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Olivas v. Whitford

United States District Court, S.D. California

March 2, 2015

OSCAR OLIVAS, Plaintiff,
BILLY WHITFORD, Port Director of Calexico West Port of Entry, Customs and Border Protection; PETE FLORES, Director of Field Operations, San Diego Field Office, Customs and Border Protection; R. GIL KERLIKOWSKE, Commissioner of Customs and Border Protection; JEH JOHNSON, Secretary of Homeland Security; JOHN KERRY, Secretary of State, Defendants.


WILLIAM Q. HAYES, District Judge.

The matters before the Court are Defendants' Motion to Dismiss Complaint and Drop Parties (ECF No. 22) and Defendants' Supplemental Motion to Dismiss (ECF No. 48).


On June 12, 2014, Plaintiff Oscar Olivas initiated this action by filing the Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief against Defendants Pete Flores, Director of Field Operations for U.S. Customs and Border Protection's ("CBP") San Diego Field Office; Jeh Johnson, Secretary of Homeland Security; R. Gil Kerlikowske, Commissioner of CBP; John Kerry, U.S. Secretary of State; and Billy Whitford, Port Director of the Calexico West Port of Entry for CBP. (ECF No. 1).

On August 11, 2014, the Court issued an Order denying Defendants' request that the Petition for Writ of Habeas Corpus be dismissed for failure to name the proper respondent. (ECF No. 20). The Court found that the Petition for Writ of Habeas Corpus "adequately allege[d] a colorable claim of citizenship, and subject-matter jurisdiction exists in this Court." (ECF No. 20).

On August 12, 2014, Defendants filed the Motion to Dismiss Complaint and Drop Parties pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 21. (ECF No. 22).

On August 14, 2014, the Court issued an Amended Order referring the matter to the Magistrate Judge for expedited discovery. (ECF No. 23).

On November 5, 2014, Defendants filed the Supplemental Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), Federal Rule of Civil Procedure 12(b)(3), and Federal Rule of Civil Procedure 21. (ECF No. 48).


"[Plaintiff's] mother, Delia Perez ("Perez"), a Mexican national living in the United States, was unwed and without lawful immigration status in 1969." (ECF No. 1 ¶ 13). "[Plaintiff] was born in El Monte in Los Angeles County, California on August 10, 1969." Id. "Because of her immigration status in 1969, [Perez] was fearful of giving birth in a hospital...." Id. "[Plaintiff] was issued a delayed registration of birth' certificate on January 19, 1970, five months after his birth." Id.

In February of 2009, Plaintiff began applying for an immigrant visa for his wife, Claudia Hernandez ("Hernandez"), and step-son, both of whom are Mexican nationals. Id. ¶ 16. The process of obtaining such a visa for a Mexican national requires processing at the U.S. Consulate in Mexico. Id. On November 4, 2010, Hernandez went to the U.S. Consulate in Ciudad Juárez for an interview as a part of her immigrant visa application process. Id. ¶ 17. At the interview, Hernandez was told that a consular official would need to interview [Plaintiff's] mother, Ms. Perez. Id.

On December 17, 2010, Ms. Perez traveled to the U.S. Consulate in Ciudad Juárez, expecting to participate in a brief and non-adversarial interview. Instead, three officials escorted Ms. Perez to a room with a one-way glass window. A female official confronted Ms. Perez with [Plaintiff's] birth certificate and told her that she believed the birth certificate had been fraudulently obtained. Ms. Perez responded that [Plaintiff]... had been issued a delayed birth certificate because he had not been born in a hospital. The female official... threatened that Ms. Perez would lose her citizenship and... would be prosecuted for fraudulently obtaining a birth certificate unless Ms. Perez admitted that [Plaintiff] was born in Mexico. The female official told Ms. Perez that if she would agree to sign a declaration indicating that [Plaintiff] was born in Mexico, Ms. Perez would be permitted to keep her citizenship status and [Plaintiff] would be allowed to adjust the immigration status of his wife. Ms. Perez protested that she could not sign such a declaration because it would not reflect the truth....

Id. ¶ 18.

