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Gomez v. McAleenan

United States District Court, N.D. California

November 5, 2019

KEVIN MCALEENAN, et al., Defendants.




         Plaintiff Olimpia Gomez is a national of Mexico who has lived in the United States since 1990. Her severely disabled son, who was twenty years old when this action was filed, is a United States citizen. On April 15, 2019, Gomez filed an application seeking cancellation of removal under 8 U.S.C. § 1229b(b) on the basis that her removal from the United States would result in “exceptional and extremely unusual hardship” to her son, who is unable to care for himself. Complaint ¶ 5. In a decision dated May 28, 2019, an immigration judge found that Gomez was “statutorily eligible” for such relief when the application was filed but reserved decision because the yearly cap that has been placed on visas for those eligible for relief under § 1229b had been reached and there were no visas available. Complaint, Ex. 2 (May 28, 2019 Order of the Immigration Judge); see also 8 U.S.C. § 1229b(e)(1) (placing cap of 4, 000 visas per fiscal year for individuals granted cancellation of removal under Section 1229b); 8 C.F.R. § 1240.21(c)(1). The immigration judge placed Gomez in the “queue” for applicants who qualify for cancellation of removal but for whom visa numbers are not available due to the visa cap. Complaint ¶ 1.

         Gomez filed an emergency complaint seeking mandamus and declaratory relief. In it, she asked the Court to hold that Defendants' refusal to issue a visa number is arbitrary and capricious, violates her right to due process under the U.S. Constitution and is contrary to law and applicable regulations. Complaint ¶ 3. She relied on her son's upcoming birthday, when he would turn twenty-one and therefore “age out” as a qualifying relative, to demonstrate exigent circumstances. Id. ¶ 2. That date has now passed, however. She alleges that the wait time for a visa to become available through the queue is about eighteen months, and that in the past immigration judges commonly secured visa numbers in cases involving exigent circumstances, such as where a qualifying relative was about to age out, so that these individuals did not need to wait until their names reached the top of the queue. Id. ¶ 9. However, under Operating Policies and Procedures Memorandum 17-04, issued on December 20, 2017 (“OPMM 17-04”), immigration judges are no longer permitted to request the issuance of visas, even in exigent circumstances. Id.

         Presently before the Court is Defendants' Motion to Dismiss (“Motion”), in which Defendants contend the Court should dismiss this action, in its entirety, on the grounds that: 1) this Court does not have jurisdiction over Gomez's complaint; 2) Gomez failed to exhaust her administrative remedies; and 3) Gomez fails to state a claim because she has no legal right to be granted discretionary relief from removal. The Court finds that the Motion is suitable for determination without oral argument and therefore vacates the hearing set for November 8, 2019 at 9:30 a.m. pursuant to Civil Local Rule 7-1(b).


         Under 8 U.S.C. § 1229b(b), the Attorney General may cancel the removal and adjust the status of an alien who is inadmissible or deportable if the alien meets four criteria: 1) she has been physically present in the United States for a continuous period of ten years preceding the application; 2) she has been a person of good moral character during such period; 3) she has not been convicted of certain offenses; and 4) she establishes that removal would result in “exceptional and extremely unusual hardship” to the alien's United States citizen spouse, parent or child. For the purposes of this provision, an individual must be under twenty-one years of age to be considered a “child.” 8 U.S.C. § 1101(b)(1). The relief that is available under § 1229b is limited, however, under subsection (e), which provides, with limited exceptions that do not apply here, that “the Attorney General may not cancel the removal and adjust the status under this section, nor suspend the deportation and adjust the status under section 1254(a) of this title (as in effect before September 30, 1996), of a total of more than 4, 000 aliens in any fiscal year.” 8 U.S.C. § 1229b(e)(1).

         The Department of Justice, Executive Office for Immigration Review (“EOIR”) promulgates regulations implementing the cap established by 8 U.S.C. § 1229b(e)(1). As of January 4, 2018, those regulations provide that when the cap has been reached, “further decisions to grant such relief must be reserved until such time as a grant becomes available under the annual limitation in a subsequent fiscal year.” 8 C.F.R. § 1240.21(c)(1). Further, the Immigration Court and the Board may “no longer issue conditional grants of suspension of deportation or cancellation of removal.” 8 C.F.R. § 1240.21(a)(2). The regulations further state that the availability of relief under 8 U.S.C. § 1229b is determined “according to the date the order granting such relief becomes final.” 8 C.F.R. § 1240.21(c). Thus, the regulations establish a “queue” for the 4, 000 visas that are issued each year.


         A. Contentions of the Parties

         In the Motion, Defendants argue that there is no subject matter jurisdiction over Gomez's claims because, pursuant to 8 U.S.C. § 1252(a)(5), exclusive jurisdiction over her claims lies with the Court of Appeals. Motion at 5 (quoting 8 U.S.C. §1252(a)(5) (“a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, ”)). According to Defendants, the exclusive jurisdiction of the Court of Appeals encompasses “all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States . . . .” Id. at 5-6 (quoting 8 U.S.C. § 1252(b)(9)). Based on §§ 1252(a)(5) and 1252(b)(9), Defendants assert, the Ninth Circuit has found that “any issue- whether legal or factual-arising from any removal-related activity can be reviewed only through the [petition for review] process.” Id. at 6 (quoting J..E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016) (emphasis in original)).

         In her Opposition brief, Gomez argues that 8 U.S.C. § 1252(a)(5) does not apply because it covers only final removal orders and here, no removal order has been issued as to Gomez. Opposition at 2. She does not address the implications of 8 U.S.C. § 1252(b)(9). She further asserts that the Court has jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1361 (giving district courts jurisdiction over mandamus actions), 5 U.S.C. § 702 (the Administrative Procedures Act) and 28 U.S.C. § 2201 (creating jurisdiction over claims for declaratory relief). Id. at 2. She also argues that “the court has jurisdiction under Bark v. INS, 511 U.S. F.2d 1200, 1201 (9th Cir. 1975); Bangura v. Hansen, 434 F.3d 487, 493 (6th Cir. 2006); Lutwak v. United States, 344 U.S. 604, 733 S.Ct. 481, 97 L.Ed. 593 (1953).” Id. at 3.

         1. Legal Standards Under Rule 12(b)(1)

         Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, “federal courts have a continuing independent obligation to determine whether subject-matter jurisdiction exists” over a given claim. Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 975 (9th Cir. 2012) (internal quotation marks and citations omitted). Rule 12(b)(1) allows defendants to move to dismiss a claim for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). On a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), it is the ...

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