United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS (Re: Docket No. 10)
PAUL S. GREWAL, Magistrate Judge.
Plaintiff Raymundo Lujano-Arreguin is a noncitizen undergoing removal proceedings. Lujano filed this suit against Defendants Eric Holder, Attorney General of the United States,  United States Department of Homeland Security and United States Citizenship and Immigration Services by a petition for writ of habeas corpus. Lujano alleges that his placement in removal proceedings-in the absence of a determination on his eligibility for naturalization-was a violation of due process and an unlawful agency action under the Administrative Procedures Act.
Because Lujano is not detained or in custody, he cannot seek relief through a habeas petition and this court lacks subject-matter jurisdiction. Defendants' motion to dismiss is GRANTED with leave to amend.
Before bringing this federal action, Lujano filed a motion to terminate removal proceedings with the immigration court in order to pursue his pending naturalization application. DHS opposed the motion, arguing that the immigration judge has limited authority to grant termination where, as here, Lujano's eligibility for naturalization has not yet been established. In response, Lujano requested that the IJ issue an order compelling USCIS to address the merits of his eligibility for naturalization. The IJ denied both motions for lack of jurisdiction, on the grounds that USCIS has discretion over naturalization applications and that the IJ does not have the authority to compel USCIS to issue a statement on eligibility.
Although Lujano is aware that removal proceedings take precedence over pending naturalization applications and that USCIS has sole authority over naturalization applications,  he nevertheless brought this suit, as a petition for writ of habeas corpus. He asserts two causes of action: (1) Defendants violated his due process rights by declining to make a determination on his prima facie eligibility for naturalization prior to placing him in removal proceedings, and (2) such omission was unlawful under the APA.
The parties consented to magistrate judge jurisdiction under 28 U.S.C. § 636(c) and Fed.R.Civ.P. 72(a). Under Fed.R.Civ.P. 12(b)(1), a case must be dismissed when, considered in its entirety and on its face, the complaint fails to establish subject matter jurisdiction. The court's review is limited to the face of the complaint, materials incorporated into the complaint by reference and matters of which the court may take judicial notice. The plaintiff bears the burden of establishing subject matter jurisdiction. The court must accept all material allegations in the complaint as true and construe them in the light most favorable to the non-moving party. However, the court need not accept as true allegations that are conclusory, unwarranted deductions of fact or unreasonable inferences.
This court lacks subject matter jurisdiction because Lujano improperly filed this suit as a petition for writ of habeas corpus under 28 U.S.C. § 2241. He may not do so while he is neither detained nor in custody. Where the plaintiff is not subject to detention, the Ninth Circuit has held dismissal of a habeas petition proper. Further, the Supreme Court has emphasized that habeas jurisdiction is a limited remedy for individuals in custody challenging "severe restraints on individual liberty."
In Hensley, the plaintiff-though at large-was effectively in custody for purposes of habeas relief because he was not free to come and go, he had exhausted all judicial remedies to obtain a stay of his incarceration and the authorities had declared that they would seize him the moment the stay was removed. Here, Lujano does not face the same restraints or threats of restraint because he is not detained and the merits of his case have yet to be reviewed by the IJ at a removal hearing. While Lujano accurately states in his pleadings that habeas petitions may be used to "challeng[e] Executive interpretations of immigration law, " this challenge still must be brought by or on behalf of a detained alien.
Defendants' motion to dismiss is GRANTED. Dismissal with leave to amend is only appropriate if it is clear that the complaint could not be saved by amendment. Because the court is not yet persuaded that amendment would be futile, leave to ...