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Case: 12-1406   Document: 003110972921     Page: 1   Date Filed: 07/30/2012                12-1406                        ...
Case: 12-1406        Document: 003110972921                Page: 2       Date Filed: 07/30/2012                           ...
Case: 12-1406           Document: 003110972921                    Page: 3         Date Filed: 07/30/2012                  ...
Case: 12-1406    Document: 003110972921        Page: 4     Date Filed: 07/30/2012                               I. INTRODU...
Case: 12-1406     Document: 003110972921         Page: 5   Date Filed: 07/30/2012       The Appellants have asserted that ...
Case: 12-1406    Document: 003110972921         Page: 6     Date Filed: 07/30/2012       If, as the Appellants submit, the...
Case: 12-1406    Document: 003110972921        Page: 7     Date Filed: 07/30/2012 1182(a)(9)(C)(i) which was the central q...
Case: 12-1406    Document: 003110972921        Page: 8    Date Filed: 07/30/2012 period of inadmissibility. If his admissi...
Case: 12-1406    Document: 003110972921         Page: 9    Date Filed: 07/30/2012 admission, be lawfully privileged or ent...
Case: 12-1406      Document: 003110972921       Page: 10     Date Filed: 07/30/2012 at a port of entry, even on the basis ...
Case: 12-1406         Document: 003110972921                    Page: 11          Date Filed: 07/30/2012          primaril...
Case: 12-1406   Document: 003110972921        Page: 12     Date Filed: 07/30/2012       the context of § 212(h). In re Aya...
Case: 12-1406   Document: 003110972921        Page: 13     Date Filed: 07/30/2012       The BIA in Matter of Graciela Quil...
Case: 12-1406    Document: 003110972921        Page: 14    Date Filed: 07/30/2012       Finally, the Respondents make only...
Case: 12-1406         Document: 003110972921                   Page: 15          Date Filed: 07/30/2012 ONeill had been fo...
Case: 12-1406     Document: 003110972921       Page: 16    Date Filed: 07/30/2012    B. The District Court had subject-mat...
Case: 12-1406   Document: 003110972921        Page: 17     Date Filed: 07/30/2012       “AAO intimates that the decision t...
Case: 12-1406    Document: 003110972921        Page: 18     Date Filed: 07/30/2012 Court assumed that the erroneous charac...
Case: 12-1406    Document: 003110972921        Page: 19     Date Filed: 07/30/2012 inadmissibility under 8 U.S.C. § 1182(i...
Case: 12-1406       Document: 003110972921       Page: 20     Date Filed: 07/30/2012 inadmissible on a number of grounds, ...
Case: 12-1406   Document: 003110972921     Page: 21    Date Filed: 07/30/2012 Dated: July 30, 2012        Long Island City...
Case: 12-1406   Document: 003110972921         Page: 22    Date Filed: 07/30/2012                       CERTIFICATE OF SER...
Case: 12-1406     Document: 003110972921        Page: 23    Date Filed: 07/30/2012                   Certificate of Compli...
Case: 12-1406   Document: 003110972921   Page: 24   Date Filed: 07/30/2012                                   Long Island C...
