                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 JANE DOE, et al.,

                       Plaintiffs,

                       v.                              Case No. 1:20-cv-00065 (TNM)

 MIKE POMPEO, et al.,

                       Defendants.


                               MEMORANDUM AND ORDER

       Jane Doe and her children, trying to escape her abusive husband in Iran, seek documents

that would enable them to travel to a U.S. port of entry. They cite the Due Process Clause of the

Constitution as the basis for these requests. As one-time Green Card holders, they claim to have

a right to due process before the Government can deny them admission. Two months ago, the

Court entered judgment for the Government, concluding that Doe and her children do not have

this right. Doe moves for reconsideration, arguing that the Court made a clear error of law. In

short, she takes a second shot at arguments that the Court has already considered at length and

rejected. The Court remains sympathetic to the hardship that Doe faces but unconvinced by her

legal argument. The Court will deny Doe’s motion.

                                                I.

       The Court’s previous opinion describes the full background of this case. Doe v. Pompeo,

--- F. Supp. 3d ---, ---, 2020 WL 1556251, at *1–4 (D.D.C. Apr. 1, 2020). In brief, Doe and her

children received their Green Cards in 2013, see Mot. for Prelim. Inj. Ex. A, ECF No. 6-2, but as

a practical matter they were never permanent residents. They lived in the United States

sporadically until 2015 and have not been here since. Mot. for Prelim. Inj. Ex. B ¶¶ 29–32, 37–
38, ECF No. 6-3. They now seek to return five years later, and they claim that the Constitution

guarantees them a right to due process in seeking admission. Compl. at 6,1 ECF No. 1.

         As matters stand, they have no documents that would allow them to travel here, because

Doe’s husband hid their Green Cards. Id. ¶¶ 3–4, 32, 35–36. In their view, the Due Process

Clause compels the Government to give them substitute travel documents without requiring them

to go through the normal channels, such as applying for SB-1 returning resident visas. Id. ¶¶ 42–

43, 46. The SB-1 application procedures, they allege, violate due process. Id.

         Doe moved for a preliminary injunction, and the Court advanced the action to a final

merits determination under Federal Rule of Civil Procedure 65(a)(2). Doe, 2020 WL 1556251,

at *4. Treating the parties’ briefs as cross-motions for summary judgment, the Court entered

judgment for the Government. Id. at *18.

         The parties’ arguments on Article III standing, ripeness, exhaustion, and the merits

revolved around Rafeedie v. Immigration & Naturalization Service, 880 F.2d 506 (D.C. Cir.

1989). Doe, 2020 WL 1556251, at *5. After providing a detailed overview of that case, the

Court decided that Doe had standing to press her due process claim, that her claim was ripe, and

that it would excuse her failure to exhaust administrative remedies. Id. at *5–11. On the merits,

though, Rafeedie compelled judgment for the Government. Id. at *14.

         Doe now moves for reconsideration of this merits ruling, claiming that the Court misread

Rafeedie. This motion is ripe for disposition.

                                                  II.

         Doe’s motion invokes Federal Rule of Civil Procedure 59(a)(2), Pls.’ Mot. at 1, ECF No.

22, which states that “[a]fter a nonjury trial, the court may . . . direct the entry of a new



1
    All page citations refer to the page numbers that the CM/ECF system generates.


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judgment.” Fed. R. Civ. P. 59(a)(2). Because the Court never held a bench trial but simply ruled

on cross-motions for summary judgment, the relevant provision is instead Rule 59(e), which

permits a Court to alter or amend a judgment. See, e.g., Am. Bar Ass’n v. U.S. Dep’t of Educ.,

388 F. Supp. 3d 23, 24, 26 (D.D.C. 2019). Doe disputes neither that Rule 59(e) governs nor the

Government’s observation that the standards under Rules 59(a)(2) and 59(e) are essentially the

same. See Defs.’ Opp’n at 2–4, ECF No. 25; Pls.’ Reply at 1, ECF No. 26.

