Opinion
No. 4:20-cv-05161-SMJ
2021-03-01
Carla DARTORA, A# 088-469-583, Plaintiff, v. UNITED STATES of America; Board of Immigration Appeals; Robert M. Wilkinson, acting United States Attorney General; Alejandro Mayorkas, Secretary of the Department of Homeland Security; Tracy Renaud, Director of the United States Citizenship and Immigration Services; Susan Dibbins, Acting Chief, Administrative Appeals Office; Connie Nolan, Associate Director, Service Center Operations, Defendants.
Andrew Sean Biviano, Paukert & Troppmann PLLC, Spokane, WA, Elisabeth M. W. Trefonas, Pro Hac Vice, Trefonas Law PC, Jackson, WY, for Plaintiff. Jessica Alice Pilgrim, United States District Court Eastern District of Washington, Joseph P. Derrig, U S Attorney's Office, Spokane, WA, for Defendants.
Andrew Sean Biviano, Paukert & Troppmann PLLC, Spokane, WA, Elisabeth M. W. Trefonas, Pro Hac Vice, Trefonas Law PC, Jackson, WY, for Plaintiff.
Jessica Alice Pilgrim, United States District Court Eastern District of Washington, Joseph P. Derrig, U S Attorney's Office, Spokane, WA, for Defendants.
ORDER GRANTING UNITED STATES’ MOTION TO DISMISS
SALVADOR MENDOZA, JR., United States District Judge
Before the Court is the United States’ Motion to Dismiss, ECF No. 14. The United States moves for dismissal for failure to state a claim, arguing that Plaintiff did not file suit within the statute of limitations or, in the alternative, that Plaintiff does not state a claim that the Administrative Appeals Office (AAO) did not arbitrarily and capriciously deny Plaintiff relief. Having reviewed the record in this matter, the Court is fully informed and grants the motion to dismiss.
BACKGROUND
Plaintiff is a native and citizen of Brazil who married a United States citizen. ECF No. 1 at 4. Plaintiff filed a Form I-360 with the United States Citizenship and Immigration Services (USCIS) Vermont Service Center (VSC), which alleged that she was a battered immigrant spouse under Section 204(a)(1)(A)(iii) of the Immigration and Nationality Act (INA) and the Violence Against Women Act (VAWA). ECF No. 1 at 4, 13. VSC denied her petition. ECF No. 1-1. Plaintiff appealed to the AAO, within USCIS, which dismissed her appeal on August 2, 2011. ECF No. 1-4.
Plaintiff then tried to appeal the AAO's decision to the Board of Immigration Appeals (BIA), the appellate board within the Department of Justice. ECF No. 1-5. The BIA issued a form denial letter, informing her that she needed to file a different from to appeal with the AAO. ECF No. 1-7. She tried again, with the same result. ECF Nos. 1-8, 1-9.
Plaintiff then emailed VSC asking that it send her appeal to the BIA. ECF No. 1-10. On June 5, 2013, the USCIS Ombudsman's office emailed Plaintiff, explaining once again that AAO has jurisdiction over I-360 VAWA petitions. ECF No. 1-11. But on August 2, 2013, she once again sought BIA review. ECF No. 1-12. She was again told to seek review with the AAO. ECF No. 1-13. Instead, she sent another email and then another letter asking for BIA review. ECF Nos. 1-14, 1-15. On April 14, 2015, BIA issued a letter decision dismissing the appeal for lack of jurisdiction. ECF No. 1-18.
More than five years later, and more than nine years after the AAO denied her appeal, on September 15, 2020, Plaintiff sued in this Court. ECF No. 1.
LEGAL STANDARD
Under Rule 12(b)(6), the Court must dismiss a complaint if it "fail[s] to state a claim upon which relief can be granted," including when the plaintiff's claims either fail to allege a cognizable legal theory or fail to allege sufficient facts to support a cognizable legal theory. Kwan v. SanMedica Int'l , 854 F.3d 1088, 1093 (9th Cir. 2017). The Court may dismiss a complaint based on an affirmative defense when the "allegations in the complaint suffice to establish" the defense. Sams v. Yahoo! Inc. , 713 F.3d 1175, 1179 (9th Cir. 2013) (citations omitted); see also Jablon v. Dean Witter & Co. , 614 F.2d 677, 682 (9th Cir. 1980) (When the running of the statute is "apparent on the face of the complaint, the defense may be raised by a motion to dismiss."). To survive a Rule 12(b)(6) motion, a complaint must contain "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).
