001 - Class Action Complaint

Case 1:21-cv-23213-XXXX Document 1 Entered on FLSD Docket 09/03/2021 Page 1 of 58
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Yaribel RABELO-RODRIGUEZ,
Alexis FERNANDEZ-PEREZ,
A- F-R- (a minor child),
Adrian HERNANDEZ-BORGES,
Rene Caridad ROMAN-HERNANDEZ, Case No. ______________________
Marile PACHECO-CHAVEZ,
M- K- R-P- (a minor child), CLASS ACTION
COMPLAINT FOR DECLARATORY
Elaine MARTINEZ-MILANES, AND INJUNCTIVE RELIEF
Consuelo IZQUIERDO-MIRANDA,
Yanara MENDOZA-CINTRA,
A- K- R-M- (a minor child),
Ivonne GUTIERREZ-MOLL,
Adelmis REVE-MARQUEZ,
Celia Natividad GONZALEZ-GARCIA,
Isis de la Caridad SILVEIRA-LOZADA,
Ivonne LEYVA-MENDEZ,
Lesmy LEDESMA-BELTRAN,
E- L-L- (a minor child),
L- L-L- (a minor child),
Yerennis RONDON-HERNANDEZ,
Jesus RIOS-GARCIA,
Plaintiffs,
v.
ALEJANDRO MAYORKAS, in his offi-
cial capacity as the United States Secretary
of Homeland Security,
Defendant.
CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF
Summary of Claim ...........................................................................................................................1
Jurisdiction .......................................................................................................................................2
Venue ...............................................................................................................................................2
Exhaustion of Remedies ..................................................................................................................3
Parties ...............................................................................................................................................3
Legislative and Political History......................................................................................................7
Legal Framework for Entry and Detention ....................................................................................19
Relevant Factual Allegations
I. Yaribel Rabelo-Rodriguez .....................................................................................23
II. Alexis Fernandez-Perez .........................................................................................24
III. A- F-R- (a minor child) ..........................................................................................25
IV. Adrian Hernandez-Borges .....................................................................................26
V. Rene Caridad Roman-Hernandez ..........................................................................28
VI. Marile Pacheco-Chavez .........................................................................................29
VII. M- K- R-P- (a minor child) ....................................................................................30
VIII. Elaine Martinez-Milanes ........................................................................................31
IX. Consuelo Izquierdo-Miranda .................................................................................32
X. Yanara Mendoza-Cintra .........................................................................................33
XI. A- K- R-M- (a minor child) ...................................................................................34
XII. Ivonne Gutierrez-Moll ...........................................................................................35
XIII. Adelmis Reve-Marquez .........................................................................................35
XIV. Celia Natividad Gonzalez-Garcia ..........................................................................36
i
XV. Isis de la Caridad Silveira-Lozada .........................................................................37
XVI. Ivonne Leyva-Mendez ...........................................................................................38
XVII. Lesmy Ledesma-Beltran ........................................................................................39
XVIII. E- L-L- (a minor child) ..........................................................................................40
XIX. L- L-L- (a minor child) ..........................................................................................42
XX. Yerennis Rondon-Hernandez .................................................................................43
XXI. Jesus Rios-Garcia ...................................................................................................44
Allegations of Legal Error .............................................................................................................45
Class Allegations ...........................................................................................................................50
Claims for Relief
Count I — Impermissible Construction of the Statutes ....................................................53
Count II — Lack of Reasoned Consideration ....................................................................53
Prayer for Relief .............................................................................................................................54
ii
CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF
The plaintiffs, by and through the undersigned, allege as follows:
SUMMARY OF CLAIM
Following the conclusion of the special parole program for Cuban nationals that was im-
plemented in conformance with 8 U. S. C. § 1225(b)(1)(F)—colloquially referred to as the “wet-
foot/dry-foot policy”—the Department of Homeland Security continued to release Cuban nationals
into the United States without keeping them in mandatory detention under §§ 1225(b)(1) and
(b)(2). But rather than document their parole into the United States under § 1182(d)(5), the De-
partment purported to “conditionally parole” these Cuban nationals into the United States under
§ 1226(a) as a method to preclude them from obtaining the benefits that Congress has historically
offered to Cuban nationals under the Cuban Refugee Adjustment Act of 1966 (CAA), Pub. L. No.
89-732, 80 Stat. 1161 (as amended).
Many Cuban nationals who find themselves in this situation are currently in immigration
limbo, left with no path to legal status or work authorization, often still awaiting the commence-
ment of removal proceedings for years after having entered the United States. In fact, many will
not even be subject to physical removal under the current Migration Accords.
This complaint is brought on behalf of several families made up of Cuban nationals who
sought refuge in this country after the termination of the wet-foot/dry-foot policy. They applied
for permanent residence under the Cuban Adjustment Act arguing that their release must be a
parole under § 1182(d)(5) as matter of law, relying upon the Supreme Court’s explication of how
the modern immigration detention system functions in Jennings v. Rodriguez, 138 S. Ct. 830
(2018). They bring this action on their own behalf and on behalf of all other Cuban nationals
similarly situated.
1
JURISDICTION
1. This action is brought against the defendant, and those acting under him, for refus-
ing to comply with their federally mandated duties under the Cuban Refugee Adjustment Act of
1966 (CAA), Pub. L. No. 89-732, 80 Stat. 1161 (as amended), the Immigration and Nationality
Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 U. S. C. §§ 1101 et
seq.), Title 8 of the Code of Federal Regulations, and the Administrative Procedure Act (APA), 5
U. S. C. §§ 701, et seq.
2. This Court has jurisdiction under 28 U. S. C. § 1331 (federal question), and
§ 1346(a)(2) (United States as defendant).
3. This Court may grant relief pursuant to 5 U. S. C. §§ 702, 706 (judicial review of
agency action), 28 U. S. C. § 1651 (All Writs Act), and 28 U. S. C. §§ 2201–02 (Declaratory Judg-
ment Act).
4. The INA’s jurisdictional bar regarding discretionary judgments applicable to appli-
cations made under the general adjustment of status statute, 8 U. S. C. § 1252(a)(2)(B)(i), does not
apply to applications made under the Cuban Refugee Adjustment Act. Perez v. USCIS, 774 F. 3d
960, 967–68 (CA11 2014).
VENUE
5. Venue is proper in this district because:
(a) “a substantial part of the events or omissions giving rise to the claim occurred” in
this district, 28 U. S. C. § 1391(e)(1)(A);
(b) the defendant “resides” in this district, § 1391(e)(1)(B), Bartman v. Cheney, 827
F. Supp. 1 (D.D.C. 1993) (“Officers and agencies of the United States can have
more than one residence, and venue can properly lie in more than one
2
jurisdiction.”); and
(c) several of the plaintiffs reside in this district, § 1391(e)(1)(C), A.J. Taft Coal Co.
v. Barnhart, 291 F. Supp. 2d 1290, 1301–02 (N.D. Ala. 2003) (collecting cases
demonstrating that “residency of ‘the plaintiff’ should be interpreted to mean any
plaintiff rather than all plaintiffs”) (emphasis in original).
EXHAUSTION OF REMEDIES
6. As per Darby v. Cisneros, 509 U. S. 137 (1993), there are no available administra-
tive remedies, or other remedies for review under the INA or its implementing regulations that
require exhaustion before pursuing judicial review under the APA in this case.
7. Further, because immigration judges have no jurisdiction over “arriving alien” Cu-
ban nationals, there is no need to exhaust their applications through removal proceedings, and a
district court is thus the proper forum for review of a USCIS denial of a Cuban Adjustment appli-
cation. Perez v. USCIS, 774 F. 3d 960, 966–67 (CA11 2014).
PARTIES
8. Defendant ALEJANDRO MAYORKAS is sued in his official capacity as the
United States Secretary of Homeland Security. In this capacity, he has supervisory authority over
all operations of the Department of Homeland Security (DHS) and its component agencies. This
includes authority over U. S. Citizenship and Immigration Services (USCIS) which is responsible
for the adjudication of affirmative immigration benefits, including applications for permanent res-
idence under the Cuban Adjustment Act.
9. Plaintiff Yaribel RABELO-RODRIGUEZ is a native and citizen of Cuba who
resides in Miami-Dade County, Florida. Her application for permanent residence under the Cu-
ban Adjustment Act was denied by the USCIS National Benefits Center. Her application was
3
assigned receipt numbers MSC-20-915-89846 and MSC-20-911-34032.
10. Plaintiff Alexis FERNANDEZ-PEREZ is a native and citizen of Cuba who resides
in Miami-Dade County, Florida. His application for permanent residence under the Cuban Ad-
justment Act was denied by the USCIS National Benefits Center. His application was assigned
receipt numbers MSC-20-915-89845 and MSC-20-911-34030.
11. Plaintiff A- F-R- (a minor child) is a native and citizen of Cuba who resides in
Miami-Dade County, Florida. She is the child of plaintiffs Yaribel Rabelo-Rodriguez and Alexis
Fernandez-Perez. Her application for permanent residence under the Cuban Adjustment Act was
denied by the USCIS National Benefits Center. Her application was assigned receipt numbers
MSC-20-915-89847 and MSC-20-911-34028.
12. Plaintiff Adrian HERNANDEZ-BORGES is a native and citizen of Cuba who
resides in Miami-Dade County, Florida. His application for permanent residence under the Cu-
ban Adjustment Act was denied by the USCIS National Benefits Center. His application was
assigned receipt number MSC-21-900-39777.
13. Plaintiff Rene Caridad ROMAN-HERNANDEZ is a native and citizen of Cuba
who resides in Miami-Dade County, Florida. His application for permanent residence under the
Cuban Adjustment Act was denied by the USCIS National Benefits Center. His application
was assigned receipt number MSC-20-912-74696.
14. Plaintiff Marile PACHECO-CHAVEZ is a native and citizen of Cuba who resides
in Miami-Dade County, Florida. Her application for permanent residence under the Cuban Ad-
justment Act was denied by the USCIS National Benefits Center. Her application was assigned
receipt number MSC-20-912-74698.
15. Plaintiff M- K- R-P- (a minor child) is a native and citizen of Cuba who resides in
4
Miami-Dade County, Florida. She is the child of plaintiffs Rene Caridad Roman-Hernandez and
Marile Pacheco-Chavez. Her application for permanent residence under the Cuban Adjustment
Act was denied by the USCIS National Benefits Center. Her application was assigned receipt
number MSC-20-912-74694.
16. Plaintiff Elaine MARTINEZ-MILANES is a native and citizen of Cuba who cu-
rrently resides in Miami-Dade County, Florida. Her application for permanent residence under
the Cuban Adjustment Act was denied by the USCIS Jacksonville Field Office. Her application
was assigned receipt number MSC-20-903-75603.
17. Plaintiff Consuelo IZQUIERDO-MIRANDA is a native and citizen of Cuba who
resides in Miami-Dade County, Florida. Her application for permanent residence under the Cu-
ban Adjustment Act was denied by the USCIS National Benefits Center. Her application was
assigned receipt number MSC-20-910-16022.
18. Plaintiff Yanara MENDOZA-CINTRA is a native and citizen of Cuba who resi-
des in Palm Beach County, Florida. Her application for permanent residence under the Cuban
Adjustment Act was denied by the USCIS West Palm Beach Field Office. Her application was
assigned receipt number MSC-20-913-96723 .
19. Plaintiff A- K- R-M- (a minor child) is a native and citizen of Cuba who resides in
Palm Beach County, Florida. She is the child of plaintiff Yanara Mendoza-Cintra. Her appli-
cation for permanent residence under the Cuban Adjustment Act was denied by the USCIS West
Palm Beach Field Office. Her application was assigned receipt number MSC-20-913-96727.
20. Plaintiff Ivonne GUTIERREZ-MOLL is a native and citizen of Cuba who resides
in Broward County, Florida. Her application for permanent residence under the Cuban Adjust-
ment Act was denied by the USCIS Oakland Park Field Office. Her application was assigned
5
21. Plaintiff Adelmis REVE-MARQUEZ is a native and citizen of Cuba who resides
in Miami, Florida. Her application for permanent residence under the Cuban Adjustment Act
was denied by the USCIS National Benefits Center. Her application was assigned receipt num-
ber MSC-21-911-65249.
22. Plaintiff Celia Natividad GONZALEZ-GARCIA is a native and citizen of Cuba
who resides in Houston, Texas. Her application for permanent residence under the Cuban Ad-
justment Act was denied by the USCIS Houston Field Office. Her application was assigned
23. Plaintiff Isis de la Caridad SILVEIRA-LOZADA is a native and citizen of Cuba
who resides in Fort Worth, Texas. Her application for permanent residence under the Cuban
Adjustment Act was denied by the USCIS Irving Field Office. Her application was assigned
receipt number IOE-09-100-57973.
24. Plaintiff Ivonne LEYVA-MENDEZ is a native and citizen of Cuba who resides in
Las Vegas, Nevada. Her application for permanent residence under the Cuban Adjustment Act
was denied by the USCIS Las Vegas Field Office. Her application was assigned receipt number
MSC-20-913-59539.
25. Plaintiff Lesmy LEDESMA-BELTRAN is a native and citizen of Cuba who resi-
des in Las Vegas, Nevada. She is the adult daughter of plaintiff Ivonne Leyva-Mendez. Her
application for permanent residence under the Cuban Adjustment Act was denied by the USCIS
Las Vegas Field Office. Her application was assigned receipt number MSC-20-913-59541.
26. Plaintiff E- L-L- (a minor child) is a native and citizen of Cuba who resides in Las
Vegas, Nevada. She is the minor child of plaintiff Lesmy Ledesma-Beltran and granddaughter
6
of plaintiff Ivonne Leyva-Mendez. Her application for permanent residence under the Cuban
Adjustment Act was denied by the USCIS Las Vegas Field Office. Her application was as-
signed receipt number MSC-20-913-59537.
27. Plaintiff L- L-L- (a minor child) is a native and citizen of Cuba who resides in Las
Vegas, Nevada. She is the minor child of plaintiff Lesmy Ledesma-Beltran and granddaughter
of plaintiff Ivonne Leyva-Mendez. Her application for permanent residence under the Cuban
Adjustment Act was denied by the USCIS Las Vegas Field Office. Her application was as-
signed receipt number MSC-20-913-59543.
28. Plaintiff Yerennis RONDON-HERNANDEZ is a native and citizen of Cuba who
resides in Columbus, Nebraska. Her application for permanent residence under the Cuban Ad-
justment Act was denied by the USCIS Omaha Field Office. Her application was assigned re-
