Corona Ayala v. United States Citizenship and Immigration Services et al

Filing 16

ORDER ON DEFENDANTS' MOTION TO DISMISS FOR LACK OF JURISDICTION PURSUANT TO F.R.C.P. 12(B)(6), signed by District Judge Anthony W. Ishii on 10/19/2016. (Kusamura, W)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE EASTERN DISTRICT OF CALIFORNIA

8
9

VERONICA CORONA AYALA,
Plaintiff,

10
11

vs.

12
13

1:16-cv-0798 AWI BAM

UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, et al.,

ORDER ON DEFENDANTS’ MOTION
TO DISMISS FOR LACK OF
JURISDICTION PURSUANT TO F.R.C.P.
12(B)(6)
Doc. # 10

14
Defendants.

15
16
17

This is an action for declaratory relief in which plaintiff Veronica Corona Ayala

18
19
20
21
22
23
24
25
26
27
28

(“Plaintiff”) petitions for de novo review of the denial by defendants United States Citizenship
and Immigration Services, et al. of her Application for Naturalization Services, et al.
(“Defendants”) and Request for Hearing pursuant to 8 U.S.C. §1421(c). Currently before the
court is Defendants motion titled “Motion to Dismiss for Lack of Jurisdiction” (Plaintiff’s
“Motion”) which apparently seeks dismissal pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Notwithstanding any confusion that might arise because of the title of
Defendant’s Motion, the court has federal subject matter jurisdiction pursuant to 28 U.S.C. §
1331 to determine its jurisdiction over the merits of the case. Venue is proper in this court.
//
//

A

1
FACTUAL BACKGROUND

2

Plaintiff is a citizen of Mexico and a permanent legal resident of the United States and

3
4
5
6

has resided in the United States continuously for more than 23 years. Defendants agree that the
facts pertaining to this action are as alleged in the complaint. However, those facts are presented
most succinctly by Defendants in their Motion, which the court quotes here in pertinent part.
[Plaintiff] obtained her LPR [Legal Permanent Resident] status as the
result of a family filed by her then-LPR father. ECF. No.1 ¶ 2.
Specifically, Plaintiff’s father filed an I-130 visa petition on behalf of his
spouse, Margarita Corona Ayala, who in turn listed Veronica Corona
Ayala as her child, thereby making her eligible for derivative
classification. ECF No.1 at ¶ 23.

7
8
9
10

After filing the petition, Plaintiff’s father was convicted of possession of
heroin for sale and placed into removal proceedings. ECF No.1 at ¶ 24.
An immigration judge found Plaintiff’s father removable, and though he
appealed the decision, the appeal was dismissed for abandonment. ECF
No, 1-4 pg. 2. Plaintiff’s father’s removal order became final in 2000, and
his LPR status terminated at that same time. ECF No. 1-4, pg. 2.

11
12
13

Two years later, in 2002, [Plaintiff] applied for and received LPR status.
ECF No. 1 at ¶ 25. This grant of LPR status was erroneous, because the
father’s petition on behalf of the mother was automatically revoked prior
to [Plaintiff’s] application. ECF No. 1-4 pg. 2. 8 C.F.R. §
205.1(a)(3)(i)(J). USCIS recognized the error in 2004 and issued a Notice
of Intent to Rescind. ECF. No. 1-4 pg. 2. [Plaintiff] received USCIS’s
Notice of Intent to Rescind. ECF No. 1-4 pg. 3. However, USCIS failed
to follow the regulatory requirement that the matter be referred to
immigration court for a hearing. ECF No. 1-4, pg. 2; 8 C.F.R. § 246.3.
The five year statutory window for rescinding [Plaintiff’s] LPR status has
now passed. 8 C.F.R. § 1256(a). [Plaintiff] remains a lawful permanent
resident. ECF No. ¶ 28.

14
15
16
17
18
19
20

Doc. # 10 at 3:21-4:14. Defendants assert that Plaintiff’s LPR status is not challenged by this or

21

any other proceeding.

22

JURISDICTION

23

As Defendants point out, this court has authority to conduct a de novo review of an

24

application for naturalization that has been denied by an immigration officer after hearing as

25

follows:

26

c) Judicial review: A person whose application for naturalization under
this subchapter is denied, after a hearing before an immigration officer
under section 1447(a) of this Title, may seek review of such denial before
the United States district court for the district in which such person resides
in accordance with chapter 7 of title 5. Such review shall be de novo, and

27
28

-2A

1
2

the court shall make its own findings of fact and conclusions of law and
shall, at the request of the petitioner, conduct a hearing de novo on the
application.

