Olivas v. Whitford et al

Filing 72

ORDER: The Motion to Dismiss Plaintiff's Complaint (Doc. 22 ) is denied and the Ex Parte Supplemental Motion to Dismiss (Doc. 48 ) is denied. Signed by Judge William Q. Hayes on 3/2/2015. (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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OSCAR OLIVAS,

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vs.

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CASE NO. 14cv1434-WQHBLM

Plaintiff,

ORDER

BILLY WHITFORD, Port Director of
Calexico West Port of Entry, Customs
and Border Protection; PETE
FLORES, Director of Field Operations,
San Diego Field Office, Customs and
Border Protection; R. GIL
KERLIKOWSKE, Commissioner of
Customs and Border Protection; JEH
JOHNSON, Secretary of Homeland
Security; JOHN KERRY, Secretary of
State,
Defendants.

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HAYES, Judge:
The matters before the Court are Defendants’ Motion to Dismiss Complaint and

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Drop Parties (ECF No. 22) and Defendants’ Supplemental Motion to Dismiss (ECF No.
48).
BACKGROUND
On June 12, 2014, Plaintiff Oscar Olivas initiated this action by filing the Petition
for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief against

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1 Defendants Pete Flores, Director of Field Operations for U.S. Customs and Border
2 Protection’s (“CBP”) San Diego Field Office; Jeh Johnson, Secretary of Homeland
3 Security; R. Gil Kerlikowske, Commissioner of CBP; John Kerry, U.S. Secretary of
4 State; and Billy Whitford, Port Director of the Calexico West Port of Entry for CBP.
5 (ECF No. 1).
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On August 11, 2014, the Court issued an Order denying Defendants’ request that

7 the Petition for Writ of Habeas Corpus be dismissed for failure to name the proper
8 respondent. (ECF No. 20). The Court found that the Petition for Writ of Habeas
9 Corpus “adequately allege[d] a colorable claim of citizenship, and subject-matter
10 jurisdiction exists in this Court.” (ECF No. 20).
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On August 12, 2014, Defendants filed the Motion to Dismiss Complaint and

12 Drop Parties pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 21. (ECF No. 22).
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On August 14, 2014, the Court issued an Amended Order referring the matter to

14 the Magistrate Judge for expedited discovery. (ECF No. 23).
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On November 5, 2014, Defendants filed the Supplemental Motion to Dismiss

16 pursuant to Federal Rule of Civil Procedure 12(b)(1), Federal Rule of Civil Procedure
17 12(b)(3), and Federal Rule of Civil Procedure 21. (ECF No. 48).
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ALLEGATIONS OF COMPLAINT
“[Plaintiff’s] mother, Delia Perez (“Perez”), a Mexican national living in the

20 United States, was unwed and without lawful immigration status in 1969.” (ECF No.
21 1 ¶ 13). “[Plaintiff] was born in El Monte in Los Angeles County, California on August
22 10, 1969.” Id. “Because of her immigration status in 1969, [Perez] was fearful of
23 giving birth in a hospital....” Id. “[Plaintiff] was issued a ‘delayed registration of birth’
24 certificate on January 19, 1970, five months after his birth.” Id.
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In February of 2009, Plaintiff began applying for an immigrant visa for his wife,

