Lopez v. Doe

681 F.Supp.3d 472

Mario Rene LOPEZ, Petitioner, v. John DOE, Superintendent, Caroline Detention Facility, Bowling Green, Virginia, et al., Respondents.

Civil Action No. 1:23-cv-68 (RDA/IDD)

United States District Court, E.D. Virginia, Alexandria Division

Signed July 10, 2023

John William Goodman, Murray Osorio PLLC, Fairfax, VA, for Petitioner.

Hugham Chan, United States Attorney's Office, Alexandria, VA, for Respondents.

ORDER

Rossie D. Alston, Jr., United States District Judge

This matter comes before the Court on Respondents' Motion to Dismiss. Dkt. 12. Respondents (who the Court also refers to as the government) seek to dismiss Petitioner Mario Rene Lopez's Petition for a Writ of Habeas Corpus, Dkt. 1, as amended by his Supplemental Pleading, Dkt. 10. This Court has dispensed with oral argument as it would not aid in the decisional process. Fed. R. Civ. P. 78(b); Local Civil Rule 7(J). This matter has been fully briefed and is now ripe for disposition. Having considered the Motion, along with Respondents' Memorandum in Support (Dkt. 13), Petitioner's Memorandum in Opposition, Dkt. 20, Respondents' Reply Brief, Dkt. 22, and the parties' supplemental briefs (Dkt. Nos. 26; 28), this Court GRANTS-IN-PART and DENIES-IN-PART Respondents' Motion for the reasons that follow.

I. BACKGROUND

A. Factual Background¹

Mario Rene Lopez emigrated to the United States from El Salvador. Mr. Lopez was born in El Salvador on February 2, 1981. Dkt. 1 (Habeas Petition) ¶ 9. He was born out of wedlock, and his parents never married one another. Id. ¶¶ 9-10. However, Mr. Lopez's father was listed on his birth certificate. Id. ¶ 9. Mr. Lopez came to the United States in 1992, when he was eleven years old, and he was admitted as a lawful permanent resident at that time. Id. ¶ 11. His mother also entered as a permanent resident and eventually naturalized as a United States citizen on January 30, 1998. Id. ¶ 12.

When Mr. Lopez was in his early 20s, he got into some legal trouble. He was twice convicted of drug crimes: first, in October of 2004, he was convicted of Possession of a Schedule I or II Drug pursuant to Va. Code § 18.2-250, and second, in February of 2005, he was convicted of Possession of a Controlled Drug with Intent to Distribute under Va. Code § 18.2-248. Id. ¶ 13. He served seven years in prison for those convictions. Id. ¶ 14. Since then, he has not been convicted of any crimes. Id.

Some civil immigration issues stemmed from his drug convictions. While his sentence was winding up in 2011, immigration officers visited him in prison three times. Id. ¶ 15. Ultimately, they decided "not to deport Mr. Lopez because they determined that he derived citizenship from his mother" under what was formerly 8 U.S.C. § 1432(a) (1998). Id.

Armed with that knowledge, Mr. Lopez tried to formally become an American citizen. He filed Form N-600, the Application for a Certificate of Citizenship. Id. ¶ 16. Alongside that application, he "included documentation showing that he acquired citizenship through his mother in 1998 when she naturalized." Id. The basis for that application was the former 8 U.S.C. § 1432(a)(3), which purportedly grants "automatic derivative citizenship" to out-of-wedlock children in certain situations. Id. Mr. Lopez believed that he met all of the criteria set forth in the statute. Id.² However, Mr. Lopez's N-600 application was denied on June 28, 2018. Id. ¶ 17.³

Eventually, ICE began the process of deporting Mr. Lopez. Because he was convicted of a controlled substance and drug trafficking offense after he was admitted as a permanent resident, ICE charged him with deportability. Id. ¶ 20. In his deportation proceedings, Mr. Lopez raised the same arguments that undergirded his N-600 application along with new arguments under the Convention Against Torture, but the immigration judge reviewing his case did not find those to be persuasive. Id. ¶¶ 21-26. As a result, in September of 2018, the judge ordered that Mr. Lopez should be removed to El Salvador. Id. ¶ 26. Mr. Lopez appealed that decision to the Board of Immigration Appeals, which affirmed the immigration judge's findings in part and remanded for further analysis. Id. ¶ 27. The immigration judge entered a new decision one month later (in November 2022) "without any further proceedings." Id. ¶ 28. Mr. Lopez was then detained in January 2023, and ICE began the process of deporting him. Id. ¶ 29. Mr. Lopez filed a motion to reopen removal proceedings, id. ¶ 30, which was eventually granted in January of 2023, Dkt. 10 ¶ 2.⁴ As a result, Petitioner is not facing imminent deportation, and he is not subject to a final order of removal. See id. ¶ 3 (noting that Petitioner cannot be deported until the entire removal order process and subsequent appeal to the BIA have been completed).

