Opinion
Civil Action No. 1:20-cv-00103
2021-07-14
Jesus Evarardo VILLARREAL SALINAS, and Yanira Deandar, "Plaintiffs", v. Norma LIMON, et al., "Defendants"
Jaime M. Diez, Jones Crane, Brownsville, TX, for Plaintiffs. Christopher D. Pineda, United States Attorneys Office, Brownsville, TX, for Defendants.
Jaime M. Diez, Jones Crane, Brownsville, TX, for Plaintiffs.
Christopher D. Pineda, United States Attorneys Office, Brownsville, TX, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS
Rolando Olvera, United States District Judge
Before the Court are these pleadings: "Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint" ("MTD") (Dkt. No. 22), Jesus Evarardo Villarreal Salinas ("Villarreal") and Yanira Deandar's ("Deandar") "Plaintiffs’ Opposition to Defendants’ Motion to Dismiss First Amended Complaint for Declaratory and Injunctive Relief" ("Response") (Dkt. No. 24), "Defendants’ Reply to Plaintiffs’ Response to Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint," ("Reply") (Dkt. No. 28), "Defendants’ Supplemental Brief Regarding Mootness as to Plaintiff Villarreal's Claims" (Dkt. No. 38), and "Plaintiffs’ Position on Recent Developments Regarding Their First Amended Complaint for Declaratory and Injunctive Relief" (Dkt. No. 45). For these reasons, Defendants’ MTD (Dkt. No. 22) is GRANTED in part and DENIED in part.
I. BACKGROUND
Unless otherwise noted, all facts were obtained from Defendants’ MTD (Dkt. No. 22), Plaintiffs’ Response (Dkt. No. 24), and "Defendants’ Status Report Regarding Plaintiff Villarreal's Claims" (Dkt. No. 30).
A. Villarreal
Deandar and Villarreal are married. Villarreal filed a I-212 Application for Permission to Reapply for Admission in 2017 and 2019 (the latter, "I-212 Application"), both of which the United States Citizenship and Immigration Services ("USCIS") denied. He also filed an I-485 Application to Register Permanent Residence or Adjust Status ("I-485 Application") in 2017, which was denied in 2019. In January 2021, USCIS re-opened and approved his I-212 Application and his I-485 Application. In Plaintiffs’ "First Amended Complaint for Declaratory and Injunctive Relief" ("Amended Complaint") (Dkt. No. 18), Villarreal seeks a review of the denial of his I-212 Application and the I-485 Application under the Administrative Procedure Act ("APA"). Dkt. No. 18 at 10-12.
B. Deandar
Deandar was denied a U.S. passport six times: in 2008 ("2008 Denial"), a second time in 2008, and 2011, 2013, 2016, and 2020 ("2020 Denial"). On April 7, 2016, Deandar was detained at the Hidalgo Port of Entry, classified as an "arriving alien," and placed in removal proceedings. Dkt. No. 4-1 at 74. In August 2019, an immigration judge found that she was clearly and beyond a doubt admissible as having been born in the United States. The 2020 Denial followed a 2019 application submitted by Deandar after the immigration judge's 2019 ruling. Plaintiffs’ Amended Complaint removed Deandar's claim under § 1503(a). In the Amended Complaint, Deandar seeks review of the 2020 Denial under the APA. Id. at 12-13. Defendants move to dismiss because this Court lacks jurisdiction.
II. LEGAL STANDARD
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). A party may challenge a district court's subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The party asserting jurisdiction bears the burden to prove the district court has jurisdiction. Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001). In ruling on a Rule 12(b)(1) motion, courts must "accept all factual allegations in the plaintiff's complaint as true." Den Norske Stats Oljeselskap As v. HeereMac Vof , 241 F.3d 420, 424 (5th Cir. 2001).
III. DISCUSSION
A. Villarreal's APA Claim Is Moot
Villarreal's APA claim stems from the denial of his I-212 Application and I-485 Application. Dkt. No. 18. Those applications have since been approved. Dkt. No. 30 at 1. Villarreal has obtained the relief he sought, and agrees his case is now moot. Dkt. No. 45 at 1.
B. This Court Lacks Subject Matter Jurisdiction Over Deandar's APA Claim
Under § 702 of the APA, a "person suffering legal wrong because of agency action ... is entitled to judicial review." 5 U.S.C. § 702. Section 704 of the APA provides subject matter jurisdiction to federal courts over final agency actions only where "there is no other adequate remedy in a court." Id. § 704.
Whether a remedy is adequate requires a "case-specific evaluation." Hinojosa v. Horn , 896 F.3d 305, 310 (5th Cir. 2018). The Fifth Circuit held that § 1503(a) provides an adequate remedy for a passport application denial, foreclosing relief under the APA. Flores v. Pompeo , 936 F.3d 273, 277 (5th Cir. 2019). And since § 1503(a) provides an adequate remedy to Deandar, this Court lacks jurisdiction over her APA claim.
