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Pelletier v. United States

United States District Court, D. Colorado

July 17, 2015

UNITED STATES OF AMERICA, JOHN LONGSHORE, Field Director, Immigration and Customs Enforcement, Denver District, IMMIGRATION AND CUSTOMS ENFORCEMENT, Denver District, and STEVEN M. BRANCH, Field Office Director, Salt Lake City Field Office, Defendants.


William J. Martínez United States District Judge

Before this Court is Defendants’ Motion for Summary Judgment. (ECF No. 141.) The Court will refer to all Defendants collectively as “the Government.”

Also before the Court is Plaintiffs’ “Second Motion to Reconsider the Order Denying Plaintiffs’ Motion to Reconsider the Order Granting Summary Judgment to Defendants and Denying Summary Judgment for Plaintiffs.” (ECF No. 152.) The Court will refer to all Plaintiffs collectively as “Pelletier.” Pelletier’s “Second Motion to Reconsider . . .”, despite its title, is actually his third motion to reconsider this Court’s pre-appeal summary judgment order (ECF No. 123), and will be referred to below as the Third Reconsideration Motion.

Pelletier’s “Motion Pursuant to Rule 15 to Submit Amended Plaintiffs’ Response to Defendants’ Motion for Summary Judgment” is before this Court. (ECF No. 154.)

Finally, Pelletier’s “Motion to Accept Untimely Submission of Exhibit C to ECF 154-1” (ECF No. 155) is before this Court as well.

For the reasons explained below, the Government’s Motion for Summary Judgment is granted and Pelletier’s three motions are denied.


A. Summary Judgment

Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is “material” if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a reasonable trier of fact to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

B. Reconsideration

In this case, the reconsideration standard is influenced by law-of-the-case questions discussed below at Part V. Nonetheless, the ensuing narrative convinces the Court of the need to emphasize that, whatever the standard, “the motion to reconsider is not at the disposal of parties who want to rehash old arguments.” Nat’l Bus. Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F.Supp.2d 1250, 1256 (D. Colo. 2000) (internal quotation marks omitted).

C. “Motion to Amend”

Pelletier presents his motion to amend his summary judgment response under Federal Rule of Civil Procedure 15(c)(1)(B), which addresses relation back of amended pleadings. (See ECF No. 154 at 1.) That Rule has nothing to do with whether Pelletier may supplement his summary judgment response. As will be shown below, Pelletier is simply attempting to shore up his summary judgment arguments many weeks after they were originally due. In effect, then, Pelletier’s is seeking relief under Federal Rule of Civil Procedure 6(b), which permits this Court to extend a filing deadline “for good cause” upon showing “excusable neglect.”


The operative facts in this case have been essentially undisputed from the beginning. Unless otherwise noted, the following narrative is undisputed and drawn from this Court’s prior summary judgment order. (See ECF No. 123 at 3–5.)

Pelletier is a citizen of Canada. He is married to Plaintiff Carrie Lynn Pelletier, a United States Citizen. Plaintiff Hobie Matthew Witt, also a United States Citizen, is his stepson. Pelletier has been lawfully admitted to the United States as a B-2 visitor numerous times, and he alleges that his most recent lawful admission occurred in June 2006. Pelletier further alleges that he was not issued a Form I-94 Arrival-Departure Record at that time, and that he did not observe the admitting officer creating any record of his inspection or admission.

For reasons that are not clear in the record, immigration enforcement agents “encountered” and “detained” Pelletier on August 28, 2008, in Great Falls, Montana. (ECF No. 141-1 at 3, ¶ 3.) The following day, he was issued a Form I-213 and Form I-862 Notice to Appear charging him as a removable person based on his entry without inspection. Pelletier posted bond on September 9, 2008 and was released from detention.

Removal proceedings against Pelletier have been ongoing since that date, although nothing of substance has happened. Rather, Pelletier has appeared at several Immigration Court master calendar hearings, each of which pushed his removal hearing date further into the future. (Id. at 4, ¶¶ 9–10.) His next scheduled hearing is more than four years away (November 29, 2019) in Denver, Colorado. (Id. ¶ 10.)

After his removal proceedings commenced, Pelletier and his attorney requested a record of Pelletier’s most recent entry to the United States. Their request was denied. They subsequently made a Freedom of Information Act (“FOIA”) request for records of Pelletier’s inspection and admission, including records of his entry in June 2006. Pelletier received a response to his FOIA request on May 23, 2011, which had no record of any I-94 issued to him in 2006.


A. Original Complaint & TRO Hearing

On May 24, 2011, Pelletier filed a 19-page “Emergency Complaint for Declaratory, Injunctive and Equitable Relief” (“Original Complaint”). (ECF No. 1.)

