Death of citizen spouse
Congress did not intend to automatically strip an alien of “immediate relative” status where her husband, a citizen, had submitted a petition to establish that status, but died prior to its adjudication and less than two years after their marriage.
CASE: Robledo v. Chertoff, Civil Action No. AW-08-2581 (filed Sept. 25, 2009) (en banc). RecordFax No. 9-0925-40, 19 pages.
FACTS: Maria Paula Robledo and her son, Mateo Pinzon, citizens of Colombia, entered the United States in 2004 in nonimmigrant status. Mrs. Robledo married Duglio Renato Ricci, a naturalized U.S. citizen, on July 11, 2006, while Pinzon was still a minor. Mr. Ricci filed a Form I-130, petition for alien relative (Petition), in September 2006 to establish Mrs. Robledo and her son as “immediate relative[s].” Simultaneously, Mrs. Robledo and Pinzon filed a Form I-485, application to register permanent residence or to adjust status (Application), seeking adjustment of their immigration status to lawful permanent resident and relying on Mr. Ricci’s petition attesting to their status as spouse and child, respectively.
While their petition and application were pending approval, Mr. Robledo died, just ten months after the couple married. On June 15, 2007, fifteen days after Mr. Robledo’s death, the Government denied the petition and application jointly filed by the couple and Mrs. Robledo’s son, solely based on the policy of treating aliens whose spouses died prior to the couples’ second wedding anniversary, as no longer the spouses of U.S. citizens. As a result, Mrs. Robledo no longer possessed a valid visa and was placed in removal proceedings.
Robledo brought an action seeking declaratory, injunctive, and mandamus relief. The Government filed a motion to dismiss, or alternatively, for summary judgment. Robledo filed a cross motion for summary judgment.
The district court granted Robledo’s cross notion for summary judgment and denied the Government’s motion to dismiss.
LAW: The Immigration and Nationality Act (INA) establishes a quota on the number of immigrant visas that can be issued each year. 8 U.S.C. §1151(a). However, §1151(b) defines categories of aliens, namely “immediate relatives,” who are exempt from the quota limits.
“In the case of an alien who was the spouse of a citizen…for at least 2 years at the time of the citizen’s death and was not legally separated from the citizen at the time of the citizen’s death, the alien…remain[s] an immediate relative after the date of the citizen’s death.” §1151(b)(2)(A)(i). Section 1154(b) permits the alien spouse to file a self-petition Form I-360, but only if the alien spouse was married to the citizen spouse for at least two years prior to the citizen’s death.
However, as was the case here, where the citizen spouse filed a Form I-130 petition but dies before the petition and application are approved, and prior to the couple’s second year of marriage, the Government treats the citizen’s death as automatically making the widowed alien, and her children, ineligible for classification as an “immediate relative.” Unless the alien otherwise qualifies for a visa, the alien spouse’s I-485 application is denied, along with the privilege to work, travel, and often to remain in the United States. See §1154 (a)(1)(A)(i). As a result, the alien spouse and children are placed in removal proceedings and are subject to deportation. Id.
In considering an agency’s interpretation of a statute that it administers, the court had to determine whether deference to its decision was required under Chevron U.S.A. Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). The court first had to determine whether the language of the statute was “susceptible to more than one natural meaning.” Id. If “the statutory text is plain and unambiguous,” the court and agency “must give effect to the unambiguously expressed intent of Congress.” Id. (quoting Carcieri v. Salazar, 129 S. Ct. 1058, 1063-64 (2009)).
At issue was the meaning of “spouse” as used in the first and second sentences of §1151(b)(2)(A)(i) and whether Robledo had to be the spouse of a U.S. citizen at the time the petition and application were filed or adjudicated. Black’s Law defines “spouse” as “One’s husband or wife, and ‘surviving spouse’ is one of a married pair who outlive the other.” Black’s Law Dictionary 1402 (6th ed. 1990). Continued use of the term “spouse” later in the second sentence supported the argument that Congress intended for the term “spouse” to refer to both “a living spouse and a surviving spouse.” Lockhart v. Chertoff, 2008 WL 80225, at *5 (N.D. Ohio Jan. 7, 2008).