ceipt number MSC-20-904-31205.
29. Plaintiff Jesus RIOS-GARCIA is a native and citizen of Cuba who resides in Ri-
chfield, Minnesota. His application for permanent residence under the Cuban Adjustment Act
was denied by the USCIS Minneapolis Field Office. His application was assigned receipt num-
ber MSC-20-901-04115.
LEGISLATIVE AND POLITICAL HISTORY
30. Trouble began on July 26, 1953, when an insurrection led by a young Fidel Castro
was staged against the U. S.-backed Batista regime in Santiago de Cuba.
31. Ultimately, on January 1, 1959, Che Guevara marched troops from Santa Clara into
Havana without resistance, while Castro marched troops into the Moncada Army Barracks where
all 5,000 of the soldiers stationed there defected to the revolution.
32. “ ‘Normal’ immigration from Cuba to the United States has not existed since the
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Cuban Revolution of 1959 brought Fidel Castro to power. For more than 50 years, the majority
of Cubans who have entered the United States have done so through special humanitarian provi-
sions of federal law” as part of “a unique set of circumstances [that] is unlike U. S. immigration
policy toward any other nation in the world.” Bruno, A., Cong. Research Serv., U. S. Policy on
Cuban Migrants: In Brief, at 1 (Dec. 16, 2016). 1
33. “The first emigres who came in 1958 were, according to the history of the time,
followers of General Fulgencio Batista . . . .” Wasem, R. E., Cong. Research Serv., Cuban Mi-
gration to the United States: Policy and Trends, at 1 (June 2, 2009). 2
34. A few years after the Castro takeover, the United States cut diplomatic ties with the
Cuban government on January 3, 1961, following a tug-of-war of economic sanctions by the U. S.
and property seizures by the Cuban government. Sullivan, M. P., Cong. Research Serv., Cuba-
U. S. Relations: Chronology of Key Events 1959-1999, at 1–2 (Dec. 14, 1999). 3
35. Following the failed Bay of Pigs invasion in April 1961, Castro declared during a
public speech on December 2, 1961, “I am a Marxist-Leninist, and I shall be a Marxist-Leninist to
the end of my life.” 4
36. “[T]he exodus escalated, peaking at approximately 78,000 in 1962. In October of
that year, Castro stopped regularly scheduled travel between the two countries, and the risky prac-
tice of asylum seekers setting sail from Cuba to Florida began.” Wasem, supra n. 2, at 1.
37. “[T]he Cubans who arrived in the United States after the Cuban Revolution were
1
Available at: https://fas.org/sgp/crs/row/R44714.pdf.
2
Available at: https://fas.org/sgp/crs/row/R40566.pdf.
3
Available at: https://www.hsdl.org/?view&did=484262.
4
Transcript of speech produced in Fair Play for Cuba Comm., Fidel Castro Speaks on Marx-
ism-Leninism, at 64 (1962), available at: https://ucf.digital.flvc.org/islandora/object/ucf%3A5073.
8
paroled in, [and] considered the be refugees fleeing persecution.” Bruno, supra n. 1, at 1.
38. “Refugees, as distinct from immigrants, are aliens who flee their country of nation-
ality generally because of persecution or fear of persecution.” Traditionally however, “refugees
were indistinct from immigrants under [the 1917 and 1924] immigration laws.” Staff of S.
Comm. on the Judiciary, 96th Cong. 2d Sess., Review of U. S. Refugee Resettlement Programs and
Policies (“Refugee Review”), at 1 (Comm. Print 1980). 5
39. Things changed when “[m]illions of people were uprooted during or following
World War II, which required extraordinary measure to reduce the human suffering and disruption
it brought about,” such that “the United States adopted a series of special refugee programs outside
the regular immigration law.” Refugee Review, supra n. 5, at 1.
40. With the 1952 “consolidat[ion] [of] previous immigration laws into one statute,”
“[t]he parole provision of the Immigration and Nationality Act, section 212(d)(5), [8 U. S. C.
§ 1182(d)(5),] incorporated into statutory law a provision authorizing the temporary parole of al-
iens into the United States, which had been an administrative practice of longstanding.” Refugee
Review, supra n. 5, at 7–8.
41. “Parole has since been used as the primary basis for entry of large numbers of ref-
ugees.” Refugee Review, supra n. 5, at 8.
42. For example, “[b]etween 1962 and 1979, hundreds of thousands of Cubans entered
the United States under the Attorney General’s parole authority.” Wasem, supra n. 2, at 1 (foot-
note omitted).
43. In an attempt to move away from the ad hoc parole process, Congress enacted the
“conditional entry provision,” as part of the 1965 move from race-based quotas to “the new
5
Available at: https://files.eric.ed.gov/fulltext/ED206779.pdf.
9
immigrant visa preference system for the Eastern Hemisphere,” serving as a formal mechanism to
admit refugees and allow them to obtain permanent resident status after two years of physical
presence in the United States under another new provision in the INA. Refugee Review, supra
n. 5, at 11–12.
44. “Cuban refugees . . . began to be paroled in the United States in 1961 when diplo-
matic relations between the United States and Cuba were severed. As Western Hemisphere na-
tives, Cubans were not eligible for conditional entry when that provision became law, since it
applied only to the Eastern Hemisphere.” Refugee Review, supra n. 5, at 13.
45. In October 1965, 3,000 Cubans left Cuba from Camarioca in a boatlift to the United
States. Sullivan, supra n. 3, at 3; accord The “Other” Boatlift: Camarioca, Cuba, 1965, at 1 (“On
28 September 1965 Fidel Castro made the surprising announcement that beginning on 10 October
1965, the port of Camarioca would be opened so that any Cubans desiring to leave for ‘the Yankee
paradise’ could do so. Any boats of Cuban exiles that wished to return to Cuba to evacuate rela-
tives would be permitted into Camarioca.”). 6
46. The following month, in November 1965, “[f]reedom flights to the United States
began with some 250,000 Cubans emigrating to the United States by 1971.” Sullivan, supra n. 3,
at 3; accord Refugee Review, supra n. 5, at 13 (“After the Cuban airlift program was announced
by President Johnson in 1965, the number of these refugees admitted under the parole authority
increased dramatically.”).
47. As for the ability to attain permanent resident status, “[d]uring the mid-1960s, the
Immigration and Nationality Act did not permit the adjustment of status of Western Hemisphere
6
Available at: https://media.defense.gov/2020/Jul/02/2002356759/-1/-1/0/CAMARI-
OCA1965.pdf.
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natives,” Refugee Review, supra n. 5, at 16, meaning that they were required to leave the United
States to apply for an immigrant visa—available only to certain specified classes of persons—at a
consular post abroad, see 8 U. S. C. § 1201(a)(1)(A).
48. In fact, at the time, “[e]xisting law, section 245(c) of the Immigration and Nation-
ality Act, provide[d] that natives of any country of the Western Hemisphere, or of any adjacent
island named . . . , [we]re precluded from applying for adjustment to permanent resident status
while in the United States.” H.R. Rep. No. 89-1978, at 2 (1966) (Jud. Comm.) (copy at App. I,
Exh. A, at 3.
49. Thus, Congress passed the Cuban Refugee Adjustment Act in 1966 which “enabled
Cuban refugees to adjust their status to that of permanent residents” while inside the United States.
Refugee Review, supra n. 5, at 16; accord Sullivan, supra n. 3, at 3 (“The objective was to give
Cubans who had fled the island a preferential procedure for seeking permanent residency.”)
50. Early agency precedent established that “this is remedial legislation, such [that] a
strict interpretation is to be avoided if it thwarts the congressional intent.” Matter of Riva, 12
I. & N. Dec. 56, 58 (Reg. Comm’r 1967).
51. “The purpose of the Act upon which these applications are based is to provide a
ready means to permit certain Cuban refugees in the United States to adjust to permanent resident
status,” such that a “major objective of this opportunity for adjustment of status was, therefore, to
aid in these refugees’ resettlement by enhancing their opportunity to qualify for employment here
and in turn reduce the Government’s expenditures in their behalf.” Matter of Mesa, 12 I. & N.
Dec. 432, 434–45 (Dep. Assoc. Comm’r 1967) (footnote omitted).
52. Permanent residence under the Cuban Refugee Adjustment Act is available even
where an applicant was paroled after having already physically entered the United States. Matter
11
of Rodriguez, 12 I. & N. Dec. 549 (Reg. Comm. 1967).
53. These policy goals were in addition to the “very firm goal, a very strong desire that
Cuba shall be freed from Communist domination and that the Cuban people will, again, be able to
enjoy the benefits of freedom, living in a country which is, once more, a member of the free world
family of nations.” H.R. Rep. No. 89-1978, at 4 (1966) (Jud. Comm.) (quoting Under Secretary
of State George Ball) (copy at App. I, Exh. A, at 5).
54. In the late 1970s, Congress began work on what would become the Refugee Act of
1980, Pub. L. No. 96-212, 94 Stat. 102 (Mar. 17, 1980), in order “to provide a permanent statute
revising U. S. refugee admissions policy” that would supplant the “[p]ast U. S. refugee policy [that]
was often categorized as being ‘ad hoc,’ ‘piecemeal,’ or ‘stopgap’ in nature.” Refugee Review,
supra n. 5, at 35.
55. However, the current asylum law adopted by the Refugee Act of 1980, 8 U. S. C.
§§ 1101(a)(42), 1158, which is generally applicable to any foreign national or stateless person, is
much narrower and inadequate when compared to broader refugee laws designed for specific pop-
ulations of special concern. See, e. g., Rocubert-Campo v. U. S. Att’y Gen., —– F. App’x –—,
2021 WL 3124300 (CA11 July 23, 2021) (affirming denial of Refugee Act asylum to Cuban na-
tional who was repeatedly beaten and threatened by government officials due to his political opin-
ion because substantial evidence supported a finding that this did not amount to persecution).
56. From April through September 1980, approximately 125,000 Cubans fled to the
United States during the Mariel boatlift. Sullivan, supra n. 3, at 4.
57. These exiles were able to obtain status under the Cuban Adjustment Act because
they were paroled into the United States. Cong. Research Serv., Immigration Parole, at 8 (Oct.
12
15, 2020); 7 accord Bruno, supra n. 1, at 1 (“In 1980, the INA parole provision was again used
when a mass migration of asylum seekers—known as the Mariel Boatlift—brought approximately
125,000 Cubans (and 25,000 Haitians) to South Florida over a six-month period.”); see also Matter
of L-T-P-, 26 I. & N. Dec. 862, 865–67 (BIA 2016) (describing how some “Marielitos” are to be
treated as refugees based on having been paroled, while some are not, based on the enactment of
the Refugee Act of 1980).
58. Diplomatic relations later soured, with Cuba being listed as a state sponsor of ter-
rorism, and the reimposition of travel restrictions to Cuba. Sullivan, supra n. 3, at 4.
59. However, on December 14, 1984, the United States made an agreement (part of the
overall Migration Accords) where Cuba would accept “the return to Cuba of approximately 2,700
of the 129,000 persons [from] the Mariel Boatlift of 1980,” but the parties were clear that this
“d[id] not signal any change in U. S. policy toward Cuba.” (App. I, Exh. B, at 14.)
60. Cuba’s acceptance of these excluded Cuban nationals allowed, under the law at that
time, the United States to “resume normal processing of visas for Cuban applicants which had
been conducted in Havana prior to 1980.” (App. I, Exh. B, at 14.)
61. Specifically, the agreement allowed for the “issuance of preference immigrant visas
to Cuban nationals residing in Cuba up to the number of 20,000 each year.” (App. I, Exh. B, at
15.) As for the exclusions, generally, “[t]he returns [were to be] effected at a rate of 100 each
calendar month.” (App. I, Exh. B, at 16.)
62. But in 1985, the “U. S. government radio broadcasting to Cuba (Radio Marti) began
operations in May,” and, “[a]s a result, Cuba suspended the 1984 migration agreement with the
United States.” Sullivan, supra n. 3, at 5.
7
Available at: https://crsreports.congress.gov/product/pdf/R/R46570.
13
63. In 1987, a statement was issued announcing that the 1984 Migration Accord would
resume anew. (App. I, Exh. C, at 23.)
64. Starting in October 1992, the U. S. embargo on Cuba was tightened through new
legislation, leading to violent acts from Cuba (which killed many Cubans fleeing by boat) to forbid
its nationals from fleeing to the United States. Sullivan, supra n. 3, at 5–9
65. On August 15, 1994, in response to disputes with the United States, “[t]he Cuban
government stopped preventing Cubans from fleeing to the United States by boat. The change
in Cuban policy led to a surge of migration to the United States, the largest since the Mariel boatlift
of 1980.” Sullivan, supra n. 3, at 9.
66. “With escalating numbers of Cubans fleeing to the United States, President Clinton
abruptly changed U. S. migration policy toward Cubans and announced that, instead of welcoming
Cubans fleeing their island nation, ‘illegal refugees from Cuba’ would not be allowed to enter the
United States,” on August 19, 1994. Sullivan, supra n. 3, at 9. “Instead, the Coast Guard was
directed to take refugees rescued at sea to the U.S. naval base at Guantanamo while the Admin-
istration explored the possibility of other ‘safe haven’ nations in the Caribbean Basin region.” Id.
67. Cuba soon came back to the table, and a Joint Communique was issued by the two
nations on September 9, 1994. (App. I, Exh. D, at 25–26.)
68. Per the 1994 agreement, “migrants rescued at sea attempting to enter the United
States will not be permitted to enter the United States, but instead will be taken to safe haven
facilities outside the United States,” with the resumption of the United States accepting legal mi-
gration from Cuba at a rate of “a minimum of 20,000 Cubans each year, not including immediate
relatives of United States citizens.” (App. I, Exh. D, at 25.)
69. This new policy of returning Cubans interdicted at sea was a restrictionary measure,
14
offering lesser refuge to Cuban nationals, and was the start of the “wet-foot/dry-foot policy.”
Wasem, supra n. 2, at 2 (“Until 1995, the United States generally had not repatriated Cubans (ex-
cept certain criminal aliens on a negotiated list) under a policy established when the government
became Communist within two years of the 1959 revolution.”); White House Q&A for Jan. 12,
2017 Press Release (“The United States returns or resettles in third countries Cuban nationals who
are interdicted at sea attempting to come to our country illegally, as it does with nationals from
other countries in the Caribbean. But for many years, we have had special policies for Cuban
nationals who actually reach U.S. territory. Under longstanding policy, the overwhelming ma-
jority of them are granted parole (a form of approved temporary stay) as a matter of discretion.”)
(App. I, Exh. G, at 40).
70. On May 1995, the United States and Cuba issued a Joint Statement doing two im-
portant things. (App. I, Exh. E, at 28.)
71. With respect to Cuban nationals that were interdicted and taken to the U. S. base in
Guantanamo, the United States agreed to parole them into the United States, while later “Cuban
migrants intercepted at sea by the United States and attempting to enter the United States will be taken
to Cuba.” (App. I, Exh. E, at 28); accord Sullivan, supra n. 3, at 13 (“Under the new accord
(which was negotiated outside of the regular rounds of talks reviewing the September accord), the
United States would parole those Cubans housed at Guantanamo into the United States, but would
intercept future Cuban migrants attempting to enter the United States by sea and would return them
to Cuba.”).
72. Effective April 1, 1997, the Congress overhauled many parts of the immigration
code with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
Pub. L. No. 104-208, Div. C, Tit. III, Subtit. A, 110 Stat. 3009-546 (Sept. 30, 1996).
73. One of the new changes was the introduction of the expedited removal procedure
15
for noncitizens seeking entry into the United States, disallowing them from accessing the full pro-