B. Procedural Background

Petitioner filed an Emergency Petition for a Writ of Habeas Corpus and a Motion for an Order to Show Cause on January 13, 2023. Dkt. Nos. 1; 1-1. He subsequently filed an Emergency Motion for a Temporary Restraining Order or a Preliminary Injunction on January 17, 2023, Dkt. 3. The next day, Petitioner moved to withdraw his motions for a show cause order and a preliminary injunction, Dkt. 7, and moved for leave to file supplemental pleadings, Dkt. 8. This Court granted those Motions on January 25, 2023, Dkt. 9, and Petitioner filed his supplemental pleadings on February 3, 2023.

This Court then directed service of the Habeas Petition on Respondents on March 13, 2023, Dkt. 15, and Respondents filed a Motion to Dismiss for Lack of Jurisdiction with a supporting Memorandum on March 14, 2023, Dkt. Nos. 12; 13. After Magistrate Judge Davis extended Petitioner's time to respond, Dkt. Nos. 18; 23, Petitioner filed a Memorandum in Opposition on April 4, 2023, Dkt. 20. Respondents replied in support of their Motion on April 10, 2023. Dkt. 22. The Court then ordered the parties to submit briefs on the effect (if any) of Axon Enterprise, Inc. v. F.T.C., 598 U.S. 175, 143 S. Ct. 890 (2023). Dkt. 25. Respondents filed such a brief on April 25, 2023, and Petitioner filed his brief on May 19, 2023, Dkt. 28.

II. STANDARD OF REVIEW

A. Rule 12(b)(1) Motions

A Rule 12(b)(1) motion challenges the Court's subject matter jurisdiction over a lawsuit. Fed. R. Civ. P. 12(b)(1). In essence, such a motion contests the "court's authority to hear the matter brought by a complaint." Atlantic Cas. Ins. Co. v. United Tours, Inc., Case No. 3:12-cv-680, 2013 WL 2389887, at *1 (E.D. Va. May 30, 2013).

There are two types of 12(b)(1) motions: facial challenges and factual challenges. In a facial challenge, the defendant argues "that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). On the other hand, a factual challenge contends that "the jurisdictional allegations are not true." Id. In evaluating a facial challenge, a court takes the alleged jurisdictional facts as true and evaluates whether those facts are sufficient to establish subject matter jurisdiction. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). In evaluating a factual challenge, the court resolves disputed jurisdictional facts and does not apply the "presumption of truthfulness normally accorded [to] a complaint's allegations." Id.

A plaintiff bears the burden to demonstrate that subject matter jurisdiction exists. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). A court should only grant a 12(b)(1) motion to dismiss "if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Richmond, Fredericksburg, & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

III. ANALYSIS

Following Petitioner's modification of his claims, three remain: (1) Count One, which seeks a declaratory judgment that "Mr. Lopez is a United States citizen" and asks this Court to "order USCIS to issue a certificate of citizenship," Pet. at 10; (2) Count Two, which brings a Due Process Claim challenging ICE's detention of Petitioner, because "ICE cannot detain American citizens," id. at 13; and (3) Count Five, which states that interpreting "8 U.S.C 1252(g) to bar judicial review violates the Suspension Clause," id. at 18. See also Dkt. 10 (Petitioner's supplemental pleading, withdrawing Counts Three and Four).

Count Five is not a claim for relief. In that Count, Petitioner explains why the Suspension Clause is applicable to him and bars this Court from concluding that 8 U.S.C. § 1252(g) strips it of jurisdiction. Pet. at 18-20. That is not a claim, but a legal argument as to why this Court has jurisdiction over his claims. Accordingly, the Court will dismiss Count Five. See Dickens v. Dep't of Consumer and Reg. Aff., 298 F. App'x 2, 3 (D.C. Cir. 2008) (holding that a legal argument was not a "cause of action in its own right" but a theory of liability); Harris v. United States, No. 21-cv-24262, 2022 WL 18936567, at *1 (S.D. Fla. Mar. 23, 2022) (dismissing count that was "not a claim for relief" but legal argument).

As a result, two counts remain. First, Count One, which asks this Court to declare that Mr. Lopez is a United States citizen, which the Court refers to as the "citizenship claim." Second, Count Two, which challenges Mr. Lopez's detention by ICE, which the Court refers to as the "detention claim."

A. Subject Matter Jurisdiction

Respondents argue that this Court does not have jurisdiction over those two claims for several reasons. First, Respondents argue that this Court lacks jurisdiction pursuant to 8 U.S.C. § 1252(b)(9), as set forth in Johnson v. Whitehead, 647 F.3d 120 (4th Cir. 2011). Dkt. 13 at 10-15. Second, Respondents argue that 8 U.S.C. § 1252(g) similarly divests this Court of jurisdiction. Id. at 15-16. Third, Respondents believe that 8 U.S.C. § 1503 bars jurisdiction here for two reasons: (1) Petitioner did not administratively exhaust his citizenship claim; and (2) ...