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O'Neill v Cook appellants brief in 3rd Circuit 7-30-12

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Transcript of "O'Neill v Cook appellants brief in 3rd Circuit 7-30-12"

  1. 1. Case: 12-1406 Document: 003110972921 Page: 1 Date Filed: 07/30/2012 12-1406 IN THE United States Court of Appeals FOR THE THIRD CIRCUIT HUGH FRANCIS O’NEILL; ELIZABETH NETTIE BEAN Appellants v. ELLIOTT COOK, Field Office Director of the United States Citizenship and Immigration Services, London, United Kingdom; PERRY RHEW, Chief, Administrative Appeals Office of the United States Citizenship and Immigration Services; ALEJANDRO MAYORKAS, Director of the United States Citizenship and Immigration Services; SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; ATTORNEY GENERAL OF THE UNITED STATES; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES Appellees ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE APPELLANTS’ REPLY BRIEF DORNAN & ASSOCIATES PLLC Of counsel: Eamonn Dornan 1040 Jackson Avenue, Suite 3B Long Island City, New York 10017 Tel: (718) 707-9997 ORAL ARGUMENT REQUESTED
  2. 2. Case: 12-1406 Document: 003110972921 Page: 2 Date Filed: 07/30/2012 TABLE OF CONTENTS TABLE OF CITATIONS.................................................................................i INTRODUCTION…………..……………………………………………….1 ARGUMENT………………………...………………………………….…..3 A. The District Court failed to address the meaning of the phrase “enters or attempts to reenter the United States without being admitted” in relation to 8 U.S.C. § 1182(a)(9)(C)(i)…………………………………………………...3 B. The District Court had subject-matter jurisdiction to review the denial of an I-601 Application for Waiver for the same reasons it had subject-matter jurisdiction to review the I-212 Application for Admission……..………………………………………………….13 CONCLUSION………………………………………………….…………17
  3. 3. Case: 12-1406 Document: 003110972921 Page: 3 Date Filed: 07/30/2012 TABLE OF CITATIONS Cases Matter of Graciela Quilantan, 25 I&N Dec. 285 (BIA 2010) ……………………………………5, passim Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980) ………………………………………………5 Pinho v. Gonzales, 432 F.3d 193, 200 (3d Cir. 2005)…………………………………………14 Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010)………………………………………….…8, 9 Bracamontes v. Holder, 675 F.3d 380, 385 (4th Cir. 2012) ……………………………………….… 9 Federal Statutes 5 U.S.C. §701….….......................................................................................13 5 U.S.C.§702.................................................................................................13 5 USC §706….……......................................................................................13 8 U.S.C. §1182(a)(9)(C)….................................................................... passim 8 USC §1182(a)(9)(A)….......................................................................passim 8 USC §1071(a)(13)..............................................................................,passim i
  4. 4. Case: 12-1406 Document: 003110972921 Page: 4 Date Filed: 07/30/2012 I. INTRODUCTION In its Counter-Statement of the Issues in the Brief for Respondents (“Resp. Br.”), the Respondents submit two questions for the Honorable Court’s consideration (i) whether the District Court correctly concluded that it lacked jurisdiction to review the agency’s discretionary decision to deny O’Neill’s I-601 application for a waiver and (ii) whether the District Court correctly ruled that O’Neill is ineligible for permission to reapply for admission to the United States under 8 U.S.C. § 1182(a)(9)(C)(ii) because he failed to wait the ten years required to seek admission under the plain language of the statute. As regards the first question, the Respondents concede, at least with regard to non-discretionary agency decisions, that the District Court had subject-matter jurisdiction under the Administrative Procedures Act (“APA”). Resp.Br. p2. The question for the Honorable Court, then, is whether or not the denial by the United States Citizenship and Immigration Services (“USCIS”) and the Administrative Appeals Office (“AAO”) of the I-601 Application for Waiver of Inadmissibility (“I-601 Application for Waiver”) filed by Appellant Bean on behalf of her spouse, was a non-discretionary action. 1
