N.D. Cal. Orders Remand to AAO: Marsh v. Napolitano (Foreign Conviction Expunged; Waiver)

N.D. Cal. Orders Remand to AAO: Marsh v. Napolitano (Foreign Conviction Expunged; Waiver)

"Plaintiff Jay Marsh, a United States citizen, sued the Department of Homeland Security (DHS) because it did not issue a visa or a waiver to his wife, Shiho Takeda, to permit her to enter the United States. ... The basis for the denial was Takeda's 1995 conviction for marijuana possession in her native Japan.  Marsh argues that her conviction was expunged and invalid and, alternatively, that it was for 30 grams or less, qualifying her for a waiver under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(h).  Marsh alleges that DHS's decisions - and the delays in reaching its decisions and its denial of his appeal to the Administrative Appeals Office (AAO) as untimely - violate the INA, the Administrative Procedures Act ("APA"), 5 U.S.C. § 551 et seq., and his rights to freedom of association, marriage, due process and equal protection under the First, Fifth, and Fourteenth Amendments to the U.S. Constitution. ... For the reasons stated below, the court stays the action for 60 days and remands to the AAO to consider Marsh's challenges to the conviction and amount of marijuana amount on the merits." - Marsh v. Napolitano, No. C 11-03734 LB, 2012 U.S. Dist. LEXIS 127031, N.D. Cal., S.F. Div., Sept. 6, 2012.  [Hats off to Daniel Ray Bacon and Joseph Hohenstein!]