cess available before an immigration judge except for limited proceedings related to making a
claim for asylum. § 302(a), IIRIRA (codified at 8 U. S. C. § 1225(b)(1)).
74. Among the new expedited removal proceedings was a provision that excluded Cu-
ban nationals from its application. 8 U. S. C. § 1225(b)(1)(F) (“Subparagraph (A) shall not apply
to an alien who is a native or citizen of a country in the Western Hemisphere with whose govern-
ment the United States does not have full diplomatic relations and who arrives by aircraft at a port
of entry.”); see Eliminating Exception To Expedited Removal Authority for Cuban Nationals En-
countered in the United States or Arriving by Sea, 82 Fed. Reg. 4902, 4903–04 (Jan. 17, 2017)
(describing additional exceptions applied to Cuban nationals relating to prior Federal Register no-
tices which expanded the scope of expedited removal).
75. Section 606(a) of the IRRIRA provided that the Cuban Adjustment Act would re-
main in force until there is “a determination by the President under section 203(c)(3) of the Cuban
Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (Public Law 104–114) that a demo-
cratically elected government in Cuba is in power.” 110 Stat. 3009-695.
76. The following year, Congress passed an amnesty law that permitted Cubans (among
other nationals) who entered without inspection—and were thus ineligible for relief under the Cu-
ban Adjustment Act for lack of admission or parole into the United States—to apply for permanent
residence up until April 1, 2000, pursuant to Section 202 of the Nicaraguan and Central American
Relief Act (NACARA), Pub. L. No. 105-100, Tit. II, 111 Stat. 2193 (Nov. 19, 1997).
77. On March 4, 2008, the Chief of the USCIS Office of Field Operations adopted a
policy allowing Cubans who had entered without inspection to apply for parole at USCIS Field
Offices without threat of detention (App. I, Exh. H, at 52–53) which was a continuation of a prior
16
INS policy instituted in 1999 (App. I, Exh. J, at 62–64).
78. Since then, Cuban nationals were able to present themselves to immigration officers
either within the United States or at a port of entry to request parole in order to qualify for the
benefits of the Cuban Refugee Adjustment Act until January of 2017.
79. On January 12, 2017, the Obama administration issued a Joint Statement with the
Cuban government, being the latest iteration of the Migration Accords, declaring that it would end
the wet-foot/dry-foot policy, thereby subjecting Cuban nationals to normal removal procedures,
and that Cuba would begin accepting removals of Cuban nationals. (App. I, Exh. F, at 30–32.)
80. Five days later, the Secretary of Homeland Security announced that 8 U. S. C.
§ 1225(1)(F) would no longer be applied to Cuban nationals such that “Cuban nationals encoun-
tered on or after January 13, 2017 are included in the classes of aliens subject to expedited re-
moval.” Eliminating Exception To Expedited Removal Authority for Cuban Nationals Encoun-
tered in the United States or Arriving by Sea, 82 Fed. Reg. 4902, 4904 (Jan. 17, 2017)
81. Documents obtained through a pending FOIA litigation, Catholic Charities v.
Stein, 20-cv-23846-BLOOM/Louis (S.D. Fla.), demonstrate that the following classes of persons
were to be subjected to removal to Cuba:
(a) Cubans interdicted at sea as had occurred before;
(b) Cubans who left Cuba following the issuance of the Joint Statement who have
been outside of Cuba for no more than 4 years (subject to tolling);
(c) Other Cubans accepted by the Cuban government on a case-by-case basis;
(d) Cubans on the 1984 “Mariel List” including an allowance for substitutions of new
persons onto the list.
(App. I, Exh. F, at 33–37.)
17
82. However, this agreement has essentially become a failure due to extremely low
rates of removal to Cuba, as described by a Department of State Report to Congress on Cuban
Compliance with the Migration Accords during October 2020. (App. I, Exh. K, at 71–72 (de-
scribing: (1) 2,969 removals of post-January 12, 2017, arrivals; (2) 214 removals of Mariel List
Cubans, explaining that “Cuba has repeatedly and without justification . . . denied to repatriate
1,264 Cuban nationals” in this category; and (3) that the case-by-case program has been “nearly
ineffective” with “[t]he Cuban government approv[ing] only 24 – less than 1 percent – ” out of
“4,998” requested removals).)
83. In fact, as demonstrated by documents obtained through the Catholic Charities lit-
igation, the Department of State secretly imposed visa sanctions upon Cuban government officials
due to Cuba’s failure to comply with removal requests. (App. I, Exh. L, at 75–79.)
84. As for the other Semiannual Reports to Congress on Cuban Compliance with the
Migration Accords obtained through the Catholic Charities case, the last one to report numbers of
Cuban nationals arriving at the Southwestern border (the October 2019 report) shows the following
numbers:
Location FY 2017 Total FY 2018 Total FYTD 2019
SW Ports of Entry 15,461 7,097 18,047
SW Between Ports of Entry 240 123 9,989
(App. I, Exh. M, at 83.)
18
LEGAL FRAMEWORK FOR ENTRY AND DETENTION
85. Current immigration law provides for substantially different treatment between
noncitizens who have been “admitted” to the United States, and those who are “applicants for
admission.”
86. “The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful
entry of the alien into the United States after inspection and authorization by an immigration of-
ficer.” 8 U. S. C. § 1101(a)(13)(A) (emphasis added).
87. Aside from being “admitted,” a noncitizen may also lawfully enter (at least phys-
ically) the United States following inspection and authorization through the process of “parole”
that is codified at 8 U. S. C. § 1182(d)(5).
88. But the law expressly distinguishes between these two concepts in that a parole
“shall not be regarded as an admission.” § 1182(d)(5)(A); accord § 1101(a)(13)(B) (“An alien
who is paroled under section 1182(d)(5) of this title or permitted to land temporarily as an alien
crewman shall not be considered to have been admitted.”).
89. This distinction between admission and parole has historical purpose because pa-
role is a method to allow an “inadmissible” noncitizen, who has not been formally admitted to the
United States, to be at liberty inside the country for a specific purpose within the agency’s discre-
tion. Leng May Ma v. Barber, 357 U. S. 185, 190 (1958) (“The parole of aliens seeking admis-
sion is simply a device through which needless confinement is avoided while administrative pro-
ceedings are conducted.”).
90. Parole is in effect an “enlarge[ment]” from custody. Id., at 189. It preserves the
legal fiction that an “entry” has not occurred. Id., at 188 (“For over a half century this Court has
held that the detention of an alien in custody pending determination of his admissibility does not
19
legally constitute an entry though the alien is physically within the United States.”) (citations omit-
ted).
91. This fiction arises from the “fundamental distinction between excludable aliens and
deportable aliens which permeates our immigration law” which leads to, among other specific
outcomes, a fiction where “[e]xcludable aliens are those who seek admission but have not been
granted entry” and are thus “legally considered detained at the border.” Garcia-Mir v. Smith,
766 F. 2d 1478, 1483–84 (CA11 1985); see also Jean v. Nelson, 727 F. 2d 957, 969 (CA11 1984)
(en banc) (describing the origins of the “entry doctrine fiction”).
92. Therefore, “parolees” are treated as applicants for admission even though they have
been lawfully inspected and authorized to physically enter the United States. 8 U. S. C.
§ 1182(d)(5)(A) (“[W]hen the purposes of such parole shall, in the opinion of the Attorney Gen-
eral, have been served the alien shall forthwith return or be returned to the custody from which he
was paroled and thereafter his case shall continue to be dealt with in the same manner as that of
any other applicant for admission to the United States.”).
93. Being admitted brings with it important benefits. Some benefits overlap with the
benefit of being paroled, while others are available only to persons who have been admitted.
94. Both classes of lawful entrants are treated equally when requesting permanent res-
idence under the Cuban Adjustment Act which is available to Cuban nationals “who ha[ve] been
inspected and admitted or paroled into the United States.” § 1, CAA, Pub. L. No. 89-732, 80
Stat. 116 (emphasis added).
95. However, whether a noncitizen has been admitted or paroled into the United States
can be a crucial distinction.
96. An example of disparate treatment is that an admitted person (unlike a parolee) can
20
only be removed from the United States based on a ground of deportability under 8 U. S. C.
§ 1227(a), as opposed to a ground of inadmissibility under § 1182(a) which requires a lesser show-
ing to support removal.
97. In a removal proceeding, an admitted person is afforded greater procedural protec-
tions than an applicant for admission. Compare § 1229a(c)(3), with § 1229a(c)(2).
98. A parolee, who remains subject to inadmissibility under § 1182(a), is considered an
“applicant for admission” under § 1225(a)(1).
99. Parolees are not the only type of “applicant for admission,” as that classification
applies to any noncitizen who is “present in the United States without admission or who arrives in
the United States (whether or not at a designated port of arrival and including an alien who is
brought to the United States after having been interdicted in international of United States waters).”
§ 1225(a)(1).
100. When an immigration officer encounters an applicant for admission, they are must
“inspect” the applicant for admissibility. §§ 1225(a)(3), (b).
101. Where doubts regarding admissibility arise during inspection, the immigration stat-
ute provides for two different methods of processing.
102. Under § 1225(b)(1), which applies to a limited class of noncitizens defined in
§§ 1225(b)(1)(A)(i)–(iii), removal is automatic subject to the ability to request asylum in accord-
ance with the procedures in § 1225(b)(1)(B).
103. Under § 1225(b)(2), which applies to all applicants for admission except those “to
whom paragraph (1) applies,” § 1225(b)(2)(B)(ii), 8 removal is pursued via full removal
8
Crewman and stowaways are other sub-classes of applicants for admission who are subject
other forms of automatic removal. 8 U. S. C. §§ 1225(a)(2), 1282(b), 1284(c).
21
proceedings as generally used against admitted noncitizens, § 1225(b)(2)(A).
104. “Both § 1225(b)(1) and § 1225(b)(2) authorize the detention of certain aliens,” Jen-
nings v. Rodriguez, 138 S. Ct. 830, 837 (2018), such that both “§§ 1225(b)(1) and (b)(2) thus man-
date detention of applicants for admission until certain proceedings have concluded,” id., at 842
(emphasis added). “Until that point, however, nothing in the statutory text imposes any limit on
the length of detention.” Id. “And neither § 1225(b)(1) nor § 1225(b)(2) says anything whatso-
ever about bond hearings.” Id.
105. “The plain meaning of those phrases is that detention must continue until immigra-
tion officers have finished ‘consider[ing]’ the application for asylum, § 1225(b)(1)(B)(ii), or until
removal proceedings have concluded, § 1225(b)(2)(A).” Id., at 844. “[T]hey unequivocally
mandate that aliens falling within their scope ‘shall’ be detained.” Id.
106. And yet, “[r]egardless of which of those two sections authorizes their detention,
applicants for admission may be temporarily released on parole ‘for urgent humanitarian reasons
or significant public benefit.’ ” Id., at 837 (citing § 1182(d)(5)(A); 8 CFR §§ 212.5(b), 235.3
(2017)); accord id., at 844 (“With a few exceptions not relevant here, the Attorney General may
‘for urgent humanitarian reasons or significant public benefit’ temporarily parole aliens detained
under §§ 1225(b)(1) and (b)(2).”) (citing § 1182(d)(5)(A)).
107. In fact, “[t]hat express exception to detention implies that there are no other cir-
cumstances under which aliens detained under § 1225(b) may be released.” Id. (emphasis in orig-
inal) (citation omitted).
108. In so holding, the Supreme Court was clear in rejecting the suggestion that bond
hearings and conditional parole are available to applicants for admission. Id., at 845 (“For ex-
ample, respondents argue that, once detention authority ends under §§ 1225(b)(1) and (b)(2), aliens
22
can be detained only under § 1226(a). . . . To put it lightly, that makes little sense.”).
RELEVANT FACTUAL ALLEGATIONS
I. Yaribel Rabelo-Rodriguez
109. Plaintiff Yaribel Rabelo Rodriguez is a native and citizen of Cuba who applied for
admission to the United States at the port of entry at Presidio, Texas on March 2, 2019. (App.
II, Exh. A, at 16.)
110. As such, she is considered to be an “arriving alien” as per 8 CFR § 1.2.
111. She was taken into DHS custody on or about this time.
112. A notice to appear for removal proceedings was issued against her on March 3,
2019. (App. II, Exh. A, at 16–18.)
113. She was charged as being inadmissible to the United States under 8 U. S. C.
§ 1182(a)(7)(A)(i)(I). (App. II, Exh. A, at 18.)
114. However, to this day, the notice to appear has never been filed with an immigration
court (App. II, Exh. A, at 19), meaning that removal proceedings have never been commenced in
accordance with 8 CFR § 1003.14(a).
115. On or about March 4, 2019, the DHS released Ms. Rabelo from its custody. (App.
II, Exh. A, at 12–15.)
116. In so doing, the DHS purported to release Ms. Rabelo pursuant to 8 U. S. C.
§ 1226(a) via production of a document labeled “Order of Release of Recognizance.” (App. II,
Exh. A, at 12.)
117. More than a year after her physical entry, Ms. Rabelo applied for permanent resi-
dence under Section 1 of the CAA, Pub. L. No. 89-732, 80 Stat. 1161.
118. On August 4, 2020, the USCIS National Benefits Center denied her application on
23
the grounds that she had not demonstrated that she had been paroled into the United States. (App.
II, Exh. A, at 9–11.)
119. She thereafter filed a motion to reconsider with a memorandum of law arguing that
she had been paroled as a matter of law. (App. II, Exh. A, at 4–8.)
120. On October 2, 2020, the agency denied Ms. Rabelo’s motion without a reasoned
explanation as to why it disagreed with her legal argument. (App. II, Exh. A, at 2–3.)
II. Alexis Fernandez-Perez
121. Plaintiff Alexis Fernandez-Perez is a native and citizen of Cuba who applied for
admission to the United States at the port of entry at Presidio, Texas on March 2, 2019. (App.
II, Exh. B, at 35.)
122. As such, he is considered to be an “arriving alien” as per 8 CFR § 1.2.
123. He was taken into DHS custody on or about this time.
124. A notice to appear for removal proceedings was issued against him on March 3,
2019. (App. II, Exh. B, at 35–37.)
125. He was charged as being inadmissible to the United States under 8 U. S. C.
§ 1182(a)(7)(A)(i)(I). (App. II, Exh. B, at 37.)
court (App. II, Exh. B, at 38), meaning that removal proceedings have never been commenced in
127. On or about March 4, 2019, the DHS released Mr. Fernandez from its custody.
(App. II, Exh. B, at 31–34.)
128. In so doing, the DHS purported to release Mr. Fernandez pursuant to 8 U. S. C.
24
Exh. B, at 31.)
129. More than a year after his physical entry, Mr. Fernandez applied for permanent
residence under Section 1 of the CAA, Pub. L. No. 89-732, 80 Stat. 1161.
130. On August 4, 2020, the USCIS National Benefits Center denied his application on
the grounds that he had not demonstrated that he had been paroled into the United States. (App.
II, Exh. B, at 28–30.)
131. He thereafter filed a motion to reconsider with a memorandum of law arguing that
she had been paroled as a matter of law. (App. II, Exh. B, at 23–27.)
132. On October 2, 2020, the agency denied Mr. Fernandez’ motion without a reasoned
explanation as to why it disagreed with his legal argument. (App. II, Exh. B, at 21–22.)
III. A- F-R- (a minor child)
133. Plaintiff A- F-R- (a minor child) is the child of plaintiffs Yaribel Rabelo-Rodriguez
and Alexis Fernandez-Perez.
134. A- F-R- is a native and citizen of Cuba who applied for admission to the United
States at the port of entry at Presidio, Texas on March 2, 2019. (App. II, Exh. C, at 54.)
