Pedro Arturo Salmeron-Salmeron v. Warden Bill Spivey
Opinion
*1285 Pedro Arturo Salmeron-Salmeron, an El Salvadorian national, appeals the district court's dismissal of his petition for writ of habeas corpus and partial grant of summary judgment in favor of the Government regarding Salmeron-Salmeron's claim that United States Citizen and Immigration Services ("USCIS") should have exercised jurisdiction over his application for asylum.
After a review of the record and consideration of the arguments made both in the briefs and during oral argument, we affirm the district court's dismissal of his petition for writ of habeas corpus and partial grant of summary judgment.
I. BACKGROUND
The facts of this case are not in dispute. In May 2014, Salmeron-Salmeron entered the United States as a sixteen-year-old. On his initial I-213, Record of Deportable/Inadmissible Alien form ("I-213"), a border officer indicated that Salmeron-Salmeron feared returning to El Salvador. He was identified as an unaccompanied alien child ("UAC"), and eventually released to his parents in North Carolina.
Appellant's parents hired an immigration attorney, but the attorney did not file a claim for asylum, for withholding of removal, or under the Convention Against Torture. 1 Instead, the attorney applied for voluntary departure only, which an Immigration Judge granted. Salmeron-Salmeron did not depart by July 21, 2015, as required by the terms of the voluntary departure, so the order became a final order of removal. On August 27, 2015, Salmeron-Salmeron turned eighteen years old. In January 2016, Immigration and Customs Enforcement ("ICE") detained Salmeron-Salmeron, completed a new I-213 stating that Salmeron-Salmeron was eighteen, and transferred him to the Stewart County Detention Center-an adult detention facility in Lumpkin, Georgia.
During his detention, Salmeron-Salmeron filed an asylum application with USCIS and a petition for writ of habeas corpus under
In a Report and Recommendation to the district court, the magistrate judge recommended the dismissal of Salmeron-Salmeron's habeas corpus claim as moot given his deportation from the United States. Report and Recommendation,
Salmeron-Salmeron v. Lynch
, No. 4:16-cv-291-CDL-MSH (M.D. Ga. Aug. 24, 2017) ("Report and Recommendation"). The magistrate judge also recommended that the district court grant the Government's motion for partial summary judgment on Salmeron-Salmeron's APA claims under
On appeal, Salmeron-Salmeron asserts two claims. First, he argues that the inclusion of numerous documents unrelated to the jurisdictional decision of USCIS and initial exclusion of other documents relied on by USCIS precluded effective judicial review. Second, he argues that the jurisdictional decision of USCIS was arbitrary and capricious because it violated agency procedures regarding UAC designations. Specifically, Salmeron-Salmeron argues that agency procedure required USCIS to adopt his previous UAC designation and exercise jurisdiction over his asylum claim because no affirmative act terminating that designation occurred. In a footnote, Salmeron-Salmeron also contends that if the Court reverses the district court's summary judgment decision on the APA claims, it should also reverse the decision to dismiss his habeas claim as moot.
II. JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction pursuant to
Because Salmeron-Salmeron appeals the decision of USCIS under the APA, the Court reviews whether the agency's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
III. DISCUSSION
a. The adequacy of the Certified Administrative Record
It is a foundational principal of administrative law that a reviewing court must review only the information that was before the agency at the time of its decision in assessing whether that decision was permissible.
See
Camp v. Pitts
,
As a logical matter, because the submission of the administrative record to the district court did not arise until after USCIS made its jurisdictional decision, there is no way any problem with this submission affected the decision itself. Salmeron-Salmeron does not specify in his brief exactly what harm was caused by the inclusion of numerous documents unrelated to the jurisdictional decision of USCIS, but stated at oral argument that the harm was a lack of knowledge regarding what the agency relied on in rendering its decision. The record submitted to the district court, however, indicates that USCIS based its decision that Salmeron-Salmeron's UAC designation had been terminated both on his detention in an adult facility and an issuance of a new I-213 by ICE indicating that he was eighteen years old. Although the July 28, 2016, decision by USCIS finding a lack of jurisdiction does not explain its reasoning, emails between a USCIS officer and USCIS headquarters about Salmeron-Salmeron's application, and whether USCIS possessed jurisdiction, clarify the rationale for the decision.
Appellant does not allege that the improperly included documents or supplementation of the administrative record affected the district court's review. Nonetheless, a review of the court's decision reveals that it did not rely on any improperly included documents in its decision. The court sees no other potential harm or prejudice in this case caused by the inclusion of numerous documents not before the agency at the time of its decision. See Report and Recommendation at 9 (noting that the jurisdictional decision of USCIS was not irrational given the newly filed I-213 indicating Salmeron-Salmeron's age as eighteen). To be sure, including numerous documents unrelated to the question being reviewed has the potential to frustrate judicial review. In such a situation, a court is well-equipped to order submission of a less voluminous and accurate record. Apparently, it saw no need to do so here.
Similarly, the Court finds no harm caused by the Government's supplementation of the administrative record. Although these later-submitted documents do contain information that explain the rationale of USCIS for not exercising jurisdiction, the documents were provided to the district court and Appellant's counsel before the district court completed its review.
Accordingly, the Court holds that the improper inclusion of irrelevant documents in the administrative record and its subsequent supplementation with relevant documents did not prejudice Salmeron-Salmeron and any errors on the part of the Government in this respect are harmless.
b. The decision not to exercise jurisdiction over Salmeron-Salmeron's asylum claim by USCIS
Salmeron-Salmeron does not allege that he was under eighteen when he filed a petition for asylum. His age is not in dispute. Rather, he alleges that the decision of USCIS denying jurisdiction based on his UAC status having been terminated prior to his application is arbitrary and capricious. Specifically, Salmeron-Salmeron argues that USCIS failed to follow its *1288 own internal policy guidance regarding UAC status determinations and challenges its finding that an affirmative act had terminated his UAC status.
