United States District Court, E.D. California
ORDER RE: DEFENDANTS' MOTION TO DISMISS FOR LACK
OF SUBJECT MATTER JURISDICTION
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE
Plaintiffs
Cecilia Corona Salud (“Corona”) and her husband,
Peter Johnson (collectively, “Plaintiffs”),
brought this action against the United States Department of
Homeland Security (“DHS”), the Department of
Justice (“DOJ”), Immigration and Customs
Enforcement (“ICE”), and various governmental
officials associated with those agencies (collectively
“defendants”) following Cecilia's deportation
from the United States on June 5, 2019. (Compl. ¶¶
7-17, 24 (Docket No. 1).) Plaintiffs seek (1) an order
compelling defendants to return Corona to the United States
to complete her I-130 application process and (2) a
preliminary and permanent injunction barring her deportation
while her application is pending. (Compl. at 11-12.) Before
this court is defendants' motion to dismiss under both
Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction and Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim. (Mot. to Dismiss
(Docket No. 5).) Plaintiff has filed no opposition to the
motion.
I.
Facts
Corona
is a Mexican national. (DHS Documents at 8 (Docket No. 5-1).)
Corona entered the United States on a valid visa in 1980 at
the age of twelve. (Compl. ¶ 18.) She became a lawful
permanent resident on May 31, 1990. (DHS Documents at 4.) On
September 16, 1996, Corona was convicted of possession for
sale of a controlled substance in violation of California
Health and Safety Code § 11351.5. (Id.) In
October 1996, the Immigration Judge (“IJ”)
terminated deportation proceedings. (Id. at 7.) The
government appealed the termination to the Board of
Immigration Appeals (“BIA”), and the BIA remanded
the case to the IJ in 2002. (Id. at 5.) The IJ
ordered Corona removed in 2005, pretermitting her application
for relief under 8 U.S.C. § 212(c).[1] (Id. at
2.) The BIA affirmed the Immigration Judge's order of
removal in 2007. (Id. at 20.) Corona filed a
petition for review of the BIA's decision with the Ninth
Circuit in 2010. The Ninth Circuit dismissed the petition in
part and denied the petition in part, allowing the BIA's
determination to stand. Corona Duarte v. Holder, No.
07-71327, 373 Fed.Appx. 675 (9th Cir. Apr. 1, 2010). With
that dismissal, Corona's order of removal became final,
and Corona's attempt to reopen the order was denied in
March 2019. (Mot. at 3.)
Corona
married United States citizen Peter Johnson in 2016. (Compl.
¶ 20.) Johnson filed an I-130[2] visa petition on her behalf,
and it was approved on August 22, 2018. (Id.) During
the application process, Corona was required to “check
in” with ICE every few weeks. (Id. ¶ 23.)
On June 4, 2019, plaintiffs appeared at the Sacramento office
of the United States Citizenship and Immigration Services to
“check in, ” and Corona was taken into custody
and shortly thereafter deported. (Id. ¶ 24.)
Plaintiffs allege Corona was denied an opportunity to
complete the I-130 process and challenge the execution of the
BIA's removal order on three grounds: (1) denial of
procedural United States. 8 U.S.C. § 1182(c). Congress
repealed Section 212(c) effective April 1, 1997. However, the
Supreme Court decided in 2001 that the repeal does not apply
to lawful due process under the Fifth Amendment, (2) denial
of a full and fair hearing under the Immigration and
Nationality Act (“INA”) and the Administrative
Procedure Act (“APA”), and (3) removal was
“arbitrary and capricious” in violation of the
APA.
II.
Jurisdiction
Federal
courts are courts of limited jurisdiction. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
“Without jurisdiction the court cannot proceed at all
in any cause. Jurisdiction is power to declare the law, and
when it ceases to exist, the only function remaining to the
court is that of announcing the fact and dismissing the
cause.” Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 94 (1998) (citing Ex parte
McCardle, 7 Wall. 506, 514 (1868)). Plaintiffs bear the
burden of establishing jurisdiction. Kokkonen, 511
U.S. at 377 (citing McNutt v. General Motors Acceptance
Corp., 298 U.S. 178, 182-83 (1936)).
Plaintiffs
invoke this court's jurisdiction under 28 U.S.C.
§§ 1331, [3] 1361, [4] and 1651[5] to challenge the execution of
Corona's removal order. (Compl. at 2.) Yet Section
1252(g) of the INA explicitly strips courts of jurisdiction
over any “cause or claim” that “aris[es]
from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal
orders against any alien, ” including claims brought
under §§ 1361 and 1651.[6] 8 U.S.C. § 1252(g).
The
jurisdiction-stripping provision only applies to the
“limited subset of deportation claims” specified
by the statute's plain language. Reno v.
American-Arab Anti-Discrimination Committee, 525 U.S.
471, 483 (1999). Plaintiffs' challenge to Corona's
removal “aris[es] from” the decision to
“execute [her] removal order” and comfortably
fits within the statute's terms. 8 U.S.C. § 1252(g).
Accordingly, this court lacks jurisdiction and must dismiss
the action.
IT IS
THEREFORE ORDERED that defendants' motion to dismiss for
lack of subject matter jurisdiction (Docket No. 5) be, and
thereby is, GRANTED. Plaintiffs' complaint (Docket No. 1)
is DISMISSED. The Clerk of Court shall enter final judgment
in favor of all defendants.
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Notes:
[1] Section 212 of the Immigration and
Nationality Act of 1952 permitted the Attorney General broad
discretion to admit otherwise excludable aliens (including
those convicted of offenses involving moral turpitude or drug
trafficking) into the permanent residents who pleaded guilty
to a crime before April 1, 1997. I.N.S. v. St. Cyr,
533 U.S. 289, 325 (2001).
[2] An I-130 petition permits a citizen of
the United States to sponsor an eligible relative's
immigration to the United States. Filing or approving the
petition does not give the relative any status in the United
States, but instead allows the relative to apply to become a
lawful permanent resident. I-130, Petition for Alien
...