Facial plausibility exists when a complaint pleads facts permitting a reasonable inference that the defendant is liable to the plaintiff for the misconduct alleged. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Plausibility does not require probability but demands something more than a mere possibility of liability. Id. While the plaintiff need not make "detailed factual allegations," "unadorned" accusations of unlawful harm and "formulaic" or "threadbare recitals" of a claim's elements, supported only "by mere conclusory statements," are insufficient. Id.
In deciding a Rule 12(b)(6) motion, the Court construes a complaint in the light most favorable to the plaintiff, assumes the facts as pleaded are true, and draws all reasonable inferences in his or her favor. Ass'n for L.A. Deputy Sheriffs v. County of Los Angeles , 648 F.3d 986, 991 (9th Cir. 2011) ; Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Even so, the Court may disregard legal conclusions couched as factual allegations. See id. In ruling on a motion to dismiss, the Court may consider materials "attached to the complaint" without converting the motion into a motion for summary judgment. United States v. Ritchie , 342 F.3d 903, 908 (9th Cir. 2003).
DISCUSSION
A. The BIA did not have jurisdiction to decide Plaintiff's appeal
Plaintiff argues that the BIA erred in dismissing her appeal of the Administrative Appeals Office decision for lack of jurisdiction. See ECF No. 18 at 4; see also ECF No. 1-18 at 3. This Court disagrees. While the BIA has jurisdiction to hear most immigrant visa petition appeals under the INA, as explained below, Congress vested the authority to hear certain specific appeals with the AAO. See 8 C.F.R. § 1003.1(b)(5) ; 6 U.S.C. § 271(b)(5) ; see also RadLAX Gateway Hotel, LLC v. Amalgamated Bank , 566 U.S. 639, 645, 132 S.Ct. 2065, 182 L.Ed.2d 967 (2012) ("To eliminate the contradiction [between a general permission and a specific permission], the specific provision is construed as an exception to the general one.").
When Congress established USCIS as the successor to INS, it transferred many functions of the commissioner of INS to the director of USCIS, including "[a]ll other adjudications performed by the Immigration and Naturalization Service immediately before the effective date specified ," March 1, 2003. 6 U.S.C. § 271(b)(5) (emphasis added). On February 28, 2003, the regulations designated appeals of any "self-petition filed by a spouse or child based on the relationship to an abusive citizen or lawful permanent resident of the United States for classification under section 201(b)(2)(A)(i) of the Act or section 203(a)(2)(A) of the Act" to the Associate Commissioner for Examinations, within INS. 8 C.F.R. § 103.1(f)(3)(iii)(GG) (as in effect on February 28, 2003). This includes VAWA I-360 Petitions like Plaintiffs.
As the United States points out, 8 C.F.R. § 103.1(f)(3)(iii)(GG) is also incorporated into DHS Delegation Number 0150.1 (effective March 1, 2003). See ECF No. 14 at 8. Plaintiff also correctly points out that Delegation 0150.1 contains a typo, but the Court agrees that does not change its incorporation of the subsection. See, e.g., United States v. Gonzales & Gonzales Bonds & Ins. Agency, Inc. , 728 F. Supp. 2d 1077, 1083 (N.D. Cal. 2010) (acknowledging the typo by including a [sic] when citing the delegation provision).
Although DHS has since removed 8 C.F.R. § 103.1, the delegation of authority remains in effect through the statute. See 76 Fed. Reg. 53764, 53770 (Aug. 29, 2011) (noting that Section 103.1 was redundant of authority specified in other regulations, not that it was inconsistent or that the removal was meant to change the existing appellate framework); see also 68 Fed. Reg. 10349, 10349 (Mar. 5, 2003) (making only "technical changes" to 8 C.F.R. § 1003.1(b)(5) after the INA was enacted).