137. A notice to appear for removal proceedings was issued against her on March 3,
2019. (App. II, Exh. C, at 54–56.)
§ 1182(a)(7)(A)(i)(I). (App. II, Exh. C, at 56.)
court (App. II, Exh. C, at 57), meaning that removal proceedings have never been commenced in
25
140. On or about March 4, 2019, the DHS released A- F-R- from its custody. (App.
II, Exh. C, at 50–53.)
141. In so doing, the DHS purported to release A- F-R- pursuant to 8 U. S. C. § 1226(a)
via production of a document labeled “Order of Release of Recognizance.” (App. II, Exh. C, at
50.)
142. More than a year after her physical entry, A- F-R- applied for permanent residence
under Section 1 of the CAA, Pub. L. No. 89-732, 80 Stat. 1161.
143. On August 4, 2020, the USCIS National Benefits Center denied her application on
the grounds that she had not demonstrated that she had been paroled into the United States. (App.
II, Exh. C, at 47–49.)
she had been paroled as a matter of law. (App. II, Exh. C, at 42–46.)
145. On October 2, 2020, the agency denied A- F-R-’s motion without a reasoned ex-
planation as to why it disagreed with her legal argument. (App. II, Exh. C, at 40–41.)
IV. Adrian Hernandez-Borges
146. Plaintiff Adrian Hernandez-Borges is a native and citizen of Cuba who applied for
admission to the United States at the port of entry at Roma, Texas on March 17, 2019. (App. II,
Exh. D, at 71.)
148. He was taken into DHS custody on or about this time for purposes of an asylum
interview given that he had been placed into expedited removal proceedings. (App. II, Exh. D,
at 73.)
26
149. On April 8, 2019, an asylum officer found that Mr. Hernandez had a credible fear
of persecution or torture, thus allowing him to apply for asylum before an immigration judge under
8 U. S. C. §§ 1225(b)(1)(B)(i)–(ii). (App. II, Exh. D, at 77.)
150. Thus, a notice to appear for removal proceedings was issued against him on April
11, 2019. (App. II, Exh. D, at 79–80.)
§ 1182(a)(7)(A)(i)(I). (App. II, Exh. D, at 79.)
152. On or about April 13, 2019, the DHS released made the decision to release Mr.
Hernandez from its custody upon the posting of a bond. (App. II, Exh. D, at 81.)
153. In so doing, the DHS purported to release Mr. Hernandez pursuant to 8 U. S. C.
§ 1226(a) via production of a document labeled “Notice of Custody Determination.” (App. II,
Exh. D, at 81.)
154. Upon information and belief, that notice to appear was never filed with an immi-
gration court, meaning that removal proceedings did not commence in accordance with 8 CFR
§ 1003.14(a).
155. On December 23, 2019, Mr. Hernandez affirmatively applied for asylum with
USCIS which adjudicates asylum applications when an application in not in removal proceedings
before an immigration judge. (App. II, Exh. D, at 83.)
156. On March 4, 2020, the USCIS Miami Asylum Office commenced removal pro-
ceedings against Mr. Hernandez through the issuance of a new, superseding notice to appear charg-
ing him with inadmissibility under 8 U. S. C. § 1182(a)(7)(A)(i)(I). (App. II, Exh. D, at 84–89.)
157. Although Mr. Hernandez has a case pending with the immigration court, there is
no hearing date set for his case. (App. II, Exh. D, at 89.)
27
158. On September 29, 2020, Mr. Hernandez applied for permanent residence under
Section 1 of the CAA, Pub. L. No. 89-732, 80 Stat. 1161. (App. II, Exh. D, at 62.)
159. On January 15, 2021, the USCIS National Benefits Center requested that Mr. Her-
nandez provide evidence of having been paroled, to which he replied with a memorandum of law
arguing that he had been paroled as a matter of law. (App. II, Exh. D, at 62–69.)
160. On April 8, 2021, the USCIS National Benefits Center denied Mr. Hernandez’ ap-
plication on the grounds that he had not demonstrated that he had been paroled into the United
States without a reasoned explanation as to why it disagreed with his legal argument. (App. II,
Exh. D, at 59–61.)
V. Rene Caridad Roman-Hernandez
161. Plaintiff Rene Caridad Roman-Hernandez is a native and citizen of Cuba who ap-
plied for admission to the United States at the Ysleta Border Crossing in El Paso, Texas on April
12, 2019. (App. II, Exh. E, at 95.)
164. A notice to appear for removal proceedings was issued against him on April 14,
2019. (App. II, Exh. E, at 95–97.)
§ 1182(a)(7)(A)(i)(I). (App. II, Exh. E, at 97.)
166. On or about April 14, 2019, the DHS released Mr. Roman from its custody. (App.
II, Exh. E, at 94.)
167. In so doing, the DHS purported to release Mr. Roman pursuant to 8 U. S. C.
28
Exh. E, at 94.)
168. Although Mr. Roman has a case pending with the immigration court, there is no
hearing date set for his case. (App. II, Exh. E, at 98.)
169. More than a year after his physical entry, Mr. Roman applied for permanent resi-
170. On November 4, 2020, the USCIS National Benefits Center denied Mr. Roman’s
application on the grounds that he had not demonstrated that he had been paroled into the United
States without a reasoned explanation as to why it disagreed with his legal argument. (App. II,
Exh. E, at 91–93.)
VI. Marile Pacheco-Chavez
171. Plaintiff Marile Pacheco-Chavez is a native and citizen of Cuba who applied for
admission to the United States at the Ysleta Border Crossing in El Paso, Texas on April 12, 2019.
(App. II, Exh. F, at 104.)
174. A notice to appear for removal proceedings was issued against her on April 14,
2019. (App. II, Exh. F, at 104–06.)
§ 1182(a)(7)(A)(i)(I). (App. II, Exh. F, at 106.)
176. On or about April 14, 2019, the DHS released Ms. Pacheco from its custody.
(App. II, Exh. F, at 103.)
177. In so doing, the DHS purported to release Ms. Pacheco pursuant to 8 U. S. C.
29
Exh. F, at 103.)
178. Although Ms. Pacheco has a case pending with the immigration court, there is no
hearing date set for her case. (App. II, Exh. F, at 107.)
179. More than a year after her physical entry, Ms. Pacheco applied for permanent resi-
180. On November 4, 2020, the USCIS National Benefits Center denied Ms. Pacheco’s
application on the grounds that she had not demonstrated that she had been paroled into the United
States without a reasoned explanation as to why it disagreed with her legal argument. (App. II,
Exh. F, at 100–02.)
VII. M- K- R-P- (a minor child)
181. Plaintiff M- K- R-P- (a minor child) is the child of plaintiffs Rene Caridad Ro-
man-Hernandez and Marile Pacheco-Chavez.
182. M- K- R-P- is a native and citizen of Cuba who applied for admission to the United
States at the Ysleta Border Crossing in El Paso, Texas on April 12, 2019. (App. II, Exh. G, at
113.)
2019. (App. II, Exh. G, at 113–15.)
§ 1182(a)(7)(A)(i)(I). (App. II, Exh. G, at 115.)
187. On or about April 14, 2019, the DHS released M- K- R-P- from its custody. (App.
II, Exh. G, at 112.)
30
188. In so doing, the DHS purported to release Ms. Pacheco pursuant to 8 U. S. C.
Exh. G, at 112.)
189. Although M- K- R-P- has a case pending with the immigration court, there is no
hearing date set for her case. (App. II, Exh. G, at 116.)
190. More than a year after her physical entry, M- K- R-P- applied for permanent resi-
191. On November 4, 2020, the USCIS National Benefits Center denied M- K- R-P-’s
Exh. G, at 109–11.)
VIII. Elaine Martinez-Milanes
192. Plaintiff Elaine Martinez-Milanes is a native and citizen of Cuba who applied for
admission to the United States at the Paso del Norte Port of Entry at El Paso, Texas on November
1, 2018. (App. II, Exh. H, at 120.)
195. A notice to appear for removal proceedings was issued against her on January 31,
2019. (App. II, Exh. H, at 120–22.)
§ 1182(a)(7)(A)(i)(I). (App. II, Exh. H, at 22.)
court (App. II, Exh. H, at 127), meaning that removal proceedings have never been commenced
31
in accordance with 8 CFR § 1003.14(a).
198. On or about March 4, 2019, the DHS released Ms. Martinez from its custody.
(App. II, Exh. H, at 123–26.)
199. In so doing, the DHS purported to release Ms. Martinez pursuant to 8 U. S. C.
Exh. H, at 123.)
200. More than a year after her physical entry, Ms. Martinez applied for permanent res-
idence under Section 1 of the CAA, Pub. L. No. 89-732, 80 Stat. 1161.
201. On July 2, 2020, the USCIS Jacksonville Field Office denied Ms. Martinez’ appli-
cation on the grounds that she had not demonstrated that she had been paroled into the United
Exh. H, at 118–19.)
IX. Consuelo Izquierdo-Miranda
202. Plaintiff Consuelo Izquierdo-Miranda is a native and citizen of Cuba who applied
for admission to the United States.
204. On or about March 4, 2019, the DHS released Ms. Izquierdo from its custody.
(App. II, Exh. I, at 138–41.)
205. In so doing, the DHS purported to release Ms. Izquierdo pursuant to 8 U. S. C.
Exh. I, at 138.)
206. She is set for a report hearing in the Miami Immigration Court for January 26, 2022.
(App. II, Exh. I, at 142.)
32
207. More than a year after her physical entry, Ms. Izquierdo applied for permanent res-
208. On June 12, 2020, the USCIS National Benefits Center requested that Ms. Izquierdo
provide evidence of having been paroled, to which she replied with a memorandum of law arguing
that she had been paroled as a matter of law. (App. II, Exh. I, at 132–37.)
209. On September 11, 2020, the USCIS National Benefits Center denied Ms.
Izquierdo’s application on the grounds that she had not demonstrated that she had been paroled
into the United States without a reasoned explanation as to why it disagreed with her legal argu-
ment. (App. II, Exh. I, at 129–31.)
X. Yanara Mendoza-Cintra
210. Plaintiff Yanara Mendoza-Cintra is a native and citizen of Cuba who applied for
admission to the United States.
212. On or about March 29, 2019, the DHS released Ms. Mendoza from its custody.
(App. II, Exh. J, at 147–51.)
213. In so doing, the DHS purported to release Ms. Mendoza pursuant to 8 U. S. C.
Exh. J, at 147.)
214. To this day, a notice to appear has never been filed with an immigration court (App.
II, Exh. J, at 152), meaning that removal proceedings have never been commenced in accordance
with 8 CFR § 1003.14(a).)
215. More than a year after her physical entry, Ms. Mendoza applied for permanent res-
33
216. On February 9, 2021, the USCIS Royal Palm Beach Field Office denied Ms. Men-
doza’s application on the grounds that she had not demonstrated that she had been paroled into the
United States without a reasoned explanation as to why it disagreed with her legal argument.
(App. II, Exh. J, at 144–46.)
XI. A- K- R-M- (a minor child)
217. Plaintiff A- K- R-M- (a minor child) is the child of plaintiff Yanara Mendoza-Cin-
tra.
218. A- K- R-M- is a native and citizen of Cuba who applied for admission to the United
States.
220. On or about March 29, 2019, the DHS released A- K- R-M- from its custody.
(App. II, Exh. K, at 157–58.)
221. In so doing, the DHS purported to release A- K- R-M- pursuant to 8 U. S. C.
Exh. K, at 157.)
II, Exh. K, at 159), meaning that removal proceedings have never been commenced in accordance
with 8 CFR § 1003.14(a).)
223. More than a year after her physical entry, A- K- R-M- applied for permanent resi-
224. On February 9, 2021, the USCIS Royal Palm Beach Field Office denied A- K- R-
M-’s application on the grounds that she had not demonstrated that she had been paroled into the
United States without a reasoned explanation as to why it disagreed with her legal argument.
34
(App. II, Exh. K, at 154–56.)
XII. Ivonne Gutierrez-Moll
225. Plaintiff Ivonne Gutierrez-Moll is a native and citizen of Cuba who applied for
227. On or about October 17, 2018, the DHS released Ms. Gutierrez from its custody.
(App. II, Exh. L, at 164–67.)
228. In so doing, the DHS purported to release Ms. Gutierrez pursuant to 8 U. S. C.
Exh. L, at 164.)
II, Exh. L, at 168), meaning that removal proceedings have never been commenced in accordance
with 8 CFR § 1003.14(a).)
230. More than a year after her physical entry, Ms. Gutierrez applied for permanent res-
231. On May 21, 2020, the USCIS Oakland Park Field Office denied Ms. Gutierrez’
Exh. L, at 161–63.)
XIII. Adelmis Reve-Marquez
232. Plaintiff Adelmis Reve-Marquez is a native and citizen of Cuba who applied for
35
234. On or about August 1, 2019, the DHS released Ms. Reve from its custody. (App.
II, Exh. M, at 174–77.)
235. In so doing, the DHS purported to release Ms. Reve pursuant to 8 U. S. C. § 1226(a)
via production of a document labeled “Order of Release of Recognizance.” (App. II, Exh. M,
at 174.)
II, Exh. M, at 178), meaning that removal proceedings have never been commenced in accordance
with 8 CFR § 1003.14(a).)
237. More than a year after her physical entry, Ms. Reve applied for permanent residence
238. On June 10, 2021, the USCIS National Benefits Center requested that Ms. Reve
provide evidence of having been paroled. (App. II, Exh. M, at 172–73.)
239. On August 20, 2021, the USCIS National Benefits Center denied Ms. Reve’s ap-
plication on the grounds that she had not demonstrated that she had been paroled into the United
Exh. M, at 170–71.)
XIV. Celia Natividad Gonzalez-Garcia
240. Plaintiff Celia Natividad Gonzalez-Garcia is a native and citizen of Cuba who ap-
plied for admission to the United States at the port of entry at Calexico, California on April 15,
2019. (App. II, Exh. N, at 185.)
243. A notice to appear for removal proceedings was issued against her on May 7, 2019,
36
after an asylum officer found her to have demonstrated a credible fear of persecution or torture.
(App. II, Exh. N, at 185–86.)
§ 1182(a)(7)(A)(i)(I). (App. II, Exh. N, at 185.)
245. She is set for a report hearing in the Houston, Texas Immigration Court for October
5, 2021. (App. II, Exh. N, at 187.)
246. On May 9, 2019, the DHS served Ms. Gonzalez with a notice that she would receive
a parole interview on May 24, 2019. ( App. II, Exh. N, at 182–83.)
247. On or about May 17, 2019, the DHS released Ms. Gonzalez from its custody.
(App. II, Exh. N, at 184.)
248. More than a year after her physical entry, Ms. Gonzalez applied for permanent res-
249. On October 23, 2020, the USCIS Houston Field Office denied Ms. Gonzalez’ ap-
plication. (App. II, Exh. N, at 180–81.)
XV. Isis de la Caridad Silveira-Lozada
250. Plaintiff Isis de la Caridad Silveira-Lozada is a native and citizen of Cuba who
applied for admission to the United States at the Paso del Norte Port of Entry at El Paso, Texas on
February 27, 2019. (App. II, Exh. O, at 214.)
253. On or about February 28, 2019, the DHS released Ms. Silveira from its custody.
(App. II, Exh. O, at 210–13.)
254. In so doing, the DHS purported to release Ms. Silveira pursuant to 8 U. S. C.
37
Exh. O, at 210.)
255. A notice to appear for removal proceedings was issued against her almost a year
later on February 26, 2020. (App. II, Exh. O, at 214–16.)
§ 1182(a)(7)(A)(i)(I). (App. II, Exh. O, at 216.)
257. She is set for a report hearing in the Dallas, Texas Immigration Court for January
27, 2022. (App. II, Exh. O, at 217.)
258. More than a year after her physical entry, Ms. Silveira applied for permanent resi-
259. On October 13, 2020, the USCIS Irving Field Office denied her application on the
grounds that she had not demonstrated that she had been paroled into the United States. (App.
II, Exh. O, at 207–09.)
she had been paroled as a matter of law. (App. II, Exh. O, at 202–06.)
261. On February 22, 2021, the agency denied Ms. Silveira’s motion without a reasoned
explanation as to why it disagreed with her legal argument. (App. II, Exh. O, at 199–201.)
XVI. Ivonne Leyva-Mendez
262. Plaintiff Ivonne Leyva-Mendez is a native and citizen of Cuba who applied for
264. On or about April 24, 2019, the DHS released Ms. Leyva from its custody. (App.
II, Exh. P, at 229–32.)
38
265. In so doing, the DHS purported to release Ms. Leyva pursuant to 8 U. S. C.
Exh. P, at 229.)
II, Exh. P, at 233), meaning that removal proceedings have never been commenced in accordance
with 8 CFR § 1003.14(a).)
267. More than a year after her physical entry, Ms. Leyva applied for permanent resi-
268. On July 21, 2020, the USCIS National Benefits Center requested that Ms. Leyva
provide evidence of having been paroled, to which she replied with a memorandum of law arguing
that she had been paroled as a matter of law. (App. II, Exh. P, at 223–28.)
269. On January 25, 2021, the USCIS Las Vegas Field Office denied Ms. Leyva’s ap-
Exh. P, at 219–22.)
XVII. Lesmy Ledesma-Beltran
270. Plaintiff Lesmy Ledesma-Beltran is the adult daughter of plaintiff Ivonne Leyva-
Mendez.
