Compere v. Riordan

United States District Court

District of Massachusetts

)

PATRICE COMPERE and MARLY )

COMPERE BERNADO, )

)

Plaintiffs, )

)

v. ) Civil Action No.

) 18-12431-NMG

DENIS RIORDAN, LEE FRANCIS )

CISSNA, the DEPARTMENT OF )

HOMELAND SECURITY, KIRSTJEN )

NIELSEN and TODD LYONS, )

)

Defendants. )

)

MEMORANDUM & ORDER

GORTON, J.

This case arises out of removal proceedings brought against

Patrice Compere (“Compere”). Compere and his mother, Marly

Compere Bernado, also known as Marly Brizard (“Brizard” or

collectively “plaintiffs”), filed a complaint against the

Department of Homeland Security and various officers and

officials of the Department of Homeland Security, the United

States Citizenship and Immigration Services (the “USCIS”) and

Immigration and Customs Enforcement (“ICE”) (collectively

“defendants”) alleging that they have unlawfully deprived

Compere the opportunity to adjudicate his application for

adjustment of status. Specifically, plaintiffs submit that

defendants violated the Administrative Procedure Act, 5 U.S.C.

§ 555(b), by unreasonably failing to produce for nearly 15 years

the necessary documentation for Compere to file the Form I-485

Adjustment of Status application. As a result of that allegedly

unreasonable delay in agency action, Compere is no longer

eligible for naturalization because of subsequent criminal

convictions and is subject to a final order of removal from the

United States.

Plaintiffs seek a writ of mandamus to compel the USCIS to

adjudicate Compere’s application for adjustment of status nunc

pro tunc to April, 2004, when the USCIS first failed to produce

the necessary documentation to plaintiffs for that application.

Pending before the Court is 1) plaintiffs’ motion for a

preliminary injunction to stay Compere’s removal to Haiti

pending the adjudication of the merits of the writ of mandamus

and 2) defendants’ motions to dismiss the original and amended

complaints.

I. Background

A. The Parties

Compere is a 31-year-old native and citizen of Haiti. He

is a resident of Stoughton, Massachusetts, but is not a citizen

of the United States nor a lawful permanent resident. He

entered the United States on humanitarian parole in August,

1989, at the age of two. Compere grew up and went to school in

the United States, speaks very little Haitian Creole or French,

has no immediate family in Haiti and has two children who are

both U.S. citizens.

Brizard is Compere’s mother. She also resides in

Stoughton, Massachusetts, and is a naturalized U.S. citizen.

She came to the United States in 1987 after Compere was born.

She was 13 years old at the time and entered the United States

as a derivative of her mother (Compere’s grandmother) who was

then a lawful permanent resident.

The Department of Homeland Security is a department under

the Executive Branch of the U.S. federal government responsible

for all matters related to public security, including matters

regarding citizenship and immigration. Defendant Kirstjen

Nielsen is the acting Secretary of the Department of Homeland

Security and is responsible for the administration of the

immigration laws.

Defendant Lee Francis Cissna is the Director of the USCIS,

the branch of the Department of Homeland Security charged with

administering the country’s naturalization and immigration

system, including the adjudication of immigration applications.

Cissna is the official charged with supervisory authority over

all operations of the USCIS. Defendant Denis Riordan is the

District Director of the Boston District of the USCIS. Riordan

is the official of the USCIS with general supervisory authority

over all operations within the Boston District.

Defendant Todd Lyons is the Acting Field Officer of ICE in

Boston, Massachusetts, which is the federal law enforcement

agency tasked with enforcing U.S. immigration laws. In his role

as Acting Field Officer, Lyons is responsible for the

enforcement of federal immigration laws, including the

deportation of removeable aliens, in Connecticut, Maine,

Massachusetts, New Hampshire, Rhode Island and Vermont.

