Two Mandamus Petitions
to Save a 1974
Green Card

Mr. Alvarez is a citizen of Spain who has been a U.S. lawful permanent resident continuously since 1974. He raised two U.S.-citizen children here, paid his federal and state taxes for half a century, and built a multimillion-dollar real estate business in New Jersey. By any ordinary measure he is precisely the kind of long-term resident the immigration system is designed to protect. And yet, for the better part of a decade, the federal government tried to remove him from the United States on the theory that he had abandoned the very status he had spent fifty years living under.

This case study describes how, by filing two separate Writ of Mandamus actions in the U.S. District Court for the District of New Jersey, I was able to first obtain documentary evidence of Mr. Alvarez's lawful permanent resident status pending the removal proceedings, and then, three years later, force the Newark Immigration Court to rule on the long-deferred motion to terminate those removal proceedings. The matter was unusual in two distinct ways. First, most clients never require even one Mandamus action, let alone two. Second — and far more uncommon — the second of those petitions did something I have almost never seen attempted in immigration practice: it used a Writ of Mandamus not to compel a benefits agency such as USCIS to act on a stalled application, but to compel an Immigration Court, through the Attorney General who supervises it, to actually rule on a pending motion.

Mr. Alvarez first entered the United States in the late 1960s. By 1974 he had become a lawful permanent resident and had begun building the life that, decades later, he would be asked to defend. He married, fathered two children — both U.S. citizens by birth — and grew a real estate business that, by the time of the events giving rise to this litigation, was worth in excess of eight million dollars. He maintained a residence in the United States continuously. He filed and paid his federal and state taxes year after year. He travelled abroad from time to time, but always on a U.S. green card; he never sought any other status, never lived anywhere else, and never indicated to anyone — least of all to himself — that he intended to relinquish his lawful permanent residency in the United States.

By the time the events giving rise to this litigation took place, Mr. Alvarez was a man in his sixties who had been a U.S. lawful permanent resident for over thirty years. The Spanish citizenship he held was, in every practical sense, vestigial. His home, his family, his assets, and his working life were all in New Jersey.

By the time of the events at the U.S. border in 2007, Mr. Alvarez had become entangled in a criminal matter in Spain. Those proceedings dragged on for years. As they did, the Spanish authorities took possession of his U.S. green card and held it for the duration. The practical consequence was severe and entirely outside his control: he was now physically unable to return to the United States. He could not visit his U.S.-citizen children. He could not check on the New Jersey businesses he had spent decades building. For years he was involuntarily absent from the country in which he had lived since the late 1960s — not because he had abandoned it, but because a foreign government was holding the very document that proved his right to come home.

On December 15, 2007, in a narrow window that briefly allowed him to travel, Mr. Alvarez arrived at Newark Liberty International Airport. By that point CBP — through whatever channel of inter-agency information sharing — had become aware of the criminal matter in Spain. He was not waved through, as he had been so many times before. He was taken into secondary inspection. A CBP officer presented him with Form I-407 — the official document by which a lawful permanent resident formally abandons his or her status — and told him that if he did not sign it he would be detained.

This was, as a matter of immigration law, an end-run around the protections the Immigration and Nationality Act provides to lawful permanent residents. If CBP believed Mr. Alvarez was inadmissible because of the Spanish charges, the lawful course was straightforward: refer the case for removal proceedings under INA § 240, where an immigration judge would decide the question on the record, after due notice and an opportunity to be heard. What CBP did instead — leveraging its custodial authority at the border to extract a signature on Form I-407 — was to manufacture an "abandonment" the government would later try to enforce as a permanent loss of status.

An I-407, to be effective, must be the product of a knowing, intelligent, and voluntary act. The Board of Immigration Appeals and the federal courts have made this clear. But none of that legal nuance helps in the moment, when a CBP officer is standing across from a traveler with the power to detain him. Mr. Alvarez signed under duress, was sent back to Spain, and resumed an absence he had not chosen and could not end.

What followed the events at Newark was several more years of involuntary absence while the Spanish criminal proceedings continued. The Spanish police kept Mr. Alvarez's green card throughout. Only when those proceedings finally ran their course did the Spanish authorities return the card to him — and only then, with the card finally in his hand again, could he attempt to come home.

