Lotero-Diaz v. U.S. Dep't of Homeland Sec.

GLORIA LOTERO-DIAZ, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY et al., Defendants.

Case No. 1:20-cv-23039-BLOOM/Louis

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

December 22, 2020

ORDER

THIS CAUSE is before the Court upon Defendants' Motion to Dismiss, ECF No. [10] ("Motion"). Plaintiff filed a response in opposition, ECF No. [11] ("Response"), to which Defendants filed a reply, ECF No. [15] ("Reply"). The Court has considered the Motion, the opposing and supporting submissions, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is granted.

I. BACKGROUND

This action arises out of Defendants' alleged willful violation of Plaintiff's rights during immigration removal proceedings nearly twenty years ago. Plaintiff alleges that Defendants' agency predecessor¹ withheld from Plaintiff and the Immigration Court "exculpatory evidence" relating to Plaintiff's June 29, 2001 admission into the country. Plaintiff now seeks declaratory and injunctive relief with the ultimate goal of enjoining Defendants from executing a final order of removal. See ECF No. [1] at ¶¶ 5, 47, 59, 66, 70, 76, Wherefore clause c. According to the Complaint, Plaintiff is a Colombian citizen and native who applied for admission to the United States on a B1/B2 visitor's visa. Id. at ¶ 48. A B1/B2 visa is a nonimmigrant visa for persons that seek to enter the United States temporarily for business and tourism purposes.² On June 29, 2001, Plaintiff arrived on an international flight to San Juan, Puerto Rico with a B1/B2 visa. Id. at ¶¶ 7-8. An inspecting Legacy INS official stamped her passport with an admissions stamp, created a Form I-94 record³ of alien admission, and stamped that document and a Customs Declaration Form. Id. at ¶¶ 9-12. At some point later, but before Plaintiff departed the airport, Legacy INS detained Plaintiff and processed her for expedited removal pursuant to 8 U.S.C. § 1225. Id. at ¶¶ 13-14. Legacy INS seized and impounded Plaintiff's passport, which contained the admission stamp and the stamped Form I-94. Id. at ¶ 15.

In response to a "credible fear interview" relating to her purported fear of returning to Colombia, Plaintiff was then paroled into the United States for an asylum hearing and served with a Notice to Appear ("NTA") at the Immigration Court in San Juan. Id. at ¶¶ 16-18. Legacy INS charged Plaintiff as an arriving alien inadmissible to the United States pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). Id. at ¶¶ 19-21. On September 11, 2001, at an immigration removal proceeding, Legacy INS argued that Plaintiff had a "cancelled visa because of a prior overstay," and the Immigration Judge ordered the parties to file their evidence for a subsequent contestedremoval hearing. Id. at ¶¶ 22, 24. According to Plaintiff, she conceded removability on March 5, 2002, and proceeded with an asylum application beause she was "without any proof of admission" given that Legacy INS "did not file and did not acknowledge the evidence of Plaintiff's admission in its custody." Id. at ¶¶ 25-26. On March 5, 2002, the Immigration Judge found that Plaintiff failed to establish that she was entitled to be admitted into the country, and she later received an administrative final order of removal in 2008 when the Board of Immigration Appeals ("BIA") dismissed her appeal. Id. at ¶¶ 27-28. She has yet to be removed despite "several threats" by DHS. Id. at ¶ 29.

On December 19, 2016, Plaintiff filed a Form I-485⁴ with the United States Citizenship and Immigration Services ("USCIS") seeking a status adjustment as the spouse of a Cuban refugee. Id. at ¶ 30. USCIS accepted jurisdiction on the premise that Plaintiff was a paroled arriving alien rather than an admitted alien, but took no further action beyond interviewing Plaintiff and her husband. Id. at ¶¶ 32-33. However, in 2019, DHS served Plaintiff with a plan of action intending to execute the removal order on December 24, 2019, but extended the removal date by one year because of her pending USCIS application. Id. at ¶¶ 34, 36.