B. Facts

Brizard became a naturalized U.S. citizen in September,

1999, when Compere was 12 years old. In 2002, Brizard sought

the assistance of an attorney, Daniel Honore, to assist her with

applying to adjust Compere’s status to lawful permanent

resident. Attorney Honore apparently told Brizard that she

would need a form known as an I-94, which is an arrival and

departure record issued by a Customs and Border Protection

Officer to foreign visitors entering the United States. Brizard

did not have the original I-94 for Compere from 13 years earlier

so Attorney Honore helped her apply for a replacement I-94 in

April, 2003.

At some point in communicating with the USCIS, Attorney

Honore allegedly informed the agency that it should correspond

directly with him rather than with Brizard. The USCIS

purportedly did not acknowledge Attorney Honore’s request and

instead initially sent a denial of the request for a replacement

I-94 directly to Brizard’s address in September, 2003,

indicating that the agency had no record of Compere’s arrival in

the United States. After learning of the denial, Brizard

alleges that she reached out to Attorney Honore who told her

that without the I-94, there was nothing more that he could do

for her son. Attorney Honore suggested that Brizard send

Compere back to Haiti to apply for an immigrant visa through

consular processing but Brizard refused to do so because she had

no family in Haiti at the time. She sought no further advice

from Attorney Honore from that point forward.

The USCIS reversed its earlier denial of Brizard’s

application for a replacement I-94 just a few months later. In

April, 2004, the USCIS sent a letter addressed to Compere at his

home address informing him that he appeared to be on a

humanitarian parolee status and that his application would be

transferred to the district office in Boston for processing.

Neither Brizard nor Compere apparently ever physically received

or saw that letter. From April, 2004, to December, 2018, the

Boston office of the USCIS took no action to produce the

replacement I-94 nor did Brizard or Compere inquire into the

status of that application or otherwise apply to adjust

Compere’s status to lawful permanent resident.

Compere became 18 years old in October, 2005. Since

becoming an adult, he has been arrested and convicted for

several trespassing and drug-related offenses. In 2011, he was

convicted for possession to distribute heroin, a Class A

substance. In 2015, he was convicted for possession of

suboxone, a Class B Substance. In 2016, he was convicted for

possession of Adderall-Amphetamine, a Class B substance. He has

served sentences for all three convictions.

In 2016, Compere was in a detox program in Philadelphia,

Pennsylvania when ICE officers met with and questioned him.

After leaving the detox program, he did not hear from ICE so he

visited the USCIS office in Lawrence, Massachusetts. The USCIS

informed him that he should consult an attorney because it had

no information on him. In 2017, Compere finished his probation

program and his probation officer told him to contact ICE.

Compere met with an Officer Hamel who told him to follow-up with

certain documentation, including his mother’s naturalization

certificate, his birth certificate and his proof of entry.

After not hearing from Officer Hamel for several months,

Compere called him in October, 2017. Officer Hamel told Compere

that he would need a hearing with an immigration judge which

Compere took to mean that he had to attend Immigration Court

that same day. Compere went to the Immigration Court located in

Boston and called Officer Hamel again. Officer Hamel informed

Compere that his hearing would not be that day but that he

should wait at the court for Hamel to pick him up. Compere

complied with that instruction and was arrested and taken into

ICE custody by Officer Hamel later that day.

C. Procedural History

Compere was placed in removal proceedings and charged as an

arriving alien with three counts of removability: 1) not having

a proper immigrant visa in violation of 8 U.S.C.

§ 1182(a)(7)(A)(i)(I); 2) being someone the Attorney General has

reason to believe is a trafficker of a controlled substance in

violation of 8 U.S.C. § 1182(a)(2)(C)(i); and 3) having been

convicted of a violation of any law or regulation relating to a

controlled substance in violation of 8 U.S.C.

§ 1182(a)(2)(A)(i)(II). In 2018, after several hearings, an

immigration judge found Compere to be removable.

Compere filed an application for relief under the

Convention Against Torture. He claims that he is afraid to

return to Haiti because he could potentially face torture and

prolonged imprisonment upon arrival as a criminal deportee. He

also submits that his close relationship to Clarens Renois, a

well-known political opponent of the Haitian government and

former presidential candidate, increases his risk of being

detained and tortured upon arrival in Haiti.