3

8 U.S.C.A. § 1421 (West).

4

The title of the motion currently before the court – Motion to Dismiss for Lack of

5

Jurisdiction – is normally a signal to the court that the motion is authorized by Rule 12(b)(1) of

6

the Federal Rules of Civil Procedure. The title of Defendant’s motion is, however, a reference to

7

their substantive argument that the court may not grant the requested relief of a hearing de novo

8

on Plaintiff’s naturalization application because Plaintiff cannot meet the statutory burden to

9

show that she was lawfully admitted for permanent residence in the United States. Since

10

Defendant’s argument is substantive in nature and since Defendants have recognized the

11

jurisdiction of this court, the court finds it has federal subject matter jurisdiction and Defendant’s

12

motion to dismiss is authorized by F.R.C.P. 12(b)(6).

13

LEGAL STANDARD

14

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

15

can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient

16

facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530,

17

533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint

18

must set forth factual allegations sufficient “to raise a right to relief above the speculative level.”

19

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Twombly”). While a court

20

considering a motion to dismiss must accept as true the allegations of the complaint in question,

21

Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the

22

pleading in the light most favorable to the party opposing the motion, and resolve factual

23

disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S.

24

869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 (“a

25

plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than

26

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

27

do”). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure “does not

28
-3A

1
2
3

require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (“Iqbal”).
The Ninth Circuit follows the methodological approach set forth in Iqbal for the

4
5

assessment of a plaintiff’s complaint:
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth. While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations. When there are wellpleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.”

6
7
8
9
10
11

Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at
1950).

12
DISCUSSION

13

While Defendants have acknowledged that this court has jurisdiction over Plaintiff’s

14
15
16
17
18
19
20
21
22
23
24
25

action, it bears noting that the cases reviewing decisions regarding citizenship status are granted
jurisdiction by statute under limited and specific circumstances. As has been observed, “the
power to make someone a citizen of the United States has not been conferred upon the federal
courts, like mandamus or injunction, as one of their generally applicable equitable powers.”
I.N.S. v. Pangilian, 486 U.S. 875, 883-884 (1988). As Defendants in this action have
emphasized. “[a]n alien who seeks political rights as a member of this Nation can rightfully
obtain them only upon terms and conditions specified by Congress. Courts are without authority
to sanction changes or modifications . . . .” United States v. Ginsberg, 243 U.S. 472, 425 (1917).
“Or, as we have more recently said: ‘“Once it has been determined that a person does not qualify
for citizenship, . . . the district court has no discretion to ignore the defect and grant citizenship.’”
[Citation.].” Pangilinan, 486 U.S. at 884.
Defendants summarize their argument as follows:

26

[Plaintiff] cannot demonstrate statutory eligibility for naturalization
because she was not lawfully admitted for permanent residence. The
requirement of lawful admission is a substantive requirement that is
freshly evaluated when an applicant applies for naturalization. It is not

27
28

-4A

1

dispositive that [Plaintiff] was (erroneously) granted LPR status by USCIS
in the past. She bears the burden of proving each of the statutory
requirements for naturalization now, including the requirement that she
was “lawfully admitted.” 8 U.S.C. §§ 147, 1429. In this case, she cannot
meet that burden because there was no visa available to her at the time she
applied for LPR status. The visa petition filed on her behalf was
rescinded when her father’s order of removal became final, two years
before the date of her LPR application.

2
3
4
5
6

Doc. # 10 at 5:15-25.
Thus argued, the pivotal contention in Defendants’ argument is clear: was Plaintiff

7
8
9
10
11
12
13
14
15

lawfully admitted into the United States when she applied for, and was granted LPR status in
2002? Stated another way, what was the legal effect of USCIS’s grant of LPR status and its
subsequent failure to rescind the grant on the legality of Plaintiff’s residence in the United
States? The court begins its analysis by noting that “there is a presumption that public officers
perform their duties correctly, fairly, in good faith, and in accordance with the law and
governing regulations.... [Citations]. And this presumption stands unless there is ‘irrefutable
proof to the contrary.” [Citation]. Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir.
1993) (internal citations and quotation marks omitted).
Generally, matters of legal status – matters such as marriage, peace officer status or

16
17
18
19
20
21
22
23
24
25
26

citizenship – are legal constructs that become facts because the authority vested with the
statutory power to establish the status does so. To say that a status, such as marriage or
citizenship, has a substantive component is to beg the question of who has the legal authority to
declare the substantive requirements fulfilled and who has authority to declare that a requirement
is not fulfilled. To illustrate, a couple is married in a particular state because an individual
vested to declare them married does so according to law. Subsequently, the status of marriage
that was established in the first instance by a person authorized to do so can only be undone by
legally sanctioned due process. There is no authority that can declare the couple not married
based on some alleged mistake in the conferring of that status unless a proceeding sanctioned by
law is employed.
As the court understands Defendants’ argument, at the time of the events at issue in this

27
28

action USCIS had the sole authority to declare Plaintiff’s citizenship or LPR status in the first

