Giombetti v. Wolf

Background

Mayra Giombetti and her husband, Thomas Giombetti, sought to adjust Mayra’s immigration status. They submitted an I-130 petition in November 2017, and the U.S. Citizenship and Immigration Services approved it on January 3, 2019. The approved file was supposed to go to the National Visa Center, which processes immigrant-visa petitions requiring action through a consulate.

The Giombettis alleged that the government failed to forward the file promptly. After months of communications about the file’s status, the government told Mayra on April 2, 2020, that it would not forward the file because the petition indicated that she was in the United States. The government forwarded the file to the National Visa Center on April 3, 2020, and the center received it on April 8, 2020.

Mayra was also in administratively closed removal proceedings. The government filed a motion to restart those proceedings. The parties agreed that the immigration court would grant that motion once it considered it, although the court was not then hearing motions in cases involving non-detained immigrants. Mayra intended to apply for a provisional unlawful-presence waiver, and the opinion states that she needed to file the application before the removal proceedings were restarted.

Motion to dismiss

The government moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which challenges the court’s subject-matter jurisdiction, and Rule 12(b)(6), which argues that a complaint does not adequately state a legal claim.

The court held that 8 U.S.C. § 1252(g) barred its jurisdiction over the Giombettis’ claims arising from the government’s decision to file the motion to restart Mayra’s removal proceedings. The court therefore granted in part the government’s motion to dismiss those claims. In the order, the court stated that the claims relating to the motion to restart proceedings were dismissed without prejudice.

The court reached a different conclusion about the claims concerning the government’s delay in forwarding the file to the National Visa Center. It held that those claims were not directly and immediately connected to the decision to commence or adjudicate removal proceedings, so § 1252(g) did not bar jurisdiction. The court also rejected the government’s argument that those claims were moot merely because the file had eventually been sent. The court explained that harm allegedly caused by the delay remained, and that the court could still grant relief related to that harm.

The court denied the government’s Rule 12(b)(6) motion. It stated that the government could dispute the facts later, including at the summary-judgment stage, but that the complaint plausibly alleged a claim concerning the delay when its allegations were accepted as true at the pleading stage.

The order therefore granted in part and denied in part the government’s motion to dismiss. Because all claims against the Executive Office for Immigration Review were dismissed, the court also dismissed that defendant.

Temporary restraining order

The Giombettis sought a temporary restraining order involving the motion to restart the removal proceedings and asked the court to require the government to treat Mayra’s waiver application as though it had been filed earlier.

The court held that it had no jurisdiction to consider the first three forms of requested relief because they arose from the decision or action to commence removal proceedings. It considered the request concerning the waiver application because that request was not barred by § 1252(g).

A temporary restraining order is emergency relief intended to prevent immediate harm while a case proceeds. Applying the standards used for preliminary injunctions, the court focused first on irreparable harm—harm that is certain, serious, and imminent. Although Mayra faced the possibility that she would lose the ability to apply for the waiver, the court found that she had not shown that harm was certain or imminent. She had been eligible to apply since early April, and the immigration court was not expected to consider the motion to restart proceedings until at least late May, and possibly later.

The court therefore denied the Giombettis’ second motion for a temporary restraining order without prejudice. It did not reach the remaining preliminary-injunction factors. The court urged Mayra to file the waiver application as soon as possible and notify the court after doing so.

Other disposition

The court denied the Giombet-tis’ first motion to exceed word limits as moot. The opinion’s signature line states a date of March 11, 2019, which conflicts with the supplied filing date of May 11, 2020 and with the opinion’s discussion of events in April and May 2020.