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Francois v. United States

United States District Court, D. Arizona

February 3, 2017

Sabina Carol Francois, Plaintiff,
v.
United States of America, et al., Defendants.

          ORDER

          Bridget S. Bade United States Magistrate Judge

         On August 31, 2016, Plaintiff filed a Complaint asserting several claims based on events during immigration-related proceedings. (Doc. 1.) Plaintiff asserts a negligence claim under the Federal Tort Claims Act (FTCA) (Count One), and three claims under the Mandamus Act (Counts Two, Three, and Four). (Doc. 1 at 6-8.) Defendants, United States of America, Jeh Johnson, Secretary of Homeland Security, Leon Rodriguez, Director, U.S. Citizenship and Immigration Services (USCIS), and John Ramirez, Field Office Director, USCIS, Phoenix, Arizona, have filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 12.) After Defendants filed their motion, they substituted John F. Kelly for Jeh Johnson and Lori Scialabba for Leon Rodriguez. (Doc. 14 at 1 n.1 and n.2.) The motion to dismiss is fully briefed. (Docs. 12, 13, 14.) As set forth below, the Court grants the motion.

         I. Procedural History

         On September 26, 2013, Plaintiff filed an action in the District Court for the District of Arizona.[1] Francois v. Johnson, et al., No. CV- 13-01964-PHX-PGR) (the First Action). That complaint raised six causes of action alleging claims under the Administrative Procedure Act (APA), 5 U.S.C. § 706, the Declaratory Relief Act, 28 U.S.C. § 2201, and the Mandamus Act, 28 U.S.C. § 1361. (First Action, Doc. 1.) Specifically, Plaintiff alleged that she was entitled to relief because USCIS unlawfully revoked her first husband's I-130 petition and unlawfully denied Plaintiff's I-485 applications for adjustment of status. (Id.) Plaintiff sought an order compelling USCIS to register her status as a lawful permanent resident. (Id.) The Court dismissed the First Action on April 21, 2014 for lack of jurisdiction and failure to state a claim. (First Action, Doc. 29 at 12-13.) Plaintiff appealed the District Court's decision to the Ninth Circuit Court of Appeals. (First Action, Doc. 37.) On June 29, 2016, the Ninth Circuit affirmed the District Court's dismissal on jurisdictional grounds. (First Action, Doc. 39.)

         On September 6, 2016, Plaintiff filed the current action, which challenges the same government actions and seeks the same relief as the First Action, but alleges a negligence action under the FTCA, 28 U.S.C. §§ 1346(b), 2671-80, in place of the previously dismissed APA and declaratory relief claims. (Compare Doc. 1 with First Action, Doc. 1.)

         II. Background

         Plaintiff is a native and citizen of Trinidad and Tobago. (Doc. 1 at ¶ 10.) Plaintiff alleges that she lawfully entered the United States on August 12, 1983 as a B-2 nonimmigrant visitor. (Id. at ¶ 11.) In February 1992, Plaintiff married a United States citizen, Randolph Barclay. (Id. at ¶ 12.) In March 1993, Barclay filed a spousal visa petition (Form I-130) with the Immigration and Naturalization Service (INS).[2] (First Action, Doc. 1 at ¶ 14.) At the same time, Plaintiff filed an application to adjust her status to that of a lawful permanent resident (Form I-485) based on her marriage to Barclay. (Doc. 1 at ¶ 13.) When Plaintiff submitted her I-485 application for adjustment in March 1993, she was scheduled for an adjustment interview in June 1993. (Id. at ¶ 14.) In preparation for the June 1993 interview, INS prepared an approval notice bearing the stamped signature of the former District Director of INS's Phoenix office, Ruth Anne Meyers, which stated that Plaintiff's I-485 application was granted. (Id. at ¶ 19.) However, Plaintiff could not produce either her passport or Form I-94 evidencing her alleged August 12, 1983 entry because she claimed both documents were lost in October 1992. (Id. at ¶ 15.) Instead of the entry documents, Plaintiff attempted to establish that she had lawfully entered the United States on August 12, 1983, by submitting two affidavits - one from Plaintiff and one from another individual. (Id. at ¶¶ 16, 17.) INS determined that the affidavits were insufficient to prove Plaintiff's lawful entry. (Id. at ¶ 18.) INS advised Plaintiff that she should withdraw her Form I-485 and pursue lawful permanent resident status through consular processing. (Id.) On July 23, 1993, Plaintiff withdrew her Form I-485. (Id. at ¶ 21.)

