Case: Ordoñez Orosco v. Chertoff

1:07-cv-00153 | U.S. District Court for the Southern District of Texas

Filed Date: Oct. 2, 2007

Closed Date: 2010

Clearinghouse coding complete

Case Summary

On October 2, 2007, a detained alien who obtained entry into the U.S. through an illegal smuggling operation brought a class action lawsuit in the U.S. District Court for the Southern District of Texas, challenging Department of Homeland Security regulations which governed issuance of U-visas. The "U-visa" was a new non-immigrant visa classification created by the Victims of Trafficking and Violence Protection Act. U-visas granted temporary immigration benefits to certain alien victims of cri…

On October 2, 2007, a detained alien who obtained entry into the U.S. through an illegal smuggling operation brought a class action lawsuit in the U.S. District Court for the Southern District of Texas, challenging Department of Homeland Security regulations which governed issuance of U-visas. The "U-visa" was a new non-immigrant visa classification created by the Victims of Trafficking and Violence Protection Act. U-visas granted temporary immigration benefits to certain alien victims of crimes who assisted government officials in investigating or prosecuting the criminal activity. To be processed, the application for a U-Visa had to be accompanied a law enforcement certification (LEC). Plaintiff challenged the constitutionality of 8 C.F.R. § 214.14(a)(14)(iii), a Homeland Security regulation that set out the parameters for the issuance of a LEC.

Plaintiff claimed that plaintiff and his brother left Guatemala in March 2007 with the assistance of an alien smuggling operation that brought them from Guatemala to Mexico and then to the U.S. border near Falfurrias, Texas. Once near the border, the smugglers deserted plaintiff and his brother, leaving them without food, water, shelter or navigational devices. The two men wandered in the desert area for days until plaintiff's brother died. Plaintiff then contacted U.S. border agents, where he cooperated with authorities, gave them information about the smugglers and was taken into custody. Plaintiff then sought to apply for a U-visa, but was not issued a LEC by the investigating authorities. He claimed that his denial of a LEC, which was apparently done per new Homeland Security regulations, violated due process and equal protection. He asserted claims under Habeas Corpus, 28 U.S.C. § 2241; the Administrative Procedures Act, 5 U.S.C. § 702 et seq.; and the Declaratory Judgment Act, 28 U.S.C. § 2201, seeking declaratory and injunctive relief, as well as class certification on behalf of all aliens who were crime victims and denied LECs for use in U-visa applications.

On February 25, 2008, defendant moved to dismiss, and on December 8 the District Court (Judge Andrew S. Hanen) granted defendant's motion. Ordoñez Orozco v. Chertoff, No. 1:07-cv-00153, 2008 WL 5155728, 2008 U.S. Dist. LEXIS 98800 (S.D. Tex. Dec. 8, 2008). The court found that it lacked jurisdiction to review the issuance of LECs, which it determined was the type of discretionary action withdrawn from its purview by 8 U.S.C. § 1252(a)(2)(B)(ii). It further found that the discretionary nature of the issuance of LECs defeated plaintiff's constitutional claims, his claims under the APA and his petition for mandamus.

The Fifth Circuit (Judge William L. Garwood) affirmed on March 2, 2010, Ordoñez Orosco v. Napolitano, 598 F.3d 222 (5th Cir. 2010), and the Supreme Court denied certiorari on October 4, 2010.

Summary Authors

Christopher Schad (6/12/2012)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/5580926/parties/ordonez-orosco-v-chertoff/


Judge(s)

Black, John William (Texas)

Garwood, William Lockhart (Texas)

Hanen, Andrew S. (Texas)

Wiener, Jacques Loeb Jr. (Louisiana)

Attorneys(s) for Plaintiff

Dougherty, Marlene A. (Texas)

Attorneys(s) for Defendant

Benavides, Reno Carlo (Texas)

Leibman, Melissa S. (District of Columbia)

Luis, Lisa (Texas)

Judge(s)

Black, John William (Texas)

Garwood, William Lockhart (Texas)

Hanen, Andrew S. (Texas)

Wiener, Jacques Loeb Jr. (Louisiana)

Attorneys(s) for Plaintiff

Dougherty, Marlene A. (Texas)

Attorneys(s) for Defendant

Benavides, Reno Carlo (Texas)

Leibman, Melissa S. (District of Columbia)

Luis, Lisa (Texas)

Documents in the Clearinghouse

Document

Docket (PACER)

Oct. 12, 2010 Docket

Part IV Department of Homeland Security 8 CFR Parts 103, 212, et al.