Where one statute adopts the particular provisions of another by a specific and descriptive reference to the statute or provisions adopted, the effect is the same as though the statute or provisions adopted had been incorporated bodily into the adopting statute. Such adoption takes the statute as it exists at the time of adoption and does not include subsequent additions or modifications by the statute so taken unless it does so by express intent.
Hassett v. Welch , 303 U.S. 303, 314, 58 S.Ct. 559, 82 L.Ed. 858 (1938) (internal alterations omitted) (citing John Lewis, Sutherland Statutory Construction (Vol. II), 787–88 (2d ed.)). Congress has not expressed an intent to change the appellate structure for Plaintiff's claims.
Nor do the contents of the BIA and AAO practice manuals change this analysis. First, the Court need only give this practice manuals "respect ... to the extent that those interpretations have the ‘power to persuade.’ " See Christensen v. Harris Cnty. , 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (quoting Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ). Second, the manuals do not refute the United States’ contention. The AAO manual correctly states that "some appeals fall under the jurisdiction of the Board of Immigration Appeals." See AAO Practice Manual, Rule 1.4(a), available at https://www.hsdl.org/?abstract & did=761650 (last visited Feb. 28, 2021). But it acknowledges the exceptions. Id. In fact, as the United States point out, the manual states that "AAO exercises appellate jurisdiction over approximately fifty different immigration case types." Id. Footnote Nine expressly discusses DHS Delegation Number 0150.1(U), which also incorporates 8 C.F.R. § 103.1(f)(3)(iii). Id. at n.9; see also id. at n.10 (stating that the BIA has jurisdiction over "petitions for widowers (Form I-360)") (emphasis added). Similarly, the BIA Practice Manual states that it "generally has authority to review appeals from ... decisions of DHS on family-based immigrant petitions." BIA Practice Manual, Rule 1.4, available at https://www.justice.gov/eoir/page/file/1284741/download (last visited Feb. 28, 2021) (emphasis added); see also id. at Appendix E (differentiating between appeals from DHS decisions to the AAO and BIA).
BIA thus did not err in concluding that it did not have jurisdiction. The Court must now turn to whether judicial review of the AAO's substantive decision is barred by the statute of limitations.
B. Plaintiff did not timely file this action
Every "civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of the action first accrues." 28 U.S.C. § 2401(a). Challenges to agency decisions under the APA are subject to this general six-year limitations period. Perez-Guzman v. Lynch , 835 F.3d 1066, 1077 (9th Cir. 2016). As explained above, the BIA did not have jurisdiction to hear Plaintiff's appeal. So, the final agency decision from which the Court must calculate the limitation period is the AAO's August 2, 2011 decision. See ECF No. 1-4; see also Herrara v. U.S. Citizenship and Immigr. Servs. , 571 F.3d 881, 885 (9th Cir. 2009). The statute of limitations thus expired on August 2, 2017, and Plaintiff did not file this action until September 15, 2020.
Plaintiff's exhaustion of her administrative remedies thus did not require appeal to the BIA. Cf. Cabaccang v. United States Citizenship & Immigration Servs. , 627 F.3d 1313, 1317-18 (9th Cir. 2010) ; ECF No. 18 at 6.
1. Plaintiff does not qualify for equitable tolling
Equitable tolling is "unavailable in most cases." Miranda v. Castro , 292 F.3d 1063, 1066 (9th Cir. 2002) ; see also Irwin v. Dep't of Veterans Affairs , 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (courts apply the doctrine of equitable tolling "sparingly."). "[T]he threshold necessary to trigger equitable tolling ... is very high, lest the exceptions swallow the rule." Miranda , 292 F.3d at 1066 (internal quotation and citation omitted). To establish equitable tolling, Plaintiff must show "(1) that [s]he has been pursuing h[er] rights diligently, and (2) that some extraordinary circumstance stood in her way." Pace v. DiGuglielmo , 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).