         In July 1994, Barclay filed a second I-130, which INS approved in August 1994. (Id. at ¶ 28.) Plaintiff alleges that she and Barclay appeared for their interview at INS in December 1994. (Id. at ¶ 29.) However, in the First Action, Plaintiff alleged that the interview took place in May 1995. (First Action, Doc. 1 at ¶ 27.) In December 1994, Plaintiff filed a second I-485 application. (Id. at ¶ 26.) In January 2001, INS determined that Plaintiff's marriage to Barclay was not bona fide and revoked the Form I-130. (Doc. 1 at ¶ 30.) On July 16, 2001, INS denied Plaintiff's second I-485 application. (First Action, Doc. 1 at ¶ 33.) Plaintiff and Barclay later divorced. (Doc. 1 at ¶ 31.)

         In October 2006, Plaintiff filed a third Form I-485 based upon her marriage to United States citizen, James Voice. (Id. at ¶ 33.) Plaintiff alleges that on February 13, 2007, USCIS approved Plaintiff's Form I-485, but failed to attach her permanent resident card to the I-797 form. (Id. at ¶ 35.) In the First Action, Plaintiff alleged that USCIS denied her third I-485 on July 6, 2007. (Compare First Action Doc. 1 at ¶ 40 with Doc. 1 at ¶ 34.) In support of their motion to dismiss, Defendants submitted evidence that on July 6, 2007, Plaintiff was notified that her third I-485 had been denied. (Doc. 12, Ex. B (Decision on Adjustment of Status to Permanent Resident).)

         In July 2007, Plaintiff was placed in removal proceedings on the ground that she had overstayed her nonimmigrant visitor visa. (Doc. 1 at ¶ 36.) In February 2008, Plaintiff requested that USCIS provide her with evidence of her lawful permanent resident status, but USCIS employees refused to issue her a permanent resident card. (Id. at ¶ 39; Doc. 12, Ex. C.) Plaintiff alleges that in July 2009, she filed an Application for Naturalization (Form N-400), but USCIS refused to adjudicate the Form N-400 because Plaintiff could not produce a copy of her permanent resident card. (Id. at ¶ 40.) Plaintiff alleges that in June 2013, employees of USCIS and ICE acknowledged that the two affidavits Plaintiff submitted in 1993 evidenced her lawful entry into the United States on August 12, 1983. (Id. at ¶ 41.) Plaintiff alleges that her removal proceedings were administratively closed in October 2015. (Id. at ¶ 42.) However, on August 30, 2016, the Immigration Judge reopened Plaintiff's removal proceedings at her request. (Doc. 12, Ex. D.)

         III. Standards for Motions to Dismiss Under Rules 12(b)(1) and 12(b)(6)

         Rule 12(b)(1) “allows litigants to seek the dismissal of an action from federal court for lack of subject matter jurisdiction.” Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001). The court should address arguments raised under Rule 12(b)(1) before addressing other arguments for dismissal because if the complaint is dismissed for lack of subject matter jurisdiction, other defenses become moot. Kinlichee v. United States, 929 F.Supp.2d 951, 954 (D. Ariz. 2013) (citing Wright and Miller, Federal Practice and Procedure: Civil 2d § 1350, 209-10 (1990)). Furthermore, “[t]he party asserting jurisdiction has the burden of proving all jurisdictional facts.” Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). The court presumes lack of jurisdiction until the plaintiff proves otherwise. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989).

         In determining whether it has subject matter jurisdiction, a court is not limited to the allegations in the complaint. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Rather, the court may look beyond the complaint to extrinsic evidence, without converting the motion to dismiss to a motion for summary judgment, and it need not assume the truth of the complaint's allegations. Id. “With a 12(b)(1) motion, a court may weigh the evidence to determine whether it has jurisdiction.” Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005.) However, when the jurisdictional issue and substantive claims are so intertwined that resolution of the jurisdictional question is dependent on factual issues going to the merits, the district court should employ the standard for summary judgment. Id.

         Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim upon which relief can be granted. When a claim is challenged under this rule, the court construes the complaint liberally in the plaintiff's favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 & 570 (2007). The court presumes that all well-pleaded allegations are true, resolves all reasonable doubts and inferences in the plaintiff's favor, and views the complaint in the light most favorable to the plaintiff. Id. at 555. Although “detailed factual allegations” are not necessary to meet this pleading requirement, the plaintiff must, at a minimum, set forth factual allegations sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 570. To avoid dismissal, a plaintiff must plead facts sufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         IV. Plaintiff's Claims

         A. Negligence ...


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