  5. 5. Case: 12-1406 Document: 003110972921 Page: 5 Date Filed: 07/30/2012 The Appellants have asserted that the dismissal by USCIS and the AAO of Bean’s I-601 Application for Waiver was not based on any exercise of its discretion, but rather based on legal error flowing from its erroneous dismissal of the I-212 Application for Permission to Reapply for Admission into the United States after Deportation or Removal (“I-212 Application for Admission.” Furthermore, in the circumstances, USCIS and the AAO simply declined to adjudicate the I-601 Application for Waiver, and thereby failed to exercise any discretion at all. The District Court has, in fact, set out the reasons why it retained jurisdiction with regard to the I-212 Application for Admission, namely, where “important facts have been totally overlooked or seriously mischaracterized” which creates an error of law. This jurisprudence should have been applied with equal measure to a review of the I-601 Application for Waiver. In any event, the more pertinent issue is raised in the second question, namely, whether the District Court correctly ruled that O’Neill is ineligible for permission to reapply for admission to the United States under 8 U.S.C. § 1182(a)(9)(C)(ii) until 10 years have elapsed from the date of his last removal. The Appellants submit that the District Court simply failed to make any determination at all on that ground, even though this was the main issue raised by the Appellants on review. 2
  6. 6. Case: 12-1406 Document: 003110972921 Page: 6 Date Filed: 07/30/2012 If, as the Appellants submit, the Government has made a legal error in this regard, then the Government’s interference with their right to family life is considerable, and the damage to the family unit is incalculable. The foreclosure of administrative relief to deserving families is not the result which Congress intended when it built avenues for humanitarian relief into the Immigration and Nationality Act. II. ARGUMENT A. The District Court failed to address the meaning of the phrase “enters or attempts to reenter the United States without being admitted” in relation to 8 U.S.C. § 1182(a)(9)(C)(i). With regard to the question of ONeills admission to the United States in February 2002 on his brothers passport, the Respondents posited the counter-statement of the issue as follows: "Whether the District Court correctly ruled that O’Neill is ineligible for permission to reapply for admission to the United States under 8 U.S.C. § 1182(a)(9)(C)(ii) because he failed to wait the ten years required to seek admission under the plain language of the statute." The problem for the Respondents is that the District Court made no such ruling, but rather failed, as do the Respondents, to examine the "plain language of the statute" with regard to the meaning of the phrase "enters or attempts to reenter the United States without being admitted" at 8 U.S.C. § 3
  7. 7. Case: 12-1406 Document: 003110972921 Page: 7 Date Filed: 07/30/2012 1182(a)(9)(C)(i) which was the central question on review. The District Court found, instead, that "because ONeill is inadmissible, he is ineligible for a waiver of inadmissibility" which is a legal nonsense. The Respondents in their brief follow the same approach as the Administrative Appeals Office ("AAO") and the District Court to this central issue, which is to avoid any analysis of the statutory language. Having litigated the matter thus far, it is indeed remarkable that the agencies, the lower court, and now the Respondents all have failed to address this straightforward question with any particularity. Either ONeill was "admitted" to the United States in February 2002, pursuant to 8 USC §1071(a)(13), or he was not. The term ‘admission’ and ‘admitted’, with respect to an alien, is defined at 8 USC §1071(a)(13) as “the lawful entry of an alien into the United States after inspection and authorization by an immigration officer.” Emphasis added. The Appellants submit that it is the inspection by an immigration officer which renders an entry lawful, and which therefore defines an "admission." If ONeill was "admitted" then he is not subject to the provisions of 8 U.S.C. § 1182(a)(9)(C)(i) and he is entitled to file an I-212 Application for Admission along with an I-601 Application for Waiver within the 10 year 4