Plaintiff did not diligently pursue her claim. "[A]ll one need show is that by the exercise of reasonable diligence the proponent of tolling could not have discovered the essential information bearing on the claim." Socop-Gonzalez v. INS , 272 F.3d 1176, 1184–85 (9th Cir. 2001). Even if Plaintiff relied on erroneous advice of her attorney, such reliance was not reasonable. Plaintiff does not allege that she did not know of the AAO's August 2, 2011 final decision. See ECF No. 1. Over a span of years, multiple agencies and offices repeatedly notified her that it did not have jurisdiction over her appeal. See ECF Nos. 1-7; 1-9; 1-11; 1-13 & 1-18. Yet Plaintiff spent years avoiding judicial review in this Court. See ECF No. 1; cf. Socop-Gonzalez , 272 F.3d at 1182 (Petitioner missed filing deadline by eight days); Lona v. Barr , 958 F.3d 1225, 1230-32 (9th Cir. 2020) (Courts may toll deadlines "because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error.") (quoting Iturribarria v. INS , 321 F.3d 889, 897 (9th Cir. 2003) ). Plaintiff failed to actively pursue her rights and thus did not act with due diligence.
Nor does Plaintiff's mistake of law as to the BIA's jurisdiction constitute an extraordinary circumstance. An "extraordinary circumstance" must be outside the litigant's control. Menominee Indian Tribe of Wisc. v. United States , 577 U.S. 250, 136 S. Ct. 750, 193 L.Ed.2d 652 (2016). Mistake of law alone is not an "extraordinary circumstance." See Weaver v. Alameida , 225 Fed. App'x 598, 599 (9th Cir. 2007) ; see also Torres v. County of Lyon , 3:07-CV-538-RAM, 2009 WL 905046, at *6, 2009 U.S. Dist. LEXIS 29394, at *20 (D. Nev. Mar. 31, 2009). And "ordinary attorney negligence will not justify equitable tolling." Spitsyn v. Moore , 345 F.3d 796, 800 (9th Cir. 2003). Plaintiff's attorney's conduct was not "sufficiently egregious" to constitute an extraordinary circumstance. See id. There is no assertion in the Complaint, for example, that Plaintiff's counsel entirely failed to communicate with her the developments and decisions in her case or that counsel failed to heed any of Plaintiff's requests. See id. ; ECF No. 1; see also Vega v. Salazar , No. CV 08-5086 VBF (FFM), 2009 U.S. Dist. LEXIS 124137 (C.D. Cal. Sept. 28, 2009) ; Iturribarria , 321 F.3d at 891 (reasoning that if an attorney acted fraudulently, petitioner may be entitled to equitable tolling).
The Court thus rejects Plaintiff's ineffective assistance of counsel argument and concludes that Plaintiff did not timely bring this action for judicial review. It thus grants the motion to dismiss. Because it dismisses on statute of limitation grounds, it need not consider whether the AAO's decision was arbitrary and capricious. That said, the Court determines that it is possible that Plaintiff could amend her Complaint to state a claim for entitlement to equitable tolling. The Court thus dismisses the Complaint with leave to amend within thirty days from the date of this Order.
Accordingly, IT IS HEREBY ORDERED :
1. The United States’ Motion to Dismiss, ECF No. 14 , is GRANTED .
2. The Court grants Plaintiff leave to file an AMENDED COMPLAINT by no later than thirty (30 days) from the date of this Order.
A. If Plaintiff fails to amend her Complaint within that time, the Court will dismiss this case with prejudice.
3. Robert M. Wilkinson has succeeded William Barr, as acting United States Attorney General; Alejandro Mayorkas has succeeded Chad Wolf as Secretary of the Department of Homeland Security; Tracy Renaud has succeeded Kenneth T. Cuccinelli as Senior Official Performing the Duties of the Director of the United States Citizenship and Immigration Services; and Connie Nolan has succeeded Tracy Renaud as Associate Director, Service Center Operations. Accordingly, this Court SUBSTITUTES Robert M. Wilkinson, Alejandro Mayorkas, Tracy Renaud, and Connie Nolan as Defendants in this matter under Fed. R. Civ. P. 25(d). The Clerk's Office is directed to AMEND the caption accordingly.