United States v. 2007-05-29 | 06-75539 | Freeman Vunited States District Court for the District of…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 In re: CARLA FREEMAN,
CARLA FREEMAN,
Petitioner, No. 06-75539
v. D.C. No.
UNITED STATES DISTRICT CV-04-00666-OMP
COURT FOR THE DISTRICT OF  District of Oregon,
OREGON, Portland
Respondent, ORDER
ALBERTO R. GONZALES, Attorney
General; MICHAEL CHERTOFF;
WILLIAM MCNAMEE; JOE
MEISENHEIMER,
Real Parties in Interest. 
Petition For Writ Of Mandamus
Filed May 29, 2007
Before: Raymond C. Fisher, Ronald M. Gould and
Carlos T. Bea, Circuit Judges.
ORDER
In Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), we
decided that the Department of Homeland Security (DHS)
erred in two respects in refusing to adjudicate Carla Free-
man’s application for adjustment of status. First, we decided
that DHS was incorrect that entry into the United States
through the Visa Waiver Program (VWP) precluded Freeman
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from availing herself of the procedural protections afforded to
other applicants for adjustment of status. Second, we held that
an alien whose citizen spouse dies before DHS adjudicates a
properly filed immediate relative petition and application for
adjustment of status remains an immediate relative as defined
by 8 U.S.C. § 1151(b)(2)(A)(i) and is thus statutorily eligible
for adjustment of status. We remanded to DHS for further
proceedings.
On remand, DHS adjudicated and denied Carla Freeman’s
adjustment of status application in a decision dated October
16, 2006. Freeman filed a petition for a writ of mandamus in
our court, arguing that DHS’s articulated reasons for its denial
of her adjustment of status application were already litigated
in this case and are therefore res judicata and governed by the
law of the case. Freeman also argues that DHS’s determina-
tion that Freeman had misrepresented facts by entering under
the VWP lacks a factual basis and conflicts with Board of
Immigration Appeals (BIA) precedent. Finally, Freeman
argues that in determining that her November 2004 departure
from the United States rendered her ineligible for adjustment
of status, DHS misinterprets the requirement that an alien be
“inspected and admitted” in order to be eligible for adjust-
ment of status.
I. Jurisdiction
We have jurisdiction over Freeman’s petition for a writ of
mandamus because Freeman does not simply disagree with
DHS’s exercise of its discretion; rather, she alleges that its use
of that discretion conflicts with this court’s interpretation of
a statute. See 28 U.S.C. § 1651(a). As we explained in Barron
v. Reich, 13 F.3d 1370 (9th Cir. 1994):
While mandamus may not be used to impinge upon
an official’s legitimate use of discretion, even in an
area generally left to agency discretion, there may
well exist statutory or regulatory standards delimit-
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ing the scope or manner in which such discretion can
be exercised. In these situations, mandamus will lie
when the standards have been ignored or violated.
Id. at 1376 (internal quotation marks omitted).
II. Law of the Case1
We agree with the government that DHS’s denial of Free-
man’s adjustment of status application does not conflict on its
face with our decision in Freeman and is premature for appel-
late review. Our decision required DHS to afford Freeman the
procedural protections and opportunities afforded to those
adjustment of status applicants who did not enter the United
States through the VWP, and to those whose spouses had not
died before DHS acted on properly filed applications for
adjustment of status. We did not, however, require DHS to
exercise its discretion in a particular manner.
Nor did we address any issues related to DHS’s need to
adjudicate Freeman’s adjustment of status application before
Freeman returned to this country. Freeman would have had to
be in the country for her adjustment of status to be adjudi-
cated had DHS not wrongfully terminated it, and she is still
free to return to the country to seek a hearing before an immi-
gration judge (IJ) regarding her adjustment of status applica-
tion now. Even though DHS has already indicated its position
that Freeman’s return cannot cure her statutory ineligibility
due to her particular use of the VWP or her inability to war-
1Freeman also argues that DHS has violated res judicata principles, but
that doctrine does not apply here. See Hansen & Rowland, Inc. v. C.F.
Lytle Co., 167 F.2d 998, 998-99 (9th Cir. 1948) (per curiam) (“The above
mentioned rule of res judicata, urged on us by appellant, applies in a situa-
tion where a second action is on the same cause of action and between the
same parties as a first action; it does not apply where a controversy on
appeal had not been concluded and no second action is being brought, but
where there has been a reversal and remand for further proceedings in the
same litigation.”).
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rant a favorable exercise of discretion due to her husband’s
death, the government informs us that on October 17, 2006,
DHS provided a grant of advance parole that authorizes Free-
man to return to the United States in order to seek a hearing
before an IJ regarding the denial of her application for adjust-
ment of status. Should Freeman return and seek this hearing,
the IJ can grant or deny her adjustment of status application
as a matter of the IJ’s own discretion. See Bazua-Cota v. Gon-
zales, 466 F.3d 747, 748 (9th Cir. 2006) (discussing IJ’s adju-
dication of an adjustment of status application “as a matter of
discretion”).
Finally, DHS’s denial of Freeman’s application does not
conflict with our decision that an adjustment of status appli-
cant who enters the United States through the VWP is not
bound by the VWP’s no-contest provision. Had DHS rea-
soned that any such applicant necessarily engages in a misrep-
resentation that makes the alien statutorily inadmissible under
8 U.S.C. § 1182(a)(6)(C), there might be a conflict. See Free-
man, 444 F.3d at 1035 (concluding that Congress did not
intend all VWP entrants to “have second-class status once
they enter[ed] into the adjustment of status process”). How-
ever, because DHS’s reasoning hinged on the circumstances
of Freeman’s particular use of the VWP — not the mere fact
of her use of that program — we see no such conflict here.
III. Merits
Freeman’s further arguments that DHS’s denial of her
application on remand lacked a factual basis, conflicted with
BIA precedent and misinterpreted the admission and inspec-
tion requirement were not before us on her first appeal and
therefore cannot form the basis of any asserted violation of
the law of the case. Freeman may, of course, make such argu-
ments to this court in a new petition for review if she returns
to the United States, has her application for adjustment of sta-
tus denied by an IJ, becomes subject to a final order of
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removal that would trigger our jurisdiction under 8 U.S.C.
§ 1252 and properly files such a petition for review.
Accordingly, Freeman’s petition for a writ of mandamus is
DENIED.
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