On December 4, 2013, Mr. Alvarez tried again. This time he made the journey overland, by way of Canada, and presented himself at the land port of entry at Champlain, New York with the long-held green card now restored to his possession. The CBP officer took the card, ran the records, and discovered the 2007 I-407 sitting in the file. Mr. Alvarez was taken into secondary inspection. By the time he left the border, he had been served with a Notice to Appear in Immigration Court, charging him with inadmissibility under INA § 212(a)(7)(A)(i)(I) — namely, that as an arriving alien he was not in possession of a valid immigrant visa or other valid entry document.

Mr. Alvarez was paroled into the United States, but the damage was done. He was now in formal removal proceedings before the Newark Immigration Court. The government's theory, in essence, was that the six-year-old coerced I-407 had stripped him of his status, that the green card he had just returned with was therefore meaningless, and that he had no legal right to be in the country he had called home since the late 1960s.

The case was scheduled for what would turn out to be the first of many master calendar hearings. Mr. Alvarez retained me to defend him.

The immediate problem in late 2014 and early 2015 was not the Notice to Appear. The immediate problem was that Mr. Alvarez had no document proving who he was. CBP had retained his green card. USCIS would not issue him an I-551 stamp — the temporary endorsement in a passport that ordinarily serves as evidence of lawful permanent resident status — because the agency took the position that he was no longer a permanent resident at all.

The legal consequences were severe. Federal law not only entitles a lawful permanent resident to documentary proof of status under 8 U.S.C. § 1304(d); it makes it a federal misdemeanor for any alien over eighteen to fail to carry such proof at all times under 8 U.S.C. § 1304(e). Mr. Alvarez could not obtain a New Jersey driver's license. He could not obtain a New Jersey state identification card. He could not work lawfully without obtaining permission. And most importantly: no immigration judge had ever entered a deportation order against him, and no immigration judge had ever terminated his lawful permanent resident status. He was, as a matter of law, still a lawful permanent resident — the government simply refused to give him the document that proved it.

On January 13, 2015, I filed a Writ of Mandamus on his behalf in the U.S. District Court for the District of New Jersey, docketed as Alvarez v. Borgen, et al., No. 2:15-cv-XXXXX. The petition named the Director of the USCIS Newark Field Office, the Director of USCIS, the Secretary of Homeland Security, and the Attorney General of the United States as respondents. It sought an order compelling those officials to provide Mr. Alvarez with evidence of his lawful permanent resident status under 8 U.S.C. § 1304(d), 28 U.S.C. § 1361, and 5 U.S.C. § 706(1).

The petition was straightforward but powerful. Until and unless an immigration judge actually terminated Mr. Alvarez's status, he remained a lawful permanent resident as a matter of federal law. The government's refusal to issue him documentary proof of that status was an agency action unlawfully withheld. And the consequences — exposure to misdemeanor liability, exclusion from driver's licenses and identification, and an inability to function as an ordinary person in the United States — were intolerable.

And here the case takes its most peculiar turn. After 2015, two parallel realities co-existed. On one side, USCIS and CBP — the operational components of the Department of Homeland Security — were treating Mr. Alvarez as exactly what he was: a lawful permanent resident. They issued him I-551 stamps. They admitted him to the United States. They processed his records on the assumption that the green card he had held since 1974 was still good.

On the other side, the Office of the Principal Legal Advisor (the prosecutorial component of DHS) was still litigating against him in the Newark Immigration Court on the theory that he had lost that very status in 2007. The agency that admitted him at the border was the same agency arguing in Immigration Court that he had no right to be admitted at the border. By 2018, Mr. Alvarez had been in removal proceedings for nearly five years, with no merits hearing scheduled and no end in sight.

That, in itself, was a serious problem. By statute, a lawful permanent resident in removal proceedings cannot apply for naturalization. INA § 318 categorically bars adjudication of an N-400 while any removal proceeding is pending — even, as here, a removal proceeding that the government itself appeared to have forgotten about. Mr. Alvarez was being kept out of citizenship not by anything he had done, but by an open immigration court case the government would neither prosecute nor close.

On March 30, 2018, I filed a written motion to terminate proceedings with the Newark Immigration Court. The legal argument was sharp and, in my view, dispositive. After 2015, every time Mr. Alvarez had returned to the United States from abroad, CBP had admitted him at the port of entry as a lawful permanent resident — not paroled him in as an arriving alien, which is what the government's own removal theory would have required. Admission and parole are not interchangeable concepts. Parole under INA § 212(d)(5) is a discretionary act that allows a noncitizen to enter the United States without conferring any status; admission is, by definition, an agency determination that the traveler is entitled to enter in the status presented. By admitting Mr. Alvarez repeatedly as an LPR over a three-year period, CBP had treated as resolved the very charge of inadmissibility that the Office of the Principal Legal Advisor was still litigating in Newark Immigration Court. The charge under INA § 212(a)(7)(A)(i)(I) could no longer be sustained.