As indicated, the Court will uphold an agency's action unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA"), Pub. L. No. 106-386,
(A) has no lawful immigration status in the United States
(B) has not attained 18 years of age; and
(C) with respect to whom-
(i) there is no parent or legal guardian in the United States; or
(ii) no parent or legal guardian in the United States is available to provide care and physical custody.
To avoid redundant factfinding, and the resulting waste of agency resources, USCIS has developed procedures for identifying UACs in making jurisdictional determinations. According to a 2013 policy memorandum, USCIS officers are to adopt a prior UAC finding without additional inquiry unless there has been an affirmative act by a relevant agency to terminate that finding.
5
See
Memorandum from Ted Kim, USCIS Acting Chief, Asylum Division (May 28, 2013),
Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children
, HQRAOI 120/12a ("2013 UAC Memo"). What constitutes an "affirmative act" is not defined in the 2013 UAC Memo, but an Asylum Procedure Manual from 2016 helps elucidate what USCIS considers to be such an act.
See
USCIS, Asylum Division, Affirmative Asylum Procedures Manual ("AAPM") (2016). In the AAPM, evidence of prior UAC determinations includes a "Form I-213, Record of Deportable Alien."
USCIS found that an affirmative act had occurred because ICE issued a new I-213 indicating that Salmeron-Salmeron was eighteen years old and he was placed in an adult detention facility. This determination is in accord with USCIS policy and practice as laid out in the 2013 UAC Memo and AAPM. Appellant's arguments that this decision is arbitrary or capricious insofar as the action was out of line with agency guidance are, accordingly, unpersuasive. The sole issue remaining is whether the jurisdictional determination by USCIS was a rational decision based on the evidence. 6
Salmeron-Salmeron argues the actions identified by USCIS do not constitute "affirmative acts" sufficient to terminate his UAC status because: (1) an I-213 is not an "action document" to which Salmeron-Salmeron would have been able to object; and (2) placement in an adult detention facility is not necessarily inconsistent with UAC status. 7
While these points might give pause in another matter, here they do not because it is undisputed that Salmeron-Salmeron was over the age of eighteen when he was apprehended, determined to be eighteen, and then placed in adult detention.
The issuance of a new I-213 indicating that Salmeron-Salmeron was eighteen years of age followed by detention in an adult facility, is sufficient for USCIS to find an affirmative act terminating UAC status prior to Salmeron-Salmeron's asylum application. The issuance of the new I-213 identifying Salmeron-Salmeron as an adult indicates that the transfer to the adult facility was not made under exceptional circumstances or without consideration of potential UAC status. The jurisdictional decision of USCIS was accordingly rational and based on the information before it.
See
State Farm
,
c. Salmeron-Salmeron's Habeas Petition
As a general rule, a habeas petition presents a live case or controversy only when a petitioner is in custody.
See
*1290
Spencer v. Kemna
,
In the immigration context, this Court has held previously that a habeas petition filed by a subsequently deported alien who challenges not only his detention, but also his final order of removal, may survive a mootness challenge.
See
Moore v. Ashcroft
,
IV. CONCLUSION
For the reasons set forth above, the Court affirms the decision of the district court to dismiss Salmeron-Salmeron's habeas claim as moot and to grant partial summary judgment in favor of the Government.
AFFIRMED.
Appellant filed an ineffective assistance of counsel claim asserting that his previous attorney should have sought these or other avenues of immigration relief and attempted to reopen the case in order to apply for asylum. After a series of appeals, the Fourth Circuit eventually affirmed the BIA's denial of the motion.
Salmeron-Salmeron v. Sessions
, No. 16-2209,
Salmeron-Salmeron raised his Administrative Procedure Act ("APA") claim in his habeas petition, pursuant to
All references to the district court's analysis refer to the magistrate judge's Report and Recommendation, which was adopted in full by the district court. See Order on Report and Recommendation; Report and Recommendation.
The 2013 UAC Memo states that "in those cases in which either [Customs and Border Protection ("CBP") ] or ICE has already made a determination that the applicant is a UAC, and that status determination was still in place on the date the asylum application was filed, Asylum Offices will adopt that determination without another factual inquiry. Unless there was an affirmative act by HHS, ICE or CBP to terminate the UAC finding before the applicant filed the initial application for asylum, Asylum Offices will adopt the previous DHS determination that the applicant was a UAC." 2013 UAC Memo.
The court notes that the notion that USCIS may exercise jurisdiction over an asylum application filed by a person facing removal who has previously been determined to be a UAC-even in the face of evidence that the applicant may have turned eighteen-is not derived from any statute or regulation, but from the 2013 UAC memo. The 2013 Memo effectively allows USCIS to engage in a legal fiction, exercising jurisdiction over an asylum application filed by a person in removal proceedings who received a favorable UAC determination in the past, even where it knows that person no longer qualifies as a UAC. It does so despite the regulations and the limited exception provided by the clear jurisdictional language of the statute as modified by the TVPRA, which specifically grants USCIS "initial jurisdiction over any asylum application filed by [a UAC]."
To this latter point, although the TVPRA requires UACs to be transferred to Health and Human Service's Office of Refugee Resettlement, it allows some flexibility in completing that transfer.
Reference
- Full Case Name
- Pedro Arturo SALMERON-SALMERON, Petitioner - Appellant, v. Warden Bill SPIVEY, Former Secretary DHS Jeh Johnson, Acting Attorney General Sally Quillian Yates, Respondents - Appellees.
- Cited By
- 33 cases
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- Published