  8. 8. Case: 12-1406 Document: 003110972921 Page: 8 Date Filed: 07/30/2012 period of inadmissibility. If his admission was not effected, then he is subject to 8 U.S.C. § 1182(a)(9)(C)(i), and is permanently inadmissible, but may file an I-601 Application for Waiver after 10 years have elapsed. The Board of Immigration Appeals ("BIA") in Matter of Graciela Quilantan, 25 I&N Dec. 285 (BIA 2010), affirmed its holding on this point in Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), and settled the issue that "admission" denotes only "procedural regularity" in an entry, not compliance with substantive legal requirements. Accordingly, an alien seeking to show that he or she has been “admitted” to the United States pursuant to section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (2006), need only prove "procedural regularity" in his or her entry, which does not require the alien to be questioned by immigration authorities or be admitted in a particular status. This would include a failure by the immigration authorities upon inspection to detect that ONeill had entered on a passport which was not his own. The BIA in Matter of Graciela Quilantan had requested supplemental briefing from both parties on two issues; (i) whether, for purposes of adjustment of status under section 245(a) of the Act, the term “admitted” (as defined in section 101(a)(13)(A) of the Act to mean “lawful entry” into the United States) required that an applicant, at the time of the claimed 5
  9. 9. Case: 12-1406 Document: 003110972921 Page: 9 Date Filed: 07/30/2012 admission, be lawfully privileged or entitled to enter the United States; (ii) whether, in enacting section 101(a)(13)(A) of the Act in section 301(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-575 (“IIRIRA”), Congress intended to continue to allow aliens who physically presented themselves for questioning and were permitted to pass through the port of entry to have satisfied the “inspected and admitted” requirement of section 245 of the Act. The BIA found that there was no dispute with regard to the question of admission: "On appeal, both parties agree that the term “admitted” in section 245(a) of the Act demands only procedural regularity in an entry, not compliance with substantive legal requirements, and they urge us to adopt that interpretation." Accordingly, as the Respondents have agreed in other fora that an "admission" only demands procedural regularity, they should be estopped from arguing that ONeills admission was not lawful in this case because it did not comply with substantive legal requirements i.e. because the entry was allegedly procured by fraud, a finding which USCIS in any event failed to make. The BIA in Matter of Graciela Quilantan outlined the history of the "admission" doctrine and concluded that those, like ONeill, who presented 6
  10. 10. Case: 12-1406 Document: 003110972921 Page: 10 Date Filed: 07/30/2012 at a port of entry, even on the basis of fraud, were nevertheless admitted for the purposes of the statute: "[I]nterpreting the term “admitted” in section 101(a)(13)(A) of the Act to require an entry to be in compliance with substantive legal requirements, rather than only with procedural regularity, would effectively render null section 237(a)(1)(H) of the Act, which provides a waiver of deportability that is expressly available to aliens who obtained admission by fraud or misrepresentation. See United States v. Menasche, 348 U.S. 528, 538-39 (1955) (noting that a “cardinal principle” of statutory construction is not to destroy parts of a statute, but rather to give effect, if possible, to every clause and word). The fact that Congress retained section 237(a)(1)(H) when it amended former section 101(a)(13) demonstrates that Congress understood that an “admission” could occur in the absence of compliance with substantive legal requirements. [Citations omitted and emphasis added]. Similarly, the sanctions found in 8 U.S.C. § 1182(a)(9)(C)(i)(II) are directed at individuals who have entered without inspection ("EWI"), namely, individuals who have not been admitted or paroled, or who have entered at other than an open, designated port of entry. The distinction was explained by Secretary of State Madeleine Albright in a Memorandum to Diplomatic and Consular Posts “DOS Advises on Unlawful Presence/Three & Ten Year Bars": "INA 212(a)(9)(C)(i)(II)1 renders permanently inadmissible any alien who was unlawfully present in the U.S. for more than a year in the aggregate, and who subsequently entered or attempted to enter the U.S. without inspection. This provision 1 8 U.S.C. § 1182(a)(9)(C)(i)(II) 7
