Free Reply to Response to Motion - District Court of California - California

Case 3:08-cv-00501-DMS-POR

Document 14

Filed 08/28/2008

Page 1 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

KAREN P. HEWITT United States Attorney CAROLINE J. CLARK Assistant U.S. Attorney California State Bar No. 220000 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Email: [email protected] Telephone: (619) 557-7491 Facsimile: (619) 557-5004 Attorneys for Defendants UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA DELFINA GIL DE CARREON, ENRIQUE) EVELIO CARREON, ) ) Plaintiffs, ) v. ) ) MICHAEL B. MUKASEY, Attorney General) of the United States; MICHAEL CHERTOFF,) Secretary, Department of Homeland Security) (DHS); and EMILIO T. GONZALEZ, Director,) United States Citizenship and Immigration) Services. ) Defendants. ) _____________________________________ ) Case No. 08cv0501 DMS (POR) REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS DATE: September 5, 2008 TIME: 1:30 p.m. CTRM: 10 Honorable Dana M. Sabraw (No Oral Argument Requested)

I. INTRODUCTION Plaintiffs oppose Defendants' motion to dismiss and assert that this Court has jurisdiction to review the Defendants' decision to deny Plaintiff Delfina Gil de Carreon's application for a waiver of inadmissibility. Defendants maintain that the Complaint should be dismissed for lack of subject matter jurisdiction, improper venue and failure to state a claim upon which relief may be granted. /// /// /// /// ///

Case 3:08-cv-00501-DMS-POR

Document 14

Filed 08/28/2008

Page 2 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A.

II. ARGUMENT JUDICIAL REVIEW OF THE WAIVER IS BARRED In their opposition to Defendants' motion, Plaintiffs failed to establish that the there is a provision which vests and have therefore failed meet their burden of establishing that the Court has subject matter jurisdiction over their Complaint. See Ass'n of Am. Med. Coll. v. United States, 217 F.3d 770, 778-79 (9th Cir. 2000). The Court should dismiss the Complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). 1. The Administrative Procedures Act Does Not Vest this Court with Jurisdiction Plaintiffs argue that this Court has jurisdiction under the Administrative Procedures Act (APA) because the decision of the Defendants was "not otherwise in accordance with the law" and because a person suffering a legal wrong due to agency action is entitled to judicial review. See Plaintiffs' Memorandum of Points and Authorities in Support of Opposition to Defendants Motion to Dismiss (Opposition) at 2. Plaintiffs fail to address how their Complaint overcomes the inapplicability of the APA when "statutes preclude judicial review," 5 U.S.C. § 701(a)(1), and when agency decisions are "committed to agency discretion," 5 U.S.C. § 701(a)(2). Plaintiffs' reliance on Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006), is misplaced because it involved judicial review of a question of law in a removal order which was permitted pursuant to 8 U.S.C. § 1252(a)(2)(D). Thus, a statutory provision allowed judicial review of "questions of law" in removal orders through petitions for review filed in the applicable court of appeals and is therefore Afridi is inapposite to this case. Id. at 1218 ("The plain language of the REAL ID Act grants jurisdiction to appellate courts to review questions of law presented in petitions for review of questions of law presented in petitions for review of final orders of removal, even those pertaining to otherwise discretionary determinations."); 8 U.S.C. § 1252(a)(2)(D). Here, there has been no removal order that would implicate 8 U.S.C. § 1252(a)(2)(D) to permit judicial review of a question of law through a petition for review in an appropriate court of appeals. The statute at issue in this case provides that the waiver of inadmissibility is the "sole discretion" of Defendants and that "no court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause." /// 2

08cv0501

Case 3:08-cv-00501-DMS-POR

Document 14

Filed 08/28/2008

Page 3 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

8 U.S.C. § 1182(a)(9)(B)(v). The APA is inapplicable when there is such a statutory bar, see 5 U.S.C. § 701(a)(1), over a decision committed to agency discretion, see 5 U.S.C. § 701(a)(2). 2. The Federal Question Statute Does Not Vest this Court with Jurisdiction

Plaintiffs have failed to addresse how jurisdiction exists under the Federal Question statute, 28 U.S.C. § 1331, when Defendants' decision to grant or deny the waiver of inadmissibility is wholly discretionary and there is a statutory bar to judicial review. See 8 U.S.C. § 1182(a)(9)(B)(v). Review of agency action under 28 U.S.C. § 1331 is prevented when a claim is patently without merit and when a statute specifically precludes judicial review. See Saleh v. Ridge, 367 F. Supp. 2d 508, 511 (S.D.N.Y. 2005); Califano v. Sanders, 430 U.S. 99, 105 (1977) ("The obvious effect of this modification, subject only to preclusion-of-review statutes created or retained by Congress, is to confer jurisdiction on federal courts to review agency actions"). 3. The Declaratory Judgment Act Does Not Vest this Court with Jurisdiction

