University of Michigan Law School
Civil Rights Litigation Clearinghouse
new search
page permalink
Case Name Giammarco v. Beers IM-CT-0011
Docket / Court 3:13-cv-01670-VLB ( D. Conn. )
State/Territory Connecticut
Case Type(s) Immigration and/or the Border
Attorney Organization Jerome N. Frank Legal Services Organization (Yale)
Case Summary
On November 12, 2013, a long-time legal permanent resident and Army veteran of the United States, filed this lawsuit in the United States District Court for the District of Connecticut. The plaintiff sued the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, and the ... read more >
On November 12, 2013, a long-time legal permanent resident and Army veteran of the United States, filed this lawsuit in the United States District Court for the District of Connecticut. The plaintiff sued the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, and the FBI, under 5 USC § 551 et seq. and 28 USC §1361. The plaintiff, represented by counsel from Yale Law School's clinic, Jerome N. Frank Legal Services, sought adjudication of the plaintiff's naturalization application by USCIS, which succeeded INS; if necessary, direct the FBI to complete all required background checks; and attorneys' fees and costs. Specifically, the plaintiff claimed that USCIS had a clear, nondiscretionary duty to timely adjudicate naturalization petitions and to notify petitioners of the disposition of their applications, and the failure to do so was a violation of the Administrative Procedure Act. Similarly, the plaintiff claimed that the FBI had a clear, non-discretionary duty to perform background checks on naturalization applicants.

Specifically, the plaintiff's complaint stated that he was brought to the United States from Italy in 1960 by his parents as a lawful permanent resident, enlisted in the Army in 1976, and after being honorably discharged, joined the National Guard and served from 1980-83. He filed a naturalization petition in 1982, which was delayed due to a pending criminal charge against him that was eventually dropped by the prosecutor. The plaintiff never received a letter requesting a copy of the certified disposition relating to the dropped charges, despite the fact that the Immigration and Naturalization Services (INS) records indicate such a letter was drafted. The FBI contacted the INS, saying that it could find no record of the disposition of the 1981 charges. There was no contact between the plaintiff and INS after 1982 and INS never completed adjudication of the plaintiff's naturalization petition. The plaintiff served short sentences in 1997 and 1999 for shoplifting and was convicted of other minor, non-violent offenses. On May 14, 2011, he was arrested by ICE agents, detained, and eventually deported in November 2012.

On September 17, 2014, U.S. District Court Judge Vanessa L. Bryant issued an order sua sponte dismissing the plaintiff's complaint for lack of subject matter jurisdiction. The dismissal was based on the court's interpretation of the plaintiff's complaint as a challenge to an order of removal and the Second Circuit ruling in Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011), that District Courts were precluded from hearing direct and indirect challenges to removal orders (based on the REAL ID Act of 1995). The complaint was dismissed without prejudice and the court advised the plaintiff that he could file a motion to vacate the dismissal supported by a memorandum establishing that the District Court had jurisdiction. On September 17, 2014, Judge Bryant dismissed the defendants' motion to dismiss and for summary judgement as moot.

On October 8, 2014, the plaintiff filed the Motion to Vacate invited by the district court, and on November 13, 2014, also filed an appeal to the United States Court of Appeals for the Second Circuit (docket number 14-4362).

On November 9, 2015, Judge Bryant granted the plaintiff's Motion to Vacate and the court retained the subject matter jurisdiction over the case. Upon a closer review of Delgado v. Quarantillo, 643 F.3d 52 (2d Cir. 2011), Judge Bryant found the case arguably distinguishable from the present matter, insofar as the plaintiff in that case was already deportable and subject to a "lifetime bar on admission" prior to her filing her Form I-212 application. In this lawsuit, the plaintiff's naturalization application long predated both the removal proceedings and the conduct underlying them, and the lifetime bar on admission to which the plaintiff in Delgado was subject was not applicable here. Judge Bryant found that it was not certain that any action taken with respect to the plaintiff's naturalization application would render the removal order "invalid," such that the application was inextricably linked to the removal order.

On November 18, 2015, the plaintiff removed the appeal to the Second Circuit.

In November of 2015, the defendants and the plaintiff filed cross motions for summary judgement and oppositions.

