Florida complaint by an adjustment applicant against (c)(9) EADs 8 28-2012-redacted

Case 6:1 ~------------~

Document 1 Filed 08/28/12 Page 1 of 9 PageiD 1

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVJSION

PLAINTIFF,

Vs.

ERIC H. HOLDER Jr. United States Attorney General;

JANET NAPOLITANO, Secretary, Department of Homeland Security;

ALEJANDRO MA YORKAS, Dir·ector, Citizenship & Immigration Ser-vices (USCJS),

CASE

United States Citizenship and Immigration Services,

MARGARET IGLESIAS, Field Office Director, Orlando Field Office, USCIS,

MARTHA MEDJNA-MAL TES, Filed Office Dir·ector, Chicago Field Office, USCIS,

DEFENDANTS.

------------------------------·' COMPLAJNT FOR DECLARATORY AND INJUNCTIVE RELIEF

Pro-Se Plaintiff.._ ____ seeks declaratory judgment that the Immigration

and Nationality Act ("INA") docs not authorize the Defendant(s) to grant work

authorization to the al ien who has not been granted specific work authorization by the

INA, and that the related regulations are improperly promulgated by the Defendant(s) and

are facial ly invalid and are invalid as applied to the Plaintiff. Plaintiff also seeks

injunctive relief prohibiting the Defendant(s) from enforcing the regulations at issue.

Case 6:12-cv ....._ _____ ..... Document 1 Filed 08/28/12 Page 2 of 9 PageiD 2

FACTUAL BACKGROUND

1. The Immigration and Nationality Act describes the classes of aliens who

are authorized to work in the United States1. In certain instances the INA authorizes the

Defendant(s) to grant and I or renew work authorization in their discretion to certain

classed of aliens who have been specifically authorized by the Acr.

2. Defendant(s) unlawfully collect fees and grant work authorization to

classes of aliens who have not been authorized by the Immigration and Nationality Act to

receive work authorization See 8 C.F.R§ 109. I(b) (1982 ed.) and 8 C.F.R.§ 274a.12(c)

(2012 ed.). (Exhibit 1 - copy of news report)

3. Defendant(s) without statutory authoritl have promulgated regulations

under 8 C.F.R§ 274a and have been seeking from and granting applications for work

authorization (Form 1-765) to numerous classes of aliens even though Congress has not

expressly authorized these classes to work in the United States See 51 FR 393 85-01. The

Defendants are also unlawfully collecting fees from such aliens to grant them work

authorization.

4. The grant and /or renewal of work authorization to the said classes of

aliens depends solely on the mere pleasure and discretion of the Defendant(s) and the

affected aliens have no right to have recourse to any administrative or judicial review of

the decision which affect their constitutional protected right to work in the United States.

5. On or about June 19, 2002, Plaintiffpursuant to 8 U.S.C. § 1255 (a)

submitted to the Defendant(s) an Application for Adjustment of Status (1-485) based on

1 8 U.S.C. § 1324a(h)(3)(B), also see Hernandez v. Reno91 F.3d 776, 780 (5 th Cir.l996). 2 8 U.S.C. § 1105a, 8 U.S.C. § 1158(d)(2), 8 U.S.C. § 1160(d)(3)(A) etc. 3

.. [W]hen Congress confers decision making authority upon agencies Congress must "lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform." Whitman v. Amer. Trucking Ass'n, 531 U.S. 457, 472 (2001)

2

Case 6:12-c Document 1 Filed 08/28/12 Page 3 of 9 PageiD 3 .....__ _____ ___.

his marriage to a United States Citizen. Without any statutory authority, the Defendant(s)

at that time claimed they have authority to grant work authorization to the Plaintiff under

8 C.F.R. § 274a.12(c)(9) (2002 ed.) as a class of alien who has filed an application for

adjustment of status to lawful permanent resident pursuant to part 245 of the chapter; for

the period oftime necessary to decide his 1-485 application, including any period when

and administrative appeal and judicial review is pending.

6 . Congress had not expressly authorized the Defendant(s) to seek

application from the Plaintiff and to grant work authorization to him under 8 C.F.R. §

274a.12(c)(9) (2002 ed.).