26 Claudia Hernandez (“Hernandez”), and step-son, both of whom are Mexican nationals.
27 Id. ¶ 16. The process of obtaining such a visa for a Mexican national requires
28 processing at the U.S. Consulate in Mexico. Id. On November 4, 2010, Hernandez
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1 went to the U.S. Consulate in Ciudad Juárez for an interview as a part of her immigrant
2 visa application process. Id. ¶ 17. At the interview, Hernandez was told that a consular
3 official would need to interview [Plaintiff’s] mother, Ms. Perez. Id.
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On December 17, 2010, Ms. Perez traveled to the U.S. Consulate in
Ciudad Juárez, expecting to participate in a brief and non-adversarial
interview. Instead, three officials escorted Ms. Perez to a room with a
one-way glass window. A female official confronted Ms. Perez with
[Plaintiff’s] birth certificate and told her that she believed the birth
certificate had been fraudulently obtained. Ms. Perez responded that
[Plaintiff] ... had been issued a delayed birth certificate because he had not
been born in a hospital. The female official … threatened that Ms. Perez
would lose her citizenship and ... would be prosecuted for fraudulently
obtaining a birth certificate unless Ms. Perez admitted that [Plaintiff] was
born in Mexico. The female official told Ms. Perez that if she would agree
to sign a declaration indicating that [Plaintiff] was born in Mexico, Ms.
Perez would be permitted to keep her citizenship status and [Plaintiff]
would be allowed to adjust the immigration status of his wife. Ms. Perez
protested that she could not sign such a declaration because it would not
reflect the truth….
Id. ¶ 18.
The consular officials detained Ms. Perez in the room without access to the
outside world for around three hours. Ms. Perez reasonably felt desperate
and intimidated. She did not know when the ‘interview’ would end and
reasonably felt that the consular officials planned to detain her until she
agreed to sign the declaration. Eventually, Ms. Perez succumbed to
pressure and intimidation exerted by the officials and told them that she
would sign whatever they wanted her to sign. An official presented her
with a statement and instructed her to sign her name. It appears that the
same Department of State officer who exacted the “confession” from Ms.
Perez later used this statement to amend [Plaintiff’s] birth certificate on
record with the State of California, without providing him any notice or
opportunity to object.

20 Id. ¶ 19.
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In early 2011, Plaintiff moved to Los Angeles for work while his family stayed

22 in Mexicali, waiting for a determination on Hernandez’s immigrant visa application.
23 Plaintiff traveled between the United States and Mexico almost every week, using his
24 birth certificate, Social Security card, and California driver’s license to enter the United
25 States. Id. ¶ 21.
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On August 22, 2011, Plaintiff attempted to return to the United States at the

27 Calexico West Port of Entry. CBP officers detained Plaintiff overnight and questioned
28 him about his birth certificate, California driver’s license, and Social Security card.
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1 Plaintiff informed the officers that he is a U.S. citizen who was born and raised in the
2 United States and had lived in the country for decades. Plaintiff explained that his
3 mother had given a coerced confession at the U.S. Consulate in Ciudad Juárez. A CBP
4 officer contacted Ms. Perez who confirmed Plaintiff’s explanation of what had occurred
5 at the consulate. The CBP officer told Plaintiff that he could see an Immigration Judge
6 within a matter of hours or would have to wait “a month or two.” Id. ¶ 22. Plaintiff
7 told the officer that he would prefer to see a judge in a month because he would like
8 some time to collect evidence of his citizenship. The officer assured Plaintiff that he
9 would have a hearing on his citizenship claim soon. Plaintiff relied on the officer’s
10 assurance of a prompt hearing in deciding not to see an Immigration Judge that day. Id.
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On August 23, 2011, CBP officers confiscated Plaintiff’s birth certificate and

12 Social Security card and removed him to Mexico. CBP officers gave Plaintiff a Notice
13 to Appear which did not indicate a date or time for Plaintiff to appear for immigration
14 proceedings. The officers instructed Plaintiff to call the immigration court system
15 hotline to learn when his hearing would take place. Plaintiff diligently called the
16 automated hotline twice a week for two years, but the response remained the same:
17 either the case was not filed with the court or there is no match for the “Alien Number”
18 that is listed on the Notice to Appear. Id. ¶ 23.
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Plaintiff visited the Calexico West Port of Entry on several occasions, explaining

20 that he is a U.S. citizen and asking when he would have his hearing in front of an
21 Immigration Judge. Each time, a CBP officer told Plaintiff that “his hearing would be
22 scheduled and all he could do is wait.” Id. ¶ 24.
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Through an immigration attorney, Plaintiff submitted an N-600 Application for

24 Certificate of Citizenship. The immigration attorney incorrectly advised Plaintiff that
25 he could receive a determination of his citizenship claim in an N-600 hearing. Plaintiff
26 does not know whether the government ever reached a final disposition regarding his
27 N-600 application. Plaintiff received notice that an interview on his N-600 application
28 had been scheduled for March 6, 2013. Id. ¶¶ 27-28.
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1