The Immigration Court convened a master calendar hearing on the motion on April 3, 2018. The DHS attorney appearing for the government did not have Mr. Alvarez's file and was unable to take a position. The court adjourned the matter, and DHS subsequently filed no written opposition whatsoever to the motion to terminate. Under Rule 5.12 of the Immigration Court Practice Manual, an unopposed motion is generally deemed unopposed; the path to termination seemed clear.

On April 27, 2018, the Immigration Judge issued a written order. The order acknowledged that the motion to terminate "may be well-founded." But rather than rule on those merits, the court denied the motion on a procedural footing — citing Rule 5.2(i) of the Practice Manual, which requires the movant to make a good-faith effort to ascertain the opposing party's position on a motion before filing it. That requirement had, of course, been overtaken by events: a hearing had already been held; the government had been given every opportunity to respond, both in writing and on the record, and had declined to do so. The procedural ground was hollow. In substance, the Immigration Judge had deferred ruling on the merits of a motion the court itself had described as possibly well-founded.

Two weeks later, on May 10, 2018, the Immigration Court compounded the problem. Acting sua sponte, the court rescheduled the case to April 28, 2020 — nearly two full years away — for another master calendar hearing. Not a merits hearing. Another status conference. There was no indication when, if ever, the court intended to actually adjudicate the case. Mr. Alvarez, by then 74 years old, was facing the very real prospect of remaining in removal proceedings for the rest of his life.

I filed an interlocutory appeal with the Board of Immigration Appeals, arguing that the Immigration Court's procedural denial of an unopposed motion, followed by a two-year continuance, was clear error and an abuse of discretion. On August 8, 2018, the BIA summarily dismissed the appeal — stating, in substance, that it would entertain interlocutory appeals only in matters it deemed more important. There was, at that point, no further administrative remedy available.

On August 21, 2018, I filed a second Writ of Mandamus on Mr. Alvarez's behalf, this time docketed as Alvarez v. Sessions, et al., No. 2:18-cv-XXXXX. The petition named the Attorney General of the United States and the Director of the Board of Immigration Appeals as respondents.

What I was doing here was, to my knowledge, almost never done. In the overwhelming majority of immigration Mandamus actions filed in federal district court, the target is USCIS or the Department of State, and the relief sought is the adjudication of a delayed benefits application — an I-485, an N-400, an I-130, an immigrant visa case. Federal courts handle dozens of such petitions every year and the doctrinal terrain is well-developed. What almost no one ever does — what I had never seen done in nearly fifteen years of federal immigration practice — is file a Writ of Mandamus aimed, in substance, at an Immigration Court itself.

The Immigration Courts are not independent Article III tribunals. They are administrative bodies that sit within the Executive Office for Immigration Review at the Department of Justice; their adjudicators are not federal judges but employees of the Attorney General. That structural fact is what made the petition legally available. By naming the Attorney General — the executive branch officer charged with supervising EOIR — and the Director of the Board of Immigration Appeals, I was asking a federal district judge to do something federal district judges almost never do: order an entire administrative tribunal, by way of the official who controls it, to actually rule on a motion that had been sitting on its docket.

The formal prayer in the petition asked the federal district court to compel the Newark Immigration Court to adjudicate the removal proceedings within a reasonable time. The practical target, however, was narrower and more pointed: what the Newark Immigration Court needed to do, and what it had so far refused to do, was rule on the motion to terminate. The merits of that motion had been deferred. The case had been pushed two years out. The BIA had declined to intervene. The only place where the deadlock could be broken was federal court.

The petition was built around five claims for relief: (1) agency action unlawfully withheld in violation of the Administrative Procedure Act; (2) unlawful agency action, on the theory that the procedural denial of an unopposed motion and the sua sponte two-year continuance were arbitrary and capricious; (3) violation of procedural due process, on the theory that a 74-year-old respondent denied a meaningful opportunity to testify because of the government's delay had been denied a hearing before an impartial tribunal; (4) violation of substantive due process; and (5) mandamus and declaratory relief.

The combination was deliberate. Mandamus alone is a narrow remedy. Mandamus combined with APA delay claims and constitutional due-process claims gave the district court multiple independent grounds on which to grant relief, and gave the government multiple independent reasons to resolve the matter before the federal judge ever ruled.