7. The Defendant(s) on June 19, 2002 collected $120 (One Hundred and

Twenty Dollars) in fees and accepted an application for work authorization (Form 1-765)

from the Plaintiff(Exhibit 2- copy of filing receipt), and on or about August 03, 2002,

Defendant(s) granted employment authorization to the Plaintiff under 8 C.F.R. §

274a.12(c)(9) (2002 ed.) (Exhibit 3 - copy of Initial Employment Authorization

Document "EAD"). Defendant(s) are collecting fees and renewing the said Work

Authorization for the last several years (Exhibit 4- copy of Renewed EADs).

8. Defendant(s) have unlawfully collected hundreds of dollars from the

Plaintiff in the name of filing fees for granting and renewing his work authorization.

9. Plaintiffs 1-485 application and his immigration status is still pending

review in several administrative and judicial cases. 8 C.F.R. § 274a.12(c)(9) (2012 ed.)

requires that the class of aliens in Plaintiff's condition must apply for renewal of their

work authorization by paying$ 380 (Three Hundred and Eighty Dollars).

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10. Plaintiff has been continuously employed in various occupations with

different employers in the United States for more than seven years, to obtain essential

food, clothing, housing, education and medical care.

1 J. Plaintiff has a constitutional protected interest to work in the United

States4, which is protected by the Due Process Clause of the Fifth Amendment,5 and the

regulations unlawfully promulgated without statutory authority by the Defendant(s)

unconstitutionally interfere with Plaintiff's right to work in the United States.6

PARTIES

12. Plaintiff ., is a resident of Middle District of Florida and the ....._ ___ ...... regulations unlawfully promulgated without statutory authority by the Defendant(s)

unconstitutionally interfere with Plaintiffs right to work in the United States. Plaintiff is

within the zone of interest protected by the Fifth Amendment ofthe United States

Constitution.

13. Defendant United States of America is sued in its official capacity.

Defendant Eric H. Holder Jr. is the duly appointed Attorney General of the United States.

He is charged with the administration and enforcement ofthe immigration laws. 8 U.S.C.

§ J 1 03(a). He is sued in his official capacity. Defendant Janet Napolitano is the duly

appointed Secretary of the Department of Homeland Security (DHS), a federal agency.

She is sued in her official capacity. Defendant Alejandro Mayorkas is the duly appointed

Director of Citizenship and Immigration Services, a federal agency within DHS. He is

4 " [T]he right to work for a living in the common occupations of the community is of the very essence of the personal freedom" Trux v. Raich 239 U.S. 33, *41 (1955). s Bell v. Burson, (1971) 402 U.S . 535, *539 (Authorization once granted, the continuance of which is essential in the pursuit of a livelihood, is protected by the due process clause.") 6 "[T]his Court now has rejected the concept tlmt constitutional rights turn upon whether a governmental benefit is characterized as a 'right' or as a 'privilege."Morrissey v. Brewer, 408 U.S. 471, *481 (1972)

4

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charged with any and all responsibilities and authority in the administration of the

Citizenship and Immigration Services (CIS) as have been delegated or prescribed by the

Attorney General. He is sued in his official capacity. Defendant United States Citizenship

and Immigration Services ("USCIS") is a Federal Agency under the directions of

Defendants Eric Holder, Janet Napolitano and Alejandro Mayorkas. Defendant Margaret

Iglesias is the duly appointed Field Office Director ofUSCIS in Orlando, FL. She is

being sued in her official capacity. Defendant Martha Medina-Maltes is the duly

appointed Field Office Director ofUSCIS in Chicago, IL. She is being sued in her

official capacity. Defendants and I or people working on their behalf unlawfully grant

work authorization to classes of aliens who have not been authorized by the Immigration

and Nationality Act to receive work authorization, and are unlawfully interfering with

Plaintifrs right to work in the United States.

