Otero v. Johnson et al

Filing 54

ORDER granting 38 Motion to Dismiss Second Amended Complaint. Counts Three, Four and Five are dismissed as moot, and therefore, for lack of subject matter jurisdiction. Count Six is dismissed for failure to state a claim upon which relief can be granted. Counts One and Two, based on the Administrative Procedure Act, remain pending in this action. Signed by Judge Cindy K Jorgenson on 7/18/2017.(BAR)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14

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

No. CIV 16-090-TUC-CKJ
ORDER

15

Pending before the Court is the Motion to Dismiss Second Amended Complaint (Doc.

16

38) filed by Defendants. A response (Doc. 40) and a reply (Doc. 48) have been filed.

17

Additionally, the Administrative Record (43 and 45) has been filed.1

18
19

I. Factual and Procedural Background

20

On February 16, 2016, Carmen Figueroa Otero (“Otero”) filed a Complaint for

21

Declaratory and Injunctive Relief against Jeh Johnson, Secretary for the Department of

22

Homeland Security, Leon Rodriguez, Director for the United States Citizenship and

23

Immigration Services (“CIS”), John Kramer (“Kramer”), District Court Director for the

24

Phoenix CIS, and Julie Hashimoto, Director for the Tucson Field Office of CIS (collectively,

25
26
27
28

1

A Motion for Discovery (Doc. 49), a Motion to Supplement Admin Record (Doc.
50), and a Motion for Extension of Time (Doc. 52) have also been filed. These are addressed
in a separate order.

1

“Defendants”).2 Otero alleges she believed in good faith she was a U.S. citizen until

2

approximately May 2013.

3

In May 2013, Otero used a United States passport to cross from Mexico into the

4

United States; shortly thereafter she learned she was not a United States citizen. After

5

learning that she was not a United States citizen, an I-130 was filed on Plaintiff’s behalf by

6

Alberto Otero (“A. Otero”), Otero’s United States citizen husband. CIS approved the I-130

7

which classified her as an “immediate relative” of a United States citizen.3 Otero also filed

8

an Application for Adjustment of Status (i.e., a Form I-485). CIS denied the I-485

9

application on September 28, 2015, stating it was denying the application because Otero had

10

not been "inspected and admitted or paroled into the United States" because she had used her

11

improperly-issued U.S. passport to gain entry into the country as a U.S. citizen in May 2013.

12

Second Amended Complaint (Doc. 34) (“SAC”), ¶ 15.

13
14
15
16
17
18
19
20
21

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

22
23
24
25
26
27

2

Pursuant to Fed.R.Civ.P. 25(d), John F. Kelly is substituted for Jeh Johnson and
Lori Scialabba is substituted for Leon Rodriquez in this matter. The Second Amended
Complaint named Al Gallman as a defendant rather than Kramer.
3

An "immediate relative" of a U.S. citizen is instantly "eligible to receive an
immigrant visa," as long as she can demonstrate she "was inspected and admitted or paroled
into the United States." See INA § 201(b), 8 U.S.C. § 1151(b); INA § 245(a), 8 U.S.C.
1255(a).

28
-2-

1
2
3

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).

4

On October 27, 2016, this Court granted Otero’s request for a temporary restraining

5

order (Docs. 29 and 31). On November 10, 2016, a Second Amended Complaint (Doc. 34)

6

was filed. Plaintiff A. Otero was added to the action in the Second Amended Complaint.

7

The Oteros again request preliminary and final injunctive relief and request this Court set

8

aside CIS’ flawed findings of fact and conclusions of law and order the matter remanded to

9

CIS for readjudication of Otero’s adjustment of status application consistent with the Court’s

10

findings and order. Alternatively, the Oteros request this Court to issue a judgment declaring

11

that Defendants violated Otero’s due process rights by failing to allow her to issue a brief in

12

opposition to Defendants’ motion to reopen her proceedings when such reopening may result

13

in an adverse decision against Otero. They further allege Defendants have had adequate

14

opportunity to develop the administrative record and request Defendants be enjoined from

15

conducting a subsequent interview of Otero. The Oteros also request the Court retain

16

jurisdiction during the adjudication of the adjustment of status application in order to ensure

17

compliance with the Court’s orders and award reasonable costs and attorneys’ fees.

