Alcaraz et al v. Napolitano et al

Filing 13

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS; VACATING HEARING. The complaint is dismissed for lack of subject matter jurisdiction. Signed by Judge Maxine M. Chesney on October 25, 2011. (mmclc1, COURT STAFF) (Filed on 10/25/2011)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 BERNAVE ALCARAZ, et al., No. C-11-3716 MMC For the Northern District of California United States District Court 10 Plaintiffs, 11 12 13 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; VACATING HEARING v. JANET NAPOLITANO, et al., Defendants. / 14 15 Before the Court is the Motion to Dismiss, filed September 27, 2011 by defendants 16 Janet Napolitano, Hillary Clinton, Alan Bersin, John Morton, and Eric Holder. Plaintiffs 17 Bernave Alcaraz, Maria Alcaraz, E.V.A., C.A., and S.A. have filed opposition, to which 18 defendants have replied. Having read and considered the papers filed in support and in 19 opposition to the motion, the Court deems the matter suitable for decision on the parties’ 20 respective written submissions, VACATES the hearing scheduled for October 28, 2011, 21 and rules as follows. 22 23 BACKGROUND Plaintiffs allege that Bernave Alcaraz (“Bernave”), a citizen of the United States, filed 24 with the United States Citizenship and Immigration Service (“USCIS”) an “immigration 25 petition” on behalf of his wife, plaintiff Maria Bernave (“Maria”), a citizen of Mexico. (See 26 Compl. ¶ 11.) Additionally, plaintiffs allege, Maria filed an “application to adjust her status” 27 with USCIS. (See Compl. ¶ 11.) Plaintiffs further allege that, on August 28, 2009, “USCIS 28 issued a denial based upon Maria’s alleged prior ‘encounter’ with immigration on 1 November 29, 1996, her alleged return to Mexico on October 16, 1997 and her alleged 2 ‘unlawful return [in] March 1998.” (See Compl. ¶ 12.) 3 On December 24, 2009, the Department of Homeland Security (“DHS”) instituted 4 removal proceedings against Maria by filing a Notice to Appear, in which the DHS charged 5 Maria with being a person subject to removal as an “alien present in the United States who 6 ha[d] not been admitted or paroled.” (See Defs.’ Mot. Ex. 1.) In a Decision dated June 17, 7 2010, following a hearing conducted “in absentia,” Immigration Judge Tue Phan-Quang 8 found “removability established as charged.” (See Defs.’ Mot. Ex. 2.) Immigration Judge 9 Tue further found Maria had been provided written notice of the hearing and had failed to 10 11 appear without good cause. (See id.) Plaintiffs allege that thereafter, on June 8, 2011, Immigration and Customs 12 Enforcement (“ICE”) agents went to plaintiffs’ residence, took Maria into custody, and, later 13 that day, put her on a bus to San Diego. (See Compl. ¶¶ 20, 22, 29, 33.) Plaintiffs further 14 allege that the following day, June 9, 2011, at 8:15 a.m., Bernave filed with the Immigration 15 Court a motion to reopen proceedings, and that Maria was physically removed to Mexico 16 later that same morning. (See Compl. ¶¶ 32, 34.) 17 In an order dated June 30, 2011, Immigration Judge Tue granted the motion to 18 reopen proceedings, noting therein that the DHS had not opposed the motion. (See Defs.’ 19 Mot. Ex. 3.) By notice of the Immigration Court dated July 6, 2011, a November 10, 2011 20 hearing was set on the DHS’s charge that Maria was removable. (See id.) 21 According to plaintiffs, counsel for Bernave and Maria requested that ICE allow 22 Maria to return to the United States, but ICE “claim[ed] that it [was] not obligated to return 23 her to the United States,” based on ICE’s claim that Maria had been removed on the 24 morning of June 9, 2011 before Bernave had filed the motion to reopen proceedings. (See 25 Compl. ¶¶ 36-37.)1 26 27 28 1 In their opposition to the motion to dismiss, plaintiffs asert that an “automatic stay” of an order of removal arises by “operation of law” when a motion to reopen removal proceedings is filed before the removal is effectuated. (See Pls.’ Opp. at 4:13-15.) 