Probodanu v. Sessions

387 F.Supp.3d 1031

Jeremiah Michael PROBODANU, et al., on behalf of themselves and all similarly situated individuals, Plaintiffs,

v.Jefferson B. SESSIONS, III, et al., Defendants.

Case No.: SACV 18-00888-CJC-KS

United States District Court, C.D. California, Southern Division.

Signed June 28, 2019

Nicolette Glazer, Law Offices of Larry R Glazer, Century City, CA, for Plaintiffs.

Papu Sandhu, Steven K. Uejio, US Department of Justice, Victor M. Lawrence, OIL-DCS Trial Attorney, Office of Immigration Litigation District Court Section, Washington, DC, for Defendants.

ORDER GRANTING GOVERNMENT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT [Dkt. 41]

CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

The eleven named Petitioners are Indonesian nationals and citizens seeking to challenge the Government's authority to detain and remove them and other supposedly similarly situated individuals. Petitioners assert eight counts, six of which are brought on behalf of four putative classes. (Dkt. 30 [Operative First Amended Complaint, hereinafter "FAC"].) They generally allege that the Government cannot detain or remove noncitizens subject to a final order of removal where the noncitizen has applied for or requested, or might apply for or request, a variety of immigration benefits. They also challenge the Government's authority to detain and remove a noncitizen subject to a final order of removal after the noncitizen is placed under an order of supervision. Before the Court is the Government's motion to dismiss the First Amended Complaint. (Dkt. 41 [hereinafter "Mot."].) For the following reasons, the motion is GRANTED .

II. BACKGROUND

Petitioners, none of whom are currently detained, challenge the Government's alleged treatment of noncitizens who are subject to final orders of removal. The eleven named Petitioners consist of two families. Six of the Petitioners are subject to final orders of removal, whereas four are not. The remaining named Petitioner, Jeremiah Michael Probodanu, was removed to Indonesia before this action was filed.

A. Santosa Family

Petitioners Ferdinandus Santosa, his wife, Anneke Palar, and the couple's two children, Jeremiah Michael Probodanu and Daniella Auningputri, are natives and citizens of Indonesia who were admitted to the United States on tourist visas. (FAC ¶¶ 13–16.) Ms. Palar's parents, Petitioners Albert and Adelena Palar, have resided in the United States as lawful permanent residents since 2011. (Id. ¶¶ 17–18.)

After Petitioners Ferdinandus Santosa, Anneke Palar, Jeremiah Probodanu, and Daniella Auningputri remained in the United States without permission, the Government initiated removal proceedings against each of them. (Id. ¶¶ 33–35.) Mr. Santosa then applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). (Id. ) Ms. Palar, Mr. Probodanu, and Ms. Auningputri were derivative beneficiaries of Mr. Santosa's asylum application. (See id. )

An immigration judge denied Mr. Santosa's application and ordered him and his immediate family removed to Indonesia. Santosa v. Holder , 422 F. App'x 643, 644 (9th Cir. 2011). The Board of Immigration Appeals ("Board") dismissed Mr. Santosa's appeal of the immigration judge's decision, and on March 21, 2011, the Ninth Circuit denied a petition for review of the Board's decision. Id. U.S. Immigrations and Customs Enforcement ("ICE") placed Mr. Santosa and Ms. Palar under orders of supervision on July 18, 2013. (FAC ¶ 38.)

Mr. Santosa and Ms. Palar sought an administrative stay of removal until February 15, 2018, which ICE granted on October 1, 2013. (Id. ¶ 43.) Prior to the February 15, 2018 expiration, Mr. Santosa and Ms. Palar sought another administrative stay, which ICE allegedly "refused to accept." (Id. ¶ 51.) According to the First Amended Complaint, Mr. Santosa and Ms. Palar attended a check in with ICE on June 21, 2018. (Id. ¶ 55.) An immigration officer allegedly confirmed that a motion to reopen was pending and instructed them to appear again on April 10, 2019. (Id. ) Mr. Santosa and Ms. Palar allegedly "fear that they will be arrested and detained at their 10 April 2019 check-in date or at any time Defendants so decide." (Id. ¶ 63.) However, they do not claim that they were arrested or detained at the April 10, 2019 check in. (See generally Dkt. 42 [Opp'n].) The Santosa family allegedly submitted a "combined motion to reopen" and an "Amended Request and Restated Motion to Reopen Based on Country Conditions and a Request for a Stay of Removal." (Id. ¶ 52.) It is unclear when either were filed.

As for Ms. Auningputri and Mr. Probodanu, U.S. Citizenship and Immigration Services ("USCIS") granted them deferred action under Deferred Action for Childhood Arrivals ("DACA"), a federal immigration policy that allows individuals who entered the United States as children to receive a renewable two-year period of deferred action from deportation. (See id. ¶ 40.) USCIS granted Mr. Probodanu's DACA renewal request on July 27, 2015, effective until July 26, 2017. (Id. ¶ 42.) On December 21, 2016, ICE placed Mr. Probodanu under an order of supervision instructing him to appear before an immigration officer in December 2017. (Id. ¶ 44.)