  11. 11. Case: 12-1406 Document: 003110972921 Page: 11 Date Filed: 07/30/2012 primarily affects aliens who attempt to circumvent an ineligibility under 9A by slipping across the border illegally."2 (Emphasis added). This criteria does not apply to ONeill who gained entry after inspection at a designated port of entry. The sanctions at 8 U.S.C. § 1182(a)(9)(C)(i), on the other hand, provide that "[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.” The few circuit courts which have had the opportunity to address this question have followed the same reasoning as the BIA. In Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) the Ninth Circuit Court considered the concept of admission in the context of a waiver of inadmissibility under 8 U.S.C. § 1182(h) and stated as follows3: “Addressing this issue of first impression in this circuit, we conclude that the plain meaning of the term “admission” in § 1101(a)(13)(A), and thus the term “previously been admitted” in § 212(h), refers to a procedurally regular admission and not a substantively lawful admission. The First Circuit came to the same conclusion, having construed the term “previously . . . admitted” in § 212(h). Onwuamaegbu v. Gonzales, 470 F.3d 405, 409 (1st Cir. 2006). The BIA also interpreted the term in 2 Madeleine Albright, Secretary of State, Cable to Diplomatic and Consular Posts, April 4, 1998 at par. 36, www.aila.org AILA InfoNet Doc. No. 98040490 (posted Apr. 4, 1998) 3 It should be noted that the only prior Ninth Circuit decision to address this issue was vacated by the panel. In Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008), vacated by 546 F.3d 1147 (9th Cir. 2008) (order), a panel of the Ninth Circuit court took the opposite approach and interpreted "admission" in § 1101(a)(13)(A) to describe a substantively lawful entry into the United States. 8
  12. 12. Case: 12-1406 Document: 003110972921 Page: 12 Date Filed: 07/30/2012 the context of § 212(h). In re Ayala, 22 I&N Dec. 398, 401 (BIA 1998) (en banc). Neither decision approached the question, as we do, from the starting point of the meaning of “admission” in the definition section of the statute, § 1101(a)(13)(A), but the result is the same.” See also Bracamontes v. Holder, 675 F.3d 380, 385 (4th Cir. 2012) ["Admission" and "admitted" are defined as "with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." 8 U.S.C. § 1101(a)(13)(A). Clearly, neither term includes an adjustment of status; instead, both contemplate a, physical crossing of the border following the sanction and approval of United States authorities.] Accordingly, in light of Sum v. Holder, supra, and Matter of Graciela Quilantan the provisions of 8 U.S.C. § 1182(a)(9)(C)(i) would similarly be rendered null if ONeill was considered to be an EWI under 8 U.S.C. § 1182(a)(9)(C)(i)(II) based on a fraudulent entry, when the proper sanction is found at 8 U.S.C. § 1182(a)(9)(C)(i). ONeill could only be an EWI subject to 8 U.S.C. § 1182(a)(9)(C)(i)(II) if his admission was deemed to have been vitiated by fraud, but the Circuit Courts and the BIA are clear that once the procedures are complete, namely the admission after inspection by an immigration officer, then the lawfulness of the entry has been established. Neither the District Court nor the Respondents have articulated otherwise. 9
  13. 13. Case: 12-1406 Document: 003110972921 Page: 13 Date Filed: 07/30/2012 The BIA in Matter of Graciela Quilantan further clarified that it is only when an alien makes a false claim to U.S. citizenship that s/he has not been inspected: "Thus, the controlling law is Matter of Areguillin, 17 I&N Dec. 308, which held that an alien who physically presents herself for questioning and makes no knowing false claim to citizenship is “inspected,” even though she volunteers no information and is asked no questions by the immigration authorities, and that such an alien has satisfied the “inspected and admitted” requirement of 245(a) of the Act. See also Matter of G-, 3 I&N Dec. 136, 138 (BIA 1948) (holding that an alien who physically presents himself for questioning, regardless of whether he is asked any questions, has been “inspected”). For their part, the Respondents blithely state that “O’Neill did not wait the ten years to seek admission to the country that Congress has required in the plain language of 8 U.S.C.§ 1182(a)(9)(C)(ii).” Resp. Br. 7. To the contrary, the plain language of 8 U.S.C.§ 1182(a)(9)(C)(i) requires that, for O’Neill to be subject to the permanent bar, he must have sought to reenter the United States without being admitted. In failing to address the central question of his admission, and in failing to cross-appeal, the Respondents should be deemed to have waived any opportunity to dispute the Appellants’ argument that O’Neill was admitted. 10
