident.
163. Other than the Immigration Judge’s order, Ms. Romero-Yanez was given no other
proof of her LPR status.
164. As the sole supporter of her 2 children, Ms. Romero-Yanez desperately needs to work
but cannot do so lawfully because she lacks adequate documentation to work in the
United States.
165. Ms. Romero-Yanez lives in constant fear of being detained by law enforcement
officials because she does not have adequate documentation of her LPR status.
Divyeshbai G. Bhakta
166. Mr. Divyeshbai G. Bhakta is a native of India. He has lived in the United States since
May 1994. He currently resides in Houston, Texas with his United States citizen wife
and two children.
167. On February 11, 2002, the INS placed Mr. Bhakta in removal proceedings.
168. Because of his marriage to a United States citizen, Mr. Bhakta was eligible to adjust in
proceedings and proceeded to submit the required forms, evidence, and fees.
169. Prior to the final hearing on her cancellation application, the INS fingerprinted Mr.
Bhakta and an FBI check revealed no arrests and no other derogatory information that
prevented him from adjusting his status.
170. On July 2, 2002, an Immigration Judge granted Mr. Bhakta’s application for
adjustment and accorded him lawful permanent status.
171. Other than the Immigration Judge’s order, Mr. Bhakta was given no other proof of his
LPR status.
30
172. On July 8, 2002, Mr. Bhakta requested, through his attorney, ADIT processing. No
action has been taken on his request.
173. While in removal proceedings, Mr. Bhakta applied for and was granted an
employment authorization document (EAD). However, the EAD expired on
December 4, 2002.
174. To date, Mr. Bhakta lacks adequate documentation evidencing his LPR status and his
right to work. As a result, Mr. Bhakta has not been able to secure employment.
175. Mr. Bhakta has not seen his family in India for many years. He would like to travel
abroad to visit his family but cannot do so because he lacks adequate documentation
to re-enter the United States.
176. Mr. Bhakta lives in fear of being detained by law enforcement officials because he
does not have adequate documentation of his LPR status.
Isaac S. Galicia-Gonzalez
177. Isaac S. Galicia-Gonzalez is a native and citizen of Mexico. He has lived in the
United States since approximately 1991. Currently, he resides in Baytown, Texas
with his United States citizen wife and three children.
178. The INS placed Mr. Galicia-Gonzalez in removal proceedings on December 8, 2000.
179. Because of his marriage to a United States citizen, Mr. Galicia-Gonzalez was eligible
to adjust his status to that of a LPR while in proceedings. He therefore filed all the
required forms, fees, and evidence.
180. Prior to the final hearing on her cancellation application, the INS fingerprinted Mr.
Galicia-Gonzalez and FBI check revealed no arrests and no other derogatory
information that prevented him from adjusting his status.
31
181. On February 3, 2003, an Immigration Judge granted Mr. Galicia-Gonzalez’s
application for adjustment and accorded him lawful permanent resident status.
182. Other than the Immigration Judge’s order, Defendants failed to issue Mr. Galicia-
Gonzalez any other proof of his LPR status.
183. On March 17, 2003, Mr. Galicia-Gonzalez requested, through his attorney, ADIT
processing. No action has been taken on his request.
184. While in removal proceedings, Mr. Galicia-Gonzalez applied for and was granted an
employment authorization document (EAD). The EAD is current for the duration of
2003.
185. Mr. Galicia-Gonzalez has family in Mexico he has not seen for many years. He
would like to travel abroad to visit his family but cannot do so because he lacks
adequate documentation to re-enter the United States.
186. Mr. Galicia-Gonzalez lives in fear of being detained by law enforcement officials
because he does not have adequate documentation of his LPR status.
Hector Maldonado
187. Hector Maldonado is a native and citizen of Mexico. He has lived in the United States
since at least 1990. Presently, he resides in Austin, Texas with his United States
citizen wife and five children.
188. Sometime in 2002, Defendants initiated removal proceedings against Mr. Maldonado.
189. Because of his marriage to a United States citizen, Mr. Maldonado was eligible to
adjust his status to that of a LPR while in proceedings. He therefore filed all the
required forms, fees, and evidence.
32
190. Prior to the final hearing on her cancellation application, the INS fingerprinted Mr.
Maldonado and an FBI check revealed no arrests and no other derogatory information
that prevented him from adjusting his status.