18
19
20
21

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.

22
23

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

24

A district court must dismiss an action if it lacks jurisdiction over the subject matter

25

of the suit. Fed.R.Civ.P. 12(b)(1). A complaint will be dismissed under Rule 12(b)(1) if,

26

among other things, there is no “case or controversy” within the meaning of that

27

constitutional term. Baker v. Carr, 369 U.S. 186, 198 (1962). A party seeking to invoke

28

federal jurisdiction bears the burden of establishing that jurisdiction exists “for each claim
-3-

1

he seeks to press” and for “each form of relief sought.” Oregon v. Legal Servs. Corp., 552

2

F.3d 965, 969 (9th Cir. 2009) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352

3

(2006)). If jurisdiction is challenged at the pleading stage, “general factual allegations of

4

injury resulting from defendant's conduct may suffice because [courts] presume that general

5

allegations embrace those specific facts that are necessary to support the claim.” Id. (quoting

6

Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 (1990)) (internal quotation marks omitted);

7

Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009) (noting that when deciding a 12(b)(1)

8

motion courts “assume [plaintiff's] [factual] allegations to be true and draw all reasonable

9

inferences in his favor.”) (alterations in original).

10

“[A] Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional

11

allegations despite their formal sufficiency, and in so doing rely on affidavits or any other

12

evidence properly before the court.” St. Clair v. Chico, 880 F.2d 199, 201 (9th Cir.1989).

13

“With a [Rule] 12(b)(1) motion, a court may weigh the evidence to determine whether it has

14

jurisdiction.” Autery v. United States, 424 F.3d 944, 956 (9th Cir.2005). “When subject

15

matter jurisdiction is challenged under [Rule] 12(b)(1), the plaintiff has the burden of proving

16

jurisdiction in order to survive the motion.” Tosco Corp. v. Cmtys. for a Better Env't, 236

17

F.3d 495, 499 (9th Cir. 2001).

18
19

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

20
Defendants assert the Court lacks subject matter jurisdiction over the Oteros’ Fourth,
21
Fifth, and Sixth Counts of the SAC because they relate to CIS’s purported failure to allow
22
Otero to file a brief before reopening proceedings – Defendants assert these claims are moot.
23
The Oteros agree Counts Four and Five of the SAC are moot. The Court will grant the
24
Motion to Dismiss as to Counts Four and Five and dismiss these counts. Additionally, the
25
Oteros state Count Three is moot. The Court will also dismiss Count Three.
26
27
28
-4-

1

B. Count Six (Fifth Amendment Due Process)

2

Defendants also assert this claim is moot:

3

[T]he Court has already ruled in this matter that USCIS lacked the authority to reopen
proceedings on Plaintiff’s I-485 application after this lawsuit was filed. See Doc. 29
at ¶ 2 and Doc. 31 at 20. Since USCIS’s motion to reopen Plaintiff’s application was
not authorized, Plaintiff was not entitled to any process at all under 8 C.F.R. § 103.5,
and no due process violation could have occurred. As such, Count Six of Plaintiff’s
Second Amended Complaint is both moot and fails to state a claim. Similarly, since
the Court has determined that USCIS lacked the authority to reopen proceedings on
Plaintiff’s I-485 application after the lawsuit was filed, USCIS necessarily had no
duty to allow Plaintiff to file a brief, and therefore, no agency action can be compelled
under the Declaratory Judgment Act or the Mandamus Act.