271. Lesmy Ledesma-Beltran is a native and citizen of Cuba who applied for admission
to the United States at the port of entry at Presidio, Texas on April 23, 2019. (App. II, Exh. Q,
at 243.)
39
2019. (App. II, Exh. Q, at 243.)
court (App. II, Exh. Q, at 244), meaning that removal proceedings have never been commenced
276. On or about April 24, 2019, the DHS released Ms. Ledesma from its custody.
(App. II, Exh. Q, at 239–42.)
277. In so doing, the DHS purported to release Ms. Ledesma pursuant to 8 U. S. C.
Exh. Q, at 239.)
278. More than a year after her physical entry, Ms. Ledesma applied for permanent res-
279. On July 21, 2020, USCIS requested that Ms. Leyva provide evidence of having
been paroled, to which she replied with a memorandum of law arguing that she had been paroled
as a matter of law. (App. II, Exh. Q, at 235–36.)
280. On January 25, 2021, the USCIS Las Vegas Field Office denied Ms. Leyva’s ap-
Exh. Q, at 235–38.)
XVIII. E- L-L- (a minor child)
281. Plaintiff E- L-L- (a minor child) is the minor child of plaintiff Lesmy Ledesma-
Beltran and granddaughter of plaintiff Ivonne Leyva-Mendez.
282. E- L-L- (a minor child) is a native and citizen of Cuba who applied for admission
40
to the United States at the port of entry at Presidio, Texas on April 23, 2019. (App. II, Exh. R,
at 254.)
2019. (App. II, Exh. R, at 254.)
court (App. II, Exh. R, at 255), meaning that removal proceedings have never been commenced
287. On or about April 24, 2019, the DHS released E- L-L- from its custody. (App. II,
Exh. R, at 250–53.)
288. In so doing, the DHS purported to release E- L-L- pursuant to 8 U. S. C. § 1226(a)
via production of a document labeled “Order of Release of Recognizance.” (App. II, Exh. R, at
250.)
289. More than a year after her physical entry, E- L-L- applied for permanent residence
290. On July 21, 2020, USCIS requested that E- L-L- provide evidence of having been
paroled, to which she replied with a memorandum of law arguing that she had been paroled as a
matter of law. (App. II, Exh. R, at 246–47.)
291. On January 25, 2021, the USCIS Las Vegas Field Office denied E- L-L-’s applica-
tion on the grounds that she had not demonstrated that she had been paroled into the United States
without a reasoned explanation as to why it disagreed with her legal argument. (App. II, Exh.
R, at 246–49.)
41
XIX. L- L-L- (a minor child)
292. Plaintiff L- L-L- (a minor child) is the minor child of plaintiff Lesmy Ledesma-
Beltran and granddaughter of plaintiff Ivonne Leyva-Mendez.
293. L- L-L- (a minor child) is a native and citizen of Cuba who applied for admission
to the United States at the port of entry at Presidio, Texas on April 23, 2019. (App. II, Exh. S,
at 265.)
2019. (App. II, Exh. S, at 265.)
court (App. II, Exh. S, at 266), meaning that removal proceedings have never been commenced
298. On or about April 24, 2019, the DHS released L- L-L-from its custody. (App. II,
Exh. S, at 261–64.)
299. In so doing, the DHS purported to release L- L-L- pursuant to 8 U. S. C. § 1226(a)
via production of a document labeled “Order of Release of Recognizance.” (App. II, Exh. S, at
261.)
300. More than a year after her physical entry, L- L-L- applied for permanent residence
301. On July 21, 2020, USCIS requested that L- L-L- provide evidence of having been
paroled, to which she replied with a memorandum of law arguing that she had been paroled as a
matter of law. (App. II, Exh. S, at 257–58.)
42
302. On January 25, 2021, the USCIS Las Vegas Field Office denied L- L-L-’s applica-
tion on the grounds that she had not demonstrated that she had been paroled into the United States
without a reasoned explanation as to why it disagreed with her legal argument. (App. II, Exh.
S, at 257–60.)
XX. Yerennis Rondon-Hernandez
303. Plaintiff Yerennis Rondon-Hernandez is a native and citizen of Cuba who applied
for admission to the United States at the port of entry at Laredo, Texas on September 3, 2018.
(App. II, Exh. T, at 271.)
306. A notice to appear for removal proceedings was issued against her on October 15,
2018, after an asylum officer found her to have demonstrated a credible fear of persecution or
torture. (App. II, Exh. T, at 271–72.)
§ 1182(a)(7)(A)(i)(I). (App. II, Exh. T, at 271.)
308. She is set for a report hearing in the Omaha, Nebraska Immigration Court for Oc-
tober 17, 2024. (App. II, Exh. T, at 273.)
309. On or about January 22, 2019, the DHS released Ms. Rondon from its custody.
310. In so doing, the DHS purported to release Ms. Rondon pursuant to 8 U. S. C.
Exh. T, at 269.)
311. More than a year after her physical entry, Ms. Rondon applied for permanent
43
residence under Section 1 of the CAA, Pub. L. No. 89-732, 80 Stat. 1161.
312. On September 21, 2020, USCIS requested that Ms. Rondon provide evidence of
having been paroled, to which she replied with a memorandum of law arguing that she had been
paroled as a matter of law. (App. II, Exh. T, at 268–69.)
313. On February 4, 2021, the USCIS Omaha Field Office denied Ms. Rondon’s appli-
cation on the grounds that she had not demonstrated that she had been paroled into the United
Exh. T, at 268–70.)
XXI. Jesus Rios-Garcia
314. Plaintiff Jesus Rios-Garcia is a native and citizen of Cuba who applied for admis-
sion to the United States at the port of entry at Laredo, Texas on October 2, 2018. (App. II,
Exh. U, at 284.)
317. A notice to appear for removal proceedings was issued against him on November
16, 2018. (App. II, Exh. U, at 284.)
§ 1182(a)(7)(A)(i)(I). (App. II, Exh. U, at 284.)
319. He is set for a report hearing in the Fort Snelling, Minnesota Immigration Court for
March 1, 2022. (App. II, Exh. U, at 285.)
320. On or about December 21, 2018, the DHS released Mr. Rios from its custody.
(App. II, Exh. U, at 278–82.)
321. In so doing, the DHS purported to release Mr. Rios pursuant to 8 U. S. C. § 1226(a)
44
via production of a document labeled “Order of Release of Recognizance.” (App. II, Exh. U, at
278.)
322. More than a year after his physical entry, Mr. Rios applied for permanent residence
323. On January 21, 2020, USCIS requested that Mr. Rios provide evidence of having
been paroled. (App. II, Exh. T, at 275.)
324. On June 22, 2020, USCIS gave notice of its intent to deny Mr. Rios’ application, to
which he replied with a memorandum of law arguing that he had been paroled as a matter of law.
325. On August 18, 2020, the USCIS Minneapolis Field Office denied Mr. Rios’ appli-
cation on the grounds that he had not demonstrated that he had been paroled into the United States
without a reasoned explanation as to why it disagreed with his legal argument. (App. II, Exh.
T, at 275–77.)
ALLEGATIONS OF LEGAL ERROR
326. The agency has committed legal error for two reasons: (1) the immigration statutes,
as interpreted by the Supreme Court in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), mandate that
an inadmissible applicant for admission may only be released from DHS custody pursuant to the
parole authorized established by 8 U. S. C. § 1182(d)(5); and (2) it erred by failing to give reasoned
consideration to the plaintiffs’ arguments made in reliance upon Jennings v. Rodriguez.
327. First, the fact that the plaintiffs (and the putative class which they wish to represent)
were inadmissible applicants for admission released from DHS custody establishes that they have
been paroled as a matter of law. Therefore, they were eligible for adjustment of status under
Section 1 of the Cuban Refugee Adjustment Act.
45
328. Courts of Appeals and the Board of Immigration Appeals have long held in prece-
dential decisions that substance governs over form to determine whether a person has been paroled
or not. Vitale v. INS, 463 F. 2d 579 (CA7 1972); Medina Fernandez v. Hartman, 260 F. 2d 569
(CA9 1958); Matter of O-, 16 I. & N. Dec. 344 (BIA 1977).
329. Prior to replacement of the exclusion regime with the modern inadmissibility re-
gime, it was long understood that applicants for admission were subject to mandatory detention
but for the sole exception in cases involving the exercise of the parole authority under 8 U. S. C.
§ 1182(d)(5). Louis v. Nelson, 544 F. Supp. 973, 994 (S.D. Fla. 1982) (“section 212(d)(5) gives
the Attorney General the power to release excludable aliens on parole”); Jean v. Nelson (Jean I),
711 F. 2d 1455, 1468–69 (CA11 1983) (noting adoption of parole policy because the “policy of
mass detention was inhumane and unnecessary”); Jean II, 727 F. 2d 957, 977 (CA11 1984) (en
banc) (treating parole as the “obverse” of detention required by former §1225(b)); Jean v. Nelson
(Jean III), 472 U. S. 826, 848–49 (1985) (same); Matter of Sanchez-Avila, 21 I. & N. Dec., 444,
458 (BIA 1996) (en banc) (“The ‘harshness’ of this custody requirement, however, is ameliorated
by the parole provisions of section 212(d)(5).”); 8 U. S. C. § 1225(b) (1994) (“Every alien . . . who
may not appear to the examining immigration officer at the port of arrival to be clearly and beyond
a doubt entitled to land shall be detained for further inquiry to be conducted by a special inquiry
officer.”) (emphasis added).
330. Parole is not some sort of special immigration benefit or status. “The parole of
aliens seeking admission is simply a device through which needless confinement is avoided while
administrative proceedings are conducted.” Leng May Ma v. Barber, 357 U. S. 185, 190 (1958).
331. When Congress moved towards the inadmissibility regime in the mid-1990s, it did
so with the intent of expanding this framework to also include immigrants who entered by evading
46
inspection, reclassifying them as “applicants for admission.” H.R. Conf. Rep. No. 104-828, at
208 (Sept. 24, 1996) (“The current category of persons who are deportable because they have made
an entry without inspection will, under the amendments made by section 301(c) of this bill, instead
be considered inadmissible under revised paragraph (6)(A) of subsection 212(a).”); AEDPA
§ 414(a), Pub. L. No. 104-132, 110 Stat. 1214, 1270 (1996) (“an alien found in the United States
who has not been admitted to the United States after inspection in accordance with section 235 is
deemed for purposes of this Act to be seeking entry and admission to the United States and
shall be subject to examination and exclusion”) (emphasis added); H.R. Conf. Rep. No. 104-518,
at 117 (Apr. 15, 1996) (“This section by operation of law, returns ‘to the border’ any alien who
has entered the United States unlawfully, regardless of the duration of his or her presence in the
United States.”).
332. Several habeas courts around the country understand that 8 U. S. C. §§ 1225(b)(1)
and (b)(2) mandate detention subject only to parole under § 1182(d)(5). E. g., Jamal A. v. Whit-
aker, 358 F. Supp. 3d 853, 857 n. 2 (D. Minn. 2019) (“Although ICE claimed to have detained
Jamal under 8 U.S.C. § 1226(c), see ECF No. 8 at 2, both parties agree that his detention is instead
governed by § 1225(b)(2)(A), ECF No. 1 at 1 n.1; ECF No. 7 at 4.”); accord Darrow, J. et al.,
Immigration Detention: Emerging Issues Concerning Arriving Aliens, Criminal and Terrorist Al-
iens, and Hard-to-Remove Aliens, 65 U. S. Attorneys’ Bulletin 70–71, July (I) 2017. 9
333. And yet, in 2007, the DHS Office of the General Counsel adopted an internal non-
public policy turning this longstanding and well-understood statutory scheme on its head by claim-
ing that it could choose to release an applicant for admission from custody, at its own discretion,
under either the parole authority of 8 U. S. C. § 1182(d)(5) or the conditional parole authority
9
Available at: https://www.justice.gov/usao/page/file/984701/download.
47
which is available to cases subject to § 1226(a) procedures. (App. I, Exh. N, at 90–99); compare
In re Applicant, 2004 WL 3456026, at *2 (AAO Feb. 11, 2004) (describing prior policy: “[I]f the
Service releases from custody an alien who is an applicant for admission because the alien is pre-
sent in the United States without having been admitted, the alien has been paroled. This conclu-
sion applies even if the Service officer who authorized the release thought there was a legal dis-
tinction between paroling an applicant for admission and releasing an applicant for admission un-
der section 236.”); In re Applicant, 2004 WL 3455973, at *2 (AAO Feb. 6, 2004) (same); In re
Applicant, 2004 WL 3457036, at *2 (AAO Oct. 21, 2004) (same); id. (“In the present case the
applicant approached Boarder [sic] Patrol Agents and requested political asylum. The applicant
was taken into custody but was subsequently released from Service custody pending a final deter-
mination of his admissibility. Therefore, pursuant to the Commissioner’s policy, the applicant
has been paroled.”); In re Applicant, 2000 WL 33539216, at *2 (AAO Mar. 22, 2000) (describing
prior policy); In re Applicant, 2004 WL 3455975, at *2 (AAO Feb. 6, 2004) (same); In re Appli-
cant, 2004 WL 3456919, at *2 (AAO May 7, 2004) (same); In re Applicant, 2006 WL 4739186,
at *2 (AAO Aug. 28, 2006) (same). 10
334. But, since the Supreme Court decided the case of Jennings v. Rodriguez, this rela-
tively new policy from DHS can no longer stand. 138 S. Ct., at 845 (rejecting argument that
“once detention authority ends under §§ 1225(b)(1) and (b)(2), aliens can be detained only under
§ 1226(a)”); see also id., at 870–72, & 874–74 (arguing that “§ 1226(a)(2)(A)” works together
with §§ 1225(b)(1) and (2) to allow release for persons subject to § 1225 without the need for a
§ 1182(d)(5) parole) (Breyer, J., dissenting).
335. In fact, this issue has been bubbling up in the immigration courts, with at least three
10
Many other similar cases are available on WestLaw.
48
immigration judges agreeing in writing that an applicant for admission released from DHS custody
must have been paroled under 8 U. S. C. § 1182(d)(5), and are thus eligible for adjustment of status.
Matter of D-G-, A –019 (IJ Jan. 4, 2021) (Miami, Fla.) (Cole, IJ) (copy at App. I, Exh. O, at 101–
59), Matter of S-V-, A –— (IJ Feb. 23, 2021) (Miami, Fla.) (Burgess, IJ) (copy at App. I, Exh. P,
at 161–68), Matter of H-A-, A —538 (IJ Apr. 26, 2021) (Houston, Tex.) (Schumann, IJ) (copy at
App. I, Exh. Q, at 170–74).
336. Second, the agency has erred by failing to give meaningful consideration to the
arguments of the plaintiffs (and the putative class which they wish to represent) which are based
on Jennings v. Rodriguez.
337. An agency “must consider the issues raised and announce decision in terms suffi-
cient to enable a reviewing court to perceive that [it] has heard and thought and not merely re-
acted.” Bing Quan Lin v. U. S. Att’y Gen., 881 F. 3d 860, 869–70 (CA11 2018) (cleaned up with
alteration added).
338. “Ultimately, the agency does not give reasoned consideration to a claim when it
misstates the contents of the record, fails to adequately explain its rejection of logical conclusions,
or provides justifications for its decision which are unreasonable and which do not respond to any
arguments in the record.” Bing Quan Lin, 881 F. 3d, at 874 (quoting Jeune v. U. S. Att’y Gen.,
810 F. 3d 792, 803 (CA11 2016)).
339. The plaintiffs (and the putative class which they wish to represent) raised claims
based upon Jennings v. Rodriguez.
340. But the agency denied their claims without any engagement with their Jennings-
based arguments, giving zero analysis or at most relying on outdated authorities and quotes from
49
(and often without citation to) 7 USCIS Policy Manual Part B, Ch. 2, § A(3) n. 50. 11
341. Therefore, the agency’s failure to meaningfully engage with the Jennings-based
argument is in itself an error of law. Bing Quan Lin, 881 F. 3d, at 872 (“An assertion that the
agency failed to give reasoned consideration to an issue is a question of law that we review de
novo.”) (cleaned up).
CLASS ALLEGATIONS
342. Plaintiffs bring this action for themselves, and as a class on behalf of other similarly
situated persons pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), and hereby pro-
pose the following class:
All Cuban nationals:
(1) who are “applicants for admission” under 8 U. S. C. § 1225(a)(1) that were
not admitted into the United States in accordance with § 1101(a)(13)(A);
(2) who were enlarged or released from DHS custody into the United States after
January 12, 2017;
(3) prior to the completion of proceedings contemplated by either 8 U. S. C.