  14. 14. Case: 12-1406 Document: 003110972921 Page: 14 Date Filed: 07/30/2012 Finally, the Respondents make only one half-hearted attempt to address the Appellants argument on this point: "O’Neill contends that the District Court’s denial of I-212 is in error because he had been admitted on his brother’s passport and therefore lawfully entered the United States. See Petitioners’ Brief at 18, 26. O’Neill’s argument utterly lacks merit because he misrepresented his true immigration status to gain admission. Indeed, O’Neill does not dispute that he used his brother’s Irish passport and identity to enter the United States. Id. at 7, 18. This act forecloses his argument: an alien who fraudulently procures his admission to the United States is inadmissible. See 8 U.S.C.§ 1182 (a)(6)(C)(i)." Resp.Br. 12. This assertion repeats the error of fact made by the AAO, which the District Court identified but failed to address: "First, although the AAO correctly stated that there had been no appeal of the 1-601 decision, the AAO intimates that the decision to deny the 1-601 was a substantive one based on the application of§ 1182(a)(6)(C)(i), a statutory provision never identified in the USCIS decision." Emphasis added. O’Neill has never been found by USCIS to be inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i), which addresses fraud or misrepresentation, and USCIS is the agency charged with such a finding. A48. There is no doubt that he will be found to be inadmissible under this section, whenever USCIS properly addresses this ground, but for the purposes of judicial review this finding was not before the AAO. That the AAO erroneously determined that 11
  15. 15. Case: 12-1406 Document: 003110972921 Page: 15 Date Filed: 07/30/2012 ONeill had been found by USCIS to be inadmissible under this ground was plain error by the AAO which the District Court failed to address4. A7. ONeill readily concedes that he is inadmissible under 8 USC §1182(a)(9)(A)(ii), as an alien seeking readmission within 10 years of an order or removal, but that he is nevertheless entitled to the exception at 8 USC §1182(a)(9)(A)(iii) which permits him to apply for readmission with the Attorney General’s consent by filing an I-212 Application for Admission. O’Neill submits that his admission on his brothers passport in February 2002, was a lawful admission as defined at 8 USC §1071(a)(13), such that he is not subject to the statutory bar at 8 USC §1182(a)(9)(C)(i) as an alien who has been ordered removed and who "enters or attempts to reenter the United States without being admitted.” The District Court was asked to address this issue, and specifically why ONeill was deemed by USCIS not to have been admitted, but declined to do so. 4 The Appellants also disagree with Respondents’ statement that the facts in this case are not in dispute, in that the characterization of some of the “facts” as rehearsed by the Respondents amount to legal conclusions which have not been arrived at by any decision-maker. For example, respondents state that on January 10, 2004 "O’Neill again illegally re-entered the United States under the Visa Waiver Program on a new passport under his own name." To the contrary, ONeill lawfully re-entered the United States under the Visa Waiver Program on a passport under his own name, and there has been not yet been any administrative determination that this entry was procured by fraud or misrepresentation. 12