-5A

1
2
3
4
5
6
7
8
9

instance. By extension of the foregoing reasoning USCIS, having declared Plaintiff a Legal
Permanent Resident, could not reverse its own determination without legally sanctioned due
process; a fact Defendants admit by alleging that USCIS provided Plaintiff with a notice of
Intent to Rescind LPR status. The fact that the document Plaintiff received announced an intent
to rescind, is evidence of Defendants’ recognition that LPR status was granted in the first
instance and the grant could only be undone through established due process; in this case the
hearing required by 8 C.F.R. § 246.3. Defendants admit that the “five-year statutory window for
rescinding [Plaintiff’s] LPR status has now passed.” Doc. # 10 at 4:13-14.
To advance their argument that there exists a “substantive” requirement for legal

10
11
12
13
14
15
16
17
18
19
20
21
22
23

permanent residence that is separate and apart from the designation of LPR status by USCIS,
Defendants rely on In re Koloamatangi, 23 I. & N. Dec. 548 (2003). In re Koloamatangi is a
decision by the Board of Immigration Appeals holding that the five-year limitations period to
rescind LPR status did not render the appellant non-deportable where the original grant of LPR
status was the result of a fraudulent misrepresentation. Although, Defendants correctly observe
that Koloamatangi and cases that have relied upon it have involved instances of grants of LPR
status by means of fraud, Defendants rely the case for the more general proposition that LPR
status may be considered to not have conferred legal permanent resident status where there was
an “error” in the granting of the status in the first instance. Defendants cite this sentence from
Koloamatangi as establishing that proposition: “‘The term “lawfully admitted for permanent
residence” does not apply to aliens who had obtained their permanent residence by fraud, or had
otherwise not been entitled to it.’” Doc. # 10 at 6:20-22 (quoting Koloamatangi, 23 I. & N. at
550) (emphasis supplied by Defendants).
Defendants contend that the phrase “or had otherwise not been entitled to it” expands the

24
25
26
27
28

holding in Koloamatangi to cases involving grants of LPR status as a result of mere error.
Defendants contend, based on the decision in Koloamatangi that both in the case of an erroneous
grant of LPR status and in the case of grant of LPR status by fraud, the grant of LPR status is
void ab initio. See Doc. # 10 at 8:11-15 (an alien is determined never to have obtained LPR

-6A

1
2
3
4
5
6
7
8
9
10

status once his original ineligibility is determined in subsequent proceedings”). Defendants have
provided no authority for the application of Koloamatangi to errors by immigration authorities
not involving fraud. The court recognizes that authority on this issue is sparse, however in at
least one case the Ninth Circuit has clearly held that the reasoning found in Koloamatangi
cannot be applied outside the context of fraud. See Cardenas-Mendoza v. Holder, 320 F. App'x
525, 527 (9th Cir. 2009), as amended on denial of reh'g (June 3, 2009) (“BIA's reliance on
Matter of Koloamatangi, 23 I. & N. Dec. 548 (BIA 2003), was misplaced [in this case], as there
is no basis in the record for finding that Cardenas-Mendoza obtained his permanent resident
status through fraud or misrepresentation”).
Based on the authority and arguments presented by Defendants in their motion to

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

dismiss, the court finds that Defendants have failed to show that Plaintiff did not become a legal
permanent resident when she was granted LPR status by Defendants in 2002. In doing so, the
court gives full force and effect to the actions of USCIS who had sole initial authority to grant
that status and who declined to rescind what had been granted in accordance with required due
process within the time specified by statute. The court notes that fraud, which normally and in
this particular circumstance would toll any statute of limitations, is not present in this case. The
court further finds that equitable doctrines such as waiver or estoppel are not at issue in this case.
In holding that Plaintiff cannot meet the requirement for naturalization that she was lawfully
admitted for permanent residence, Defendants have simply failed to accord to USCIS the
presumption of its authority to grant LPR status in the first instance. The court finds Defendants
have failed to overcome the legally mandated presumption that when USCIS granted Plaintiff
LPR status in the first instance and then declined, either purposefully or erroneously, to pursue
the legally required process for rescinding the status that had been granted, they acted within
their lawful authority. The court concludes that Defendants have failed to provide persuasive
authority for the proposition that, absent a fraudulent application, the grant by USCIS of LPR
status is not by itself conclusive of the question of the “legality” of a person’s permanent
residence in the United States for all purposes. Simply put, this court concludes that USCIS’s

-7A

1
2
3
4
5

grant of LPR status to Plaintiff establishes the legal “fact” of her lawful status as a permanent
resident. Having failed to rescind Plaintiff’s legal status within the statutory time period, and
there being no basis for tolling of the statutory period, Defendants and this court must give effect
to that initial grant.1 Defendants’ motion to dismiss will therefore be denied.

6
THEREFORE, for the reasons discussed above, Defendants’ motion to dismiss is hereby

7
8
9
10

DENIED.
IT IS SO ORDERED.
Dated: October 19, 2016
SENIOR DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
1

27
28

The court understands that it has reached this conclusion by way of reasoned analogy and not by
means of reference to authoritative case law. The court is therefore mindful that Defendants may
reasonably wish to seek appellate review before this action proceeds to its conclusion in this court. The
court will therefore give consideration to any motion for interlocutory appeal.

-8A