His application under the Convention Against Torture was

denied in April, 2018. The Immigration Judge found that Compere

had not proven that it was more likely than not that he would be

tortured if deported to Haiti. The Board of Immigration Appeals

(the “BIA”) affirmed that denial in September, 2018. Compere

then filed a petition for review and a motion for a stay of

removal with the First Circuit Court of Appeals in October,

2018. In November, 2018, the First Circuit denied Compere’s

motion to stay, determining that his request was

jurisdictionally barred and that he was unlikely to succeed on

the merits. The following day, Compere filed a motion to reopen

his case with the BIA, arguing that he had obtained new evidence

to support his claim for deferral of removal under the

Convention Against Torture.

The day after Compere filed his motion to reopen with the

BIA, he filed a petition for writ of habeas corpus in the

District of New Hampshire where he was being detained. In that

petition, Compere sought, among other things, a stay of his

removal pending a ruling from the BIA on his motion to reopen

his case. Shortly after filing the habeas petition in the

District of New Hampshire, Compere filed the present complaint

in this Court seeking a writ of mandamus to compel defendants to

accept and adjudicate his application for adjustment of status

nunc pro tunc to April, 2004. Within two weeks of filing the

complaint in this Court, the USCIS sent Compere a replacement I-

94 after investigating the allegations in his complaint.

In January, 2019, United States District Judge Paul

Barbadoro of the District of New Hampshire entered a stay of

Compere’s removal pending a ruling from the BIA on his motion to

reopen. Compere v. Nielsen, Case No. 18-cv-1036-PB, 2019 WL

332193, at *9 (D.N.H. Jan. 24, 2019). Judge Barbadoro

determined that, although 8 U.S.C. §§ 1252(b)(9) and 1252(g)

likely applied to strip the District Court of jurisdiction over

Compere’s challenge to his removal proceedings, application of

those provisions to bar his habeas petition would violate the

Suspension Clause of the Constitution because 1) there would be

no federal court review of the denial of Compere’s emergency

motion to stay while his motion to reopen was pending before the

BIA and 2) he would be unable to litigate effectively his motion

to reopen from Haiti. Id. at *5-9. Judge Barbadoro explicitly

limited the relief ordered, however, to a stay of removal that

would remain in place only until Compere’s motion to reopen was

resolved by the BIA and he had been given an opportunity to

appeal any adverse ruling. Id. at *9.

In February, 2019, the BIA denied Compere’s motion to

reopen, finding that the purportedly new evidence provided was

substantially similar to that previously offered to the

Immigration Judge and did not materially alter the judge’s

findings or decision. Compere had 30 days from the date of that

decision to appeal the BIA’s denial of his motion to reopen to

the First Circuit.

Rather than file such an appeal, Compere instead filed in

March, 2019, an amended complaint with this Court naming Nielsen

and Lyons as additional defendants and a motion for a temporary

restraining order and a preliminary injunction (Docket No. 15).

He seeks an order from this Court staying his removal until his

petition for writ of mandamus has been properly adjudicated.

Shortly after filing the motion, this Court denied the motion

for a temporary restraining order and ordered plaintiffs to give

requisite notice to defendants of a hearing on their motion for

a preliminary injunction. The next day, defendants filed a

motion to dismiss for lack of jurisdiction and failure to state

a claim (Docket No. 20).

D. Parties’ Arguments

Plaintiffs assert that they are entitled to a preliminary

injunction ordering a stay of Compere’s removal. First, they

contend that they have a substantial likelihood of success on

the merits of their claim because other courts outside this

Circuit have recognized the availability of nunc pro tunc relief

in the immigration context and the First Circuit has not

definitively foreclosed such relief. Plaintiffs submit that

they have a valid claim under the Administrative Procedure Act,

5 U.S.C. § 555(b), because defendants have failed to conclude

agency proceedings within a reasonable time by not sending

Compere a replacement I-94 for nearly 15 years. Plaintiffs

contend that they are in no way responsible for that

unreasonable delay which prevented Compere from applying for an

adjustment of status.