As Deandar's Amended Complaint no longer describes an APA claim in relation to the processing time for her most recent passport application, see Dkt. No. 18, the Court need not address Defendants’ MTD on that issue. King v. Dogan , 31 F.3d 344, 346 (5th Cir. 1994) ("An amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint ... incorporates by reference the earlier pleading.").
C. Deandar May Bring a Claim under § 1503(a)
An individual who claims a denial of a right or privilege of U.S. citizenship may seek a declaration of citizenship under § 1503(a) within five years of the final administrative denial of that right. 8 U.S.C. § 1503(a). In Gonzalez , the Fifth Circuit held that the first administrative denial is the final administrative denial for § 1503(a) ’s five-year statute of limitations (" Gonzalez limitation"), because "in defining a limitations period, Congress expressed its interest in finality." Gonzalez v. Limon , 926 F.3d 186, 190 (5th Cir. 2019). Thus, if the five-year statute of limitations began after Deandar's 2008 Denial, see Dkt. No. 18, it would bar Deandar from now obtaining a judicial determination of her citizenship under § 1503.
The Fifth Circuit noted that § 1503(a) "does not limit the rights or privileges that trigger [§ 1503(a) ’s] applicability to [applications for a certificate of citizenship ("COC")] alone," but the Fifth Circuit "express[ed] no view" on that option. Rios-Valenzuela , 506 F.3d at 401 (describing a path toward judicial determination of citizenship when the plaintiff's § 1503(a) challenge of his COC application denial was jurisdictionally barred because of his removal proceedings); see also Icaza v. Shultz , 656 F. Supp. 819, 823 (D.D.C. 1987) (not deciding the issue of whether plaintiff's 1971 COC denial or 1979 passport denial determined whether her § 1503(a) action was barred in 1987). Thus, the possibility of restarting the statute of limitations with a different application, e.g., a COC application after a denied passport application, has not been foreclosed. But because Deandar is claiming birthright citizenship, a passport application is her only option for triggering § 1503(a). See 8 U.S.C. § 1452(a) (COCs only available to those claiming derivative citizenship).
But Deandar has already proven "clearly and beyond a doubt" that she has a right to be admitted as having been born in the United States. Dkt. No. 4-1 at 90; 8 C.F.R. § 1240.8(b) ("In proceedings commenced upon a respondent's arrival in the United States ... the respondent must prove that he or she is clearly and beyond a doubt entitled to be admitted to the United States and is not inadmissible as charged."). This is a higher burden than that required to prove citizenship in a § 1503(a) suit. De Vargas v. Brownell , 251 F.2d 869, 870-71 (5th Cir. 1958) (stating a plaintiff in a § 1503(a) suit has the burden of proving her citizenship by a preponderance of the evidence).
Deandar's Notice to Appear specified she was an "arriving alien" in removal proceedings under 8 U.S.C. § 1229a. Dkt. No. 4-1 at 74-76. Thus, as an "applicant for admission" she had the burden of proving she "is clearly and beyond doubt entitled to be admitted and is not inadmissible under section 1182 of this title." 8 U.S.C. § 1229a(c)(2)(A) ; see also 8 C.F.R. § 1.2 ("Arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry.").
Applying the Gonzalez limitation to Deandar would contradict the "finality" Congress intended. In 2019, Deandar was admitted into the U.S. as having been born in the U.S. by order of the immigration court, but under the Gonzalez limitation, she cannot receive a judicial determination of her citizenship under § 1503(a). Because Deandar has no path to judicial determination by any other means, this Court finds Gonzalez did not address the circumstances of this case and the 2008 Denial is not the "final administrative denial" under the § 1503(a) statute of limitations.
i. Deandar in Legal "Limbo"
If Deandar had a path to judicial determination of her citizenship by another means, the Gonzalez limitation would be reconcilable with Congress’ "interest in finality." Gonzalez , 926 F.3d at 190.
First, Deandar cannot proceed under the APA for the reasons stated in Part III.b.
Second, she may not obtain a declaration of citizenship through her removal proceedings, because such a declaration must only come through an appeal of the immigration judge's determination to the court of appeals. 8 U.S.C. § 1252(b)(5)(A)-(C). But Deandar received a positive determination from the immigration court; she has nothing to appeal. Id. § 1252(b) ("With respect to review of an order of removal ... the following requirements apply.") (emphasis added); see Rios-Valenzuela , 506 F.3d at 399, n. 11 (noting if a person claiming citizenship loses in their removal proceedings they can obtain judicial review of citizenship through § 1252(b), while a person who succeeds can obtain judicial review under § 1503(a) through a new citizenship claim); see also Ortega , 592 F.3d at 744 (noting that an individual successful in their removal proceedings "would not obtain a final order of removal – a prerequisite for pursuing review under 8 U.S.C. § 1252").
Third, Deandar cannot claim a violation of her due process rights. The Rios-Valenzuela Court declined to accept the argument that "a due process right inheres naturally in a claim to citizenship itself, which in some circumstances allows the courts to consider ... a claim to citizenship." 506 F.3d at 401. The Rios-Valenzuela Court agreed the argument "is not without intuitive force," but did not find such a right. Id.
