Nancy Perez, et al v. Robert Cowen, et al

Filing 49

ORDER by Judge Yvonne Gonzalez Rogers denying as moot 42 Plaintiff's Motion to Remand; granting 43 Defendants' Motion to Dismiss. (fs, COURT STAFF) (Filed on 12/12/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NANCY CAROLINA PEREZ,
Plaintiff,

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United States District Court
Northern District of California

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CASE NO. 15-cv-01444-YGR
ORDER GRANTING MOTION TO DISMISS;
DENYING MOTION TO REMAND AS MOOT.

vs.
ROBERT COWAN, ET AL.,

Re: Dkt. Nos. 42, 43

Defendants.
Plaintiff Nancy Carolina Perez is a citizen of El Salvador who currently resides in Daly

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City, California. (Id. ¶¶ 2, 10.) She entered the United States without inspection on or about April

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1, 1993. (Id.) Thereafter, Perez disclosed her unlawful entry and was granted Temporary

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Protected Status (“TPS”) on September 9, 2002. (Id. ¶¶ 2, 11–12.) On July 23, 2014, Ms. Perez

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filed a Form I-485, Application to Register Permanent Residence or Adjust Status (the

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“Application”). (Id. ¶ 15.) The United States Citizenship and Immigration Service (“USCIS”)

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denied plaintiff’s application on the ground that plaintiff failed to submit evidence of “lawful

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admission . . . into the United States.” (Id. ¶ 18, Ex. 5.)

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On March 30, 2015, plaintiff filed this action for mandamus and declaratory relief
alleging that defendants unlawfully denied plaintiff’s Application. (Dkt. No. 1, Petition.) On June
24, 2015, the parties filed a joint motion to stay the case and hold proceedings in abeyance
pending the Ninth Circuit’s decision in Ramirez v. Dougherty, No. 14-35633, on the ground that
issues presented in Ramirez would affect the above-captioned case. (Dkt. No. 18.) This Court
stayed the case on June 29, 2015. (Dkt. No. 20.)
On March 31, 2017, the Ninth Circuit held in Ramirez v. Brown (formally titled Ramirez v.
Dougherty) that aliens who have received TPS are deemed “admitted” for the purposes of
adjusting immigration status. Ramirez v. Brown, 852 F.3d 954, 964 (9th Cir. 2017.) Accordingly,
this Court lifted the stay in this case and directed the parties to “file any motions seeking specific

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relief.” (Dkt. Nos. 37 and 41.)
Now before the Court is plaintiff’s motion to remand this case to the USCIS on the ground

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that the USCIS had reopened plaintiff’s Application.1 (Dkt. No. 42 at 3.) Just two days after

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Perez filed her motion to remand, on November 2, 2017, plaintiff’s Application was approved by

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Senior Immigration Services Officer Jeffrey S. Passage. (Dkt. No. 42-3, Declaration of Senior

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Immigration Services Officer Jeffrey S. Passage (“Passage Decl.”) ¶ 1.) In light of USCIS’s

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approval of plaintiff’s Application, defendants now move to dismiss as moot (i) plaintiff’s motion

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to remand and (ii) this case in its entirety. (Dkt. No. 43.)
Having carefully considered the pleadings and the arguments of the parties, the Court

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United States District Court
Northern District of California

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hereby GRANTS defendants’ motion to dismiss the case in its entirety and DENIES plaintiff’s
motion to remand as moot.
I.