§§ 1225(b)(1) or (b)(2); and
(4) who applied for adjustment of status under the Cuban Refugee Adjustment
Act of 1966 (CAA), Pub. L. No. 89-732, 80 Stat. 1161 (as amended), with
U. S. Citizenship and Immigration Services (USCIS), but were denied that
relief on the grounds that they did not demonstrate that they had been “in-
spected and admitted or paroled into the United States.”
343. The proposed class is adequately defined and readily ascertainable from objective
criteria. Little v. T-Mobile USA, Inc., 691 F. 3d 1302, 1304 (CA11 2012).
344. Numerosity: The proposed class meets the requirements of Fed. R. Civ. P. 23(a)(1)
because it is so numerous that joinder would be impracticable.
11
Available at: https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-2#footnote-
link-50
50
345. Here, twenty-one plaintiffs have brought the instant action on behalf of themselves
and the proposed class.
346. As per a report submitted to Congress by the Department of State in October 2019,
at least 50, 957 Cuban nationals were apprehended by CBP since the start of fiscal year 2017 at or
between ports of entry along the southwest land border alone. (App. I, Exh. M, at 83.)
347. That report demonstrates that, between fiscal-year-to-date 2018 and fiscal-year-to-
date 2019, there was an increase of apprehensions along the southwest land border by 232% at
ports of entry and by 9,324% between ports of entry. (App. I, Exh. M, at 83.)
348. The later reports to Congress obtained through the litigation in Catholic Charities
v. Stein, 20-cv-23846-BLOOM/Louis (S.D. Fla.), did not contain newer information about appre-
hensions of Cuban nationals.
349. Presumably, more Cuban nationals have been apprehended since October 2019.
350. The issues raised by the plaintiffs have also been raised by Cuban nationals in re-
moval proceedings before the immigration courts in those cases where jurisdiction over the adjust-
ment application lies before the immigration court. (App. I, Exhs. O–Q); also, compare 8 CFR
§ 245.2(a)(1), with § 1245.2(a)(1) (jurisdictional rules).
351. As one immigration judge stated, “the Court believes the numbers [of individuals
like the plaintiffs] is high.” (App. I, Exh. O, at 123.)
352. While the true number of potential class members cannot be readily determined
without further discovery from the agency, the class is sufficiently numerous. Ibrahim v. Acosta,
326 F.R.D. 696, 699 (S.D. Fla. 2018) (“While there is no fixed rule, generally a class size less than
twenty-one is inadequate, while a class size of more than forty is adequate.”) (citations omitted).
51
353. Commonality: The proposed class meets the requirements of Fed. R. Civ. Pro.
23(a)(2) because class members share common issues of law and fact.
354. Here, each plaintiff is a Cuban national, and each is:
(1) an “applicant for admission” under 8 U. S. C. § 1225(a)(1) who was not ad-
mitted into the United States in accordance with § 1101(a)(13)(A);
(2) who was enlarged or released from DHS custody into the United States after
January 12, 2017;
(3) prior to the completion of proceedings contemplated by either 8 U. S. C.