Plaintiffs' have not opposed Defendants' argument that the Declaratory Judgment Act (DJA), 28 U.S.C. § 2201, does not vest the Court with jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950); Janakes v. U.S. Postal Service, 768 F.2d 1091, 1093 (9th Cir. 1985) (the use of the DJA "does not confer jurisdiction by itself if jurisdiction would not exist on the face of a well-pleaded complaint brought without the use of 28 U.S.C. § 2201."). 4. Doctrine of Consular Nonreviewability Prevents Judicial Review

Plaintiffs cite to Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008), in support of their contention that the doctrine of consular nonreviewability does not apply here and that this Court has subject matter jurisdiction over the Complaint. In fact, Bustamante supports the contention that the doctrine of consular nonreviewability does apply to Plaintiffs' situation and that their Complaint is not subject to judicial review. In Bustamante, the district court, relying on Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970 (9th Cir. 1986), dismissed the complaint because the decisions of consular officers to grant or deny visas are not subject to judicial review. Bustamante, 531 F.3d at 1061. The Ninth Circuit affirmed the decision of the district court finding that it could consider the Consulate's explanation for the denial of the visa application pursuant to the limited inquiry authorized by Kleindienst v. Mandel, 408 U.S. 753 (1972). In Mandel, the Court declined to review a decision of the 3

08cv0501

Case 3:08-cv-00501-DMS-POR

Document 14

Filed 08/28/2008

Page 4 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

former Immigration and Naturalization Service (INS) to deny a consular recommendation for a waiver of inadmissibility. Id. at 769-70. Plaintiffs, who were U.S. citizens that were to hear the visa applicant speak, alleged First Amendment violations. Id. at 762. The Court found that "plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established...when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant." Id. at 769-70. Here, Plaintiffs have not made a colorable constitutional claim. See Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001) (finding that petitioner's assertion that the government erred in its finding that he did not meet the requirement of "extreme hardship" was nothing more than an argument that the government abused its discretion). Plaintiffs have not alleged that Defendants reason for denying Plaintiff Delfina Gil de Carreon's waiver of inadmissibility was not facially valid or bona fide. In fact they assert that Defendants found that she "failed to meet the hardship standard for her requested waiver of inadmissiblity" noting that "8 U.S.C. § 1182(a)(9)(B)(v) allows for a waiver of inadmissibility. . .if the alien can prove removal would result in extreme hardship to the qualifying United States citizen spouse." See Complaint at ¶ 8 and n.3. Plaintiffs also allege that "the AAO determined that Plaintiffs had simply not met the standard of hardship necessary to differentiate their case from the hardships typically suffered by aliens and citizen-spouses." Id. at ¶ 10. Even if the Court were to allow Plaintiffs to amend their Complaint, the limited inquiry allowed in Mandel would still result in the Complaint failing. It is statutorily mandated that a decision on a 8 U.S.C. § 1182(a)(9)(v) waiver is in the "sole discretion" of Defendants and can be granted "if it is established to the satisfaction" of the Defendants that denial of admission would result in extreme hardship to a qualifying relative. See 8 U.S.C. § 1182(a)(9)(v). Defendants decided that Plaintiff had not established the requisite extreme hardship and thus based the denial of the waiver on a facially legitimate and bona fide reason. See Complaint at ¶¶ 8, 10. The doctrine of consular non-reviewability does apply to Plaintiffs' situation and Plaintiffs' Complaint fails to be entitled to judicial review. /// 4

08cv0501

Case 3:08-cv-00501-DMS-POR

Document 14

Filed 08/28/2008

Page 5 of 7

1 2 3 4 5 6 7

B.