2 1 On July 28, 2011, plaintiffs filed the instant complaint, alleging therein that the order 2 of removal filed in 2010 is void because Maria had not received notice of the 2010 removal 3 proceedings. In particular, plaintiffs allege, the DHS mailed the notice to her former 4 address and not to her current address of which the DHS was aware. (See Compl. ¶¶ 14- 5 17.) Plaintiffs seek declaratory relief, and, further, an order requiring defendants to allow 6 Maria to return to the United States. Subsequent to the filing of the complaint, ICE, on August 19, 2011, granted Maria 7 8 “parole” and, on August 29, 2011, Maria re-entered the United States. (See Defs.’ Mot. Ex. 9 4.) DISCUSSION 10 11 The complaint consists of four causes of action. Each claim is based on the 12 allegation that the removal order issued in 2010 is “void” (see Compl. ¶¶ 57, 68, 81) or 13 “invalid” (see Compl. ¶ 74), because, plaintiffs assert, Maria did not receive proper notice 14 of the removal proceedings. 15 In their motion to dismiss, defendants argue the Court lacks subject matter 16 jurisdiction over plaintiffs’ claims. In particular, defendants rely on 8 U.S.C. § 1252, which, 17 in relevant part, provides as follows: 19 The petition for review [of an order of removal] shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings. . . . 20 .... 21 Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact. 18 22 23 24 25 8 U.S.C. § 1252(b)(2), § 1252 (b)(9). 26 As the Ninth Circuit has explained, § 1252 “provides that a petition for removal in the 27 court of appeals is the sole and exclusive means for judicial review of an order of removal.” 28 3 1 See Singh v. Gonzales, 499 F.3d 969, 971 (9th Cir. 2007) (internal quotation and citation 2 omitted). By said statute, “Congress made clear that review of a final removal order is the 3 only mechanism for reviewing any issue raised in a removal proceeding.” Id. at 976 4 (internal quotation and citation omitted). 5 Here, each of the causes of action alleged in the complaint is based on the claim 6 that the 2010 removal order is void and invalid as a result of improper notice. As noted 7 above, however, a district court lacks jurisdiction to consider “questions of law and fact” 8 arising from a “proceeding brought to remove an alien from the United States.” See 8 9 U.S.C. § 1252(b)(9). Rather, any such question of law or fact must be raised in a petition 10 for review filed with the court of appeals. See id. Plaintiffs’ reliance on this Court’s decision in Castro-Castro v. Bardini, 2011 WL 11 12 2295176 (N.D. Cal. 2011) is misplaced. As this Court noted therein, cases in which an 13 alien’s claim has been found to be “independent of removal proceedings,” and thus 14 reviewable in the district court, are cases in which the alien “was prevented from obtaining 15 review before the Ninth Circuit, and thus was deprived of the remedy afforded by [§ 1252].” 16 See id., 2011 WL 2295176, at *4. Here, by contrast, as plaintiffs acknowledge in the 17 complaint, Maria’s motion to reopen removal proceedings was granted and removal 18 proceedings are ongoing. (See Compl. ¶ 58.) If, after further proceedings, the Immigration 19 Judge were to find Maria had proper notice of the 2010 hearing and thus is removable, 20 Maria can seek judicial review in the Ninth Circuit Court of Appeals. See 8 U.S.C. 21 § 1252(b).2 22 // 23 // 24 // 25 // 26 27 28 2 If the Immigration Judge were to find Maria did not have notice of the 2010 proceedings, but that she is removable based on a different showing made at the second hearing, Maria likewise can seek review by the Ninth Circuit. 4 1 2 Accordingly, the Court finds the complaint is subject to dismissal for lack of subject matter jurisdiction.3 CONCLUSION 3 4 5 6 For the reasons stated above, defendants’ motion to dismiss is hereby GRANTED, and the complaint is hereby DISMISSED for lack of subject matter jurisdiction. IT IS SO ORDERED. 7 8 Dated: October 25, 2011 MAXINE M. CHESNEY United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Moreover, as set forth above, ICE afforded Maria leave to enter the United States after the instant complaint was filed, and, as plaintiffs acknowledge in their opposition to the motion to dismiss, she has entered the United States. Accordingly, to the extent the complaint seeks an order directing defendants to grant Maria permission to enter the United States, the complaint is moot. 5

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