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Case Name Moreno v. Nielsen IM-NY-0062
Docket / Court 1:18-cv-01135 ( E.D.N.Y. )
State/Territory New York
Case Type(s) Immigration and/or the Border
Special Collection Take Care
Attorney Organization American Immigration Council's Legal Action Center
Northwest Immigrant Rights Project (NWIRP)
Case Summary
On Feb. 22, 2018, four noncitizens, on behalf of a proposed class of Temporary Protected Status (TPS) recipients, filed this lawsuit against the U.S. Department of Homeland Security (DHS) and its component U.S. Citizenship and Immigration Services (USCIS). Represented by the American Immigration ... read more >
On Feb. 22, 2018, four noncitizens, on behalf of a proposed class of Temporary Protected Status (TPS) recipients, filed this lawsuit against the U.S. Department of Homeland Security (DHS) and its component U.S. Citizenship and Immigration Services (USCIS). Represented by the American Immigration Council and the Northwest Immigrant Rights Project, the plaintiffs filed their complaint in the U.S. District Court for the Eastern District of New York, challenging the defendants' denial of their applications for lawful permanent resident (LPR) status.

Under the Immigration and Nationality Act (INA), the Secretary of Homeland Security may find that a country's conditions temporarily prevent its nationals from returning safely, or that the country is unable to adequately handle the return of nationals. TPS allows recipients to remain and work legally in the United States. During the Trump administration, the defendants had announced the termination, phasing-out, or review of TPS for nationals of various countries. Following years of residence in the United States, TPS recipients from those countries then faced an uncertain future. Some applied for LPR status on an independent basis through sponsorship by a family member or employer. These plaintiffs alleged, however, that the defendants had denied their LPR applications based on an erroneous interpretation of the INA.

To adjust to lawful permanent resident status, a noncitizen must demonstrate to USCIS that she was inspected and admitted to the United States. 8 U.S.C. § 1255(a), (k). A TPS holder, for purposes of adjustment of status, is "considered as being in, and maintaining, lawful status as a nonimmigrant." 8 U.S.C. § 1254a(f)(4). In the Sixth and Ninth Circuits, courts have held that a TPS holder is deemed to have been inspected and admitted because she is deemed to be in "lawful nonimmigrant status," and an individual in such status necessarily has been inspected and admitted. But, plaintiffs alleged, in the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and Tenth Circuits, the defendants had a policy of denying the LPR applications of TPS holders who initially entered without inspection and admission, refusing to give effect to 8 U.S.C. § 1245a(f)(4) and refusing to acknowledge that a grant of TPS constitutes the inspection and admission required to adjust status.

The plaintiffs challenged the defendants' policy under the INA and the Administrative Procedure Act (APA) as contrary to law and exceeding the defendants' statutory authority. The plaintiffs sought mandamus (for the defendants to lawfully adjudicate the LPR applications) and declaratory and injunctive relief.

In their class certification motion, the plaintiffs also proposed a class of all TPS recipients in the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and Tenth Circuits, who initially entered the United States without inspection, who have applied or will apply for LPR status, and whose applications have or will be denied on the basis of USCIS's policy that TPS does not constitute an "admission" for purposes of adjusting status under 8 U.S.C. § 1255. On Feb. 22, 2018 this case was assigned to Judge Roslynn R. Mauskopf.

On Mar. 26, 2018 the plaintiffs filed an amended complaint, but it is not yet publicly available. In May, the Commonwealth of Massachusetts and the Asian Americans Advancing Justice group offered amicus curaie briefs. The parties submitted letters to the court ahead of the May 30 conference. In their letter, the defendants filed a motion to dismiss, and the court ordered the plaintiffs to respond to this motion and to the defendants’ opposition to class certification. The court heard oral arguments on the outstanding motions at the May 30 conference.

On June 12, 2018 the defendants then filed a motion to dismiss and a motion for summary judgment. The plaintiffs filed their own motion for summary judgment a little over a month later. On July 20, 2018 the plaintiffs filed a second motion for class certification. Many of these documents are not publicly available.

While these motions were still outstanding, the plaintiffs filed a motion for preliminary injunction on November 16, 2018. The parties both submitted reply briefs. With the government shutdown, the defendants filed a motion to stay proceedings due to a lapse in funding on January 23, 2019. The plaintiffs opposed the stay. Shortly after, the defendants moved to withdraw the motion to stay.