PLAINTIFFS' RELIANCE ON 8 U.S.C. § 1252 IS MISPLACED Plaintiffs allege that 8 U.S.C. § 1252(a)(2)(D) serves to overcome the explicit bar to judicial

review provided for in 8 U.S.C. § 1182(a)(9)(B)(v). See Opposition at 5. This conclusion is incorrect. Under the title "judicial review of orders of removal," 8 U.S.C. § 1252(a)(2)(D) provides: Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court fo appeals in accordance with this section. (emphasis added)

8 The statute further provides that the petition for review must be filed not later than 30 days after the date 9 of the final order of removal and with the court of appeals for the judicial circuit in which the 10 immigration judge completed the proceedings. See 8 U.S.C. § 1252(b)(1) and b(2). Plaintiffs are 11 challenging the denial of a discretionary waiver of inadmissibility, not a final order of removal. Had 12 Congress intended there to be judicial review of a decision regarding this waiver it would have made 13 such a provision and not included the explicit bar to judicial review that currently exists in 14 8 U.S.C. § 1182(a)(9)(B)(v). 15 C. 16 Plaintiffs' assert that Plaintiff Enrique Carreon has standing because he is the qualifying relative 17 for Plaintiff Delfina Gil de Carreon's application for a waiver of inadmissibility. See Opposition at 8. 18 Plaintiffs contend that the "extreme hardship" that Plaintiff Delfina Gil de Carreon alleged in her 19 application for a waiver is the cognizable injury Plaintiff Enrique Carreon would suffer which provides 20 him with standing in the instant matter. Id. 21 The Ninth Circuit declined to decide the issue of whether a United States citizen brother and 22 lawful permanent resident mother of a visa applicant had standing to challenge the Immigration and 23 Naturalization Service's denial of a waiver of excludability which would allow their relative to receive 24 a visa. Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981). In Wong, the district court dismissed the case 25 finding that the brother and mother lacked standing and the Ninth Circuit affirmed the dismissal, 26 although on other grounds. Id. at 361 ("Because resolution of this issue would require this court to 27 formulate important new law, inapplicable to plaintiffs on the facts of this case, we chose an alternative 28 method of disposition."). 5
08cv0501

PLAINTIFF ENRIQUE CARREON LACKS STANDING AND VENUE IS IMPROPER

Case 3:08-cv-00501-DMS-POR

Document 14

Filed 08/28/2008

Page 6 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In another case, United States citizen petitioners were found to lack standing for attempting to assert rights not afforded to them by the Immigration and Nationality Act. See Saavedra Bruno v. Albright, 197 F.3d 1153, 1164 (D.C. Cir. 1999) (finding that petitioners' cognizable interest terminated when their petition was granted even thought the beneficiary's visa was subsequently denied by consular officials). Similarly, Plaintiff Enrique Carreon's cognizable interest terminated when the petition for alien relative that he filed on behalf of Plaintiff Delfina Gil de Carreon was approved. See Complaint at ¶ 6. Although her waiver of inadmissibility was later denied, Plaintiff Enrique Carreon's interest was satisfied, he has not been aggrieved within the meaning of the relevant statute and he has no right to judicial review. See Saavedra Bruno, 197 F.3d at 1164. If the Court finds that Plaintiff Enrique Carreon lacks standing in this matter, the Southern District of California is not the proper venue for this Complaint and it should be dismissed under Fed. R. Civ. P. 12(b)(3). See 28 U.S.C. § 1391(e). D. ATTORNEY GENERAL MICHAEL MUKASEY IS IMPROPERLY NAMED DEFENDANT Plaintiffs do not oppose the dismissal of Attorney General Michael Mukasey as a defendant and he should therefore be dismissed. E. PLAINTIFFS FAIL TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED To survive a motion to dismiss for failure to state a claim, a complaint must contain factual allegations which are "enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true." See Bell Atlantic Corp. v. Twombly, 550 U.S. ----, 127 S.Ct. 1955, 1965 (2007). Plaintiffs have failed to state a claim upon which relief may be granted. Plaintiffs have failed to allege that Defendants reason for denying the waiver was not facially valid or bona fide and therefore the limited inquiry described in Mandel is inapplicable. Even if the Court were to allow Plaintiffs to amend their complaint and include such allegations, Defendants' reason for denying the waiver was facially valid as it was for Plaintiff's failure to establish the requisite extreme hardship. Thus the inquiry would still result in Plaintiffs having failed to state a claim. See Bustamante, 531 F.3d at 1063 ("[u]nder Mandel's limited inquiry. . .[plaintiff's claim] fails to state a claim upon which can be granted."). Accordingly, the Court should dismiss the Complaint for failure to state a claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6). 6

08cv0501

Case 3:08-cv-00501-DMS-POR

Document 14

Filed 08/28/2008

Page 7 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

III. CONCLUSION For the foregoing reasons, Defendants respectfully ask the Court to dismiss the Complaint for lack of subject matter jurisdiction, improper venue, failure to state a claim upon which relief may be granted, or any combination thereof. DATED: August 28, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney s/Caroline J. Clark ___________________ CAROLINE J. CLARK Assistant U.S. Attorney Attorneys for Defendants E-mail: [email protected]

7

08cv0501