4
5
6
7
8

Motion, pp. 5-6.
9
This Court’s jurisdiction is limited to actual cases and controversies. U.S. Const., art.
10
III, § 2. “To invoke the jurisdiction of a federal court, a litigant must have suffered, or be
11
threatened with, an actual injury traceable to the defendant and likely to be redressed by a
12
favorable judicial decision.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990). This
13
Court may not take action on a claim once it becomes moot. Liner v. Jafco, Inc., 375 U.S.
14
301, 306 n.3 (1964); Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 715 (9th Cir. 2011)
15
(court lacks jurisdiction to hear claims if a case is moot). An action is moot where issues are
16
no longer live or the parties lack a legally cognizable interest in the outcome. Murphy v.
17
Hunt, 455 U.S. 478, 481 (1982). See Am. Cargo Transp., Inc. v. United States, 625 F.3d
18
1176, 1179 (9th Cir. 2010) (a case becomes moot when “there is no reasonable expectation
19
that the alleged violation will recur” and “interim relief or events have completely and
20
irrevocably eradicated the effects of the alleged violation”). However, a case is not moot if
21
a court can provide any effective relief, even if it is not the precise relief originally sought.
22
Siskiyou Reg'l Educ. Project v. United States Forest Serv., 565 F.3d 545, 559 (9th Cir. 2009).
23
One exception to the mootness doctrine is where a party resisting mootness
24
demonstrates the challenged action is too short in duration to be fully litigated before it
25
ceases and there is a reasonable expectation that the party will be subjected to the same
26
action in the future. Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The Oteros argue the
27
transformation of the administrative adjustment of status proceedings into an adversarial
28
-5-

1

proceeding (including the possibility of a subsequent interview) is an actual injury already

2

suffered and likely to be suffered. Further, the Oteros allege the injuries can be redressed by

3

a favorable judicial decision and equitable remedy. The Court agrees with the Oteros that

4

this presents a live case and controversy and that the Oteros continue to have a “personal

5

stake in the outcome” of the claim. Lewis v. Continental Bank Corp., 494 U.S. 472, 477-478.

6

The Court will deny the Motion to Dismiss Count Six for lack of subject matter jurisdiction.

7
8

III. Request for Dismissal of Count Six (Fifth Amendment Due Process Clause) Based on
Failure to State a Claim

9
The United States Supreme Court has found that a plaintiff must allege “enough facts
10
to state a claim to relief that is plausible on its facts.” Bell Atlantic Corp. v. Twombly, 550
11
U.S. 544, 570 (2007). While a complaint need not plead “detailed factual allegations,” the
12
factual allegations it does include “must be enough to raise a right to relief above the
13
speculative level.” Id. at 555; see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)
14
("If there are two alternative explanations, one advanced by defendant and the other
15
advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to
16
dismiss[.]"). Indeed, Fed.R.Civ.P. 8(a)(2) requires a showing that a plaintiff is entitled to
17
relief “rather than a blanket assertion” of entitlement to relief. Id. at 555, n. 3. The
18
complaint “must contain something more . . . than . . . a statement of facts that merely creates
19
a suspicion [of] a legally cognizable right to action.” Id. at 1965.
20
In considering the Motion to Dismiss, the Court views the Complaint in light of
21
Twombly and must determine if the Oteros have “nudge[d] [their] claims across the line from
22
conceivable to plausible.” Id. at 570. The Court also considers that the Supreme Court has
23
cited Twombly for the traditional proposition that “[s]pecific facts are not necessary [for a
24
pleading that satisfies Rule 8(a)(2)]; the statement need only ‘give the defendant fair notice
25
of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardue, 551 U.S.
26
89, 93 (2007). Indeed, Twombly requires “a flexible ‘plausibility standard,’ which obliges
27
a pleader to amplify a claim with some factual allegations in those contexts where such
28
-6-

1

amplification is needed to render the claim plausible.” Iqbal v. Hasty, 490 F.3d 143, 157-58

2

(2nd Cir. 2007); see also Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009) (for a

3

complaint to survive a motion to dismiss, the non-conclusory “factual content,” and

4

reasonable inferences from that content, must be plausibly suggestive of a claim entitling the

5

plaintiff to relief). “A claim is facially plausible ‘when the plaintiff pleads factual content

6

that allows the court to draw the reasonable inference that the defendant is liable for the

7

misconduct alleged.’” Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting

8

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Threadbare recitals of the elements of a cause

9

of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

10

This Court must “accept as true facts alleged and draw inferences from them in the

11

light most favorable to the [Oteros].” Stacy v. Rederite Otto Danielsen, 609 F.3d 1033, 1035

12

(9th Cir. 2010). In general, a complaint is construed favorably to the pleader. See Scheuer

13

v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other

14

grounds, 457 U.S. 800. Nonetheless, the Court does not accept as true unreasonable