JURISDICTION

14. This Court has subject matter jurisdiction over the present action pursuant

to 28 U.S.C. Section 1331, Federal Question Jurisdiction; 28 U.S. C. Section 2201, the

Declaratory Judgment Act; 5 U.S.C. Section 702, the Administrative Procedures Act; 28

U.S.C §2202 (further relief), and the Due Process clause of the Fifth Amendment.

EXHAUSTION OF REMEDIES

IS. There is no administrative remedy available to the Plaintiff to redress the

grievances described herein.

VENUE

16. Venue is proper pursuant to Title 28 U.S.C. Section 1391(b) and (e).

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CAUSE OF ACTION

Regulations at issue are facially invalid and invalid as applied to the Plaintiff

17. Plaintiff incorporates paragraphs 1 through 16 as if fully set forth herein.

18. Regulation 8 C.F.R. § 274a.12(c)(9) (2012 ed.) requiring that the class of

aliens in Plaintiff's condition whose properly fiJed application for adjustment of status to

lawful permanent resident pursuant to part 245 is pending final adjudication must apply

for renewal of work authorization is invalid.7

Regulations at issue are invalid as promulgated without statutory authority

19. Plaintiff incorporates paragraphs 1 through 18 as if fully set forth herein.

20. Defendant(s) do not have any statutory authority to promulgate regulations

for seeking and granting application for work authorization to the alien, to whom

Congress has not expressly authorized to work in the United States.8

Authority at issue is statutorily and constitutionally invalid

21 . Plaintiff incorporates paragraphs 1 through 20 as if fully set forth herein.

22. Defendant(s) have no statutory and constitutional authority to seek and

grant application for work authorization to the alien to whom Congress has not expressly

authorized to work in the United States. 9

7"Congress has conferred upon executive officers the power to make regulations-'not for the government of their departments, but for administering the taws which did govern.' United States v. Grimaud, 220 U.S. 506, 517, 31 S.Ct 480, 483, 55 L.Ed. 563. Such regulations become, indeed, binding rules of conduct, *429 (Cite as: 293 U.S. 388, *429, 55 S.Ct. 241, **252) but they are valid only as subordinate rules and when found to be within the framework of the policy which the Legislature bas sufficiently defined."Panama Refining Co. v. Ryan 293 U.S. 388, *429 (1935). 8 Whitman v. American Trucking Ass'n., 531 U.S. 457, 467(2001) (refusing to "find implicit in ambiguous sections of the [Clean Air Act) an authorization to consider costs that has elsewhere, and so often, been ex'])ressly granted."); General Motors Corp. v. United States, 496 U.S. 530, 538 (1990) (ex-plaining that "[s)ince the statutory language does not expressly impose a 4-month deadline and Congress expressly included other deadlines in the statute, it seems likely that Congress acted intentionally in omitting the 4-month deadline in§ l l0(a)(3)(A)."); Russeffo v. United States, 464 U.S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.").

6

Case 6:12-cv-0 ...._ ____ ___, Document 1 Filed 08/28/12 Page 7 of 9 PageiD 7

CLAIM FOR RELIEF

23. Defendant( s) are without statutory and constitutional authority to seek and

grant work authorization to the alien who has not been granted specific work

authorization by the INA. The regulations granting such authority to the Defendant(s)

have been improperly promulgated and are invalid.

There is no statute conferring such power on the Defendant(s), as nowhere the

Congress has lay down by legislative act an intelligible principle to which the

Defendant(s) is directed to conform in granting and I or renewing work authorization to

the alien to whom Congress has not expressly authorized to work in the United States.

The regulation 8 C.F.R. § 274a.l2(c)(9) (2012 ed.) unlawfully promulgated

without statutory authority by the Defendant(s) requires that the Plaintiff as an alien

whose properly filed application for adjustment of status to lawful permanent resident

pursuant to part 245 is pending final adjudication should apply for renewal of his work

authorization by paying$ 380.00, and the authority exercised by the Defendant(s)

pursuant to such regulation, unconstitutionally interferes with Plaintiff's right to work in

the United States.