On January 24, 2019, the plaintiffs filed and the defendants opposed a motion for a temporary restraining order or a preliminary injunction in the alternative. One of the plaintiffs sought an order directing the defendants to reopen and re-adjudicate his application for adjustment of status before March 30, 2019, when his employer and visa petitioner would cease operations. The defendants sought to stay his motion until the government reopened. Once funding was restored, the defendants responded to the motion for a temporary restraining order.

On February 15, the court denied the plaintiff's request, and directed him to provide further information on whether he had standing to challenge the defendants’ “inspected and admitted” policy described above. 2019 WL 653139. Within the month, both parties filed reply briefs in support and in opposition to the plaintiff's request for relief.

This case is ongoing as of April 5, 2019.

Ava Morgenstern - 04/21/2018
Erica Lignell - 04/05/2019


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Issues and Causes of Action
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Issues
General
Government Services (specify)
Immigration/Border
Admission - criteria
Admission - procedure
Employment
Status/Classification
Temporary protected status
Visas - criteria
Visas - procedures
Work authorization - criteria
Work authorization - procedures
Plaintiff Type
Private Plaintiff
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Mandamus, 28 U.S.C. § 1361
Defendant(s) U.S. Citizenship and Immigration Services
U.S. Department of Homeland Security
Plaintiff Description TPS recipients whose LPR applications were denied
Indexed Lawyer Organizations American Immigration Council's Legal Action Center
Northwest Immigrant Rights Project (NWIRP)
Class action status sought Yes
Class action status granted Pending
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filing Year 2018
Case Ongoing Yes
Case Listing IM-CA-0134 : Ramos v. Nielsen (N.D. Cal.)
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Ending Obstacles for Temporary Protected Status Recipients Seeking Legal Permanent Residence
www.americanimmigrationcouncil.org
Date: Feb. 22, 2018
By: American Immigration Council
[ Detail ] [ External Link ]

Docket(s)
1:18-cv-01135 (E.D.N.Y.)
IM-NY-0062-9001.pdf | Detail
Date: 12/11/2008
Source: PACER [Public Access to Court Electronic Records]
1:18-cv-01135 (E.D.N.Y.)
IM-NY-0062-9000.pdf | Detail
Date: 02/22/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint for Declaratory, Injunctive and Mandamus Relief [ECF# 1]
IM-NY-0062-0001.pdf | Detail
Date: 02/22/2018
Source: PACER [Public Access to Court Electronic Records]
Memorandum of Law in Support of Plaintiffs' Motion for Class Certification [ECF# 2-1]
IM-NY-0062-0002.pdf | Detail
Date: 02/22/2018
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order (2019 WL 653139) (E.D.N.Y.)
IM-NY-0062-0003.pdf | WESTLAW | Detail
Date: 02/15/2019
Source: Westlaw
show all people docs
Judges Mauskopf, Roslynn Renee (E.D.N.Y.) show/hide docs
IM-NY-0062-0003 | IM-NY-0062-9000 | IM-NY-0062-9001
Plaintiff's Lawyers Adams, Matthew (Washington) show/hide docs
IM-NY-0062-0001 | IM-NY-0062-0002 | IM-NY-0062-9001
Kang, Leila (Washington) show/hide docs
IM-NY-0062-0001 | IM-NY-0062-0002 | IM-NY-0062-9001
Kenney, Mary (District of Columbia) show/hide docs
IM-NY-0062-0001 | IM-NY-0062-0002 | IM-NY-0062-9001
Macleod-Ball, Kristin A. (Massachusetts) show/hide docs
IM-NY-0062-0001 | IM-NY-0062-0002 | IM-NY-0062-9001
Realmuto, Trina (Massachusetts) show/hide docs
IM-NY-0062-0001 | IM-NY-0062-0002 | IM-NY-0062-9000 | IM-NY-0062-9001
Defendant's Lawyers Marutollo, Joseph Anthony (New York) show/hide docs
IM-NY-0062-9001
Smith, Sheldon A. (New York) show/hide docs
IM-NY-0062-9001
ul-Haq, Ubaid (District of Columbia) show/hide docs
IM-NY-0062-9001
Other Lawyers Huang, Eric Hui-Chieh (New York) show/hide docs
IM-NY-0062-9001
Miller, Jonathan B. (Massachusetts) show/hide docs
IM-NY-0062-9001

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