Garcia Rivera v. Miller ( 2023 )

1 JASON M. FRIERSON United States Attorney 2 District of Nevada Nevada Bar No. 7709 3 R. THOMAS COLONNA 4 Assistant United States Attorney 5 United States Attorney’s Office 501 Las Vegas Blvd. South, Suite 1100 6 Las Vegas, Nevada 89101 Telephone: (702) 388-6336 7 Email: Richard.Colonna@usdoj.gov Attorneys for the United States of America 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 Florinda Garcia Rivera and Felipe Carrera Case No. 2:23-cv-00724-APG-EJY Mendez, 11 Stipulation to Stay Case Plaintiffs, 12 v. 13 Loren K. Miller, Director, Nebraska Service 14 Center, U.S. Citizenship and Immigration Services, in his official capacity as well as his 15 successor and assigns; Alejandro Mayorkas, Secretary, U.S. Department of Homeland 16 Security, in his official capacity as well as his successors and assigns; Ur Mendoza Jaddou, 17 Director, U.S. Citizenship and Immigration Services, in her official capacity as well as her 18 successor and assigns; Antony J. Blinken, Secretary of State, U.S. Department of State, 19 in his official capacity as well as his successors and assigns; Philip Slattery, Director National 20 Visa Center, U.S. Department of State, in his official capacity as well as his successors and 21 assigns; Richard C. Visek, Acting Legal Advisor, U.S. Department of State, in his 22 official capacity as well as his successor and 23 assigns, 24 Defendants. 25 26 Plaintiffs Florinda Garcia Rivera and Felipe Carrera Mendez (“Plaintiffs”) and 27 Federal Defendants, through counsel, submit the following stipulated statement and order 28 (“Stipulation”) to stay proceedings in this matter. 1 1. On May 8, 2023, Plaintiffs filed the Complaint. (ECF No. 1). 2 2. Federal Defendants have an Answer due on August 15, 2023. Federal 3 Defendants have yet to file an Answer or, alternatively, file a motion to dismiss on the basis 4 that this Court lacks subject matter jurisdiction over this action. 5 3. On July 7, 2023, in a separate case, Mercado, et. al v. Miller, et. al., No. 2:22-cv- 6 02182-JAD-EJY, 2023 WL 4406292 (D. Nev. July 7, 2023), ECF No. 18, the United States 7 District Court for the District of Nevada granted a motion to dismiss a substantially similar 8 case alleging unreasonable delay in the processing of a provisional unlawful presence waiver 9 for lack of subject matter jurisdiction pursuant to 8 U.S.C. § 1182(a)(9)(B)(v). Mercado, 2023 10 WL 4406292, at *1-3. The Mercado plaintiffs sought “declaratory and injunctive relief 11 under the . . . APA . . . and a writ of mandamus ordering . . . USCIS . . . to complete its 12 adjudication of Gustavo Mercado’s I-601A application for a provisional-unlawful-presence 13 waiver and the Department of State (DOS) to schedule his consular visa interview.” Id. at 14 15 *1. As to the three U.S. Department of Homeland Security officials who the Mercado 16 plaintiffs sued, the District of Nevada granted Defendants’ motion to dismiss on the grounds 17 that “§ 1182(a)(9)(B)(v) precludes judicial review of USCIS’s alleged delay in processing 18 Gustavo’s I-601A application . . . .” Id. at *3. 19 4. On July 12, 2023, the Mercado plaintiffs noticed an appeal. Mercado, et. al. v. 20 Miller, et. al., No. 2:22-cv-02182-JAD-EJY, ECF No. 20 (D. Nev.), which the Ninth Circuit 21 has docketed as Case No. 23-16007. Pursuant to the Time Scheduling Order, which the 22 Ninth Circuit issued on July 17, 2023, the Mercado Plaintiffs-Appellants’ opening brief is due 23 by September 18, 2023; the Mercado Defendants-Appellees’ answering brief is due by 24 October 18, 2023; and the Mercado Plaintiffs-Appellants’ optional reply brief is due within 21 25 days of the filing of Defendants-Appellees’ answering brief. Mercado, et. al. v. Miller, et. al., 26 No. 23-16007, Doc. No. 1-1 at 3 (9th Cir.). Consequently, the precise question concerning 27 this Court’s subject matter jurisdiction which is at issue in this case is now before the Ninth 28 Circuit in an appeal scheduled to be fully briefed by November 8, 2023. 1 5. On July 25, 2023, counsel for the Parties conferred over email in which 2 || Defendants asked to stay this case pending a resolution by the U.S. Court of Appeals for the 3 || Ninth Circuit (the “Ninth Circuit”) of the appeal in Mercado, et. al. v. Miller, et. al., No. 23- 4 |! 16007 (9th Cir.), which, as stated above, involves the precise question concerning this > || Court’s subject matter jurisdiction that is at issue, rather than file another motion to dismiss, 6 which it has done in other 601-A cases. Plaintiff's counsel agreed with this request. 7 6. Counsel for the parties agree that a stay would preserve the resources of the 8 Court and the parties, allow the parties to avoid the risk of inconsistent judgments, and 9 would be of limited duration. 10 7. The Parties now hereby agree and stipulate to stay this case pending D resolution of the Mercado appeal. 3 Respectfully submitted this 2nd day of August 2023. 14 JASON M. FRIERSON 15 United States Attorney 16 || /s/Maria Quiroga /s/ R. Thomas Colonna Maria Quiroga R. THOMAS COLONNA 17 || Nevada State Bar Number: 13939 Assistant United States Attorney 7935 W Sahara Ave #103 18 |] Las Vegas, NV 89117 Attorneys for the United States Tel: (702) 972-8348 19 || Maria@QuirogalawOffice.com 20 Attorney for Plaintiffs 21 The parties shall file a status report every 6 months or within 60 days of a decision in Mercado v. Miller, 33 whichever comes first. IT IS SO ORDERED: 24 25 4 Z A 26 □ 97 UNITED STATES DISTRICT JUDGE 3g DATED: August 3, 2023 ry