       Rule 59(e) “may not be used to relitigate old matters, or to raise arguments or present

evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v.

Baker, 554 U.S. 471, 485 n.5 (2008). A motion under this rule “is discretionary and need not be

granted unless the district court finds that there is an intervening change of controlling law, the

availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”

Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (cleaned up).

       Doe’s motion relies not on any intervening change of controlling law, new evidence, or

manifest injustice. She argues only that the Court made a clear error of law: misreading

Rafeedie. Pls.’ Mem. at 6, ECF No. 22-1. 2 The clear error standard for Rule 59(e) is “very

exacting.” Lightfoot v. District of Columbia, 355 F. Supp. 2d 414, 422 (D.D.C. 2005) (quoting

Hopwood v. Texas, 236 F.3d 256, 272 (5th Cir. 2000)). The Court must have “a clear conviction

of error before finding that a final judgment was predicated on clear error.” Id. (cleaned up). A

decision must be “more than just maybe or probably wrong”—it must be “dead wrong.” Parts &

Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988).




2
  Relying on case law for Rule 59(a)(2), Doe first uses the phrase “manifest error of law” instead
of “clear error of law.” Pls.’ Mem. at 6 (citing Ashraf-Hassan v. Embassy of Fr., 185 F. Supp.
3d 94, 112 (D.D.C. 2016)). But she ultimately does not dispute that “manifest error of law” and
“clear error of law” have the same meaning. See Defs.’ Opp’n at 4; Pls.’ Reply at 1, 3.


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                                                  III.

        Rafeedie took center stage in the parties’ original briefing, at two hearings, and in the

Court’s memorandum opinion. Doe’s entire case relies on the premise that she and her children

have a right to due process before the Government can deny them admission. Doe, 2020 WL

1556251, at *13. But the Court held that under Rafeedie, they do not have this due process right

because they have been outside the country for too long. Id. at *14. Nothing in Doe’s motion or

reply leaves the Court second-guessing this. The Court was not wrong—much less dead

wrong—in rejecting Doe’s due process claim. Indeed, Rafeedie compels this result.

        Doe’s analysis of Rafeedie starts well enough but then quickly veers off track. She

quotes its statement—which the Court quoted too—that “a permanent resident alien . . . in

general . . . has a liberty interest in being permitted to reenter this country and is therefore

entitled to due process before he can be denied admission.” Pls.’ Mem. at 7 (quoting 880 F.2d at

520); see Doe, 2020 WL 1556251, at *6. All agree on this starting point. Defs.’ Opp’n at 9.

        But then Doe erroneously claims that a one-time Green Card holder retains this due

process right so long as she has not “abandoned” her permanent resident status under 8 U.S.C.

§ 1101(a)(20). See Pls.’ Mem. at 8, 14 (citing United States v. Yakou, 428 F.3d 241, 248 (D.C.

Cir. 2005)). The question whether a Green Card holder has abandoned permanent resident status

under § 1101(a)(20) often arises in deportation proceedings, when the Government seeks to

remove an alien on that basis. See Yakou, 428 F.3d at 248–50. These removal cases suggest that

abandonment under § 1101(a)(20) turns at least in part on intent. See, e.g., Hana v. Gonzales,

400 F.3d 472, 474–75 (6th Cir. 2005). Doe says she would have returned to the United States if

not for her abusive husband. Pls.’ Mem. at 16–17. So, in her view, she never abandoned her

permanent resident status and thus retains the due process right that Rafeedie identified. Id.




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       Doe’s argument conflates permanent resident status for purposes of due process and

permanent resident status for purposes of § 1101(a)(20). Rafeedie was about the former, said

nothing about § 1101(a)(20), and rejected the relevance of intent. See Doe, 2020 WL 1556251,

at *13–15. It held that if an alien “has been absent from this country for such a period that he

may be deemed to have abandoned his permanent resident status here,” then the Government

may treat him “as if he were an initial entrant for due process purposes.” 880 F.2d at 522–23.

