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Vargas-Ortiz v. McCarthy

United States District Court, D. Idaho

June 26, 2015

ROSALBA VARGAS-ORTIZ, Plaintiff,
v.
John McCARTHY, Boise Field Office Director of United States Citizenship and Immigration Services; KRISTI BARROWS, District Director of the United States Citizenship and Immigration Services; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendants.

MEMORANDUM DECISION AND ORDER

CANDY W. DALE, Magistrate Judge.

INTRODUCTION

The Court is presented with two motions: Defendants' Motion to Dismiss, which relies upon the factual assertions contained in the Declaration of C. Steve Gossett, and Plaintiff's Motion to Exclude the Declaration of C. Steve Gossett. Having thoroughly considered the parties' briefs and the record, and finding that oral argument would not aid the Court in resolving the issues presented by the motions, the Court will decide the motions on the record before it. Dist. Idaho L. Rule 7.1.[1]

BACKGROUND[2]

Plaintiff Rosalba Vargas-Ortiz (formerly Rosalva Vargas-Ambriz) has resided lawfully in the United States for over twenty years. She was born on February 16, 1965, in Michoacán, Mexico, and currently resides in Glenns Ferry, Idaho. She has four children who are citizens of the United States.

Plaintiff possesses three genuine documents bearing her photograph and fingerprints, issued by Defendant USCIS. The first document Plaintiff obtained was a lawful temporary resident card issued upon her application for temporary residency under the Immigration Reform and Control Act of 1986, shortly after Plaintiff began working as a fruit farmworker in Sanger, California.[3] The card issued, however, bore the name "Maria Rosalva Vargas, " and the date of birth of "02/03/1965." Upon bringing this to the attention of the United States Customs and Immigration Service, [4] Plaintiff was informed the errors were not a problem because the alien number, photograph, and fingerprints associated with the card were accurate. Plaintiff used the card for work, travel, and identification purposes until 1992.

Plaintiff asserts that she was never subjected to any proceedings to terminate her lawful resident status under 8 U.S.C. § 1160, and therefore she was entitled to receive a lawful permanent resident card upon renewal of her alien status.

In 1992, Plaintiff visited Defendants' offices in Boise, Idaho, to renew her expiring lawful temporary card. She wrote her correct name and date of birth. Plaintiff was issued a permanent resident alien card, again with an incorrect name and date of birth. This time, the name on the permanent resident alien card read: "Maria Guadalupe Bueno de Vargas, " with a date of birth of "02/03/1965." Plaintiff attempted in person to correct the errors, and was again informed the inaccuracies were not an issue because the card bore her photograph, her fingerprints, and her unique alien number.

After using the card for ten years, in 2002, Plaintiff visited the Boise USCIS office to renew her expiring permanent resident alien card. Plaintiff attempted again to correct the name on the card. Defendants gave her instead a temporary lawful permanent resident alien card with the name "Maria Vargas" and the date of birth "03/02/1965."

According to Plaintiff, each of the permanent resident alien cards Defendant USCIS issued to Plaintiff contained her photograph and fingerprints, and contained the same alien number: XXX-XXX-XXX.

When Plaintiff did not receive her new permanent card in the mail, she filed on May 20, 2008, a Form I-90, Application to Replace Permanent Resident Card, seeking a replacement card due to the errors on the prior card. She provided her name, "Rosalva Vargas-Ambriz, " and date of birth, "02/03/1965." Accompanying her application was her affidavit explaining the discrepancy in her name and birthdate due to the Defendants' maintenance of the incorrect records for her. Plaintiff included also copies of each of the cards Defendants had issued Plaintiff, as well as copies of her social security card, birth certificate, and Mexican identification card.

When Defendants failed to adjudicate the I-90 application, Plaintiff requested a meeting, which occurred with Defendant Gossett on February 10, 2009. Defendant Gossett stated that USCIS believed "Plaintiff was a lawful permanent resident and did not suspect she had committed any fraud." Defendant Conway then "issued the Plaintiff a temporary card and said, through his agent, that he would follow up with the Plaintiff." Am. Compl. ¶ 66 (Dkt. 15.)

On May 11, 2009, Defendant Gossett informed Plaintiff she would be required to appear before an Immigration Judge. However, no notice to appear was received. On October 19, 2009, Defendants denied Plaintiff's I-90 application and, despite having issued Plaintiff multiple permanent resident cards, asserted there was no evidence of Plaintiff's permanent residence. Instead, Defendants issued Plaintiff a new alien number: XXX-XXX-XXX. Also on October 19, 2009, Defendants issued a notice charging Plaintiff as removable from the United States. On November 4, 2010, Plaintiff's removal hearing was terminated.

On March 7, 2013, Plaintiff again filed a Form I-90, and again submitted copies of the prior permanent resident cards Defendant USCIS had issued to her. On September 24, 2013, Defendants denied the I-90 application, stated there was no evidence Plaintiff was, or ever had been, a permanent resident alien of the ...


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