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Pocasangre v. Kelly

United States District Court, N.D. California

July 14, 2017

RONY B PENA POCASANGRE, [1]Plaintiff,
v.
JOHN F. KELLY, et al., Defendants.

          ORDER RE: DEFENDANTS' MOTION TO DISMISS RE: DKT. NO. 16

          JACQUELINE SCOTT CORLEY United States Magistrate Judge

         Plaintiff filed this declaratory judgment action seeking an order compelling the Department of Homeland Security to grant his employment authorization and to enact regulations regarding removal proceedings for unaccompanied undocumented minors detained at the border. Now pending before the Court is Defendants' Motion to Dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim upon which relief can be granted under Rule 12(b)(6). (Dkt. No. 16.) After carefully considering the papers submitted by the parties and having had the benefit of oral argument on June 29, 2017, the Court GRANTS Defendants' Motion to Dismiss.[2] As Defendants have granted Plaintiff employment authorization through January 2019, his claim seeking that he be granted such authorization is now moot. Plaintiff also lacks standing to seek an order requiring Defendants to adopt regulations governing unaccompanied minors.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff is a citizen of El Salvador who illegally entered the United States when he was 15 years old. (Complaint ¶ 3, Dkt. No. 1.) Shortly thereafter, on February 4, 2014, Plaintiff was detained by the Department of Homeland Security (“DHS”) who instituted removal proceedings against him. (Id.; Dkt. No. 1-1 (Notice to Appear Instituting Removal Proceedings).[3]) He was released from custody three weeks later. (Dkt. No. 1-1 at 4.) On October 22, 2015, Plaintiff applied for asylum as an unaccompanied minor under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Public Law 110-457, 122 Stat. 5044 (principally codified in relevant part at 8 U.S.C. § 1232) (December 23, 2008) (“TVPRA”).[4] (Complaint ¶ 9.) On March 22, 2016, an asylum officer determined that Plaintiff was ineligible for asylum, but did not deny his application. (Complaint ¶ 10; Dkt. No. 1-3.) Plaintiff's removal proceedings remain pending and he may seek administrative review of his asylum application by an Immigration Judge. (Id.)

         8 C.F.R. § 274a.12(c)(8) makes an asylum applicant eligible to request employment authorization from the United States Citizenship and Immigration Services (“USCIS”) at least 150 days after filing an asylum application, as long as the individual's asylum application remains pending. (Complaint ¶ 11.) The USCIS must issue an employment authorization no earlier than 180 days after the individual has filed an asylum application. (Id.)

         Upon learning of his ineligibility for asylum on March 22, 2016, Plaintiff received a notice regarding employment authorization. (Dkt. No. 16 at 11.)[5] The USCIS explained that the earliest possible date Plaintiff would be eligible to apply for employment authorization was March 20, 2016. (Id.) On October 7, 2016, 351 days after filing his asylum application, Plaintiff applied for employment authorization pursuant to 8 C.F.R. § 274a.12(c)(8). (Complaint ¶ 15; Dkt. No. 1-5.) On November 1, 2016, the USCIS denied Plaintiff's employment authorization application upon finding that zero days had elapsed since he had filed his asylum application, less than the required 150 days, thus making him ineligible. (Complaint ¶ 16; Dkt. No. 1-6; Dkt. No. 16 at 12.) Two months later, on January 11, 2016, the USCIS granted Plaintiff employment authorization through January 10, 2019. (Dkt. No. 17 at 7; Dkt. No. 16-1.)[6]

         On December 2, 2016, before the USCIS granted Plaintiff employment authorization, Plaintiff filed this civil action seeking declaratory and injunctive relief against Defendants Jeh Johnson, the Secretary of Homeland Security, and Loretta E. Lynch, the Attorney General of the United States.[7] The Complaint seeks relief (1) declaring that Plaintiff was unlawfully denied an employment authorization pursuant to 8 C.F.R. §§ 274a.12(c)(8) and 208.7, (2) enjoining Defendants to adjudicate Plaintiff's employment authorization, (3) declaring that Defendants violated the TVPRA, 8 U.S.C. § 1232(d)(8), by failing to promulgate regulations taking into account the specialized needs of unaccompanied minors, and (4) enjoining Defendants to promulgate such regulations. (Dkt. No. 1.)

         Defendants have moved to dismiss the action for lack of subject matter jurisdiction and failure to state a claim. (Dkt. No. 16.)

         LEGAL STANDARD

         Under Federal Rule of Civil Procedure 12(b)(1), a district court must dismiss an action if it lacks jurisdiction over the subject matter of the suit. See Fed. R. Civ. P. 12(b)(1). “Subject matter jurisdiction can never be forfeited or waived and federal courts have a continuing independent obligation to determine whether subject-matter jurisdiction exists.” Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 975 n.12 (9th Cir. 2012) (internal quotation marks and citations omitted). Where, as here, a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), “the plaintiff has the burden of proving jurisdiction in order to survive the motion.” Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1197 (9th Cir. 2008) (internal quotation marks and citations omitted). In evaluating a facial attack to jurisdiction, the court accepts the factual allegations in the complaint as true. See Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 2001).

         Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief may be granted based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). For purposes of evaluating a motion to dismiss, the court “must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         DISCUSSION

         Plaintiff seeks injunctive and declaratory relief on the basis of two claims: (1) that Defendants violated 8 C.F.R. §§ 274a.12(c)(8) and 208.7 by initially denying Plaintiff's employment authorization on November 1, 2016 (the employment authorization claim), and (2) that Defendants violated 8 U.S.C. § 1232(d)(8) by failing to promulgate regulations regarding the removal of unaccompanied minors (the TVPRA claim). Defendants contend that the Court lacks subject matter jurisdiction to hear Plaintiff's claims due to mootness and a lack of standing. Alternatively, Defendants argue that Plaintiff fails to state a claim upon which relief can be granted with regard to the TVPRA regulations.

         I. PLAINTIFF'S CLAIMS LACK A PROPER ...


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