15

inferences or conclusory legal allegations cast in the form of factual allegations. Western

16

Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

17

In their Count Six of the SAC, the Oteros allege Defendants have violated Otero’s

18

Fifth Amendment rights to due process by the Defendants violating their own policies and

19

procedures, as set forth primarily in the CIS Adjudicator’s Field Manual (“AFM”), which

20

prohibits the agency from conducting adversarial administrative proceedings against Otero

21

and prohibits the agency from attempting to find a reason to deny her application. The

22

Oteros assert this conduct violates the principles of the Accardi doctrine. See United States

23

ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); see also Alcaraz v. INS, 384 F.3d 1150,

24

1162 (9th Cir. 2004).

25

“A procedural due process claim has two elements: deprivation of a constitutionally

26

protected liberty or property interest and denial of adequate procedural protection.” Krainski

27

v. Nevada ex rel. Bd. of Regents of Nevada Sys. of Higher Educ., 616 F.3d 963, 970 (9th Cir.

28

2010) (internal citation omitted). “A liberty interest may arise from the Constitution itself,
-7-

1

by reason of guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or

2

interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005)

3

(internal citations omitted). Protected property interests are normally not created by the

4

Constitution; rather, they are created and defined by independent sources such as state

5

statutes and rules entitling a citizen to certain benefits. Goss v. Lopez, 419 U.S. 565, 572-73

6

(1975) (citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)).

7

Defendants argue that, because Otero did not have an entitlement to an approved I-485

8

application, Otero did not have a liberty or property interest protected by the Constitution

9

and, therefore, cannot assert a due process claim. Indeed, Defendants point out that the

10

statute governing I-485 applications makes clear there is no absolute right to an adjustment

11

of status and that any adjustment is at the discretion of the Attorney General:

12
13
14
15

The status of an alien who was inspected and admitted or paroled into the United
States or the status of any other alien having an approved petition for classification
as a [Violence Against Women Act] self-petitioner may be adjusted by the Attorney
General, in his discretion and under such regulations as he may prescribe, to that of
an alien lawfully admitted for permanent residence if (1) the alien makes an
application for such adjustment, (2) the alien is eligible to receive an immigrant visa
and is admissible to the United States for permanent residence, and (3) an immigrant
visa is immediately available to him at the time his application is filed.

16
8 U.S.C. § 1255(a). Defendants distinguish this statute and Otero’s situation with the one
17
presented in Ching v. Mayorkas, 725 F.3d 1149, 1155 (9th Cir. 2013). In that case, the Ninth
18
Circuit determined that plaintiffs’ Fifth Amendment due process right had been violated by
19
the denial of I-130 visa petitions for an immigrant spouse of a United States citizen.
20
However, the statute at issue in Ching created a mandatory entitlement. Defendants assert
21
that, because Otero is seeking a discretionary adjustment of status, she does not have a
22
protected liberty or property interest. Defendants argue, therefore, the Oteros have failed to
23
state a claim upon which relief can be granted.
24
The Oteros assert, however, that the Accardi Doctrine requires agencies to follow their
25
own rules, even if those rules are self-imposed and limit what would otherwise be entirely
26
27
28
-8-

1

discretionary decision-making. Service v. Dulles, 354 U.S. 363, 372 (1957).4 The Oteros

2

assert that, because CIS had established regulations, practices and/or procedures that were

3

not followed with respect to Otero and because Otero was prejudiced by that lapse, they have

4

stated a claim for which relief can be granted.5 Indeed, in a different context, the Supreme

5

Court has recognized that a liberty interest may exist where there is some right or justifiable

6

expectation where an authority has created such a right or expectation. Cofone v. Manson,

7

594 F.2d 934, 938 (2d Cir. 1979) (quoting Montanye v. Haymes, 427 U.S. 236, 242 (1975)).

8

However, the Supreme Court has stated:

9
10
11
12

[T]here is no reason to exempt this case from the general principle that ‘(i)t is always
within the discretion of a court or an administrative agency to relax or modify its
procedural rules adopted for the orderly transaction of business before it when in a
given case the ends of justice require it. The action of either in such a case is not
reviewable except upon a showing of substantial prejudice to the complaining party.’
NLRB v. Monsanto Chemical Co., 8 Cir., 205 F.2d 763, 764. And see NLRB v. Grace
Co., 8 Cir., 184 F.2d 126, 129; Sun Oil Co. v. FPC, 5 Cir. 256 F.2d 233; McKenna v.
Seaton, 104 U.S.App.D.C. 50, 259 F.2d 780.