191. On January 24, 2003, an Immigration Judge granted Mr. Maldonado’s application for
adjustment and accorded him lawful permanent resident status.
192. Other than the Immigration Judge’s order, Defendants failed to issue Mr. Maldonado
any other proof of his LPR status.
193. Mr. Maldonado is unable to work legally and provide for his family because he lacks
documentation evidencing his right to work in the United States. He also cannot
obtain a Social Security number.
194. Mr. Maldonado has family in Mexico he has not seen for many years. He would like
to see his brother who is very ill but cannot travel abroad because he lacks adequate
documentation to re-enter the United States.
195. Mr. Maldonado lives in fear of being detained by law enforcement officials because
he does not have adequate documentation of his LPR status.
Ayman Mustafa Ali Mahmoud
196. Mr. Ayman Mustafa Ali Mahmoud is a native and citizen of Jordan. He has lived in
the United States since at least 1997. He currently resides in San Antonio, Texas with
his U.S. citizen wife.
197. Sometime in 2002, Defendants initiated removal proceedings against Mr. Mahmoud.
198. Because of his marriage to a United States citizen, Mr. Mahmoud was eligible to
adjust his status to that of a LPR while in proceedings. He therefore filed all the
required forms, fees, and evidence.
33
199. Prior to the final hearing on her cancellation application, the INS fingerprinted Mr.
Mahmoud and an FBI check revealed no arrests and no other derogatory information
that prevented him from adjusting his status.
200. On January 6, 2003, an Immigration Judge granted Mr. Mahmoud’s application for
adjustment and accorded him lawful permanent resident status.
201. Other than the Immigration Judge’s order, Defendants failed to issue Mr. Mahmoud
any other proof of his LPR status.
202. Sometime in late January 2003, Mr. Mahmoud went to the San Antonio BCIS district
office to inquire about processing and temporary proof of his LPR status. That same
day, he was sent by the district office to the application support center for
fingerprinting.
203. Mr. Mahmoud is unable to work legally and provide for his family because he lacks
documentation evidencing his right to work in the United States. He also cannot
obtain a Social Security number.
204. Mr. Mahmoud has family in Mexico he has not seen for many years. He would like to
see his brother who is very ill but cannot travel abroad he lacks adequate
documentation to re-enter the United States.
205. Mr. Mahmoud lives in fear of being detained by law enforcement officials because he
does not have adequate documentation of his LPR status.
Factual Allegations Common to the Class
206. A class of persons similarly situated to Plaintiffs was placed in removal proceedings
by Defendants.
34
207. Class members applied for relief from deportation and pursuant to federal regulations,
they submitted the proper forms, evidence, and fees.
208. Prior to the final hearing on their applications for relief, the Immigration and
Naturalization Service fingerprinted class members and FBI checks revealed no
arrests and no other derogatory information that prevented them from adjusting their
status.
209. At a later date, the Immigration Court conducted a hearing on each class member’s
request for relief from deportation. Defendants had the opportunity to challenge or
oppose the request.
210. The Immigration Court granted each class member’s request for relief from
deportation. Defendants had the right to appeal the decision of the Immigration Court
but waived appeal, and the order of the Immigration Court became final.
211. Some class members were granted adjustment of status and thus acquired LPR status
the day the Immigration Judge ordered their adjustment of status.
212. Other class members were granted cancellation of removal under 8 U.S.C. § 1229b(b)
and were also granted LPR status the day an Immigration Judge granted the
application for cancellation.
213. After obtaining relief from deportation, class members went to their local BCIS
district office to request ADIT processing, apply for their alien registration card
(“green card”) and obtain temporary proof of their LPR status in the United States.
214. The Harlingen, Houston and San Antonio BCIS district offices rejected class
members’ request for ADIT processing.
35
215. Weeks and months have passed and class members have not been called for ADIT
processing and are without proof of their LPR status in the United States.
216. The lack of documentation evidencing LPR status in the United States has caused
great hardship to class members.
217. Class members have encountered problems securing employment because they cannot
demonstrate their eligibility for employment in the United States.
218. Class members fear being detained by law enforcement officials because class
members do not have adequate documentation of their LPR status.
219. Class members are unable to travel abroad and visit relatives because they lack
documentation to return to the United States.
VII. CLAIMS FOR RELIEF
Count One Fifth Amendment
220. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 219 above.