LEGAL STANDARD
The constitutional standing doctrine “functions to ensure, among other things, that the

scarce resources of the federal courts are devoted to those disputes in which the parties have a
concrete stake.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 191
(2000). This “case or controversy” requirement is jurisdictional and cannot be waived. City of
L.A. v. Cty. of Kern, 581 F.3d 841, 845 (9th Cir. 2009). The party asserting federal jurisdiction
must carry the burden of establishing standing under Article III. DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 341 (2006).
“The doctrine of mootness, which is embedded in Article III's case or controversy
requirement, requires that an actual, ongoing controversy exist at all stages of federal court
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Plaintiff also moves for an order “requiring payment of just costs and actual expanse,
including attorney fees, incurred as a result of the removal” under the Equal Access to Justice Act
(the “EAJA”). (Dkt. No. 42 at 1.) Pursuant to the EAJA, 28 U.S.C. § 2412(d)(1)(B), “[a] party
seeking an award of fees and other expenses shall, within thirty days of final judgment in the
action, submit to the court an application for fees and other expenses which shows that the party is
a prevailing party and is eligible to receive an award under this subsection, and the amount
sought.”
Here, petitioner fails to explain how the Court can grant the relief which petitioner requests
including an award of attorneys’ fees in light of the circumstances, namely that Perez’s
Application was approved just two days after Perez filed the motion to remand. Further, petitioner
fails to explain why petitioner is entitled to attorneys’ under Section 2412(d)(1)(B) given that no
“final judgment” has been entered in this case. Therefore, plaintiff’s request for attorney fees is
DENIED.
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proceedings.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011) (citing Burke v.

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Barnes, 479 U.S. 361, 363 (1987)). Put differently, a case is moot and must be dismissed for lack

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of jurisdiction “where no actual or live controversy exists.” Foster v. Carson, 347 F.3d 742, 745

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(9th Cir. 2003) (internal citations omitted). “A federal court is presumed to lack jurisdiction in a

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particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes

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of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).
A motion to dismiss for lack of subject matter jurisdiction may take either a “facial” or a

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“factual” form. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When the

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jurisdictional attack is “facial,” the Court accepts as true the factual allegations of the complaint.

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Federation of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). If

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United States District Court
Northern District of California

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the attack is “factual,” the Court may consider affidavits or other evidence that would be properly

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before the court. See Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983).

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II.

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DISCUSSION
The Court finds that it lacks subject matter jurisdiction to hear the instant case due to

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mootness. The Court deems defendant’s attack factual in nature because it is based on the recent

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factual developments regarding plaintiff’s Application before the UCIS. Defendants offer the

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declaration of Jeffrey S. Passage to show that the USCIS granted plaintiff’s application on

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November 2, 2017. (Passage Decl. ¶ 1.) Plaintiff concedes that the USCIS “has granted

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Plaintiff’s application to adjust status and she obtained her permanent resident card on or about

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November 3, 2017.” (Dkt. No. 46 at 2:17-18.) Plaintiff further agrees that the case should be

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dismissed, but requests that the “Court first remand the case” the USCIS. (Id. at 2:18-19.)

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However, plaintiff offers no argument or authority as to why this Court should remand the case

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before granting defendant’s motion to dismiss. As noted above the sole remaining issue in this

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case is plaintiff’s request for attorney fees under the EAJA. However, “the existence of an

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attorneys’ fees claim . . . does not resuscitate an otherwise moot controversy.” M.M. v. Lafayette

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Sch. Dist., 767 F.3d 842, 857 (9th Cir. 2014), as amended (Oct. 1, 2014) (citing Cammermeyer v.

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Perry, 97 F.3d 1235, 1238 (9th Cir. 1996). In any event, the request for attorneys’ fees under the

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EAJA is procedurally improper. See 28 U.S.C. § 2412(d)(1)(B).
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Accordingly, the Court finds that plaintiff cannot satisfy her burden of establishing that “an

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actual, ongoing controversy exist[s] at [this stage] of [the] federal court proceeding[].” Pitts, 653

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F.3d at 1086 (citing Burke, 479 U.S. at 363). Therefore, the case is moot and must be dismissed

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for lack of jurisdiction. See Foster, 347 F.3d at 745.

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III.

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CONCLUSION
Having carefully considered the papers submitted, the record in this case, and good cause

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shown, the Court hereby GRANTS defendants’ motion to dismiss and DENIES plaintiff’s motion to

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remand as moot.

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This terminates Dkt. Nos. 42 and 43.
IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: December 12, 2017
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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