Although the beginning of the second sentence uses the past tense, stating “in the case of an alien who was the spouse of a citizen,” midway through the sentence Congress continues to call the widowed alien a spouse when it states, “but only if the spouse files a petition.” §1151(b)(2)(A)(i). Clearly, then, Congress twice used the term “spouse” when referring to a widowed alien.
Thus, restricting the term “spouse” to a marriage where both parties are living would result in Congress using the same word with inconsistent meanings within the same sentence. There was no indication within the language of the statute that Congress intended to stop using the term “spouse” upon the death of one party to a marriage, and instead unambiguously expresses Congress’s intent that the term “spouse” continues to refer to the party of the marriage who outlives the other. Therefore, the INA expresses Congress’s intent not to automatically strip an alien of “immediate relative” status where the citizen spouse submitted an I-130 petition but died prior to its adjudication.
Accordingly, Robledo’s motion for summary judgment was granted.
COMMENTARY: The Government was concerned about verifying the validity of a marriage that lasted for less than two years where they could no longer question one party to the marriage. However, the Government misplaced the emphasis in §1154(b) because what must be true at the INA’s investigation is “the facts stated in the petition.”
Although the task of determining the validity of the marriage is made more difficult when the citizen spouse is unavailable for questioning, it is not thereby rendered impossible. The Government could rely on the methods it uses when investigating alien self-petitions. The Petitioners who fully complied with INA procedure should not be removed “simply because the petition filed on their behalf by [their deceased] husband is stuck in the government’s bureaucracy.” See Robinson v. Napolitano, 554 F.3d 358, 367 (3rd Cir. 2009).
PRACTICE TIPS: Although 8 U.S.C. §1252(b)(9), which precludes judicial review of any questions of law, including the “interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien,” has been interpreted as indicative of Congressional intent to channel all legal issues with respect to an alien in removal proceedings to the Immigration Judge, the Board of Immigration Appeals, and ultimately to a Court of Appeals, the words “arising from” have a narrow meaning that do not apply to judicial review of matters “independent of, or wholly collateral to, the removal process,” or “that cannot effectively be handled through the available administrative process.” Aguilar v. U.S. Immigration & Customs Enforcement, 510 F.3d 1, 9-11 (1st Cir. 2007).
Labor & Employment
Americans with Disabilities Act
BOTTOM LINE: Where, immediately after plaintiff police officer testified for a fellow officer in his involuntary disability retirement hearing, police chief ordered plaintiff officer to undergo a fitness-for-duty exam, plaintiff was not entitled to summary judgment on his ADA claim because a fair-minded jury could have determined that the chief’s order was job related and consistent with business necessity, and because the officer could not prove that a fair-minded jury would necessarily find a causal link between his testimony and the order to establish retaliation.
CASE: Blake v. Baltimore County, Maryland, Civ. No. L-07-50 (decided Sept. 30, 2009) (Judge Legg). RecordFax No. 9-0930-40, 13 pages.
FACTS: On April 24, 1996, William Blake — a Baltimore County Police Officer for over twenty years — had a seizure shortly after reporting to his precinct. He was treated and cleared to return to full duty effective May 10, 1996. In the thirteen years following the episode, Blake has experienced neither similar symptoms nor any other seizure-like events.
In the summer of 2006, Blake learned that a fellow officer, Philip Crumbacker, had suffered a seizure on the job and was appealing the police department’s order compelling his involuntary disability retirement. At Crumbacker’s request, Blake appeared as a witness at Crumbacker’s hearing before the Baltimore County Board of Appeals in August 2006. During the hearing, Blake described his 1996 seizure, confirmed that his supervisors were aware of the episode, and testified that he had fully performed his duties since then without incident or further reevaluation.
The day after Blake testified, Police Chief Terrence Sheridan ordered him to submit to fitness-for-duty medical examinations. Over his objection and reservation of rights, Blake reported for the mandatory evaluation in September 2006. The police department’s examining physician found Blake fit for duty, but nonetheless recommended that Blake undergo an electroencephalogram (EEG).
Following that order, Blake filed suit asserting that requiring him to submit to a fitness for duty examination and EEG violated his constitutional right to privacy and that the County’s conduct violated the Americans with Disabilities Act (ADA).
The district court issued two primary rulings. First, the court issued a preliminary injunction prohibiting the County from requiring Blake to submit to further medical evaluation, including an EEG. Second, the Court partially granted and partially denied the County’s motion for summary judgment.