Pelletier was scheduled to attend an Immigration Court hearing the next day where he feared that the Immigration Judge would order him removed. (Id. ¶ 11.) Pelletier therefore sought, among other things, “judicial review over the constitutionality and lawfulness of the failure of [the Government] to issue a document establishing lawful admission to Canadian citizens, such as an I-94 document, who are lawfully admitted to the United States as B-2 Visitors.” (Id. ¶ 1.) Although not cited in the Original Complaint, later developments would make clear that Pelletier was referring here to 8 C.F.R. § 235.1(h)(1)(i) (“§ 235.1(h)(1)(i)”):

Unless otherwise exempted, each arriving nonimmigrant who is admitted to the United States will be issued a Form I-94 as evidence of the terms of admission. . . . Form I-94 is not required by: * * * Any nonimmigrant alien described in § 212.1(a) of this chapter [Canadian citizens and certain others] and 22 CFR 41.33 [permanent residents of Canada with border crossing cards] who is admitted as a visitor for business or pleasure or admitted to proceed in direct transit through the United States . . . .

Pelletier was also alluding to portions of §§ 15.1, 15.12, and 21.7 of the United States Customs and Border Protection Inspector’s Field Manual (“IFM”), which instructs border crossing agents on how to implement § 235.1(h)(1)(i) and certain other regulations.[1] For simplicity, the Court will refer to § 235.1(h)(1)(i) and IFM §§ 15.1, 15.12, and 21.7 collectively as the “Regulatory Provisions.”

Simultaneous with his complaint, Pelletier filed a motion for a TRO. (ECF No. 2.) This Court held a hearing the next morning and determined, among other things, that Pelletier faced no threat of irreparable harm because the Immigration Court hearing set for later that day was “very preliminary in nature” and would not result in a removal order. (ECF No. 8 at 7.) The Court accordingly denied the TRO. (Id. at 11.)

B. First Amended Complaint

On August 23, 2011, Pelletier filed an amended complaint (“First Amended Complaint”). (ECF No. 39.) In contrast to his 19-page Original Complaint, the First Amended Complaint swelled to 57 pages, mostly through a meandering and somewhat unchronological statement of facts and a lengthy but unfocused preemptive argument against the jurisdictional challenges anticipated from the Government.

The First Amended Complaint culminates (more or less) with the following:

Petitioners assert that the issuance of Forms I-213 and I-862 [to commence removal proceedings]; [the Immigration Court’s] denial of motion for continuance;[2] [the Immigration Court’s] denial of motion to terminate [the removal proceedings]; [the Immigration Court’s] denial of [a] motion to suppress [the documents justifying his removal proceeding, such as the Forms I-213 and I-862]; and promulgation of 8 C.F.R. § 235.1(h) and the IFM sections cited are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, ” within the meaning of 5 U.S.C. §706. Petitioner also asserts that the failure to issue a document establishing lawful admission such as an I-94 document, or maintain records of the admission of Canadian citizens in B-2 status, in conjunction with 8 C.F.R. § 235.1(h), 8 U.S.C.S. §1182(a)(6)(A)(I), 8 U.S.C.S. § 1182(a)(9)(B), 8 C.F.R. § 1240.8(c), 8 C.F.R. § 101.2, 8 C.F.R. § 103.21, 8 C.F.R. §1003.1(d), 8 U.S.C.S. § 1361, 8 U.S.C.S. § 1229a(c)(2)(B), 5 U.S.C. § 552a, 5 U.S.C. § 553, 5 U.S.C. §702 et seq., 5 U.S.C. §706, IFM § 31.1[, ] IFM §15.1(b)(4), IFM § 15.12, IFM §21.7, equal protection and due process is unlawful, where United States Citizenship and Immigration Services accepts entry documents or affidavits to establish lawful admission of Canadian citizens seeking adjustment of status.

(Id. ¶ 157.) As will become significant later, one of the statutes cited as a basis for relief is 28 U.S.C. § 2241, the general habeas corpus statute (“§ 2241”). (Id. ¶¶ 13, 144.)

C. The Second Amended Complaint

On September 14, 2011, Pelletier filed another amended complaint (“Second Amended Complaint”). (ECF No. 54.) Ostensibly “to correct formatting and typographical errors” (ECF No. 46 at 1), the Second Amended Complaint runs to 59 pages. Largely, however, it covers the same ground as the First Amended Complaint (although in somewhat more detail), and asserts the same theories of liability, including a mention of § 2241 habeas relief. (See ECF No. 54 ¶¶ 14, 168, 181–97.)