No Court

Sept. 17, 2007 Statute/Ordinance/Regulation
2

Amended Action for Writ of Habeas Corpus and Class Action Complaint for Declaratory and Injunctive Relief

Oct. 9, 2007 Complaint
25

Order [Denying Petitioner's Application and Granting Respondent's Motion to Dismiss]

Ordoñez Orozco v. Chertoff

2008 WL 5155728, 2008 U.S.Dist.LEXIS 98800

Dec. 8, 2008 Order/Opinion
00511039330

[Fifth Circuit] Opinion [Affirming the District Court's Order]

Ordoñez Orosco v. Napolitano

U. S. Court of Appeals for the Fifth Circuit

598 F.3d 222

March 2, 2010 Order/Opinion

Docket

See docket on RECAP: https://www.courtlistener.com/docket/5580926/ordonez-orosco-v-chertoff/

Last updated May 20, 2022, 1:32 a.m.

ECF Number Description Date Link
1

PETITION for Writ of Habeas Corpus (Filing fee $ 5 receipt number 3087997) filed by Ronal Porfirio Ordonez Orosco.(Dougherty, Marlene) (Entered:

Oct. 3, 2007
25

ORDER. Since the issuance of an LEC is a discretionary act, the Petitioner's application for writ of habeas corpus, constitutional claims, and request for writ of mandamus are DENIED. Further Petitioner lacks standing to pursue his APA claim an d such claim is DENIED. Lacking any valid claim and given the great variety of situations that could lead to the issuance of an LEC, this Court also DENIES Petitioner's motion to certify class. Respondent's Motion to Dismiss 14 is therefore GRANTED. Respondent's Motion to Supplement the Exhibits 19 is DENIED as moot. (Signed by Judge Andrew S. Hanen) Parties notified.(bvasquez, )

Dec. 8, 2008 RECAP
3

SEALED EXHIBITS, filed. (Dougherty, Marlene) (Entered: 10/09/2007)

Oct. 9, 2007
4

SEALED EXHIBITS, filed. (Dougherty, Marlene) (Entered: 10/09/2007)

Oct. 9, 2007
5

SEALED EXHIBITS, filed. (Dougherty, Marlene) (Entered: 10/09/2007)

Oct. 9, 2007
6

RETURN of Service of SUMMONS Executed as to Eduardo Lozano served on 10/11/2007, answer due 12/10/2007, filed.(Dougherty, Marlene) (Entered: 10/18/2007)

Oct. 18, 2007
7

RETURN of Service of SUMMONS Executed as to Unnamed Supervisory Immigration and Customs Enforcement Officers served on 10/15/2007, answer due 12/14/2007, filed.(Dougherty, Marlene) (Entered: 10/18/2007)

Oct. 18, 2007
8

RETURN of Service of SUMMONS Executed as to Michael Chertoff served on 10/15/2007, answer due 12/14/2007, filed.(Dougherty, Marlene) (Entered: 10/18/2007)

Oct. 18, 2007
9

Unopposed MOTION for Extension of Time to File an AnswerMotions referred to John William Black. by Paul Clement, Michael Chertoff, Eduardo Lozano, United States Of America, Unnamed Supervisory Immigration and Customs Enforcement Officers, filed. Motion Docket Date 12/17/2007. (Attachments: # 1 Proposed Order)(Benavides, Rene) (Entered: 11/26/2007)

Nov. 26, 2007
10

ORDER Granting 9 Unopposed Motion for Extension of Time. Is is therefore, ORDERED that the United States of America's answer be due on 1/26/2008. (Signed by Judge John Wm Black) Parties notified.(gmendieta) (Entered: 11/30/2007)