  16. 16. Case: 12-1406 Document: 003110972921 Page: 16 Date Filed: 07/30/2012 B. The District Court had subject-matter jurisdiction to review the denial of an I-601 Application for Waiver for the same reasons it had subject-matter jurisdiction to review the I-212 Application for Admission. The APA provides generally for judicial review of a federal agency’s failure to act and, in the court’s discretion, to “compel agency action unlawfully withheld” or to hold unlawful the findings of administrative agencies which were “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right” contrary to the APA. 5 U.S.C. § 706(1) and (2)(C). The only limitations in the APA to a District Court’s jurisdiction to review agency action is where (1) judicial review is precluded by statute; or (2) the agency action is committed to agency discretion by law. 5 U.S. C. §701(a). The Respondents state in their summary argument that “O’Neill ignores the fact that the decision whether to grant or deny a waiver of inadmissibility under 8 U.S.C. § 1182(i) is committed to the discretion of the Government, and the INA expressly prohibits any court from reviewing a decision or action of the Government to grant such a waiver.” Resp.Br. 7. However, the District Court found that the decision of the AAO to deny O’Neill a waiver of inadmissibility under 8 U.S.C. § 1182(i) was based on error: 13
  17. 17. Case: 12-1406 Document: 003110972921 Page: 17 Date Filed: 07/30/2012 “AAO intimates that the decision to deny the 1-601 was a substantive one based on the application of §1182(a)(6)(C)(i), a statutory provision never identified in the USCIS decision.” A008. Emphasis added. Unfortunately, the District Court then failed to address the AAO’s factual and legal error, and found that "USCISs decision to deny the 1-601 in the interest of conserving resources, therefore, was an appropriate exercise of agency discretion" such that the lower court "lacks subject matter jurisdiction to review the decision under the APA." A012. But, of course, the District Court had APA jurisdiction where a decision, discretionary or otherwise, was based on factual and legal error. The District Court had asserted jurisdiction with regard to the Appellants APA claim in relation to the I-212 Application for Admission. The lower court referred to Pinho v. Gonzales, 432 F.3d 193, 200 (3d Cir. 2005), which holds that an agency action must be non-discretionary for courts to retain jurisdiction under the APA. A013. However, the District Court also asserted jurisdiction under the "legal authority standing for the proposition that a court may retain jurisdiction over an agency decision where important facts have been totally overlooked or seriously mischaracterized, creating an error of law." A016. The District Court found that the AAO did, in fact, mischaracterize the record below and the District 14
  18. 18. Case: 12-1406 Document: 003110972921 Page: 18 Date Filed: 07/30/2012 Court assumed that the erroneous characterization was "so substantial as to create an error of law, thereby conferring jurisdiction on the court." A017. Unfortunately, the lower court failed to apply the same consistency to the I- 601 Application for Waiver, to where the error regarding the I-212 Application for Admission flowed. The Respondents assert that the "District Court correctly determined that it lacked subject matter jurisdiction to review USCIS’s denial of O’Neill’s I-601 waiver application." Resp. Br. 9. In its background analysis of his inadmissibility, the Respondents erroneously state that "O’Neill…does not dispute that he fraudulently procured admission while fraudulently re-entering the United States under a false name using his brother’s passport." To the contrary, ONeill nowhere concedes that he "fraudulently procured admission" or "fraudulently re-enter[ed] the United States" and that is a determination which must be made by the appropriate agency, in this case USCIS. However, it is academic whether his entry might be deemed to be fraudulent or not. As discussed above, the crux of his argument is that he nevertheless effected an admission, whether or not the use of his brothers passport was fraudulent. The Appellants had also properly challenged what the Respondents describe as the “denial of [ONeills] application for a waiver of 15