PRAYER FOR RELIEF

WHEREFORE, for the reasons set forth above and in the interest of justice, the

Plaintiff hereby requests the Honorable Court that this Court:

9 "The exercise of the power of regulation is subject to the constitutional restriction of the due process clause, and if .. .... ....... .. , that requirement is transgressed, the judicial power may be invoked to the end that the constitutional limitation may be maintained" Carter v. Carter Coal Co.298 U.S. 238, 319 (1936); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, at 541-42 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935) ("Congress needs to articulate a policy or set of standards which would serve to confine the discretion of the individuals exercising the delegated authority, else the statue is unconstitutional by reason of undue delegation." )

7

Case 6:12-cv ....._ _____ __. Document 1 Filed 08/28/12 Page 8 of 9 PageiD 8

Assume jurisdiction of this cause and expedite its decision;

Declare that the Immigration and Nationality Act ("INA") does not

authorize the Defendant(s) to grant work authorization to the alien who

has not been granted specific work authorization by the INA, and the

regulations granting such authority to the Defendant(s) have been

improperly promulgated and are invalid;

Declare that the Defendant(s) have no statutory and constitutional

authority to seek and grant application for work authorization to the alien

to whom Congress has not expressly authorized to work in the country;

Declare that 8 C.F.R. § 274a.12(c)(9) (2012 ed.) is improperly

promulgated by the Defendant(s) and is facially invalid and is invalid as

applied to the Plaintiff;

Declare that Defendants acts and omissions complained of herein violate

the INA, the Administrative Procedures Act, and the Due Process Clause

of the Fifth Amendment;

Grant injunctive relief prohibiting the Defendant(s) from enforcing the

regulations which seek and grant application for work authorization to the

alien who has not been granted specific work authorization by the INA.;

Grant injunctive relief prohibiting the Defendant(s) from enforcing the

regulation 8 C.F.R. § 274a.12(c)(9) (2012 ed.);

Grant any and all such other relief, as this Court deems just, equitable and

proper.

8

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Respectfully Submitted.

Dated. August 28, 2012

9

fa mily Securil(M§'eeg:1 ~--------------~

I of l

*** FAMILY SECURITY MATTERS ENGAGING AMERICAN FAMILIES IN OUR NATION'S SECURITY

McCain on Obama Granting Work Permits to Illegals: He Can't Do It Because He's Not King by JON STREET June 19, 2012

Sen. John McCain (R-Niz.) told CNSNews.com on Monday that

President Barack Obama does not have the authority to unilaterally

grant illegal aliens the authorization to work in the United States

because he is not a king.

In making this argument, McCain said he was referencing Obama's

own words.

CNSNews.com asked McCain, "President Obama said Friday that his }

1

l / administration would like to grant work authorization to some illegal /

aliens. Where specifically does the Constitution authorize the

Executive Branch to permit illegal aliens to work in the United States?"

"This is the same action that a year ago, I believe it was, that President Obama said he couldn't take,

because he wasn't ki ng. Those were his words. So, obviously the action taken without legislation through

Congress, in my view, is not correct," McCain said.

"I think that it requires legislative action from the Congress of the United States," he added.

FINISH and VIDEO

8/23/20 12 6:03 p~

Case 6:12-c ....._ _____ _

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GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY INA § 212 [8 U.S.C. § 1182] (a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(1) Health-related grounds.-

(A) In general.-Any alien- ***** (iii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)-

(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or (II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or (iv) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict, is inadmissible.

(B) Waiver authorized.-For provision authorizing waiver of certain clauses of subparagraph (A), see subsection (g).

***** (g) The Attorney General may waive the application of-

(1) subsection (a)(1)(A)(i) in the case of any alien who-

(A) is the spouse or the unmarried son or daughter, or the minor unmarried lawfully adopted child, of a United States citizen, or of an alien lawfully admitted for permanent residence, or of an alien who has been issued an immigrant visa, (B) has a son or daughter who is a United States citizen, or an alien lawfully admitted for permanent residence, or an alien who has been issued an immigrant visa; in accordance with such terms, conditions, and controls, if any, including the giving of bond, as the Attorney General, in the discretion of the Attorney General after consultation with the Secretary of Health and Human Services, may by regulation prescribe; or (C) is a VAWA self-petitioner, ................