The Government moved to dismiss this complaint for lack of subject matter jurisdiction. (ECF No. 62.) The Government relied on 8 U.S.C. § 1252(g) (“§ 1252(g)”):

. . . notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien . . . .

The Government also argued that Pelletier could not satisfy § 2241’s requirement that the petitioner be “in custody, ” see 28 U.S.C. § 2241(c)(3), because Pelletier was no longer physically detained, nor did he face any severe restraint on his liberty. (ECF No. 62 at 9–12.)

In resolving the Government’s motion, this Court sua sponte raised the question of whether Pelletier’s Second Amended Complaint complied with Federal Rule of Civil Procedure 8(a). (ECF No. 68 at 5.) Characterizing the Second Amended Complaint as “confusing, repetitive, and disjointed” (id.), the Court nonetheless “attempted to parse” the document “to identify any claims over which it might have jurisdiction” (id. at 6). The Court identified what it designated the “APA Claim, ” meaning the argument that the Regulatory Provisions were promulgated and executed in violation of the Administrative Procedures Act. (Id.) The Court also identified what it called the “Constitutional Claim, ” referring to the argument that the Regulatory Provisions violate Pelletier’s Fourteenth Amendment rights to equal protection and due process of law. (Id.) As for the remainder of Pelletier’s attempted claims for relief, the Court deemed them “incomprehensible”:

Though there are a number of factual allegations unrelated to the APA Claim and the Constitutional Claim-such as those involving the decisions made by the Immigration Judge during Pelletier’s removal proceedings-the Court cannot discern under what statutory provision these claims may be brought or what facts would support different statutory claims. Accordingly, on the Court’s own motion it dismisses all claims other than the APA Claim and the Constitutional Claim without prejudice to Plaintiffs filing [another] amended complaint that more clearly delineates between the causes of action being asserted and specifically references the facts supporting such cause of action.

(Id. at 6–7.)

As for the Government’s § 1252(g) jurisdictional argument, the Court noted that the Supreme Court has construed § 1252(g) fairly narrowly. (Id. at 7–8.) The Court held that it does not extend either to the APA Claim or the Constitutional Claim because neither claim necessarily flows from the Government’s decision to commence removal proceedings against Pelletier. (Id. at 9.) The Court therefore denied the Government’s motion.

D. The Third Amended Complaint

Responding to the Court’s Rule 8(a) analysis, Pelletier filed his Third Amended Complaint on April 27, 2012. (ECF No. 75.) The Third Amended Complaint-which remains the operative complaint to this day-names six causes of action:

1. “APA Review, ” claiming that the Regulatory Provisions were unlawfully promulgated or executed, or both (id. ¶¶ 56–101);
2. “Review of Constitutional Questions, ” alleging numerous due process and equal protection violations (e.g., failing to provide Forms I-94 to Canadians with B-2 visas but not others violates equal protection; FOIA provides insufficient process; removal proceedings against Canadian B-2 visitors violates due process because Canadian B-2 visitors do not receive Forms I-94 to prove their lawful admission; etc.) (id. ¶¶ 102–10);
3. “Habeas Review, ” apparently under § 2241(c)(3), arguing-
a. Pelletier “was unlawfully arrested . . . and remains unlawfully in custody . . . for habeas purposes pursuant to the terms of his immigration bond, because no warrant of arrest or other authority to arrest him existed . . . when he was arrested, ”
b. the bond “is a severe restriction of Pelletier’s liberty interests because he cannot travel to Canada to visit his family, ” and
c. “Pelletier is required to appear for hearing[s] in the Denver Immigration Court . . . pursuant to the terms of his Immigration Bond” (id. ¶¶ 111–19);

4. “Suppression, ” asking that the immigration forms justifying his removal (e.g., I-213, I-862) “be suppressed, set aside, and held unlawful in accordance with due process because they are fundamentally unfair and prejudice petitioners’ constitutionally protected interest in fair procedures” (id. ¶¶ 120–28);

5. “Declaratory Judgment that applicable regulations and procedures are ultra vires, ” effectively duplicating his claim for APA review (id. ¶¶ 129–34); and

6. “Equitable Estoppel, ” essentially arguing that it is unconscionable for the Government to base removal proceedings on the lack of record of a lawful entry when the government does not issue Forms I-94 to Canadian B-2 visitors (id. ¶¶ 135–52).

The Government moved to strike the Third Amended Complaint under Rule 8(a), or to dismiss it under Rules 12(b)(1) and 12(b)(6). (ECF No. 84.) The Government argued that the Third Amended Complaint continued to fail the Rule 8(a) pleading standard. (ECF No. 84-1 at 4–5.) The Government also argued that this Court lacked subject matter jurisdiction over, and that Pelletier had otherwise failed to state a claim for, his ...

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