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Case Name Ordoñez Orosco v. Chertoff IM-TX-0024
Docket / Court 1:07-cv-00153 ( S.D. Tex. )
State/Territory Texas
Case Type(s) Immigration
Case Summary
On October 2, 2007, a detained alien who obtained entry into the U.S. through an illegal smuggling operation brought a class action lawsuit in the U.S. District Court for the Southern District of Texas, challenging Department of Homeland Security regulations which governed issuance of U-visas. The ... read more >
On October 2, 2007, a detained alien who obtained entry into the U.S. through an illegal smuggling operation brought a class action lawsuit in the U.S. District Court for the Southern District of Texas, challenging Department of Homeland Security regulations which governed issuance of U-visas. The "U-visa" was a new non-immigrant visa classification created by the Victims of Trafficking and Violence Protection Act. U-visas granted temporary immigration benefits to certain alien victims of crimes who assisted government officials in investigating or prosecuting the criminal activity. To be processed, the application for a U-Visa had to be accompanied a law enforcement certification (LEC). Plaintiff challenged the constitutionality of 8 C.F.R. § 214.14(a)(14)(iii), a Homeland Security regulation that set out the parameters for the issuance of a LEC.

Plaintiff claimed that plaintiff and his brother left Guatemala in March 2007 with the assistance of an alien smuggling operation that brought them from Guatemala to Mexico and then to the U.S. border near Falfurrias, Texas. Once near the border, the smugglers deserted plaintiff and his brother, leaving them without food, water, shelter or navigational devices. The two men wandered in the desert area for days until plaintiff's brother died. Plaintiff then contacted U.S. border agents, where he cooperated with authorities, gave them information about the smugglers and was taken into custody. Plaintiff then sought to apply for a U-visa, but was not issued a LEC by the investigating authorities. He claimed that his denial of a LEC, which was apparently done per new Homeland Security regulations, violated due process and equal protection. He asserted claims under Habeas Corpus, 28 U.S.C. § 2241; the Administrative Procedures Act, 5 U.S.C. § 702 et seq.; and the Declaratory Judgment Act, 28 U.S.C. § 2201, seeking declaratory and injunctive relief, as well as class certification on behalf of all aliens who were crime victims and denied LECs for use in U-visa applications.

On February 25, 2008, defendant moved to dismiss, and on December 8 the District Court (Judge Andrew S. Hanen) granted defendant's motion. Ordoñez Orozco v. Chertoff, No. 1:07-cv-00153, 2008 WL 5155728, 2008 U.S. Dist. LEXIS 98800 (S.D. Tex. Dec. 8, 2008). The court found that it lacked jurisdiction to review the issuance of LECs, which it determined was the type of discretionary action withdrawn from its purview by 8 U.S.C. § 1252(a)(2)(B)(ii). It further found that the discretionary nature of the issuance of LECs defeated plaintiff's constitutional claims, his claims under the APA and his petition for mandamus.

The Fifth Circuit (Judge William L. Garwood) affirmed on March 2, 2010, Ordoñez Orosco v. Napolitano, 598 F.3d 222 (5th Cir. 2010), and the Supreme Court denied certiorari on October 4, 2010.

Christopher Schad - 06/12/2012


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Issues and Causes of Action
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Issues
General
Habeas Corpus
Immigration
Border police
Constitutional rights
Detention - criteria
Temporary protected status
Undocumented immigrants - rights and duties
Visas - criteria
Visas - procedures
Plaintiff Type
Private Plaintiff
Causes of Action Habeas Corpus, 28 U.S.C. §§ 2241-2253; 2254; 2255
Declaratory Judgment Act, 28 U.S.C. § 2201
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Defendant(s) U.S. Citizenship and Immigration Services
Immigration and Customs Enforcement
U.S. Department of Homeland Security
Plaintiff Description Aliens who are victims of enumerated crimes who have sought to obtain a law enforcement certification (LEC) for use in application for a U-visa and were denied
Indexed Lawyer Organizations None on record
Class action status sought Yes
Class action status granted No
Prevailing Party Defendant
Public Int. Lawyer No
Nature of Relief None
Source of Relief None
Form of Settlement None on record
Order Duration not on record
Case Closing Year 2010
Case Ongoing No
Additional Resources
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Case Studies Threats to the Future of the Immigration Class Action
Washington University Journal of Law and Policy
By: Jill E. Family (Widener University School of Law)
Citation: 27 Wash. U. J.L. & Pol'y 71 (2008)
[ Detail ] [ External Link ]

Docket(s)
1:07-cv-00153 (S.D. Tex.) 10/12/2010
IM-TX-0024-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Part IV Department of Homeland Security 8 CFR Parts 103, 212, et al. 09/17/2007
IM-TX-0024-0002.pdf | Detail
Amended Action for Writ of Habeas Corpus and Class Action Complaint for Declaratory and Injunctive Relief 10/09/2007
IM-TX-0024-0001.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order [Denying Petitioner's Application and Granting Respondent's Motion to Dismiss] 12/08/2008 (2008 WL 5155728 / 2008 U.S.Dist.LEXIS 98800) (S.D. Tex.)
IM-TX-0024-0003.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
[Fifth Circuit] Opinion [Affirming the District Court's Order] 03/02/2010 (598 F.3d 222)
IM-TX-0024-0004.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Benavides, Fortunato Pedro (Fifth Circuit)
IM-TX-0024-0004
Garwood, William Lockhart (Fifth Circuit)
IM-TX-0024-0004
Hanen, Andrew S. (S.D. Tex.)
IM-TX-0024-0003 | IM-TX-0024-9000
Wiener, Jacques Loeb Jr. (Fifth Circuit)
IM-TX-0024-0004
Monitors/Masters None on record
Plaintiff's Lawyers Dougherty, Marlene A. (Texas)
IM-TX-0024-0001 | IM-TX-0024-9000
Defendant's Lawyers Benavides, Reno Carlo (Texas)
IM-TX-0024-9000
Leibman, Melissa S. (District of Columbia)
IM-TX-0024-9000
Luis, Lisa (Texas)
IM-TX-0024-9000
Other Lawyers None on record

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