Nov. 30, 2007

***Answer due for Paul Clement 1/26/2008; Michael Chertoff 1/26/2008; Eduardo Lozano 1/26/2008; United States Attorney Generals Office 1/26/2008; United States Of America 1/26/2008; Donald J DeGabrielle, Jr. 1/26/2008; Unnamed Supervisory Immigration and Customs Enforcement Officers 1/26/2008. (gmendieta) (Entered: 11/30/2007)

Nov. 30, 2007
11

Second MOTION for Extension of Time to file Response to habeasMotions referred to John William Black. by Paul Clement, Michael Chertoff, Eduardo Lozano, United States Of America, Unnamed Supervisory Immigration and Customs Enforcement Officers, filed. Motion Docket Date 2/12/2008. (Attachments: # 1 Proposed Order)(Benavides, Rene) (Entered: 01/23/2008)

Jan. 23, 2008
12

MOTION for Mellisa Leibman to Appear Pro Hac ViceMotions referred to John William Black. by Paul Clement, Michael Chertoff, Eduardo Lozano, United States Of America, Unnamed Supervisory Immigration and Customs Enforcement Officers, filed. Motion Docket Date 2/12/2008. (Benavides, Rene) (Entered: 01/23/2008)

Jan. 23, 2008
13

ORDER granting 11 Motion for Extension of Time. It is therefore ORDERED that the United States of America's answer be due on February 25, 2008.( Signed by Judge John William Black ) Parties notified.(bvasquez, ) (Entered: 01/24/2008)

Jan. 24, 2008

***Answer due for United States Of America 2/25/2008. (bvasquez, ) (Entered: 01/24/2008)

Jan. 24, 2008
14

MOTION to Dismiss Motions referred to John William Black. by Paul Clement, Michael Chertoff, Eduardo Lozano, United States Attorney Generals Office, United States Of America, Donald J DeGabrielle, Jr, Unnamed Supervisory Immigration and Customs Enforcement Officers, filed. Motion Docket Date 3/17/2008. (Attachments: # 1 Exhibit Exhibits 1−6# 2 Proposed Order)(Wyatt, Keith) (Entered: 02/25/2008)

Feb. 25, 2008
15

First MOTION for Extension of Time Answer Motion to DismissMotions referred to John William Black. by Ronal Porfirio Ordonez Orosco, filed. Motion Docket

March 6, 2008
17

First RESPONSE in Opposition to 14 MOTION to Dismiss, filed by Ronal Porfirio Ordonez Orosco. (Attachments: # 1 Exhibit A−Order of Supervision)(Dougherty, Marlene) (Entered: 03/17/2008)

March 17, 2008
18

REPLY in Support of 14 MOTION to Dismiss, filed by Paul Clement, Michael Chertoff, Eduardo Lozano, United States Of America, Unnamed Supervisory Immigration and Customs Enforcement Officers. (Leibman, Melissa) (Entered: 03/28/2008)

March 28, 2008
19

MOTION to Supplement The Exhibits as to 14 MOTION to Dismiss Motions referred to John William Black. by Paul Clement, Michael Chertoff, Eduardo Lozano, United States Of America, Unnamed Supervisory Immigration and Customs Enforcement Officers, filed. Motion Docket Date 4/17/2008. (Attachments: # 1 Exhibit 6# 2 Proposed Order)(Leibman, Melissa) (Entered: 03/28/2008)

March 28, 2008
20

First RESPONSE in Opposition to 19 MOTION to Supplement The Exhibits as to 14 MOTION to Dismiss MOTION to Supplement The Exhibits as to 14 MOTION to Dismiss, filed by Ronal Porfirio Ordonez Orosco. (Dougherty, Marlene) (Entered: 04/07/2008)

April 7, 2008
21

ORDER Granting 12 Motion to Appear Pro Hac Vice. Melissa Liebman for Michael Chertoff, Eduardo Lozano, USA, et al. (Signed by Judge Andrew S. Hanen) Parties notified.(gmendieta) (Entered: 04/07/2008)

April 7, 2008
22

SUPPLEMENT to 20 Response in Opposition to Motion by Ronal Porfirio Ordonez Orosco, filed.(Dougherty, Marlene) (Entered: 04/08/2008)