It is the plaintiffs’ position that, had Compere been

provided a replacement I-94 in 2004 when the USCIS first

discovered its mistake, Compere would have been able to file a

timely application for adjustment of status before his 18th

birthday, which would have qualified him automatically to derive

citizenship from his naturalized mother under 8 U.S.C. § 1431.

Compere would thus not have to satisfy the more restrictive

requirements of proving continuing good moral character at the

time of his naturalization application which is now precluded by

his multiple criminal convictions. See 8 C.F.R. §§ 316.10(a)(1),

316.10(b)(1)(ii); see also 8 U.S.C. §§ 1101(a)(43)(B),

1101(f)(8), 1421(d). Had Compere’s application for adjustment

of status been timely processed in 2004, which would have

resulted in his automatic naturalization, he would not now be

subject to removal.

In addition to proving a substantial likelihood of success

on the merits, plaintiffs also submit that Compere will suffer

irreparable harm if he is deported to Haiti before he can fully

litigate his petition for writ of mandamus. Plaintiffs contend

that Compere will be subject to detention and torture upon

arrival in Haiti and that his criminal convictions will prevent

him from returning to the United States even if he is ultimately

successful on his mandamus petition. Finally, plaintiffs argue

that the balance of equities favors a stay of Compere’s removal.

In response to plaintiffs’ motion for a preliminary

injunction, defendants maintain that plaintiffs’ requested

relief must be denied because they do not have a substantial

likelihood of success on the merits of their claim. First,

defendants explain that this Court lacks subject matter

jurisdiction under 8 U.S.C. § 1252(g) which strips district

courts of jurisdiction over claims arising from a removal order.

Rather, an alien must seek a stay of a removal order through

established administrative procedures subject to direct review

of the federal Courts of Appeals. 8 U.S.C. §§ 1252(a)(4)-(5),

1252(d). Defendants submit that plaintiffs’ claim for a stay of

removal arises out of Compere’s final order of removal and thus

falls directly within that jurisdiction-stripping provision.

Furthermore, defendants contend that plaintiffs cannot

demonstrate a likelihood of success on their claim for mandamus

relief in the form of nunc pro tunc adjudication of Compere’s

application for adjustment of status. Defendants assert that

the First Circuit has already decided the limits of nunc pro

tunc authority in the immigration context and has declined to

apply that form of relief. See Fernandes-Pereira v. Gonzales,

417 F.3d 38, 47 (1st Cir. 2005).

Defendants also assert that plaintiffs have failed to

exhaust their administrative remedies because Compere has never

actually applied for lawful permanent resident status.

Defendants explain that Compere could have applied for lawful

permanent resident status in 2004 and thereafter even without a

replacement I-94 because the application form explicitly allows

for “other evidence of [the applicant’s] status”. Defendants

argue that the fact that Attorney Honore misadvised plaintiffs

that they required an I-94 for the adjustment of status

application does not relieve them of their duty to exhaust their

administrative remedies.

II. Plaintiff’s Motion for a Preliminary Injunction

A. Legal Standard

In order to obtain a preliminary injunction, the moving

party must establish 1) a reasonable likelihood of success on

the merits, 2) the potential for irreparable harm if the

injunction is withheld, 3) a favorable balance of hardships and

4) the effect on the public interest. Jean v. Mass. State

Police, 492 F.3d 24, 26-27 (1st Cir. 2007). Out of these

factors, the likelihood of success on the merits “normally

weighs heaviest in the decisional scales.” Coquico, Inc. v.

Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009).

The Court may accept as true “well-pleaded allegations [in

the complaint] and uncontroverted affidavits.” Rohm & Haas Elec.

Materials, LLC v. Elec. Circuits, 759 F. Supp. 2d 110, 114, n.2

(D. Mass. 2010) (quoting Elrod v. Burns, 427 U.S. 347, 350, n.1

(1976)). The Court may also rely on otherwise inadmissible

evidence, including hearsay, in deciding a motion for

preliminary injunction. See Asseo v. Pan Am. Grain Co., Inc.,

805 F.2d 23, 26 (1st Cir. 1986). Ultimately, the issuance of

preliminary injunctive relief is “an extraordinary and drastic

remedy that is never awarded as of right.” Peoples Fed. Sav.