Cross motions for summary judgment were filed. The district court denied Blake’s motion and granted the County’s motion.
LAW: Blake made two separate ADA claims. First, he contended that Baltimore County required him to undergo a prohibited medical examination. The ADA provides that “a covered entity shall not require a medical examination … unless such examination … is shown to be job-related and consistent with business necessity.” 42 U.S.C. §12112(d)(4)(A).
While case law concerning this provision is sparse, other circuits have clarified what is required for a medical examination to be “job related and consistent with business necessity.” See, e.g., Conroy v. N.Y. State Dep’t of Corr. Serv., 333 F.3d 88 (2d Cir. 2003). The 2nd Circuit held that an employer must prove: (i) “that the asserted ‘business necessity’ is vital to the business,” (ii) “that the examination … genuinely serves the asserted business necessity,” and (iii) “that the request is no broader or more intrusive than necessary.” Conroy, 333 F. 3d at 97-98.
Because Blake filed for summary judgment with respect to this claim, he had the burden of proving that no fair-minded jury could find that the fitness for duty examination was job related and consistent with business necessity. He was unable to do so here.
Police Chief Sheridan testified that his decision to require Blake to undergo a fitness for duty exam was based on the risks caused by on duty officers experiencing seizures. In particular, Sheridan pointed to Crumbacker’s experience – his seizure caused his police car to cross three lanes of heavy traffic and crash into a construction site – and the risks that a similar experience would pose for the health and safety of both fellow officers and the general public.
Based on that testimony, a fair-minded jury could conclude that Sheridan had genuine concerns that public safety would be endangered if Blake suffered an additional seizure. Public safety is one of the core concerns of any police department and taking steps to ensure it is both “job related and consistent with business necessity.” Similarly, taking steps to ensure the safety of fellow officers meets the statutory test. See, e.g., Ward v. Merck & Co., Inc., 226 Fed. Appx. 131, 140 (3d Cir. 2007).
Thus, Blake was not entitled to summary judgment on his first ADA claim.
Blake’s second ADA claim alleged that the County required him to undergo a fitness for duty examination in retaliation for his participation in the Crumbacker hearing. Under the ADA, an employer is prohibited from discriminating “against any individual because such individual…testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act.” 42 U.S.C. §12203(a).
In order to establish a prima facie case of retaliation, a plaintiff must demonstrate: (1) that he engaged in conduct protected by the ADA, (2) that he suffered an adverse employment action subsequent to engaging in the protected conduct, and (3) that there was a causal link between the protected activity and the adverse action.” See Freilich v. Upper Chesapeake Health, Inc., 313 F. 3d 205, 216 (4th Cir. 2002).
In order to succeed on his motion, Blake must demonstrate that a fair-minded jury would necessarily find that each of those elements existed. Again, he was unable to do so. Assuming, arguendo, that Blake engaged in protected conduct, and that the fitness for duty exam constituted an adverse employment action, Blake could not prove that a fair-minded jury would necessarily find a causal link between the action and his participation in the Crumbacker hearing.
Accordingly, Blake was not entitled to summary judgment for his ADA retaliation claim.
COMMENTARY: Blake also claimed that, by ordering him to submit to a fitness for duty exam, the County violated his constitutional right to privacy under 42 U.S.C. §1983.
Under Monell v. Department of Social Services, 436 U.S. 658 (1978), “a local government may not be sued under §1983 for an injury inflicted solely by its employees or agents.” Id. at 694. Instead, a §1983 plaintiff must identify a specific policy or custom of the local government that caused his injury. See Cortez v. Prince George’s County, 31 Fed. Appx. 123, 128 (4th Cir. 2002).
Here, Blake was unable to show that the County had either a policy or custom requiring police officers to undergo fitness for duty examinations and turn over personal medical records. To the contrary, the record established that Chief Sheridan’s decision to require an examination was an isolated incident not tied to any County directive. Sheridan neither carried out an official policy nor acted pursuant to a widely-practiced custom of County. Rather, he engaged in a single incident of allegedly unconstitutional activity.
Blake possessed a constitutional right to the privacy of his medical records. See In re: Search Warrant, 810 F.2d 67, 71 (3d Cir. 1986). Nonetheless, because he was unable to establish that the execution of an official policy or custom deprived him of that right, the court dismissed his §1983 claim.
