Butt v. Barr

954 F.3d 901

Selena Jean COOPER BUTT, EX REL Q.T.R., Plaintiff-Appellant,

v.William P. BARR, Attorney General; Chad F. Wolf, Acting Secretary, Department of Homeland Security, Defendants-Appellees.

No. 19-3716

United States Court of Appeals, Sixth Circuit.

Decided and Filed: March 31, 2020

ON BRIEF: George A. Katchmer, Bloomingburg, Ohio, for Appellant. Kevin Koller, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee.

Before: BOGGS, CLAY, and GIBBONS, Circuit Judges.

CLAY, Circuit Judge.

Plaintiff, a United States citizen child, appeals the district court's order dismissing his Declaratory Judgment Act claims brought pursuant to 28 U.S.C. § 2201 for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. For the reasons that follow, we affirm the district court's order.

BACKGROUND

Plaintiff brings this action for declaratory relief through his mother. Plaintiff is a United States citizen child residing in Columbus, Ohio. Plaintiff's father is a Pakistani citizen and previously a legal permanent resident of the United States. Plaintiff's father was removed from the United States pursuant to a removal order issued in Cleveland, Ohio.

Plaintiff's filings do not indicate when his father's removal proceeding took place and Plaintiff does not indicate the case name or number for his father's removal proceedings. Plaintiff's filings also do not provide any information about why his father was removed—for example, which provision of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. , made him deportable. Accordingly, we do not know whether Plaintiff's father at any time applied for cancellation of removal or whether he petitioned this Court to review the final order of removal entered against him. See id. § 1252 (setting forth requirements for judicial review of removal orders); cf. Holder v. Martinez Gutierrez , 566 U.S. 583, 594, 132 S.Ct. 2011, 182 L.Ed.2d 922 (2012) (explaining that § 1229b(a) renders noncitizens convicted of certain aggravated felonies ineligible for cancellation of removal).

In any event, Plaintiff sought two declarations from the district court concerning his father's removal. First, Plaintiff requested a declaration that his father's removal was unconstitutional as applied to Plaintiff. Specifically, Plaintiff alleges that his father's removal violates Plaintiff's rights under the Due Process Clause, Equal Protection Clause, the Eighth Amendment, Ninth Amendment, Tenth Amendment, and various international treaties. Second, Plaintiff sought a declaration that the interview of Plaintiff and his mother during his father's removal proceeding was unconstitutional because, during the interview, U.S. Immigration and Customs Enforcement ("ICE") agents made racially discriminatory comments to Plaintiff and his mother, who are African American.¹

Defendants moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Plaintiff did not oppose Defendants' motion. Approximately eight months later, the district court granted Defendants' motion and dismissed Plaintiff's complaint in its entirety. The court found that it did not have jurisdiction over Plaintiff's claims brought pursuant to the international treaties because those treaties are not self-executing. The court next found that it had subject matter jurisdiction over Plaintiff's constitutional claims, but it dismissed those claims pursuant to Federal Rule of Civil Procedure 12(b)(6) because "the law is well-settled that lawfully removing a parent from the United States does not deprive a United States citizen child of a constitutional right." (R. 27, Op. & Order, Pg. ID 82.)

Plaintiff appeals the district court's order granting Defendants' motion to dismiss.

DISCUSSION

A. Standard of Review

This Court reviews de novo a district court's grant of a motion to dismiss pursuant to Rule 12(b)(6). Majestic Bldg. Maint., Inc. v. Huntington Bancshares, Inc. , 864 F.3d 455, 458 (6th Cir. 2017). A motion to dismiss is properly granted if the plaintiff has "fail[ed] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the plaintiff must allege facts that, if accepted as true, are sufficient to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555–57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; see also Fed. R. Civ. P. 8(a)(2).

This Court also has an independent duty to assess subject matter jurisdiction. E.g. , Wachovia Bank v. Schmidt , 546 U.S. 303, 316, 126 S.Ct. 941, 163 L.Ed.2d 797 (2006). "We review a district court's findings as to whether it had subject matter jurisdiction de novo." Mehanna v. USCIS , 677 F.3d 312, 314 (6th Cir. 2012) (quoting Carson v. U.S. Office of Special Counsel , 633 F.3d 487, 491 (6th Cir. 2011) ).