Mr. Probodanu did not submit a DACA renewal request before it expired on July 26, 2017. At his December 12, 2017 check in, Mr. Probodanu was arrested and issued a written warning. (Id. ¶ 46.) His wife, Tatiana Ayhuan-Probodanu, submitted a Form I-130 (Petition for Alien Relative) on December 22, 2017 to initiate a family-based status adjustment. (Id. ¶ 47.) While in detention, Mr. Probodanu submitted a DACA renewal request, which USCIS denied for lack of jurisdiction. (Id. ¶¶ 49, 53.) Days later on March 20, 2018, ICE removed Mr. Probodanu to Indonesia. (Id. ¶ 54.) On September 20, 2018, USCIS approved his wife's Form I-130. (Id. ¶ 57.) USCIS has purportedly "refuse[d] to transmit" the approved Form I-130 to the National Visa Center. (Id. )

Ms. Auningputri appeared at a check in with ICE on December 7, 2018, and was instructed to appear again in November 2019. (Id. ¶ 58.) She likewise alleges that she fears she will be detained "at any time Defendants so decide." (Id. ¶ 63.)

B. Woy Family

Eldridge Woy, his wife, Lora Londa, and the couple's son, Echglene Woy, are citizens and nationals of Indonesia who were admitted to the United States on tourist visas. (Id. ¶¶ 65–67.) When the Woy family remained in the United States without permission, the Government initiated removal proceedings against each of them. Woy v. Holder , 361 F. App'x 725 (9th Cir. 2009). Like Mr. Santosa, Mr. Woy applied for asylum, withholding of removal, and protection under the CAT. See id. at 725–26. An immigration judge denied Mr. Woy's application and ordered each member of the Woy family removed to Indonesia. Id. The Board dismissed the family's appeal and on December 28, 2009, the Ninth Circuit denied a petition for review of the Board's decision. Id.

Echglene Woy applied for deferred action under DACA, which USCIS granted. (FAC ¶ 68.) According to the First Amended Complaint, his DACA and employment authorization expire in June 2021. (Id. ) In March 2018, the Woy family "made a second application requesting that ... ICE join in a motion to reopen based on a newly acquired eligibility for relief." (Id. ¶ 72.) ICE allegedly has not responded to this request. (Id. ) And if ICE declines to join in such a motion, the Woy family claims they "will file an opposed motion to reopen based on changed country conditions." (Id. )

Lora Londa's parents, Petitioners Alex Londa and Kristina Limbong, are both U.S. citizens. (Id. ¶ 70.) They allegedly are "in the process" of filing a Form I-130 on behalf of their daughter. (Id. )

C. Procedural History

Petitioners filed this action on May 22, 2018. (Dkt. 1 [Complaint].) The initial Complaint asserted fourteen counts, eleven of which were on behalf of four putative classes and three of which were on behalf of Mr. Probodanu only. (See generally id. ) On October 5, 2018, the Government moved to dismiss all fourteen counts for lack of subject matter jurisdiction and failure to state a claim. (Dkt. 19.) After the December 10, 2018 hearing on the Government's motion, the Court dismissed all fourteen counts in the Complaint with fourteen days' leave to amend. (Dkt. 29.) Petitioners filed the operative First Amended Complaint on December 27, 2018. (See FAC.) The First Amended Complaint removed six of the fourteen counts and added a few new allegations in support of the remaining eight counts.

In Counts One and Two, Mr. Probodanu individually alleges that the Government violated the Administrative Procedure Act ("APA") by failing to provide a reasoned explanation for the denial of his DACA and employment authorization renewal request. (Id. ¶¶ 136–54.) Mr. Probodanu seeks declaratory relief stating, among other things, that the Government's denial was arbitrary and capricious and in violation of his due process rights. (Id. ¶ 154.) Counts One and Two mirror Counts One and Three of the initial Complaint. The Court had dismissed both of these counts for failure to state a plausible claim on which relief could be granted.

In Count Five, all of the named Petitioners allege that the Government violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution when it detains noncitizens under an order of supervision without first providing notice, a reasoned explanation, and an opportunity to respond. (Id. ¶¶ 170–76.) Count Five is nearly identical to Count Thirteen of the initial Complaint, which the Court previously dismissed with prejudice as preempted by the INA. However, Count Five now asserts a constitutional violation under the Fifth Amendment's Due Process Clause, whereas Count Thirteen was premised on a violation of the APA.

In Counts Three, Seven, and Eight, all of the named Petitioners allege that, pursuant to the Immigration and Nationality Act ("INA"), Due Process Clause,...