  19. 19. Case: 12-1406 Document: 003110972921 Page: 19 Date Filed: 07/30/2012 inadmissibility under 8 U.S.C. § 1182(i).” ONeill had never made any such application on that ground, having never been found to be inadmissible under that ground in the first instance. Accordingly, the Appellants submit that, in denying the I-601, USCIS did not exercise any discretion at all but, rather, refused to render a decision based on its erroneous dismissal of ONeill I-212 Application for Admission. As the District Court found "[I]n USCISs judgment, it would serve no purpose to allow the 1-601 to proceed; consequently, USCIS denied the 1- 601." Clearly, the error by USCIS in denying the I-212 Application for Admission infected its decision not to adjudicate the I-601, which cannot be deemed to be an exercise of its discretion. The Respondents attempt to cure the absence of decision-making by USCIS by stating that the agency "balanc[ed]..the positive and negative factors" in its exercise of discretion. However, this is projecting onto the agency a process which is clearly absent from the record, and is tantamount to testifying on behalf of the agency. Finally the Respondents intimate that relief is unavailable because “O’Neill is a serial violator of United States immigration laws and therefore is inadmissible.” The Appellants have never disputed that ONeill is 16
  20. 20. Case: 12-1406 Document: 003110972921 Page: 20 Date Filed: 07/30/2012 inadmissible on a number of grounds, but that does not preclude him from relief. The Appellants submit that O’Neill is more than just a serial violator; he is the husband of a U.S. citizen, and father to two U.S. citizens, who have been forcibly separated from their father. The decision of the District Court means that the family effectively has been put on notice that they will remain separated for the entirety of the children’s formative years, if not longer, because the law does not permit O’Neill to reunite with them until at least 10 years have elapsed. If the immigration law at 8 U.S.C. § 1182(a)(9)(C)(i) was intended to deny any humanitarian relief to ONeill and his family, then it must be crystal clear that he is subject to its provisions. Conclusion For all the reasons set forth above, the Appellants respectfully request (a) that this Honorable Court find and determine that the AAO’s determination constituted a legal error and should be quashed, or alternatively (b) that this matter be remanded to the District Court with instructions to compel the AAO to follow the law by carrying out its obligations under the INA as set out herein. 17
  21. 21. Case: 12-1406 Document: 003110972921 Page: 21 Date Filed: 07/30/2012 Dated: July 30, 2012 Long Island City, New York Respectfully submitted, DORNAN & ASSOCIATES PLLC By: /s/Eamonn Dornan EAMONN DORNAN, ESQ 1040 Jackson Avenue, Suite 3B Long Island City, New York 10017 Tel: (718) 707-9997 Fax: (718) 228-5940 Attorneys for Appellants Hugh Francis O’Neill and Elizabeth Nettie Bean 18
  22. 22. Case: 12-1406 Document: 003110972921 Page: 22 Date Filed: 07/30/2012 CERTIFICATE OF SERVICE I, Eamonn Dornan, hereby certify that the within Appellants Reply Brief filed through the CM/ECF system was sent electronically to the registered participant as identified on the Notice of Electronic Filing (NEF) on July 30, 2012 to the following electronic address: "Nazarov, Ari (CIV)" Ari.Nazarov@usdoj.gov and mailed on the same day one copy by priority mail in care of the United States Postal Service to: Ari Nazarov Trial Attorney U.S. Department of Justice, Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 DORNAN & ASSOCIATES PLLC By: /s/Eamonn Dornan EAMONN DORNAN, ESQ 1040 Jackson Avenue, Suite 3B Long Island City, New York 10017 Tel: (718) 707-9997 Fax: (718) 228-5940 Attorneys for Appellants Hugh Francis O’Neill and Elizabeth Nettie Bean Dated: New York, New York July 30, 2012 19
  23. 23. Case: 12-1406 Document: 003110972921 Page: 23 Date Filed: 07/30/2012 Certificate of Compliance with Rule 32(a) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because: this brief contains 3,704 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2000 in 14- point Times New Roman. Certificate of Compliance with Digital Submission 3. This brief complies with the electronic filing requirements set forth at L.A.R. 31.1(c): 1) any required privacy redactions have been made (none were required in this case); 2) the text of the Digital Form and the hard copies of the within Brief and Appendix are identical, and 3) a virus check has been performed on the Digital Form utilizing Norton Antivirus 2003. Dated this 30th day of July, 2012 DORNAN & ASSOCIATES PLLC By: /s/Eamonn Dornan EAMONN DORNAN, ESQ 1040 Jackson Avenue, Suite 3B 20
  24. 24. Case: 12-1406 Document: 003110972921 Page: 24 Date Filed: 07/30/2012 Long Island City, New York 10017 Tel: (718) 707-9997 Fax: (718) 228-5940 Attorneys for Appellants Hugh Francis O’Neill and Elizabeth Nettie Bean 21

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