§§ 1225(b)(1) or (b)(2); and
(4) who applied for adjustment of status under the Cuban Refugee Adjustment
Act of 1966 (CAA), Pub. L. No. 89-732, 80 Stat. 1161 (as amended), with
U. S. Citizenship and Immigration Services (USCIS), but was denied that re-
lief on the grounds that they did not demonstrate that they had been “inspected
and admitted or paroled into the United States.”
355. The common issue of law is whether their release or enlargement from DHS cus-
tody amounts to a parole under 8 U. S. C. § 1182(d)(5) as a matter of law.
356. Typicality: The requirements of Fed. R. Civ. P. 23(a)(3) are satisfied because the
plaintiffs’ claims are typical of those of the proposed class a whole.
357. The plaintiff’s claims are typical of the proposed class because they are in the same
factual and procedural posture, have suffered the same injury from the same defendant because of
the same legal conclusion made by the defendant (denial of permanent residence under the Cuban
Refugee Adjustment Act), and their injuries can be remedied by the same relief requested herein.
358. Adequacy: The requirements of Fed. R. Civ. P. 23(a)(4) are met because the plain-
tiffs will adequately represent the proposed class, the remedy they seek will cure the injury of all
proposed class members, and the undersigned are qualified to represent the class.
359. The proposed class also satisfies Fed. R. Civ. P. 23(b)(2) because “the party oppos-
ing the class has acted or refused to act on grounds that apply generally to the class, so that final
52
injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”
360. Accordingly, class wide injunctive and declaratory relief is appropriate and neces-
sary, and is in the best interests of judicial efficiency.
CLAIMS FOR RELIEF
COUNT I
IMPERMISSIBLE CONSTRUCTION OF THE STATUTES
361. The allegations in paragraphs 1 through 360 are re-alleged and incorporated herein.
362. The agency’s denial of permanent residence to the plaintiffs and the proposed class
is based on an impermissible construction of the governing statutes that is contrary to the plain and
unambiguous language of the statutes, and contrary to controlling precedent.
363. Alternatively, the agency’s denial of permanent residence to the plaintiffs and the
proposed class is based on an impermissible construction of the governing statutes that is unrea-
sonable and unworthy of deference under any applicable doctrine of administrative law.
364. The plaintiffs and the proposed class have “suffer[ed] legal wrong,” and have been
“adversely affected” and “aggrieved” by the actions of the defendant. 5 U. S. C. § 702.
365. The defendant’s denials of the plaintiffs’ and the proposed class’s applications for
permanent residence amounts to agency action that is “arbitrary, capricious, an abuse of discretion,
[and] otherwise not in accordance with law.” § 706(2)(A).
366. As such, the plaintiffs and the proposed class are entitled to injunctive and declar-
atory relief, § 703, setting aside, § 706(2), the denial of their applications for permanent residence
under the Cuban Refugee Adjustment Act.
COUNT II
LACK OF REASONED CONSIDERATION
367. The allegations in paragraphs 1 through 360 are re-alleged and incorporated herein.
53
368. The agency’s denial of permanent residence to the plaintiffs and the proposed class
was done without reasoned and meaningful consideration of their legal claims.
369. The plaintiffs and the proposed class have “suffer[ed] legal wrong,” and have been
“adversely affected” and “aggrieved” by the actions of the defendant. 5 U. S. C. § 702.
370. The defendant’s denials of the plaintiffs’ and the proposed class’s applications for
permanent residence amounts to agency action that is “arbitrary, capricious, an abuse of discretion,
[and] otherwise not in accordance with law.” § 706(2)(A).
371. As such, the plaintiffs and the proposed class are entitled to injunctive and declar-
atory relief, § 703, setting aside, § 706(2), the denial of their applications for permanent residence
under the Cuban Refugee Adjustment Act.
PRAYER FOR RELIEF
Based upon the foregoing, the plaintiffs pray that the Court grant the following relief:
(a) Assume jurisdiction over this matter;
(b) Certify the proposed class, appoint the named plaintiffs as class representatives, and
appoint the undersigned as class counsel;
(c) Order the defendants to identify all other class members whose applications for perma-
nent residence have been denied, administratively closed, or not yet adjudicated;
(d) Declare that the plaintiffs and the other class members have been inspected and paroled
into the United States, and that it is error for the defendant to deny their applications
for permanent resident based upon a contrary conclusion;
(e) Enjoin the defendant from refusing to recognize that the plaintiffs and the other class
members have been inspected and paroled into the United States, and from denying
their applications for permanent resident based upon a contrary conclusion;
54
(f) Remand all of the named plaintiffs’ and other class members’ applications for perma-
nent residence to the defendant, and order the defendant to adjudicate those applications
in a manner consistent with the Court’s declarations of law;
(g) Order the defendants to reopen all of the class members’ denied applications for per-
manent residence, and to adjudicate those applications in a manner consistent with the
Court’s declarations of law;
(h) Order the defendants to adjudicate all pending and future class members’ applications
for permanent residence in a manner consistent with the Court’s declarations of law;
(i) Retain jurisdiction over this case to ensure compliance with all of this Court’s orders;
(j) Award costs, and attorney’s fees under the Equal Access to Justice Act (EAJA), as
amended, 5 U. S. C. § 2412, and on any other basis justified under law; and
(k) Grant any other and further relief that the Court deems just and proper.
Dated: September 3, 2021 s/ Mark Andrew Prada
Claudia Canizares Mark Andrew Prada