Bank v. People’s United Bank, 672 F.3d 1, 8-9 (1st Cir. 2012)

(quoting Voice of the Arab World, Inc. v. MDTV Med. News Now,

Inc., 645 F.3d 26, 32 (1st Cir. 2011)).

B. Application

Plaintiffs cannot prove a reasonable likelihood of success

on the merits of their claim because the Court simply lacks

jurisdiction to grant a stay of a final order of removal. See

Doe v. Smith, Civil Action No. 18-11363-FDS, 2018 WL 4696748, at

*6 (D. Mass. Oct. 1, 2018) (discussing the District Court’s lack

of jurisdiction to order a stay of removal under 8 U.S.C.

§ 1252). Congress has provided that

no court shall have jurisdiction to hear any cause or claim

by or on behalf of any alien arising from the decision or

action by the Attorney General to commence proceedings,

adjudicate cases, or execute removal orders against any

alien under this chapter.

§ 1252(g). While a petitioner may seek to reopen removal

proceedings or a stay of removal, he or she must do so through

the procedure established by statute and regulation. See 8

C.F.R. §§ 1003.2(c), 1003.2(f), 1003.23(b)(1)(v), 1003.23(b)(3).

A petitioner must first exhaust all administrative remedies

through the immigration courts and the BIA. § 1252(d)(1).

Decisions of the immigration courts and the BIA are then subject

to judicial review through a petition filed directly with the

appropriate court of appeals. § 1252(a)(5) (“Notwithstanding any

other provision of law (statutory or nonstatutory), including

section 2241 of Title 28, or any other habeas corpus provision,

. . . a petition for review filed with an appropriate court of

appeals in accordance with this section shall be the sole and

exclusive means for judicial review of an order of removal

entered or issued under any provision of this chapter . . . .”);

see also § 1252(a)(4) (same with respect to claims under the

Convention Against Torture).

Furthermore, the statute provides that

[j]udicial review of all questions of law and fact,

including interpretation and application of constitutional

and statutory provisions, arising from any action taken or

proceeding brought to remove an alien from the United

States under this subchapter shall be available only in

judicial review of a final order under this section.

Except as otherwise provided in this section, no court

shall have jurisdiction, by habeas corpus under section

2241 of Title 28 or any other habeas corpus provision . . .

or by any other provision of law (statutory or

nonstatutory), to review such an order or such questions of

law or fact.

§ 1252(b)(9). Taken together, those provisions clearly

articulate the intention of Congress to “strip[] federal

district courts of jurisdiction to review challenges by aliens

to their final orders of removal.” Smith, 2018 WL 4696748, at *6

(citing Ishak v. Gonzales, 422 F.3d 22, 27-28 (1st Cir. 2005));

see also Baptiste v. Attorney Gen. of U.S., Civ. No 18-

16826(KM), 2019 WL 1110765, at *2-3 (D.N.J. Mar. 8, 2019)

(holding that the Court lacked jurisdiction to grant a stay of a

final order of removal under § 1252(g) in the context of an

action seeking a writ of mandamus).

Compere is subject to a final order of removal and he seeks

to enjoin ICE from enforcing that order of removal. His claim

for injunctive relief falls, therefore, directly within the

jurisdictional bar set by Congress. Regardless of how

sympathetic Compere’s situation may be or the risk of harm he

faces if deported to Haiti, it would be a dereliction of this

Court’s duty to enforce the law if it were to stay the removal.

Accordingly, the Court will deny plaintiffs’ motion for a

preliminary injunction to stay Compere’s removal because it

lacks subject matter jurisdiction to grant such relief.