On February 8, 2013, Plaintiff sought parole at the Calexico West Port of Entry

2 in order to attend the interview. CBP officers Lopez and Felix did not allow Plaintiff
3 to enter the United States, preventing him from attending the interview. The officers
4 informed Plaintiff for the first time that “a removal order had been ‘internally’ issued
5 against him, but that he would not be provided a copy of the order or [] be allowed to
6 view it.” Id. ¶ 28.
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Plaintiff last visited the Calexico West Port of Entry on or around February 26,

8 2013. Plaintiff explained that he is a U.S. citizen and asked CBP officers when he
9 would have a hearing in front of a judge and how he could obtain a copy of any removal
10 order issued against him. “CBP Officer Frank Hernandez told [Plaintiff] that if he
11 returned to the Port of Entry, CBP officers would interpret his presence there as an
12 attempt to gain admission” and that he “would be arrested, detained for a period of time
13 that would ‘not be brief,’ and removed without seeing a judge.” Id. ¶ 29. “[Plaintiff]
14 has never been permitted to view a copy of the purported order of removal that was
15 allegedly entered against him.” Id. ¶ 30. “[Plaintiff] has never been informed of any
16 date, time, or place to appear for any hearing before an immigration judge.” Id. “CBP
17 Defendants have failed to refer [Plaintiff’s] matter to an immigration judge as required
18 by law.” Id.
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Although government officials have never allowed Plaintiff to view the purported

20 removal order that was allegedly issued against him, CBP officers may have executed
21 an “Expedited Removal” order against him. If so, that order violated regulations that
22 mandate a claimed status review hearing before an immigration judge for any person
23 asserting U.S. citizenship. Id. ¶ 32.
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In addition to the Writ of Habeas Corpus, the Complaint for declaratory and

25 injunctive relief alleges four claims against all Defendants in their official capacities:
26 (1) violation of Plaintiff’s right to return to the United States pursuant to the Fifth and
27 Fourteenth Amendments and the Non-Detention Act by illegally, arbitrarily, and
28 capriciously determining Plaintiff is not a U.S. citizen and/or removing him to Mexico;
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1 (2) violation of Plaintiff’s right against unlawful detention pursuant to the Fifth and
2 Fourteenth Amendments and the Non-Detention Act by illegally, arbitrarily, and
3 capriciously determining Plaintiff is not a U.S. citizen and asserting the right to detain
4 him; (3) violation of the Fifth Amendment right to procedural due process by illegally,
5 arbitrarily, and capriciously determining Plaintiff is not a U.S. citizen and/or removing
6 Plaintiff from the United States without such judicial determination of his claim to U.S.
7 citizenship; and (4) violation of the Fifth Amendment right to substantive due process
8 by illegally, arbitrarily, and capriciously determining Plaintiff is not a U.S. citizen
9 and/or removing him to Mexico and by pressuring his mother to make a false statement
10 about his birth. (ECF No. 1 at 18-20).
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Plaintiff’s Complaint requests that the Court: (1) grant the order to show cause

12 requested in the application filed with the Complaint; (2) issue a writ of habeas corpus
13 ordering Defendants to allow Plaintiff to enter the United States without detaining him;
14 (3) declare the Plaintiff is a U.S. citizen; (4) declare that any order directing or
15 authorizing Plaintiff’s removal from the United States was entered in violation of the
16 Due Process Clause of the Fifth Amendment and/or other applicable law and is therefor
17 null and void; (5) enjoin Defendants and their officers, agents, servants, employees,
18 attorneys, and/or successors from prohibiting Plaintiff from entering the United States
19 and/or detaining him at or after such entry; (6) grant reasonable attorneys’ fees, costs,
20 and other disbursements pursuant to the Equal Access to Justice Act, 28 U.S.C. section
21 2412; and (7) grant such other relief as the Court deems just and equitable. Id. at 20-21.
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ANALYSIS

23 I.

Motion to Dismiss for lack of Subject Matter Jurisdiction

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A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) asserts a lack of

