VASQUEZ MONROY v. DEPARTMENT OF HOMELAND SECURITY (2019)

ORDER ON MOTION TO DISMISS

THIS CAUSE comes before the Court upon the Motion to Dismiss filed on May 2, 2019 by Defendant United States of America on behalf of its component agencies and officers named in their official capacities as Defendants in this case (“Defendants”). (DE 37). Plaintiffs Damaris Vasquez Monroy and Reyes Baldemar Galicia Alvarado (“Plaintiffs”) filed a response on May 23, 2019 (DE 41), to which Defendants replied on May 30, 2019. (DE 42). For the following reasons, Defendants' Motion is granted.

BACKGROUND

This is a putative class action seeking habeas, declaratory, and injunctive relief from Defendants' allegedly unlawful practice of systematically denying requests for administrative stays of deportation or removal without conducting an individualized review of the stay request. (Amended Complaint ¶ 1). Plaintiffs, who have final orders of removal, state that their lives have been “unlawfully and unconstitutionally upended by this practice.” (Id.). Count I alleges that Defendants' boilerplate denials of stay applications violate both the Due Process Clause and 8 C.F.R. § 241.6, agency compliance with which is required by the Administrative Procedures Act (“APA”), 5 U.S.C. § 706. (Id. ¶¶ 60–77). Count II, a separate claim under the Due Process Clause, alleges that Defendants failure to properly adjudicate stay requests violates Plaintiffs' protected liberty interest. (Id. ¶¶ 78–81). Defendants seek dismissal on the basis that the Court lacks subject matter jurisdiction to adjudicate Plaintiffs' claims.

LEGAL STANDARD

Rule 12(b)(1) attacks on subject matter jurisdiction may be facial or factual. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). Facial attacks challenge subject matter jurisdiction based on the allegations in the complaint, and the district court takes the allegations as true in deciding whether to grant the motion. Morrison v. Amway Corp., 323 F.3d 920, 925 n. 5 (11th Cir. 2003) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528–29 (11th Cir. 1990). Factual attacks, in contrast, allow courts “to consider extrinsic evidence such as deposition testimony and affidavits.” Carmichael, 572 F.3d at 1279. In either circumstance, the burden for establishing federal subject matter jurisdiction rests with the party bringing the claim. Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005) (citing McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002) (per curiam)).

ANALYSIS

1. Statutory Subject Matter Jurisdiction

Defendants argue that any statutory basis for jurisdiction is barred by 8 U.S.C. § 12529(g) which states that, with limited exceptions, “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” As the Supreme Court has explained, § 1252(g) prevents review of “three discrete actions that the Attorney General may take: her decision or action to commence proceedings, adjudicate proceedings, or execute removal orders.” Reno v. Am.-Arab Anti–Discrimination Comm., 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (internal quotations omitted) (emphasis in original). While this provision would certainly bar review of the decisions denying Plaintiffs' requests for stays of removal, Plaintiffs argue that they are not challenging the removal decisions but rather that “they are challenging the validity of the procedures employed in making those decisions.” (DE 41 at 7) (emphasis in original). 8 C.F.R. §§ 212.5 and 241.6(a) together require Defendants to consider certain factors when adjudicating an alien's request for stay of deportation removal, Plaintiffs argue, and the agencies' issuance of boilerplate denial letters lacks any indication that these factors were properly considered.

Section 1252(g) bars not only review of denials of stays, however, but also any claim “arising from” such decisions. While the Amended Complaint contests not only Plaintiffs' own denied requests but the denied requests of a similarly situated class, and while Plaintiffs contest the process rather than the ultimate outcome, Plaintiffs claims still fundamentally arise from the removal decisions. Accordingly, § 1252(g) bars review under the APA. See Mata v. Napolitano, No. 1:10-CV-193-ODE, 2010 WL 11520597, at *5 (N.D. Ga. July 20, 2010), aff'd sub nom. Mata v. Sec'y of Dep't of Homeland Sec., 426 F. App'x 698 (11th Cir. 2011) (per curiam) (“Even if Plaintiff is not technically challenging the execution of his removal order in the instant action, Plaintiff's challenge to the procedures surrounding the rescission of his lawful permanent resident status necessarily ‘arises from’ his removal. Indeed, the very reason for Plaintiff's challenge of the procedures surrounding the rescission of his lawful permanent resident status is that he believes he can obtain discretionary relief from removal if his status is reinstated.”).¹