13
Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 (1970).
14
Additionally, the Ninth Circuit has stated:
15
16
17

The Accardi doctrine is not a constitutional one. [Citations omitted.] Because the
doctrine is not a constitutional one, we can overrule the Secretary only by exercising
our supervisory powers. [Footnote omitted.] We decline to exercise our supervisory
powers in this case for several reasons. First, it is not entirely clear that the
regulations have the meaning which Carnation attributes to them. The language does

18
19
20
21
22
23
24
25
26
27
28

4

The Oteros cite Nat’l Treasury Employees Union v. Horner, 854 F.2d 490, 497-98
(D.C. Cir. 1988), for the assertion that, in order to state a cause of action, a claimant must
show that the agency had established regulations, practices and/or procedures, that it failed
to adhere to those standards, and that the claimant was prejudiced by that failure. While the
Horner court did discuss those factors, it did not clearly state this sufficiently stated a claim
for which relief could be granted. Indeed, Horner does not discuss if these allegations are
the only essential allegations or if these allegations are needed in addition to those required
to state a claim for a procedural due process claim. The Oteros have not pointed to any
authority that states the essential allegations for a due process claim are not needed when a
plaintiff is making a claim pursuant to Accardi.
5

The Court notes that the parties have not addressed whether the AFM includes a
provision addressing whether it creates binding obligations. See e.g. Wilkinson v. Legal
Services Corp., 27 F. Supp. 2d 32 (D.D.C. 1998). However, as the Court accepts the Oteros’
allegations as true, the Court does not find this affects the plausibility of the Oteros’ claim.
-9-

1
2
3

not give a clear mandate; and logic suggests that they cannot mean what Carnation
says they mean [–] all violations must be located and cited or the suit is dismissed.
The second reason why we decline to exercise our supervisory powers is that the
deviation, if any, from the regulations was not prejudicial.4
4

11

Although there is little discussion of when the Accardi supervisory powers
should be invoked, courts have indicated that the standard is whether violation
of the regulation prejudiced the party involved. See United States v.
Hernandez-Rojas, 617 F.2d 533, 535 (9th Cir.), cert. denied, -- U.S. --, 101
S.Ct. 170, 66 L.Ed.2d 81 (1980) (INS' failure to follow regulations requiring
advising an arrested alien of his right to speak to his consul was not prejudicial
and thus not a ground for challenging the conviction); see also United States
v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 743 (1979) (held, due
process clause not implicated because appellants had not suffered substantially
as a result of reasonable reliance on agency regulations, and that even if a
case-by-case approach is used, this was not the case where the court should
have exercised its discretion to suppress evidence); see generally Note,
Violations by Agencies of Their Own Regulations, 87 Harv.L.Rev. 629, 634
(1974) (violations of procedural regulations should be upheld if there is no
significant possibility that the violation affected the ultimate outcome of the
agency's action). This seems like a reasonable approach and we adopt it here.

12

Carnation Co. v. Sec'y of Labor, 641 F.2d 801, 804 (9th Cir. 1981); see also Leslie v.

13

Attorney General of U.S., 611 F.3d 171 (3rd Cir. 2010) (absent a showing of prejudice, when

14

a violation of an immigration regulation does not implicate an alien’s fundamental rights, a

15

wholesale remand places an unwarranted and potentially unworkable burden on BIA).

4
5
6
7
8
9
10

16

Indeed, Defendants point out that Accardi only applies to agency procedures that are

17

intended to confer a substantive benefit on an individual. Bridges v. Wixon, 326 U.S. 135,

18

152-53 (1945). The Oteros’ response indicates the alleged prejudice is having been subjected

19

to an adversarial interview. The Oteros also assert:

22

The due process violation is also properly considered as an actual injury already
suffered, and an additional actual injury likely to be suffered, by Ms. Figueroa Otero,
which is traceable to Defendants and likely to be redressed by favorable judicial
decision and equitable remedy (e.g, agency remand with appropriate restrictions on
agency action). See Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990).