B. Forfeiture

At the outset, Defendants argue that Plaintiff has forfeited all of his arguments on appeal by not opposing Defendants' motion to dismiss in the district court. However, the district court ruled on the merits of Defendants' motion based on Plaintiff's allegations in his complaint, and Plaintiff's complaint was sufficient to provide Defendants with the requisite notice of all of the claims that he now presents on appeal. Therefore, we do not enforce our forfeiture rule in the present case. See, e.g. , Harris v. Klare , 902 F.3d 630, 636 (6th Cir. 2018) (explaining that the forfeiture rule "is born of the need ‘to ease appellate review by ensuring that district courts consider issues first, and to prevent surprise to litigants’ " (quoting Great Am. Ins. Co. v. E.L. Bailey & Co. , 841 F.3d 439, 443 (6th Cir. 2016) )).

C. Plaintiff's Treaty-Based Claims

Plaintiff's complaint alleges that his separation from his father pursuant to the removal order violates the principles of international treaties, including The Universal Declaration of Human Rights (the "Declaration"); the International Covenant on Economic, Social, and Cultural Rights (the "ICESCR"); and the United Nations Convention on the Rights of the Child (the "CRC"). The district court correctly found that it did not have subject matter jurisdiction over Plaintiff's treaty-based claims because none of these treaties create a judicially-enforceable cause of action. See, e.g. , Roper v. Simmons , 543 U.S. 551, 576, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (stating that the United States has not ratified the CRC); Sosa v. Alvarez-Machain , 542 U.S. 692, 734, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) ("[T]he Declaration does not of its own force impose obligations as a matter of international law."); Rose v. Borsos , No. 2:17-CV-204, 2018 WL 3967673, at *10 (E.D. Tenn. Aug. 17, 2018) (holding that the ICESCR is not self-executing (collecting cases)).

On appeal, Plaintiff concedes that these treaties are not self-executing but argues that the district court should have taken them into account in order to "consider fully the context in which its decisions are made on issues as sensitive as family unity and the rights of children." (Appellant's Reply Br. at 2.) However, Plaintiff has not alleged in what way any of these treaties' principles were supposedly abridged by his father's valid removal, and it is not clear to us that they were. Cf. Bamaca-Perez v. Lynch , 670 F. App'x 892, 893 (6th Cir. 2016) (per curiam) (rejecting a parent's treaty-based challenge to the standard governing hardship determinations in a cancellation-of-removal case because the immigration courts' "entire inquiry focuses on the qualifying children, making their interests a ‘primary consideration’ in the cancellation-of-removal analysis" (quoting Cabrera-Alvarez v. Gonzales , 423 F.3d 1006, 1012 (9th Cir. 2005) )). Therefore, the district court properly dismissed Plaintiff's treaty-based claims.

D. Plaintiff's Constitutional Claims

Plaintiff next contends that his father's removal violates Plaintiff's rights to due process and equal protection under the Fifth Amendment, as well as his rights under the Eighth Amendment and the Ninth Amendment. The district court found that it had subject matter jurisdiction over these claims but dismissed them pursuant to Rule 12(b)(6). For the reasons that follow, we hold that each of Plaintiff's constitutional claims is squarely foreclosed by our precedent and we therefore affirm the district court's dismissal.

Section 242 of the INA, codified at 8 U.S.C. § 1252, provides that "a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal." Id. § 1252(a)(5). That section further consolidates "judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States" and provides that such review "shall be available only in judicial review of a final order [of removal]." Id. § 1252(b)(9). The Supreme Court has explained that this system "substantially limit[s] the availability of judicial review and streamline[s] all challenges to a removal order into a single proceeding: the petition for review." Nken v. Holder , 556 U.S. 418, 424, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (citing § 1252(a)(2), (b)(3)(C), and (b)(9) ); see also, e.g. , Kucana v. Holder , 558 U.S. 233, 249, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (explaining that Congress "aggressively" amended the INA in 1996 in order "to expedite removal of aliens lacking a legal basis to remain in the United States"); Reno v. Am.-Arab Anti-Discrimination Comm. ("AADC") , 525 U.S. 471, 483, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (describing § 1252(b)(9) as the "unmistakable ‘zipper’ clause" of the INA). In addition, § 1252(g) strips courts of jurisdiction "to hear any cause or claim by or on behalf of any alien arising from the decision...