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Benitez-Field v. Sessions

United States District Court, D. Montana, Missoula Division

March 16, 2017

LOURDES KATHLEEN BENITEZ-FIELD, Alien Number 200-089-980, Plaintiff,
JEFFERSON SESSIONS, Attorney General of the United States; JOHN KELLY, Secretary of Department of Homeland Security; LAURENCE CARROLL, Supervising Detention and Deportation Officer, Immigration & Customs Enforcement, Helena Detention and Removal Office; TODD MCWHORTER, Acting Field Office Director, Immigration & Customs Enforcement, Salt Lake City Detention and Removal Office; and DIRECTOR, USCIS Vermont Service Center, Defendants.[1]


          Dana L. Christensen, United States District Court Chief Judge

         Before the Court is Plaintiffs (1) request for a temporary restraining order and preliminary injunction enjoining Immigration and Customs Enforcement ("ICE") from removing her from the United States; and (2) motion to appoint counsel. Also before the Court is Defendants' motion to dismiss for lack of jurisdiction. As discussed in detail below, the Court will deny Plaintiffs motions and grant Defendants' motion.


         Plaintiff Lourdes Kathleen Benitez-Field ("Benitez-Field") is a citizen of Spain and has been living in the United States since 1992. Benitez-Field last entered the United States in September 2003 under the Visa Waiver Program. This program allows citizens of designated program counties to enter the United States for 90 days without a visa. In September 2004, Benitez-Field married Jesse Lane King "(King"), a United States citizen. However, the couple divorced in 2010 after King allegedly abused Benitez-Field and "tipped off" ICE as to her unlawful immigration status.

         According to Benitez-Field, King misled her to believe that he had applied for her lawful permanent resident status when in reality he had done no such thing. Benitez-Field also states that King was emotionally and physically abusive towards her and used her immigration status against her, threatening that he could get her deported at any time. This alleged behavior came to a head in August of 2010 when King was charged with Partner or Family Member Assault after allegedly physically assaulting Benitez-Field.[2] After Benitez-Field obtained an order of protection against King, he allegedly retaliated by reporting Benitez-Field's unlawful status to immigration officials. According to Benitez-Field, King supplied "false" information to ICE in the hopes that they would investigate and deport her. Presented with this information, ICE did in fact begin an investigation into Benitez-Field's lawful status.

         Based on ICE's investigation, on January 5, 2011, Benitez-Field was indicted in a six count criminal indictment in the United States District Court for the District of Montana. United States v. Benitez-Field, No. CR 11-01-M-DWM (D. Mont. 2011) (Molloy, J.). Counts I, III, V, and VI of the Indictment charged Benitez-Field with making false statements to the United States Government in violation of 18 U.S.C. § 1001(a)(2), (3). Counts II and IV charged her with fraudulent use or possession of an alien registration receipt card in violation of 18 U.S.C. § 1546.[3] Ultimately, Benitez-Field pled guilty to Count II. At the change of plea hearing, Benitez-Field admitted to possessing a fraudulent alien registration card, but denied using it in order to receive benefits through various entitlement programs as alleged in the Indictment.

         Benitez-Field ultimately pled guilty to Count II and the Government agreed to dismiss all other counts. She was sentenced to term of imprisonment of time served after spending 92 days in custody. Benitez-Field was also ordered to pay $74, 162.10 in restitution. Notably, $47, 972.10 of the restitution was to be paid to the Department of Health and Human Services for the State of Montana, and $26, 190.00 to the Missoula Housing Authority.

         During her criminal proceedings, on March 28, 2011, ICE issued an Order of Deportation for Benitez-Field pursuant to sections 217 and 241 of the Immigration and Nationality Act. This deportation order was based on Benitez-Field overstaying the 90 days permitted under the Visa Waiver Program. Following this deportation order, on July 18, 2011, Benitez-Field self-petitioned for lawful immigration status under the Violence Against Women Act ("VAWA"). This act allows an abused spouse of a United States citizen to petition for lawful permanent resident status independently of her spouse, who would otherwise have to sponsor her.

         As a result of her VAWA petition, ICE issued an Order of Supervision allowing Benitez-Field to remain free from custody while the petition was pending. However, on January 9, 2013, Benitez-Field received notice that, despite ICE's previous order, she was now facing immediate deportation and was required to report to Helena, Montana, for detention and deportation proceedings. Following this notice, Benitez-Field filed suit in this Court requesting, among other forms of relief, the issuance of a temporary restraining order and preliminary injunction preventing her removal. Primarily, Benitez-Field requested that the Court stay her removal until ICE adjudicated her VAWA petition. The Court issued a temporary restraining Order on February 1, 2013, and scheduled a hearing on the preliminary injunction for February 13, 2013. (Doc. 5.) At the hearing, counsel for Defendants requested additional time to brief the issues raised in the motion for preliminary injunction and requested that the Court keep the temporary restraining Order in place until briefing was completed and a hearing was held. The Court accommodated this request and scheduled a hearing for March 15, 2013. (Doc. 10.)

