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De La Torre-Flores, et al v. Napolitano

July 25, 2012

DE LA TORRE-FLORES, ET AL.,
PLAINTIFF,
v.
NAPOLITANO, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Irma E. GONZALEZUnited States District Judge

ORDER GRANTING DEFENDANTS' MOTION TO JUDGMENT DISMISS OR FOR SUMMARY [Doc. No. 13]

Presently before the Court is Defendants'*fn1 Motion to Dismiss or for Summary Judgment. [Doc. No. 13.] For the reasons stated below, the Court GRANTS Defendants' motion to dismiss for both lack of subject matter jurisdiction and failure to state a claim, and GRANTS Defendants' motion for summary judgment. Accordingly, this case is DISMISSED WITH PREJUDICE.

BACKGROUND

I. Facts

This case is brought by Plaintiffs Juan De La Torre-Flores ("Torre-Flores"), a citizen and current resident of Mexico, and Servando De La Torre ("De La Torre"), a citizen of the United States and Torre-Flores's son. [See Doc. No. 1.] It arises out of the June 1998 expedited removal of Torre-Flores. [See, e.g., Doc. No. 1 at 6.]*fn2

Torre-Flores had been residing undocumented in the United States since 1989, when, in May 1998, he left to visit family in Mexico. [Id.] Attempting to return, on June 16, 1998, he applied for admission to the United States at the San Ysidro port of entry with "documentation not lawfully issued to him." [Id.] Having presented false documentation, he was subject to expedited removal proceedings, removed to Mexico on June 17, 1998, and barred from readmission for five years. [Id.] The next day, he reentered the United States without inspection. [Id.]

On May 11, 2007, Torre-Flores filed an application to adjust status and a request for a waiver of grounds of inadmissability resulting from his prior removal order. [Id. at 7.] On June 19, 2009, both were denied by the Department of Homeland Security, United States Citizenship and Immigration Services. [Id.] On March 24, 2010, Department of Homeland Security officials apprehended Torre-Flores, reinstated removal proceedings and removed him to Mexico, and instituted a twenty-year bar to his readmission. [Id.] Torre-Flores currently resides in Mexico and seeks to immigrate to the United States through a visa petition filed on his behalf by De La Torre [Id.]

II. Procedural History

On November 11, 2011, Plaintiffs (erroneously referring to themselves as "Petitioners") filed a Petition for Writ of Mandamus and Complaint for Declaratory and Injunctive Relief, which requested that the Court assume jurisdiction, declare that the Immigration and Naturalization Service erred in placing Torre-Flores in expedited removal proceedings, and mandate that immigration officials allow Torre-Flores to enter the United States as a lawful permanent resident. [Doc. No. 1.]

On November 30, 2011, the Court (treating the complaint as mislabeled, i.e., a petition) ordered Defendants (erroneously referred to as "Respondents" by Plaintiffs) to show cause why the petition should not be granted. [Doc. No. 3.] On December 23, 2011, Defendants filed a response to the Court's Order to Show Cause, contending that as an action for relief in the nature of mandamus, this action had to proceed as a complaint, not as a petition. [Doc. No. 4.] On January 25, 2012, the Court discharged its Order to Show Cause as improvidently issued. [Doc. No. 8.]

On February 27, 2012, Defendants answered the complaint, [Doc. No. 9.], and on April 20, 2012, the parties participated in an Early Neutral Evaluation before Magistrate Judge William Gallo, who ordered Defendants to file a motion for summary judgment. [See Doc. Nos. 11, 12.] On May 21, 2012, Defendants filed the present Motion to Dismiss or for Summary Judgment, [Doc. No. 13.], Plaintiffs filed an opposition on June 25, 2012, [Doc. No. 15], and Defendants filed a reply on July 6, 2012, [Doc. No. 17]. The Court heard oral argument from the parties on July 23, 2012. [See Doc. No. 18.]

DISCUSSION

Plaintiffs' complaint presents two questions:

1. Was Torre-Flores's June 1998 expedited removal order ...


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