221. Defendants’ policies, practices or customs violate Plaintiffs’ and class members’ Fifth
Amendment substantive and procedural due process rights.
Count Two Violation of INA
222. Petitioners re-allege and incorporate by reference paragraphs 1 through 219 above.
223. Defendants’ policies, practices or customs violate 8 U.S.C. § 1101 et seq. by denying
Plaintiffs and class members documentary evidence of their LPR status in the United
States.
Count Three Mandamus Action
28 U.S.C. § 1361
36
224. Petitioners re-allege and incorporate by reference paragraphs 1 through 219 above.
225. Defendants are charged with the responsibility of administering and implementing the
Immigration and Nationality Act. Defendants bear sole responsibility for providing
noncitizens with proof of lawful status in the United States. Defendants’ failure to
discharge their statutory obligations is injuring Plaintiffs and class members.
Defendants should be compelled to perform a duty owed to Plaintiffs and class
members, namely the provision of documentary evidence of LPR status to Plaintiffs
and class members.
Count Four Immigration Reform and Control Act of 1986
8 U.S.C. § 1324a
226. Petitioners re-allege and incorporate by reference paragraphs 1 through 219 above.
227. Defendants’ practices and procedures violate the IRCA provisions relating to the
unlawful employment of aliens by failing to provide Plaintiffs and class members with
satisfactory evidence of LPR status and/or their right to work in the United States.
Count Five Administrative Procedures Act
5 U.S.C. §§ 702 et seq.
228. Petitioners re-allege and incorporate by reference paragraphs 1 through 219 above.
229. By failing to give effect to final decisions of the Executive Office of Immigration
Review, and by failing to provide reasonable ADIT processing and interim
documentation of status, Defendants' practices and procedures violate the
Administrative Procedures Act and constitute agency action that is arbitrary and
capricious, and not in accordance with law. 5 U.S.C. §§ 701 et seq.
Count Five Declaratory Judgment Act
37
230. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 219 above.
231. Plaintiffs contend that Respondents actions and decisions relating to Petitioners’
continued detention are unconstitutional, violate the INA, and are arbitrary and
capricious and seek a declaration to that effect. 28 U.S.C. § 2201.
Count Six Equal Access to Justice Act
232. If they prevail, Petitioners will seek attorney’s fees and costs under the Equal Access
to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412.
PRAYER FOR RELIEF
WHEREFORE, Petitioners respectfully ask the Court to:
1. Assume jurisdiction over this matter;
2. Certify a class of all persons who were or will be granted legal
permanent resident status in removal proceedings in the Harlingen,
Houston, and San Antonio Districts of the BCIS and to whom BCIS
fails to issue temporary documentation evidencing lawful permanent
resident status;
3. Declare that Defendants’ policies, practices and customs which
deprive Plaintiffs and class members of documentary evidence of their
LPR status in the United States violate the United States Constitution,
the Immigration and Nationality Act, the Immigration Reform and
Control Act of 1986, and the Administrative Procedures Act;
4. Declare that Defendants’ practices violate legal duties owed to
Plaintiffs and class members under the Immigration and Nationality
38
Act;
5. Enjoin Defendants from denying Plaintiffs and class members
adequate documentary evidence of their LPR status in the United
States;
6. Order Defendants to issue Plaintiffs and class members with adequate
documentation of their LPR status;
7. Award Plaintiffs’ counsel reasonable attorney’s fees and costs; and
8. Grant such other and further relief as may be just and proper.
Respectfully Submitted, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW OF TEXAS By: ___________________________________ Javier N. Maldonado (attorney-in-charge) Texas Bar No. 00794216 118 Broadway, Suite 502 San Antonio, TX 78205 Phone: 210-277-1603 Fax: 210-225-3958 Lynn Coyle Illinois Bar No. 06204053 109 N. Oregon, Suite 302 El Paso, TX 79901 Phone: 915-532-3370 Fax: 915-532-3983
39
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND By: ____________________________________ Joseph P. Berra Texas State Bar No. 24027144 Nina Perales Texas State Bar No. 24005046 Leticia Saucedo Texas State Bar No. 00797381 Selena Solis Texas State Bar No. 00797471 140 E. Houston St., Ste. 300 San Antonio, TX 78205 (210) 224-5476 (210) 224-5382 (fax)
ATTORNEYS FOR THE PLAINTIFFS