On February 22, 2020, DHS served Plaintiff with a Notice of Intent to Deny ("NOID") her Form I-485 application and set July 22, 2020 as her deadline to respond to the NOID. Id. at ¶¶ 38, 41. The Complaint alleges that in response to a FOIA request, Plaintiff has now "discovered, for the first time, evidence of her lawful admission to the United States on July 29, 2001," which evidence demonstates that she was "not an arriving alien and wrongfully charged in her removal proceedings[.]" Id. at ¶ 42. Since discovery of this alleged evidence, Plaintiff has sought to reopenher removal proceedings with the BIA and has responded to the NOID "questioning [DHS'] jurisdiction and its authority to continue adjudicating her application for adjustment of status considering the evidence that she is not an arriving alien." Id. at ¶¶ 43-44. Plaintiff maintains that she faces removal if her application for adjustment of status is denied and her removal order is not reopened. Id. at ¶ 47.

The Complaint asserts three counts: violation of 8 U.S.C. § 1361 (Count I); violation of the Administrative Procedures Act ("APA"), 5 U.S.C. § 706(2) (Count II); and deprivation of due process under the Fifth Amendment (Count III). In each count, Plaintiff requests the Court declare the removal order to be unlawful and enjoin Defendants from executing the removal order. Id. at ¶¶ 66, 70, 76. Defendants now move to dismiss the Complaint in its entirety for lack of subject matter jurisdiction, or alternatively, for failing to state a claim upon which relief can be granted. They contend that the Complaint is a "plain challenge" to Defendant's "execution of a removal order and action to adjudicate a removal order," and that Plaintiff was not admitted by virtue of a passport stamp, which supposed "exculpatory evidence" "did not change Plaintiff's removability." ECF No. [10] at 1-2. They make three overarching arguments. First, the mandamus statute, 28 U.S.C. § 1361, and the APA do not provide independent bases for the Court's subject matter jurisdiction. Id. at 3-4. Second, 8 U.S.C. §§ 1252(a)(5), (b)(9), and (g) strip the Court of jurisdiction to review challenges to Plaintiff's removal. Id. at 4-10. And third, even if the Court had subject matter jurisdiction, the Complaint fails to show that Plaintiff was admitted into the United States in June 2001, and thus no violation of her due process rights occurred. Id. at 10-12.

Plaintiff responds that the Court has subject matter jurisdiction and the Complaint alleges adequate claims. ECF No. [11]. She contends that Defendant misconstrues the Complaint because she only seeks judicial review of Defendants' alleged wrongful withholding of evidence subject to mandatory disclosure under 8 U.S.C. § 1361. Id. at 1-2. Plaitiff makes five general arguments: (1)Congress specifically provided for this Court's jurisdiction to enjoin execution of unlawfully obtained removal orders; (2) the petition for removal process set forth in 8 U.S.C. § 1252(a) does not apply to prosecutorial misconduct; (3) Defendants' alleged withholding of evidence has "at best a tangentional relationship" with Plaintiff's pending removal proceedings; (4) Plaintiff does not seek review of any decision by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders; and (5) Plaintiff alleges sufficient facts to establish violations of 8 U.S.C. § 1361, the APA, and due process. Id. at 2-9.

Defendants reply that 8 U.S.C. § 1252(f)(2) does not confer independent subject matter jurisdiction but rather addresses the evidentiary standard required to enjoin an alien's removal, the jurisdiction stripping provisions of 8 U.S.C. § 1252 apply, and that Plaintiff fails to state a claim because a stamped passport or I-94 form are "irrelevant" given that neither item would change her status for admissibility into the country. ECF No. [15].

The Motion, accordingly, is ripe for consideration.

II. LEGAL STANDARD

A. Rule 12(b)(6)

Rule 8 of the Federal Rules of Civil Procedure requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although a complaint "does not need detailed factual allegations," it must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (explaining that Rule 8(a)(2)'s pleading standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation"). In the same vein, a complaint may not rest on "'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678, 129 S.Ct.1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (alteration in original)). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. These elements are required to survive a motion brought under Rule 12(b)(6), which requests dismissal for "failure to state a claim upon which relief can be granted."

When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555, 127 S.Ct. 1955; see Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; Thaeter v....