Fla. Bar No. 98308 Fla. Bar No. 91997
Canizares Law Group, LLC Anthony Richard Dominguez
8360 W. Flagler St., Suite 103 Fla. Bar No. 1002234
Miami, FL 33144 Prada Urizar, PLLC
o. 305.680.0038 3191 Coral Way, Suite 500
[email protected] Miami, FL 33145
o. (786) 703-2061
c. (786) 238-2222
c. (440) 315-4610
[email protected]
[email protected]
Counsel for the Plaintiffs
55

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Case 1:21-cv-23213-XXXX Document 1 Entered on FLSD Docket 09/03/2021 Page 1 of 58

UNITED STATES DISTRICT COURT

CLASS ACTION COMPLAINT FOR

Summary of Claim ...........................................................................................................................1

Exhaustion of Remedies ..................................................................................................................3

Legislative and Political History......................................................................................................7

Legal Framework for Entry and Detention ....................................................................................19

Relevant Factual Allegations

I. Yaribel Rabelo-Rodriguez .....................................................................................23

II. Alexis Fernandez-Perez .........................................................................................24

III. A- F-R- (a minor child) ..........................................................................................25

IV. Adrian Hernandez-Borges .....................................................................................26

V. Rene Caridad Roman-Hernandez ..........................................................................28

VI. Marile Pacheco-Chavez .........................................................................................29

VII. M- K- R-P- (a minor child) ....................................................................................30

VIII. Elaine Martinez-Milanes ........................................................................................31

IX. Consuelo Izquierdo-Miranda .................................................................................32

X. Yanara Mendoza-Cintra .........................................................................................33

XI. A- K- R-M- (a minor child) ...................................................................................34

XII. Ivonne Gutierrez-Moll ...........................................................................................35

XIII. Adelmis Reve-Marquez .........................................................................................35

XIV. Celia Natividad Gonzalez-Garcia ..........................................................................36

XV. Isis de la Caridad Silveira-Lozada .........................................................................37

XVI. Ivonne Leyva-Mendez ...........................................................................................38

XVII. Lesmy Ledesma-Beltran ........................................................................................39

XVIII. E- L-L- (a minor child) ..........................................................................................40

XIX. L- L-L- (a minor child) ..........................................................................................42

XX. Yerennis Rondon-Hernandez .................................................................................43

XXI. Jesus Rios-Garcia ...................................................................................................44

Allegations of Legal Error .............................................................................................................45

Class Allegations ...........................................................................................................................50

Claims for Relief

Count I — Impermissible Construction of the Statutes ....................................................53

Count II — Lack of Reasoned Consideration ....................................................................53

Prayer for Relief .............................................................................................................................54

CLASS ACTION COMPLAINT FOR

The plaintiffs, by and through the undersigned, allege as follows:

plemented in conformance with 8 U. S. C. § 1225(b)(1)(F)—colloquially referred to as the “wet-

foot/dry-foot policy”—the Department of Homeland Security continued to release Cuban nationals

89-732, 80 Stat. 1161 (as amended).

U. S. C. §§ 701, et seq.

§ 1346(a)(2) (United States as defendant).

4. The INA’s jurisdictional bar regarding discretionary judgments applicable to appli-

960, 967–68 (CA11 2014).

5. Venue is proper in this district because:

this district, 28 U. S. C. § 1391(e)(1)(A);

demonstrating that “residency of ‘the plaintiff’ should be interpreted to mean any

plaintiff rather than all plaintiffs”) (emphasis in original).

cation. Perez v. USCIS, 774 F. 3d 960, 966–67 (CA11 2014).

8. Defendant ALEJANDRO MAYORKAS is sued in his official capacity as the

idence under the Cuban Adjustment Act.

9. Plaintiff Yaribel RABELO-RODRIGUEZ is a native and citizen of Cuba who

assigned receipt numbers MSC-20-915-89846 and MSC-20-911-34032.

receipt numbers MSC-20-915-89845 and MSC-20-911-34030.

MSC-20-915-89847 and MSC-20-911-34028.

12. Plaintiff Adrian HERNANDEZ-BORGES is a native and citizen of Cuba who

assigned receipt number MSC-21-900-39777.

13. Plaintiff Rene Caridad ROMAN-HERNANDEZ is a native and citizen of Cuba

was assigned receipt number MSC-20-912-74696.

receipt number MSC-20-912-74698.

was assigned receipt number MSC-20-903-75603.

17. Plaintiff Consuelo IZQUIERDO-MIRANDA is a native and citizen of Cuba who

assigned receipt number MSC-20-910-16022.

assigned receipt number MSC-20-913-96723 .