         However, before the hearing, the parties filed a joint motion to: (1) stay the case for six months; (2) dissolve the temporary restraining Order; and (3) vacate the scheduled hearing. Apparently, ICE had granted Benitez-Field a discretionary stay of deportation or removal for six months in order for the United States Citizenship and Immigration Services ("USCIS"), the government body responsible for rendering a decision on the VAWA petition, to receive more evidence. (Doc. 12.) The Court granted the parties' request, dissolved the temporary Order, and stayed the proceedings of the case. The parties were instructed to file a status report within six months notifying the Court as to the status of the VAWA proceeding. (Doc. 13.)

         During the stay, on September 11, 2013, the USCIS issued a "Notice of Intent to Deny" the VAWA petition after finding that Benitez-Field "did not have the requisite good moral character required for VAWA relief." (Doc. 16.) This finding was based on Benitez-Field's 2011 criminal conviction for fraudulent use or possession of an alien registration card. Benitez-Field notified the Court that she intended to appeal the USCIS's decision to the Administrative Appeals Office ("AAO") and requested to keep the stay in place until the AAO rendered its decision. The Court granted the request and ordered the parties to file status reports updating the Court on the progress of the appeal. (Docs. 17, 19, 21, 24, 26, 27.)

         While the VAWA appeal was pending, Benitez-Field also submitted a "U visa" petition to the USCIS. This program was created under the Victims of Trafficking and Violence Protection Act of 2009, and allows alien victims of criminal activity to seek lawful immigration status as a result of their assistance to law enforcement in the investigation and prosecution of criminal activity. To be eligible to for a U visa, the applicant must be admissible under current United States immigration law. Anticipating that the USCIS would deem her ineligible due to her 2011 criminal conviction, Benitez-Field submitted a Form 1-192 Application for Advance Permission to Enter as a Nonimmigrant. This form, if granted, would provide a waiver for any grounds of inadmissibility that the USCIS determined.

         However, the USCIS denied both the U visa petition and the 1-192 waiver on April 8, 2014. Benitez-Field timely appealed this denial to the AAO. While the U visa and VAWA appeals were pending, the Court granted the parties' request to continue the stay. On February 5, 2015, the AAO affirmed the denial of the applications and dismissed both the U visa and VAWA appeals. In response, Benitez-Field submitted I-290B motions to reopen and reconsider the AAO's denials of the appeals.

         Before the AAO rendered a decision, on September 8, 2016, Defendants notified Benitez-Field that they intended to move the Court to lift the stay and immediately proceed with deportation proceedings. The next day, Benitez-Field filed an Amended Complaint and moved for a temporary restraining order and/or preliminary injunction preventing her removal. In response to these motions, Defendants clarified they would not seek removal until the Court lifted the stay. Defendants also moved to dismiss this case for lack of jurisdiction and to lift the stay. Due to Defendants' representation that they would not seek removal until the Court lifted the stay, the Court found that Benitez-Field's removal was not imminent and set a hearing on her motion for temporary restraining order and/or preliminary injunction, and Defendants' motion to dismiss.

         Shortly after the hearing was set, Benitez-Field moved to continue it due to representations by Defendants that the AAO would soon render decisions on the motions to reopen and reconsider the denials of the appeals. Accordingly, the Court vacated the hearing and ordered the parties to file a joint status report updating the Court on the status of the decisions. On November 14, 2016, the AAO denied Benitez-Field's motions to reopen and reconsider the denials of her U visa and VAWA applications. Because the motion for temporary restraining order and/or preliminary injunction and motion to dismiss were fully briefed and ripe for decision, the Court reset the hearing on these motions for the next month.

         Shortly after resetting the hearing, however, Benitez-Field's lead attorney, Shahid Haque-Hausrath, moved to withdraw from representation due to "unresolvable conflicts of interest that have arisen, making it impossible for the undersigned counsel to fulfill all professional obligations towards Ms. Benitez-Field."[4] (Doc. 58.) In addition to the motion, counsel for Benitez-Field filed a consent to withdrawal form, signed by Benitez-Field, which consented to the withdrawal of Mr. Haque-Hausrath. Because Benitez-Field was now representing herself pro se, the Court again vacated and reset the hearing to take place the following month in order to allow time for Benitez-Field to secure new representation. Following this continuance, Benitez-Field notified the Court that she had just spoke with an attorney that had "shown an interest in reviewing and possibly taking [her] case, " and moved for another continuance. (Doc. 66.) Based upon this representation, the Court continued that the hearing until February 1, 2017.

         On January 30, 2017, attorney Helge Naber, filed a notice of limited appearance on behalf of Benitez-Field and moved to continue the hearing because he could not attend it due to a previously scheduled court appearance in Great Falls, Montana. In addition, Mr. Naber moved the Court to appoint him as counsel for Benitez-Field pursuant to several provisions in federal law. However, the Court denied the motion to ...

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