PRACTICE TIPS: A court’s preliminary findings, made when granting a preliminary injunction, are not binding later at the summary judgment stage. See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981).
Real Estate Law
Bona fide purchaser after mortgage fraud
BOTTOM LINE: Where plaintiff’s mortgage was fraudulently rescued by bogus enterprise, then sold to another lender, plaintiffs’ claims against lender were dismissed because lender was a bona fide purchaser for value.
CASE: Haley v. Corcoran, CIVIL NO. WDQ-09-1338 (decided Oct. 2, 2009) (Judge Quarles). RecordFax No. 9-1002-41, 1 page.
FACTS: James and Peggy Haley bought a house in 1986 for $89,500. In 2005, the Haleys fell behind on their mortgage payments, and a foreclosure action was commenced.
Shortly thereafter, Charles Head contacted the Haleys for Fundingforeclosure.com, and offered to help them stop the foreclosure and repair their credit. Head explained that Fundingforeclosure.com would arrange the sale of the house to a person who would allow the Haleys to continue to live in the house and remain on its deed. During the year following the sale, the Haleys would lease the house from Nations Property Management. Then, Head explained, the Haleys could repurchase the house with a loan that Head guaranteed would be extended. Relying on these representations, the Haleys agreed to the transactions.
The August 8, 2005 settlement was conducted by a notary public; the buyer, whom the Haleys later learned was Michael Mattice, was not present. The Haleys signed a deed in blank, which did not state the purchase price, and a lease requiring $2000 monthly payments to Nations Property Management. Alliance Title prepared the settlement documents and was the settlement agent. Alliance also was title agent for First American Title Co., the title insurer. The Haleys were not given copies of the settlement documents.
The Haleys were not informed of the purchase price of the house or shown a “HUD-1″ settlement statement. A deed to the house, stating a $400,000 purchase price, was later recorded. The Haleys did not receive proceeds from the settlement. Thereafter, the Haleys’ mortgage obligations were satisfied, and the pending foreclosure was dismissed for lack of prosecution.
The Haleys paid rent to Nations Property Management until November 2006; then Mattice informed them that he had bought the house with a loan from Option One Mortgage secured by two mortgages. The Haleys then began making payments to Option One. Around this time, the Haleys also discovered that they were not on the deed with Mattice.
On June 6, 2007, Option One filed a foreclosure action against Mattice in the circuit court for nonpayment. On June 26, 2007, the Haleys filed an emergency motion to stop the foreclosure, which the circuit court granted.
The Haleys sued Jack Corcoran, Mattice, Head, Alliance, Option One, and First American Title. Subsequent to filing suit, Option One bought the house at a foreclosure auction for $250,250.
The Haleys’ suit was removed to federal district court on the basis of diversity. Option One and First American filed motions to dismiss under FRCP 12(b)(6) and 9(b).
The district court granted the motions.
LAW: Option One moved to dismiss the Haleys’ claims for quiet title, equitable mortgage, negligent misrepresentation, and unjust enrichment under Rule 12(b)(6), and the claims for intentional misrepresentation and violation of the Maryland Consumer Protection Act (MCPA) under Rules 12(b)(6) and 9(b).
RP §14-108(a) allows a person in “actual peaceable possession of property” to sue for quiet title “when his title to the property is denied or disputed, or when any other person claims, of record or otherwise to own the property…or to hold any lien encumbrance on it.” However, a quiet title claim may be brought only “if an action at law or proceeding in equity is not pending to enforce or test the validity of the title, lien, encumbrance, or other adverse claim.” Id.
Here, although the Property was sold at auction, the foreclosure was still pending. Accordingly, the Haleys’ quiet title claim against Option One was dismissed.
The Haleys also sought a declaratory judgment that the execution and transfer to Mattice of the deed created an equitable mortgage rather than absolute ownership. Option One argued that the transaction between the Haleys and Mattice was irrelevant because it acquired its interest as a bona fide purchaser for value.
Under RP §7-101, “[e]very deed which by any other writing appears to have been intended only as security for payment of an indebtedness or performance of an obligation, though expressed as an absolute grant is considered a mortgage.” RP §7-101. But “a deed absolute on its face may be treated in equity as a mortgage [only] between the original parties and against all persons deriving title from the grantee who are not bona fide purchasers for value, without notice [.]” Lednum v. Barnes, 103 A.2d 865, 870 (1954).
