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that it lacked jurisdiction to review the issuance of LECs, which it determined was the type of discretionary action withdrawn from its purview by 8 U.S.C. § 1252(a)(2)(B)(ii).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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