On March 17, 2016, Judge Bryant denied the defendants' motion to dismiss or alternatively for summary judgement, granted the plaintiff's cross-motion for summary judgement and remanded the case to USCIS. She ordered USCIS review the plaintiff's application and to render a timely decision on the plaintiff's naturalization application. Judge Bryant held that the INS breached its duty to timely adjudicate the plaintiff's naturalization application and failed to comply with its statutory duty to notify the plaintiff of its denial of his request for a second interview. The defendants had violated the APA, be it by failing to render a disposition, in violation of 5 U.S.C. § 555(b), or by failing to inform the plaintiff of its ultimate denial of his application, in violation of 5 U.S.C. § 555(e). The plaintiff had standing and his requested relief was not clearly futile, as neither the statutes nor the regulation precluded the relief sought. The statute of limitations applicable to the plaintiff's action seeking to compel adjudication of his application had not yet commenced, and the doctrine of laches did not apply to bar the plaintiff's action seeking to compel adjudication of his application for naturalization. 170 F.Supp.3d 320. On March 22, 2016, the final judgment of the order of March 17, 2016 was entered.

On May 12, 2016, the defendants filed an appeal. On October 25, 2016, the Second Circuit granted a voluntary dismissal of the appeal.

Although the docket does not include the settlement, according to the plaintiff's attorney's website, the plaintiff reached a settlement with USCIS in early 2017. USCIS stipulated that the record failed to show that a particular larceny conviction on the plaintiff's record constituted an aggravated felony, under recent Supreme Court precedent, and the plaintiff agreed to submit a new naturalization application in lieu of proceeding on his 1982 application. The settlement agreement is not available. In July 2017, the plaintiff had a naturalization interview at the U.S. Embassy in Rome, where he was approved and sworn in during a military naturalization ceremony that same day. Ten days later, after almost five years away, he returned home to his family in Connecticut as a United States citizen. Giammarco v Johnson

On March 27, 2017, Judge Bryant dismissed the case with prejudice. This Court retained jurisdiction to enforce the terms of the settlement agreement. The case is now closed.

Claire Lally - 04/17/2015
Joanna Kuzdra - 03/08/2018


compress summary

- click to show/hide ALL -
Issues and Causes of Action
click to show/hide detail
Issues
Defendant-type
Jurisdiction-wide
Law-enforcement
General
Family reunification
Timeliness of case assignment
Immigration/Border
Deportation - criteria
Deportation - judicial review
Deportation - procedure
Family
U.S. citizenship - acquiring
Plaintiff Type
Private Plaintiff
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Mandamus, 28 U.S.C. § 1361
Defendant(s) Department of Homeland Security
Federal Bureau of Investigation
Plaintiff Description Long-time US legal permanent resident and Army Veteran born in Italy.
Indexed Lawyer Organizations Jerome N. Frank Legal Services Organization (Yale)
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Private Settlement Agreement
Case Closing Year 2017
Case Ongoing No reason to think so
Docket(s)
3:13-cv-01670-VLB (D. Conn.)
IM-CT-0011-9000.pdf | Detail
Date: 03/27/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
IM-CT-0011-0001.pdf | Detail
Date: 11/12/2013
Source: PACER [Public Access to Court Electronic Records]
Appellee's Status Report [Ct. of App. ECF# 1473952]
IM-CT-0011-0002.pdf | Detail
Date: 03/31/2015
Source: PACER [Public Access to Court Electronic Records]
Memorandum of Decision Granting Plaintiff's [Dkt. 23] Crossmotion for Summary Judgment and Denying Defendants' Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment [Dkt.#18] [ECF# 56] (170 F.Supp.3d 320) (D. Conn.)
IM-CT-0011-0003.pdf | WESTLAW| LEXIS | Detail
Date: 03/17/2016
Source: PACER [Public Access to Court Electronic Records]
Judges Bryant, Vanessa Lynne (D. Conn.)
IM-CT-0011-0003 | IM-CT-0011-9000
Plaintiff's Lawyers Parkin, Jason (Connecticut)
IM-CT-0011-9000
Wishnie, Michael J. (Connecticut)
IM-CT-0011-0001 | IM-CT-0011-9000
Defendant's Lawyers Daly, Deirdre M. (Connecticut)
IM-CT-0011-0002
Ikari, Carolyn A. (Connecticut)
IM-CT-0011-0002 | IM-CT-0011-9000

- click to show/hide ALL -

new search
page permalink

- top of page -