Here, the “original parties” to the deed transfer were the Haleys (grantors) and Mattice (grantee). Option One’s mortgage derives from Mattice. Under §7-101, the Haleys’ claim must fail if Option One is a bona fide purchaser for value.
A mortgagee is treated as a purchaser, and if a mortgage is supported by consideration and taken in good faith, the mortgagee is treated as a bona fide purchaser for value. See Irvington Fed. Sav. & Loan Ass’n v. West, 194 Md. 211 (1950). A grantee (or mortgagee) is presumed to act in good faith, and this presumption may be overcome only by showing that the grantee had knowledge of “suspicious circumstances” that would give rise to a duty to inquire into previous transactions involving the property. See Julian v. Buonassissi, 183 Md. App. 678 (Ct. Spec. App. 2009).
The Haleys did not allege facts showing that Option One participated in or should have known of the alleged fraud in the conveyance to Mattice. The only allegation bearing on Option One’s knowledge of the transaction was that Option One lent Mattice $400,000, secured by two mortgages on the house. This allegation was insufficient to overcome the presumption of good faith and shift to Option One the burden of pleading and proving bona fide purchaser status.
Accordingly, Option One’s motion to dismiss the equitable mortgage claim was granted.
The Haleys negligent misrepresentation claim was also dismissed. Where, like here, the plaintiff alleges only economic loss, the plaintiff must also show that the defendant owed a duty of care because of an “intimate nexus between the parties.” L & P Converters v. Alling & Cory Co., 100 Md. App. 563 (1994). The Haleys failed to allege that close nexus between themselves and Option One. Furthermore, a bona fide purchaser cannot be unjustly enriched. Plitt v. Greenberg, 219 A.2d 237, 241 (1966).
Consequently, the Haleys’ unjust enrichment claim was dismissed.
Because FRCP 9(b)’s heightened pleading requirements applied to the Haleys’ claims of intentional misrepresentation and a violation of the MCPA, the Haleys had to allege “the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999).
The complaint alleged no representations by Option One, but generally asserted fraudulent conduct by all the defendants. This undifferentiated assertion of fraud against multiple defendants is prohibited by Rule 9(b). See Adams v. NVR Homes, Inc., 193 F.R.D. 243, 250 (D. Md. 2000).
Accordingly, the intentional misrepresentation and MCPA claims were dismissed.
COMMENTARY: With the exception of the unjust enrichment and civil conspiracy claims, the Haleys’ claims against First American were based on Alliance’s role as First American’s agent in the sale of the house to Mattice. The Haleys sought to hold First American vicariously liable for Alliance’s conduct as settlement agent and its preparation of the settlement documents.
The plaintiff has the burden of proving the nature and extent of the principal-agent relationship. Green v. H & R Block, 735 A.2d 1039 (1999). Three factors are considered in determining whether an agency relationship exists: “(1) the agent’s power to alter the legal relations of the principal; (2) the agent’s duty to act primarily for the benefit of the principal; and (3) the principal’s right to control the agent.” Id. at 1048.
“The employment of an agent for purposes of issuing title insurance does not (at least by itself) establish an agency relationship for purposes of settlement undertaken by that title agent.” Proctor v. Metro. Money Store Corp., 579 F. Supp. 2d 724, 735 (D. Md. 2008). When the issuing agent conducts closing on his or her own behalf, “the title insurer is responsible only for the title insurance issued; it cannot be held liable for the agent’s participation in related closings or the provision of escrow services.” Id.
The Haleys did not allege facts establishing an agency relationship between First American and Alliance beyond title insurance. The sole allegation relating to the relationship was that Alliance served as the agent for issuance of First American policies in Maryland. The complaint made no allegations about the basis, nature, or extent of the relationship. Further, there was no allegation that the relationship covered Alliance’s role as settlement agent.
Accordingly, the Haleys’ claims for intentional misrepresentation, violation of the MCPA, and negligent misrepresentation were dismissed.
PRACTICE TIPS: “Conspiracy is not a separate tort capable of independently sustaining an award of damages in the absence of other tortious injury to the plaintiff.” Alleco Inc. v. The Harry and Jeanette Weinberg Foundation, Inc., 665A.2d 1038, 1045 (1995).