United States District Court, D. Arizona
K. JORGENSON UNITED STATE DISTRICT JUDGE.
before the Court is the Motion to Dismiss Second Amended
Complaint (Doc. 38) filed by Defendants. A response (Doc. 40)
and a reply (Doc. 48) have been filed. Additionally, the
Administrative Record (43 and 45) has been
Factual and Procedural Background
February 16, 2016, Carmen Figueroa Otero
(“Otero”) filed a Complaint for Declaratory and
Injunctive Relief against Jeh Johnson, Secretary for the
Department of Homeland Security, Leon Rodriguez, Director for
the United States Citizenship and Immigration Services
(“CIS”), John Kramer (“Kramer”),
District Court Director for the Phoenix CIS, and Julie
Hashimoto, Director for the Tucson Field Office of CIS
(collectively, “Defendants”). Otero alleges she
believed in good faith she was a U.S. citizen until
approximately May 2013.
2013, Otero used a United States passport to cross from
Mexico into the United States; shortly thereafter she learned
she was not a United States citizen. After learning that she
was not a United States citizen, an I-130 was filed on
Plaintiff's behalf by Alberto Otero (“A.
Otero”), Otero's United States citizen husband. CIS
approved the I-130 which classified her as an
“immediate relative” of a United States
citizen. Otero also filed an Application for
Adjustment of Status (i.e., a Form I-485). CIS denied the
I-485 application on September 28, 2015, stating it was
denying the application because Otero had not been
"inspected and admitted or paroled into the United
States" because she had used her improperly-issued U.S.
passport to gain entry into the country as a U.S. citizen in
May 2013. Second Amended Complaint (Doc. 34)
(“SAC”), ¶ 15.
requested the matter be reopened or reconsidered on October
16, 2015. Defendants denied Otero's request on December
asserts Defendants then scheduled a re-interview of her for
October 28, 2016.
Subjecting Ms. Figueroa Otero to another interview on the
subject of whether she made a knowing false claim to
citizenship would transform questioning into interrogation,
and would change the nature of the administrative proceedings
from non-adversarial to adversarial, which is prohibited.
See, e.g., USCIS Adjudicator's Field Manual
(“AFM”), Chapter 15.1(a) (2014)
(“Interviews conducted by adjudication officers are
non-adversarial in nature, as opposed to a court proceeding
involving two attorneys where each advocates a particular
position.”); see also id., Chapter 15.4(a)
(“Interview proceedings are not to be adversarial in
nature. The purpose of the interview is to obtain the correct
information in order to make the correct adjudication of the
case, not to prove a particular point or to find a reason to
deny the benefit sought. The purpose is to cover (and
discover) all the pertinent information, both favorable and
unfavorable to the applicant.).”
SAC, ¶ 81 (emphasis removed).
October 27, 2016, this Court granted Otero's request for
a temporary restraining order (Docs. 29 and 31). On November
10, 2016, a Second Amended Complaint (Doc. 34) was filed.
Plaintiff A. Otero was added to the action in the Second
Amended Complaint. The Oteros again request preliminary and
final injunctive relief and request this Court set aside
CIS' flawed findings of fact and conclusions of law and
order the matter remanded to CIS for readjudication of
Otero's adjustment of status application consistent with
the Court's findings and order. Alternatively, the Oteros
request this Court to issue a judgment declaring that
Defendants violated Otero's due process rights by failing
to allow her to issue a brief in opposition to
Defendants' motion to reopen her proceedings when such
reopening may result in an adverse decision against Otero.
They further allege Defendants have had adequate opportunity
to develop the administrative record and request Defendants
be enjoined from conducting a subsequent interview of Otero.
The Oteros also request the Court retain jurisdiction during
the adjudication of the adjustment of status application in
order to ensure compliance with the Court's orders and
award reasonable costs and attorneys' fees.
to an agreement of the parties, the Court ordered the
temporary restraining order be converted to a preliminary
injunction on November 28, 2016.
December 28, 2016, Defendants filed a Motion to Dismiss
Second Amended Complaint (Doc. 38). A response (Doc. 40) and
a reply (Doc. 48) have been filed.
Request for Dismissal Based on Lack of Subject Matter
district court must dismiss an action if it lacks
jurisdiction over the subject matter of the suit.
Fed.R.Civ.P. 12(b)(1). A complaint will be dismissed under
Rule 12(b)(1) if, among other things, there is no “case
or controversy” within the meaning of that
constitutional term. Baker v. Carr, 369 U.S. 186,
198 (1962). A party seeking to invoke federal jurisdiction
bears the burden of establishing that jurisdiction exists
“for each claim he seeks to press” and for
“each form of relief sought.” Oregon v. Legal
Servs. Corp., 552 F.3d 965, 969 (9th Cir. 2009) (quoting
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352
(2006)). If jurisdiction is challenged at the pleading stage,
“general factual allegations of injury resulting from
defendant's conduct may suffice because [courts] presume
that general allegations embrace those specific facts that
are necessary to support the claim.” Id.
(quoting Lujan v. Nat'l Wildlife Fed'n, 497
U.S. 871, 889 (1990)) (internal quotation marks omitted);
Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009)
(noting that when deciding a 12(b)(1) motion courts
“assume [plaintiff's] [factual] allegations to be
true and draw all reasonable inferences in his favor.”)
(alterations in original).
Rule 12(b)(1) motion can attack the substance of a
complaint's jurisdictional allegations despite their
formal sufficiency, and in so doing rely on affidavits or any
other evidence properly before the court.” St.
Clair v. Chico, 880 F.2d 199, 201 (9th Cir.1989).
“With a [Rule] 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). “When subject matter jurisdiction is
challenged under [Rule] 12(b)(1), the plaintiff has the
burden of proving jurisdiction in order to survive the
motion.” Tosco Corp. v. Cmtys. for a Better
Env't, 236 F.3d 495, 499 (9th Cir. 2001).
Counts Three (Due Process and Equal Protection), Four
(Declaratory Judgment Act), and Five (Mandamus)
assert the Court lacks subject matter jurisdiction over the
Oteros' Fourth, Fifth, and Sixth Counts of the SAC
because they relate to CIS's purported failure to allow
Otero to file a brief before reopening proceedings -
Defendants assert these claims are moot. The Oteros agree
Counts Four and Five of the SAC are moot. The Court will
grant the Motion to Dismiss as to Counts Four and Five and