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Otero v. Kelly

United States District Court, D. Arizona

July 18, 2017

Carmen Figueroa Otero and Alberto Otero, Plaintiffs,
John F. Kelly, Secretary for the Department of Homeland Security, et al., Defendants.



         Pending 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 filed.[1]

         I. Factual and Procedural Background

         On 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”).[2] Otero alleges she believed in good faith she was a U.S. citizen until approximately May 2013.

         In May 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.[3] 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.

         Otero requested the matter be reopened or reconsidered on October 16, 2015. Defendants denied Otero's request on December 18, 2015.

         Otero asserts Defendants then scheduled a re-interview of her for October 28, 2016.

         Otero asserts:

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).

         On 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.

         Pursuant to an agreement of the parties, the Court ordered the temporary restraining order be converted to a preliminary injunction on November 28, 2016.

         On 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.

         II. Request for Dismissal Based on Lack of Subject Matter Jurisdiction

         A 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).

         “[A] 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).

         A. Counts Three (Due Process and Equal Protection), Four (Declaratory Judgment Act), and Five (Mandamus)

         Defendants 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 ...

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