In addition to lacking subject matter jurisdiction, it is

doubtful that this Court has the authority to grant the ultimate

relief sought in this case, namely compelling the USCIS to

accept and adjudicate Compere’s application to adjust his

immigration status nunc pro tunc to April, 2004. In Fernandes-

Pereira v. Gonzales, the First Circuit declined to adopt the

approach of the Second Circuit Court of Appeals to adjudicate an

application for discretionary relief from deportation nunc pro

tunc to the date of the alien’s original hearing. 417 F.3d at

46-47. While decided in the context of a different statutory

provision, the First Circuit noted that the only other circuits

that have applied the nunc pro tunc doctrine to rectify

significant errors in immigration proceedings involved

constitutional violations of the right to counsel in those

proceedings. Id. at 48. No such violation is alleged here.

Plaintiffs contend that Fernandes-Pereira does not

foreclose the nunc pro tunc relief sought because the Court in

that case found that the government had not acted in bad faith

but rather had acted under a “good faith legal interpretation of

the law at the time”. Id. at 47-48. Plaintiffs assert that the

government here did not act in good faith, as evidenced by 1)

the USCIS’s concession in April, 2004, that it had mistakenly

denied plaintiffs’ application for a replacement I-94, 2) its

subsequent failure to process plaintiffs’ application for a

replacement I-94 for nearly 15 years and 3) its ability to

produce quickly the replacement I-94 in response to the

complaint filed in this case.

Even assuming that there is evidence of intentional

misconduct on the part of defendants, plaintiffs cite no caselaw

from this Circuit applying the nunc pro tunc doctrine in the

manner sought. At least one other District Court addressing a

similar claim for nunc pro tunc adjudication of an alien’s

application for adjustment of status determined that his

subsequent criminal convictions precluded that form of relief.

Garcia v. U.S. Citizenship & Immigration Servs., 168 F. Supp. 3d

50, 68-69 (D.D.C. 2016).

The Court in Garcia noted that the regulations of the

Department of Homeland Security require an applicant for lawful

permanent residence to demonstrate that he or she continues to

be eligible through the time of application. Id. at 69. The

requested relief would, therefore, require the Court “to order

USCIS to turn a blind eye to [the plaintiff’s] subsequent

criminal activities”. Id. (“[E]ven if [plaintiff] were eligible

for the immigration benefit—[lawful permanent resident] 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—

i.e, today.”). In light of that extraordinary request and

plaintiff’s unclean hands, including his own delay in seeking to

adjudicate his application for adjustment of status, the Court

held that the plaintiff was not entitled to nunc pro tunc as an

equitable matter. Id. at 69-70; see also Vernon v. Attorney Gen.

of U.S., 181 Fed. App’x 201, 203 (3d Cir. 2006) (holding that

plaintiff was not entitled to have his application for

naturalization adjudicated nunc pro tunc because of his own

delay in failing to seek clarification or reconsideration of

that application for 17 years).

The Court finds the reasoning of Garcia to be persuasive.

Just as did the plaintiff in Garcia, Compere has several

criminal convictions that make him ineligible for lawful

permanent resident status or naturalization were his application

adjudicated today. Furthermore, neither Compere nor Brizard

sought clarification of his immigration status or filed any

application for adjustment of status for nearly 15 years after

the initial denial of his application for a replacement I-94.

Nor have plaintiffs proffered any evidence indicating that the

USCIS acted in bad faith, rather than merely with neglect, in

failing to produce the requested documentation for nearly 15

years. Absent a showing of authority demonstrating plaintiffs’

entitlement to this unusual form of relief, the Court finds that

they do not have a reasonable likelihood of success on the

merits of their claim for nunc pro tunc adjudication of

Compere’s application for adjustment of status.

Because the Court finds that there is no reasonable

likelihood of success on the merits of plaintiffs’ claim for a

stay of removal, it declines to address the other prerequisites

for injunctive relief.

ORDER

For the forgoing reasons, plaintiff’s motion for a

preliminary injunction (Docket No. 15) is DENIED.

So ordered.

/s/ Nathaniel M. Gorton______

Nathaniel M. Gorton

United States District Judge

Dated March 20, 2019