Additionally, neither the All Writs Act, 28 U.S.C. § 1651, nor habeas corpus, 28 U.S.C. § 2241, provide subject matter jurisdiction. The All Writs Act, by itself, does not create jurisdiction in district courts but rather empowers them to issue writs in aid of jurisdiction acquired on some other independent ground. Burr & Forman v. Blair, 470 F.3d 1019, 1027 (11th Cir. 2006) (citing Brittingham v. Commissioner, 451 F.2d 315, 317 (5th Cir. 1971)). 28 U.S.C. § 2241 confers district court jurisdiction over habeas petitions brought by individuals who are, inter alia, “in custody” of the United States or “in custody in violation of the Constitution or laws or treaties of the United States,” § 2241(c)(1), (3), but in order to satisfy § 2241's “custody” requirement, petitioners must allege that they are subject to a “significant restraint” on their liberty at the time of filing. Patel v. U.S. Att'y Gen., 334 F.3d 1259, 1263 (11th Cir. 2003). Plaintiffs have made no such allegations.²

2. Due Process

The Eleventh Circuit has also foreclosed Plaintiffs' arguments that jurisdiction is supported by the Due Process Clause of the Fifth Amendment. “In order to establish a due process violation, an alien must show that he was deprived of liberty without due process of law, and that the asserted error caused him substantial prejudice.” Gonzalez–Oropeza v. U.S. Att'y Gen., 321 F.3d 1331, 1333 (11th Cir. 2003) (citations omitted). The Attorney General's authority to stay a removal is discretionary, 8 U.S.C. § 1231(c)(2)(A)(i), and “an alien has no constitutionally-protected right to discretionary relief or to be eligible for discretionary relief.” Oguejiofor v. Attorney Gen. of U.S., 277 F.3d 1305, 1309 (11th Cir. 2002) (citing Mohammed v. Ashcroft, 261 F.3d 1244, 1250 (11th Cir. 2001). See also Orellana v. U.S. Atty. Gen., 367 F. App'x 9, 11 (11th Cir. 2010) (per curiam) (citing Mohammed v. Ashcroft, 261 F.3d 1244, 1251 (11th Cir. 2001) (“There is ‘no constitutionally-protected right to discretionary relief from removal,’ such as cancellation.”).

CONCLUSION

In the absence of any basis for the Court to exercise subject matter jurisdiction over Plaintiffs' claims, Defendants' Motion to Dismiss is due to be granted. Accordingly, it is

Accordingly, it is

ORDERED AND ADJUDGED that

(1) Defendants' Motion to Dismiss (DE 37) is GRANTED.

(2) Plaintiffs' Amended Complaint is DISMISSED WITH PREJUDICE.

(3) The Clerk of Court shall CLOSE THIS CASE. All pending motions are DENIED AS MOOT.

FOOTNOTES

1.   Plaintiffs' citation to Kurapati v. USCIS, 775 F.3d 1255 (11th Cir. 2014) is unavailing. That matter arose from the revocation of plaintiffs' immigrant visa petitions, which entails a procedure not committed entirely to the agency's discretion. The difference is illuminated by comparison of the provision at issue in Kurapati, 8 U.S.C. § 1155 (“The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under [8 U.S.C. § 1154].”) (emphasis added) and the relevant regulations with the provision at issue in this case, 8 U.S.C. § 1231(c)(2)(A)(i) (“The Attorney General may stay the removal of an alien under this subsection if the Attorney General decides that (i) immediate removal is not practicable or proper.”) and the regulations promulgated thereunder.

2.   Plaintiffs argument that the Suspension Clause provides jurisdiction is similarly rejected. Congress may eliminate habeas jurisdiction in certain cases without running afoul of the Suspension Clause as long as adequate and effective alternatives to habeas corpus relief are provided. See I.N.S. v. St. Cyr, 533 U.S. 289, 314 n.38, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Plaintiffs have not shown, however, that § 1252(g) deprives them of a meaningful opportunity to seek relief from Defendants. Cf. Ibrahim v. Acosta, No. 17-CV-24574, 2018 WL 582520, at *6 (S.D. Fla. Jan. 26, 2018) (finding Suspension Clause supported jurisdiction where Somali nationals sought to reopen removal cases to assert new claims based on “extraordinary circumstances”—a botched deportation flight—that did not exist at the time initial orders were entered).

DONALD M. MIDDLEBROOKS, UNITED STATES DISTRICT JUDGE