23

Response, p. 6. To the extent the Oteros are asserting as an injury the denial of an adjustment

24

of status, either past or future, the Court agrees with Defendants that the denial of the

25

adjustment of status is not actionable. In fact, the Oteros have not pointed to any authority

26

that a particular result (or lack thereof) provides a basis for a procedural due process claim.

27

Indeed, procedural due process is concerned with the process used to reach a result, not with

28

the ultimate result. Accardi, 347 U.S. at 267-68 (there is a right to the process, but no right

20
21

- 10 -

1

to a particular result); Ching, 725 F.3d at 1156.

2
3

The Oteros also assert Otero suffered an injury by the adversarial interview, which the
Oteros assert was outside of CIS procedures. However, Defendants assert:

4

7

Agency rules for processing applications that structure the manner in which the
agency applies substantive standards generally qualify as procedural rules. See James
v. Hurson Assocs. v. Glickman, 229 F.3d 277, 281 (D.C. Cir. 2000). Even if a
procedural rule confers an important procedural right on the regulated entity, the rule
is not enforceable against the agency unless the complaining party establishes
substantial prejudice. See PAM, S.p.A. v. United States, 463 F.3d 1345, 1348 (Fed.
Cir. 2006).

8

Reply, pp. 7-8. This appears to be consistent with Am. Farm Lines and the Ninth Circuit

9

discussion in Carnation Co. regarding the prejudice needed to warrant Accardi intervention

10

by the courts. In other words, the Court must determine whether the Oteros have alleged an

11

injury that constitutes substantial prejudice.

5
6

12

The Supreme Court has distinguished rules that are promulgated to provide an agency

13

necessary information to reach an informed decision as opposed to conferring important

14

procedural benefits to an individual. Montanye, 427 U.S. at 242. The injury at issue in this

15

case is based on a procedural rule that appears to have been promulgated to provide CIS with

16

necessary information to reach an informed decision. Indeed, the Oteros have cited to

17

portions of the AFM that indicate the interviews are to obtain information. AFM, Chapter

18

15.4(a) (“Interview proceedings are not to be adversarial in nature. The purpose of the

19

interview is to obtain the correct information in order to make the correct adjudication of the

20

case, not to prove a particular point or to find a reason to deny the benefit sought. The

21

purpose is to cover (and discover) all the pertinent information, both favorable and

22

unfavorable to the applicant.).” The Oteros have not provided any authority that such an

23

injury constitutes substantial prejudice. The Court finds a violation of this procedural rule,

24

which the Oteros allege resulted in Otero being subjected to an adversarial interview, does

25

not present prejudice warranting Accardi intervention. See e.g. Hernandez-Rojas, 617 F.2d

26

at 535.

27

Additionally, to any extent the Oteros are seeking to prohibit or limit a second

28

interview, the Court does not find this provides an actionable injury or prejudice. Rather, as
- 11 -

1

argued by Defendants, Defendants must determine if Otero satisfies the requirements for an

2

adjustment of status. The Court does not find it appropriate to limit the means in which

3

Defendants complete their task as long as Otero’s due process rights are not violated.

4

Further, the Court does not find there is any basis to conclude that a second interview would

5

not protect Otero’s due process rights. A second interview that complies with CIS

6

procedures that protect Otero’s due process rights does not warrant intervention by the Court.

7
8

Accordingly, IT IS ORDERED:

9

1.

The Motion to Dismiss Second Amended Complaint (Doc. 38) is GRANTED.

10

2.

Counts Three, Four and Five are DISMISSED as moot and, therefore, for lack

11

of subject matter jurisdiction.

12

3.

13

granted.

14

4.

15
16

Count Six is DISMISSED for failure to state a claim upon which relief can be

Counts One and Two, based on the Administrative Procedure Act, remain

pending in this action.
DATED this 18th day of July, 2017.

17
18
19
20
21
22
23
24
25
26
27
28
- 12 -