And an “initial entrant” has no right to due process when seeking admission. Id. at 520.

       Lest there be any doubt, Rafeedie declared that “the length of the alien’s absence is the

determining factor” and “the only relevant question” for “the due process inquiry.” Id. at 522.

How long is too long? At least 19 months. See id. at 520 (citing Shaughnessy v. United States

ex rel. Mezei, 345 U.S. 206, 214 (1953)). Doe and her children have been absent from the

country since 2015—far more than 19 months—so they do not have the due process right that

Rafeedie identified. Doe, 2020 WL 1556251, at *14.

       But, Doe insists, any suggestion in Rafeedie that length of absence is the only relevant

factor was mere dicta. Pls.’ Mem. at 13–14. Not so, because this premise was necessary to its

decision. See Doe, 2020 WL 1556251, at *14. The Government argued in Rafeedie that the

alien forfeited his due process right by leaving the country to engage in “nefarious” activities.

880 F.2d at 520. The court found that any nefarious intent was irrelevant because the length of

absence was the only relevant factor. Id. at 522.

       Doe also contends that cases like Hana “supersede” any suggestion in Rafeedie that

length of absence is the only relevant factor. Pls.’ Mem. at 13–16. But as noted above and in the

Court’s original opinion, those decisions concern “abandonment” of permanent resident status

under 8 U.S.C. § 1101(a)(20), in the context of removal proceedings. Doe, 2020 WL 1556251,




                                                 5
at *14–15. They do not address the question at issue in Rafeedie: loss of permanent resident

status for due process purposes. 3

       One final point bears mentioning: The Court’s ruling follows not only from Rafeedie but

also from the Supreme Court precedent on which Rafeedie relied. According to the Supreme

Court, its Mezei decision “rejected the argument of an alien who had left the country for some 20

months that he was entitled to due process in assessing his right to admission on his return.”

Landon v. Plasencia, 459 U.S. 21, 33–34 (1982). Doe and her children have been out of the

country for far more than 20 months; they have no right to due process when seeking admission. 4

                                                IV.

       Doe and her children face distressing circumstances. But their relief lies with the

Executive, not the Judiciary. Doe, 2020 WL 1556251, at *18. Having carefully considered

Doe’s contrary reading of Rafeedie, the Court finds that it made no error—let alone clear error—

in rejecting her interpretation of that decision and her due process claim.

       For these reasons, it is hereby




3
  Relatedly, Doe relies on the same decisions in arguing—once again—that the Government
must prove “abandonment” of permanent resident status by “clear, unequivocal, and convincing
evidence.” Pls.’ Mem. at 17–19 (citing, e.g., Matadin v. Mukasey, 546 F.3d 85, 91 (2d Cir.
2008)). But because those cases discuss only what evidentiary standard applies in removal
proceedings, they do not speak to what standard applies in civil actions. Doe, 2020 WL
1556251, at *16. More, the only relevant “evidence” for the due process inquiry is length of
absence, and the length of Doe’s absence (five years) is undisputed. Id. at *14, *16.
4
  Even if Doe and her children do have the due process right that Rafeedie identified, it is still
far from clear that they would be entitled to bypass the SB-1 application process altogether.
Doe, 2020 WL 1556251, at *12–13; see, e.g., Plasencia, 459 U.S. at 34–35 (“The role of the
judiciary is limited to determining whether the procedures meet the essential standard of fairness
under the Due Process Clause and does not extend to imposing procedures that merely displace
congressional choices of policy.”).


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ORDERED that Plaintiffs’ [22] Motion to Alter or Amend the Judgment is DENIED.

      SO ORDERED.
                                                                  2020.06.09
                                                                  15:18:31 -04'00'
Dated: June 9, 2020                            TREVOR N. McFADDEN, U.S.D.J.




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