April 8, 2008
23

REPLY to Response to 19 MOTION to Supplement The Exhibits as to 14 MOTION to Dismiss MOTION to Supplement The Exhibits as to 14 MOTION to Dismiss, filed by Paul Clement, Michael Chertoff, Eduardo Lozano, United States Of America, Unnamed Supervisory Immigration and Customs Enforcement Officers. (Leibman, Melissa) (Entered: 04/10/2008)

April 10, 2008
24

NOTICE of attorney substitution by Michael Chertoff, Eduardo Lozano, United States Attorney Generals Office, United States Of America, Donald J DeGabrielle, Jr, Unnamed Supervisory Immigration and Customs Enforcement Officers. Attorney Lisa Luis added. Attorney Rene Carlo Benavides terminated, filed. (Luis, Lisa) (Entered: 08/30/2008)

Aug. 30, 2008
26

NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 25 Order on Motion to Dismiss,,, Order on Motion to Supplement,, by Ronal Porfirio Ordonez Orosco (Filing fee $ 455, receipt number 05410000000004549225), filed.(Dougherty, Marlene) (Entered: 01/05/2009)

Jan. 5, 2009
27

Notice of the Filing of an Appeal. DKT13 transcript order form was not mailed to appellant. Fee status: paid. The following Notice of Appeal and related motions are pending in the District Court: 26 Notice of Appeal,, filed.(dahumada, ) (Entered: 01/06/2009)

Jan. 6, 2009
28

Notice of Assignment of USCA No. 09−40004, Re: 26 Notice of Appeal, filed.(gmendieta) (Entered: 01/22/2009)

Jan. 20, 2009
29

Transmittal Letter on Appeal Certified re: 26 Notice of Appeal,. A paper copy of the electronic record is being transmitted to the Fifth Circuit Court of Appeals, in 2 Volumes, filed.(jtabares, ) (Entered: 02/24/2009)

Feb. 24, 2009
30

Transmittal Letter on Appeal Certified re: 26 Notice of Appeal,. CDs containing the electronic record are being sent to Ms. Dougherty, Ms. Leibman and Ms. Luis. (USCA No. 09−40004), filed.(jtabares, ) (Entered: 02/24/2009)

Feb. 24, 2009
31

Order of USCA; Judgment Issued as Mandate re: 26 Notice of Appeal, ; USCA No. 09−40004. This case was considered on the record on appeal and was argued by counsel. It is ordered and adjudged that the Judgment of the District Court is affirmed, filed.(dahumada, ) (Entered: 04/30/2010)

April 30, 2010
32

Record on Appeal Returned from the US Court of Appeals for the Fifth Circuit re: 26 Notice of Appeal; consisting of 1 Sealed Envelope (USCA No. 09−40004), filed.(mperez, ) (Entered: 05/05/2010)

May 5, 2010
33

The petition for a writ of certiorari filed with the Supreme Court has been denied (USCA No. 09−4004) (USSC No. 09−11138), filed.(jtabares, ) (Entered: 10/13/2010)

Oct. 12, 2010

State / Territory: Texas

Case Type(s):

Immigration and/or the Border

Key Dates

Filing Date: Oct. 2, 2007

Closing Date: 2010

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Aliens who are victims of enumerated crimes who have sought to obtain a law enforcement certification (LEC) for use in application for a U-visa and were denied

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Denied

Defendants

U.S. Department of Homeland Security, Federal

Immigration and Customs Enforcement , Federal

U.S. Citizenship and Immigration Services, Federal

Case Details

Causes of Action:

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

Habeas Corpus, 28 U.S.C. §§ 2241-2253; 2254; 2255

Declaratory Judgment Act, 28 U.S.C. § 2201

Availably Documents:

Trial Court Docket

Complaint (any)

Any published opinion

Outcome

Prevailing Party: Defendant

Nature of Relief:

None

Source of Relief:

None

Issues

General:

Habeas Corpus

Immigration/Border:

Border police

Constitutional rights

Detention - criteria

Temporary protected status

Undocumented immigrants - rights and duties

Visas - criteria

Visas - procedures