The Rios-Valenzuela Court's ruling followed these factors: (1) Congress set forth the procedures for persons not born in the U.S. to acquire citizenship; and (2) the plaintiff had avenues for proceeding under § 1503(a). 506 F.3d at 401. Deandar's situation is different because she is claiming birthright citizenship. Since this Court finds Deandar may proceed under § 1503(a), it will not address any constitutional issue. 506 F.3d at 401. ("[T]he doctrine of constitutional avoidance ... does not permit courts to impose upon a statute an interpretation that does violence to its plain language.").
ii. Deandar May Proceed Under § 1503
Because "it would be disrespectful to impute to Congress a desire to leave someone in [Deandar's] situation permanently out in the cold," Ortega , 592 F.3d at 745, this Court must find that the Gonzalez limitation operates differently when applied to Deandar's unique circumstances. New York State Dep't of Soc. Servs. v. Dublino , 413 U.S. 405, 419–20, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973) ("We cannot interpret federal statutes to negate their own stated purposes.").
Deandar's situation appears to be one of first impression. The plaintiffs in Ortega and Rios-Valenzuela sought a judicial declaration of citizenship under similar circumstances, but with two differences. First, they succeeded in their citizenship defense in removal proceedings where they were classified as "deportable aliens," which placed the burden of proving deportability on the government, rather than as "arriving aliens," which placed the burden of proving admissibility on the petitioner, as in Deandar's case. Ortega v. Holder , 592 F.3d 738, 740 (7th Cir. 2010) ; Rios-Valenzuela v. Dep't of Homeland Sec. , 506 F.3d 393, 396 (5th Cir. 2007). Second, those plaintiffs did not contend with a five-year statute of limitations. In both Ortega and Rios-Valenzuela , the courts marked a path toward a judicial determination of the plaintiffs’ citizenship claims that involved: (1) reopening applications once removal proceedings ended, and (2) with denial, seeking a judicial determination under § 1503. Ortega , 592 F.3d at 745 ; Rios-Valenzuela , 506 F.3d at 399. Deandar overcame a higher burden of proof in establishing citizenship in her removal proceedings than either the Ortega or Rios-Valenzuela plaintiffs, but the statute of limitations obstacle that Deandar faces is not similarly remediable.
Compare 8 U.S.C. § 1229a(c)(2)(A) ("[Petitioner must prove] clearly and beyond doubt [she is] entitled to be admitted."), with 8 U.S.C. § 1229a(c)(3)(A) ("[The government bears the] burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable. No decision on deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.").
Those cases recognized that nothing in the language or history of § 1503(a) suggests "Congress meant to leave an individual, with more than a colorable claim of nationality, in legal limbo." Ortega v. Holder , 592 F.3d at 744 ; see also Rios-Valenzuela , 506 F.3d at 399 ("[A] straightforward reading of the statute appears to leave Rios in limbo, victorious in the removal action against him, yet unable to obtain judicial review of his claim of citizenship."). This Court agrees with the Ortega and Rios-Valenzuela courts’ interpretation that § 1503(a) should not leave an individual in limbo.
In Gonzalez , the Fifth Circuit followed the reasoning in Henry v. Quarantillo , which found that the plaintiff's inclusion of additional evidence in his second Certificate of Citizenship application did not render the process "qualitatively different" from the first, and thus did not restart the statute of limitations. Gonzalez , 926 F.3d at 189, citing Henry v. Quarantillo , 684 F. Supp. 2d 298, 307 (E.D.N.Y. 2010), aff'd , 414 F. App'x 363 (2d Cir. 2011). Following this reasoning, if a court finds (1) a qualitative difference in a subsequent application process, and (2) allowing the plaintiff to proceed would agree with Congress’ desire for finality, the plaintiff may proceed with a § 1503(a) challenge.
Deandar's 2020 Denial arises from a situation that is "qualitatively different" from the prior denials and allowing her to proceed furthers Congress’ interest in finality. Thus, the Court finds Gonzalez provides an avenue for Deandar to seek relief under § 1503(a). The 2020 Denial, contrary to the immigration judge's finding in 2019 that Deandar is clearly and beyond a doubt admissible as born in the United States, restarts the five-year statute of limitations. The Court will grant Deandar leave to amend her complaint restating a § 1503(a) claim.
This reading also does not conflict with the text of § 1503(a), which does not specify what constitutes a "final" denial. 8 U.S.C. § 1503(a) ; see also Gonzalez , 926 F.3d at 190.
If Deandar prefers to reopen her passport application first, see 8 C.F.R. § 103.5, the Court will stay all deadlines to allow her to do so, and if denied, would then hear her § 1503(a) claim.
IV. CONCLUSION
Villarreal's claims are DISMISSED as moot. Defendants’ MTD is DENIED in part as moot as to Villarreal's claims and GRANTED in part as to Deandar's claims. Deandar is GRANTED leave to amend her complaint to restate a claim only under § 1503(a), no later than August 13, 2021.
In addition, Deandar is ORDERED to notify this Court no later than August 1, 2021 whether she will proceed with a motion to reopen her passport application.