Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:13-cv-22737-DLG.
For AARON CAMACHO PEREZ, Plaintiff - Appellant: Eduardo Rigoberto Soto, Law Office of Eduardo Soto, CORAL GABLES, FL.
For U.S. BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, U.S. ATTORNEY GENERAL, SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY, Defendants - Appellees: Troy David Liggett, U.S. Department of Justice, Civil Division, WASHINGTON, DC; Jessica Elise Elliott, Wifredo A. Ferrer, Kathleen Mary Salyer, U.S. Attorney's Office, MIAMI, FL.
Before MARCUS, WILLIAM PRYOR and FAY, Circuit Judges.
Aaron Camacho Perez appeals the dismissal of his complaint, challenging a determination of the United States Citizenship and Immigration Services (" USCIS" ) that he was statutorily ineligible to adjust status under the Cuban Adjustment Act of 1966. We reverse and remand.
A. Underlying Immigration Proceedings
In November 2004, Perez, a native and citizen of Venezuela and citizen of Cuba, applied for admission to the United States at Laredo, Texas, by presenting a Cuban birth certificate; he also requested asylum. He attested he had been born in Cuba and had moved to Venezuela with his mother, when he was three years old. An immigration inspector determined Perez was inadmissible under INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), because he did not have a valid entry document.
In June 2007, Perez applied to adjust his status under the Cuban Adjustment Act of 1966 (" CAA" ), Pub. L. No. 89-732, 80 Stat. 1161 (reproduced as a historical note to Immigration and Nationality Act (" INA" ) § 245, 8 U.S.C. § 1255). In his application, Perez said he was a Cuban citizen and national. His submitted birth certificate stated Perez had been born in Cuba. In April 2009, USCIS denied Perez's application and found he was inadmissible under § 1182(a)(6)(C)(i), because the birth certificate he had provided had been fraudulently obtained, and he had been born in Venezuela.
Also in April 2009, Perez was issued a Notice to Appear, which identified him as an " arriving alien" and charged him with removability under § § 1182(a)(6)(C)(i) and (a)(7)(A)(i)(I). ROA at 35. An affidavit by a USCIS officer stated a hearing before an immigration judge (" IJ" ) was held in Perez's case in October 2010. The IJ " made a finding regarding the respondent sustaining the fraud charge." ROA at 99. In November 2010, the IJ ordered Perez removed to Cuba, or alternatively to Venezuela. The order stated an appeal had been waived. ROA at 43.
In March 2011, Perez again filed an application to adjust status under the CAA. He submitted a Cuban civilian registered birth certificate dated February 23, 2011, which showed Perez had been born in Venezuela, and both of his parents had been born in Cuba. In April 2012, Perez filed an application for a waiver of inadmissibility.
USCIS denied Perez's second adjustment-of-status application in May 2012 and reiterated he was inadmissible under § 1182(a)(6)(C)(i), because of the fraudulent Cuban birth certificate he had submitted with his June 2007 application. USCIS denied Perez's application for a waiver of inadmissibility for lack of evidence of extreme hardship. In July 2012, Perez filed a motion to reopen or reconsider. USCIS denied this motion in April 2013, since Perez had not shown how his family would suffer extreme hardship, plus his failure to show why his current country conditions would inhibit him and his family from returning.
B. District Court Complaint
In July 2013, Perez filed a complaint against (1) the USCIS Miami District Director, (2) the Unitd States Attorney General, and (3) the Secretary of the Department of Homeland Security (" DHS" ). His complaint challenged the USCIS determination he was statutorily ineligible to adjust status under the CAA. USCIS had based its decision on its determination that Perez was inadmissible under INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), because he had presented a fraudulent Cuban birth certificate supporting his CAA application. Perez asserted the district judge had jurisdiction to grant him mandamus relief, under 28 U.S.C. § § 1331 and 1361, and relief ...