The consular officials detained Ms. Perez in the room without access to the outside world for around three hours. Ms. Perez reasonably felt desperate and intimidated. She did not know when the interview' would end and reasonably felt that the consular officials planned to detain her until she agreed to sign the declaration. Eventually, Ms. Perez succumbed to pressure and intimidation exerted by the officials and told them that she would sign whatever they wanted her to sign. An official presented her with a statement and instructed her to sign her name. It appears that the same Department of State officer who exacted the "confession" from Ms. Perez later used this statement to amend [Plaintiff's] birth certificate on record with the State of California, without providing him any notice or opportunity to object.

Id. ¶ 19.

In early 2011, Plaintiff moved to Los Angeles for work while his family stayed in Mexicali, waiting for a determination on Hernandez's immigrant visa application. Plaintiff traveled between the United States and Mexico almost every week, using his birth certificate, Social Security card, and California driver's license to enter the United States. Id. ¶ 21.

On August 22, 2011, Plaintiff attempted to return to the United States at the Calexico West Port of Entry. CBP officers detained Plaintiff overnight and questioned him about his birth certificate, California driver's license, and Social Security card. Plaintiff informed the officers that he is a U.S. citizen who was born and raised in the United States and had lived in the country for decades. Plaintiff explained that his mother had given a coerced confession at the U.S. Consulate in Ciudad Juárez. A CBP officer contacted Ms. Perez who confirmed Plaintiff's explanation of what had occurred at the consulate. The CBP officer told Plaintiff that he could see an Immigration Judge within a matter of hours or would have to wait "a month or two." Id. ¶ 22. Plaintiff told the officer that he would prefer to see a judge in a month because he would like some time to collect evidence of his citizenship. The officer assured Plaintiff that he would have a hearing on his citizenship claim soon. Plaintiff relied on the officer's assurance of a prompt hearing in deciding not to see an Immigration Judge that day. Id.

On August 23, 2011, CBP officers confiscated Plaintiff's birth certificate and Social Security card and removed him to Mexico. CBP officers gave Plaintiff a Notice to Appear which did not indicate a date or time for Plaintiff to appear for immigration proceedings. The officers instructed Plaintiff to call the immigration court system hotline to learn when his hearing would take place. Plaintiff diligently called the automated hotline twice a week for two years, but the response remained the same: either the case was not filed with the court or there is no match for the "Alien Number" that is listed on the Notice to Appear. Id. ¶ 23.

Plaintiff visited the Calexico West Port of Entry on several occasions, explaining that he is a U.S. citizen and asking when he would have his hearing in front of an Immigration Judge. Each time, a CBP officer told Plaintiff that "his hearing would be scheduled and all he could do is wait." Id. ¶ 24.

Through an immigration attorney, Plaintiff submitted an N-600 Application for Certificate of Citizenship. The immigration attorney incorrectly advised Plaintiff that he could receive a determination of his citizenship claim in an N-600 hearing. Plaintiff does not know whether the government ever reached a final disposition regarding his N-600 application. Plaintiff received notice that an interview on his N-600 application had been scheduled for March 6, 2013. Id. ¶¶ 27-28.

On February 8, 2013, Plaintiff sought parole at the Calexico West Port of Entry in order to attend the interview. CBP officers Lopez and Felix did not allow Plaintiff to enter the United States, preventing him from attending the interview. The officers informed Plaintiff for the first time that "a removal order had been internally' issued against him, but that he would not be provided a copy of the order or [] be allowed to view it." Id. ¶ 28.

Plaintiff last visited the Calexico West Port of Entry on or around February 26, 2013. Plaintiff explained that he is a U.S. citizen and asked CBP officers when he would have a hearing in front of a judge and how he could obtain a copy of any removal order issued against him. "CBP Officer Frank Hernandez told [Plaintiff] that if he returned to the Port of Entry, CBP officers would interpret his presence there as an attempt to gain admission" and that he "would be arrested, detained for a period of time that would not be brief, ' and removed without seeing a judge." Id. ¶ 29. "[Plaintiff] has never been permitted to view a copy of the purported order of removal that was allegedly entered against him." Id. ¶ 30. "[Plaintiff] has never been informed of any date, time, or place to appear for any hearing before an immigration judge." Id. "CBP Defendants have failed to refer [Plaintiff's] matter to an immigration judge as required by law." Id.

Although government officials have never allowed Plaintiff to view the purported removal order that was allegedly issued against him, CBP officers may have executed an "Expedited Removal" order against him. If so, that order violated regulations that mandate a claimed status review hearing ...

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