ALEJANDRO Mayorkas, U.S. Department of Homeland Security secretary, and Tracy Renaud, U.S. Citizenship and Immigration Services director, were sued by nine individuals in federal court over allegations of due process violations.
In their petition for a writ of mandamus, the nine individuals said they are not asking the court to adjudicate their eligibility for the long-term resident status.
“Instead,” said attorney Steven Pixley who represents the petitioners, “they respectfully seek the narrow relief of an order from this court mandating that the respondents process their applications, which were wrongfully rejected.”
The plaintiffs are Christine C. Pramis, Christopher R. Manalo, Cesar G. Lopez, Aliilua Panapa Peteru, Veisinia Tilisa Peteru, Pacifico C. Rivera, Ferdinand D. Arago, Anthony M. Alegre and Nimfa T. Tan.
Pixley said the petitioners understand that issuing a writ of mandamus directing a federal agency to act is an extraordinary remedy justified only in exceptional circumstances.
Here, he added, “the actions of the respondents in refusing to process the applications of the petitioners is egregious.”
On June 25, 2019, then-President Donald Trump signed into law the NMI Long-Term Legal Residents Relief Act.
The law allows certain aliens who have resided continuously and lawfully in the CNMI since Nov. 28, 2009 to remain in the Commonwealth.
Pursuant to instructions promulgated by USCIS, applicants were permitted to apply for the long-term status between Feb. 19, 2020 and Aug. 17, 2020.
Pixley said to apply for this status, the applicant was required to submit (i) Form I-955, application for Long-Term (CNMI) Resident Status or LTR including all evidence listed in the Form I-955 instructions and (ii) Form I-765, application for employment authorization.
The deadline for submitting these documents was Aug. 17, 2020.
On Feb. 19, 2020 USCIS issued a press release stating that the application period for LTR status was open. It also opened a new portal providing information regarding where to file, employment authorizations, travel outside of the CNMI and other matters.
On July 2, 2020, USCIS conducted an online webinar, which provided further information regarding the LTR status.
According to Pixley, the petitioners timely complied with the instructions.
In conformity with the instructions provided by DHS-USCIS between July 20, 2020, and Aug. 1, 2020, he said the petitioners sent via Federal Express their LTR applications to the designated USCIS facility in Lewisville, Texas.
“Each of the applications submitted by the petitioners [was] delivered to USCIS for intake processing before the Aug. 17, 2020 deadline,” Pixley said.
Between Aug. 25 and Sept. 11, 2020, the petitioners received their rejected applications from USCIS.
USCIS included a letter which stated, “The application was filed on an outdated version of this form [Form I-765]. Please resubmit your application on the current version of this form with the appropriate fees to the address listed at the bottom of this page.”
Pixley noted that the letter was dated after the Aug. 17, 2020 deadline mandated by DHS-USCIS.
He said multiple other applications submitted at the same time to the same USCIS facility using the same I-765 form were properly accepted by USCIS.
Pixley said the determination of USCIS that Form I-765 was “outdated” is directly contradicted by instructions promulgated by USCIS stating that LTR applicants are required to use the “old edition” of Form I-765 for the LTR application until Aug. 25, 2020.
Pixley said the petitioners again submitted their applications utilizing the new Form I-765 between Sept. 17, 2020 and Sept. 23, 2020.
He said between Oct. 5, 2020, and Nov. 6, 2020, the petitioners once again received their rejected applications from USCIS.
Pixley said in rejecting the second submission, USCIS’s “‘Catch-22’ explanation created a paradoxical situation from which the petitioners could not escape because of contradictory rules or limitations, to wit: ‘[W]e will not accept any Form I-955 or Form [I-765] for the CNMI long-term resident status postmarked after Aug. 17, 2020.’ ”
He said on Oct. 29, 2020, the petitioners once again submitted their applications.
In this third submission, the petitioners summarized the foregoing history and explained why their respective applications were timely filed.
Three months later, Pixley said he learned that DHS-USCIS refused to process the resubmitted applications.
He said the third rejection was accompanied by a letter from USCIS explaining that it was “unable to associate your documents with any application/petition you may have submitted.”
Pixley asked the district court to issue a writ of mandamus directed to DHS and USCIS, compelling them to accept and process the applications of the petitioners.
“The action of respondents [DHS-USCIS] in wrongfully rejecting on three separate occasions the petitioners’ application for LTR status was arbitrary, capricious and contrary to law. These petitioners are long-term residents who may lose their status as a direct and proximate result of the arbitrary and capricious actions of the respondents,” Pixley said.
He added that the third rejection of the petitioners’ applications constitutes final agency action.
“Petitioners have no plain, speedy or adequate remedy in the ordinary course of law,” he said.