25 subject-matter jurisdiction over the dispute, and may be either a facial attack on the
26 sufficiency of the pleadings or a factual attack on the basis for a court’s jurisdiction.
27 White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In determining the presence or
28 absence of federal jurisdiction, the court applies the “‘well-pleaded complaint rule,’
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1 which provides that federal jurisdiction exists only when a federal question is presented
2 on the face of the plaintiff’s properly pleaded complaint.” Cal. ex rel. Lockyer v.
3 Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004) (quoting Caterpillar Inc. v. Williams,
4 482 U.S. 386, 392 (1987)). When assessing subject-matter jurisdiction, the court
5 assumes the truth of all allegations in the complaint. See Castaneda v. United States,
6 546 F.3d 682, 684 n.1 (9th Cir. 2008).
7 Contentions of Parties
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Defendants, sued in their official capacity, contend that the Complaint should be

9 dismissed for lack of subject matter jurisdiction because Plaintiff has not alleged facts
10 to support a waiver of sovereign immunity. Defendants contend that Plaintiff has
11 invoked general subject matter jurisdiction pursuant to 28 U.S.C. section 1331, but
12 Section 1331 does not provide a waiver of sovereign immunity. Defendants contend
13 that a waiver of sovereign immunity for Plaintiff’s claims that CBP officers acted
14 unconstitutionally must be found in Title 8, not Title 5, of the United States Code.
15 Defendants further contend that the complaint against the government must be
16 dismissed unless it sets forth statutes waiving sovereign immunity.
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Plaintiff contends that he has properly invoked federal question jurisdiction under

18 28 U.S.C. section 1331 to plead claims for declaratory and injunctive relief for the
19 violations of his constitutional rights by government officials. Plaintiff contends that
20 5 U.S.C. section 702 expressly waives “sovereign immunity in non-statutory review
21 actions for nonmonetary relief brought under 28 U.S.C. § 1331.” (ECF No. 31 at 4).
22 Plaintiff contends that CBP or its predecessor agencies are subject to injunctive relief
23 for violating constitutional rights and directly refutes Defendants’ position that Plaintiff
24 must invoke a waiver of sovereign immunity found in Title 8. Plaintiff further contends
25 that cases cited by Defendants concern the substantive question of whether the
26 government had, in fact, waived sovereign immunity over the claims in question and
27 do not require Plaintiff to cite the statute waiving sovereign immunity in the Complaint.
28 Sovereign Immunity
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1

The United States, as a sovereign, is immune from suit. United States v. Mitchell,

2 445 U.S. 535, 538 (1980). “It is axiomatic that Congressional waiver of sovereign
3 immunity is a prerequisite to any suit brought against the United States.” Roberts v.
4 United States, 498 F.2d 520, 525 (9th Cir. 1974). The United States “may not be sued
5 without its consent and the terms of such consent define the court’s jurisdiction.” Baker
6 v. United States, 817 F.2d 560, 562 (9th Cir. 1987). A waiver of sovereign immunity
7 in any statute “will be strictly construed, in terms of its scope, in favor of the
8 sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996). “A party bringing a cause of
9 action against the federal government bears the burden of showing an unequivocal
10 waiver of immunity.” Baker, 817 F.2d at 562. “Unless sovereign immunity has been
11 waived or does not apply, it bars equitable as well as legal remedies against the United
12 States.” Beller v. Middendorf, 632 F.2d 788, 796 (9th Cir. 1980) (citing Jaffee v. United
13 States, 592 F.2d 712, 717 n.10 (3d Cir. 1979).
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28 U.S.C. section 1331 does not waive the government’s sovereign immunity for

15 claims against government officials sued in their official capacity. Hughes v. United
16 States, 953 F.2d 531, 539 n.5 (9th Cir. 1992). However, “Section 702 waives the
17 government’s sovereign immunity, and thus permits the exercise of jurisdiction, in
18 actions seeking non-monetary relief with respect to agency action.” Id. at 537. Section
19 702 provides:
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A person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof. An action in a court of the
United States seeking relief other than money damages and stating a claim
that an agency or an officer or employee thereof acted or failed to act in an
official capacity or under color of legal authority shall not be dismissed
nor relief therein be denied on the ground that it is against the United
States or that the United States is an indispensable party. The United
States may be named as a defendant in any such action, and a judgment or
decree may be entered against the United States: Provided, That any
mandatory or injunctive decree shall specify the Federal officer or officers
(by name or by title), and their successors in office, personally responsible
for compliance. Nothing herein (1) affects other limitations on judicial
review or the power or duty of the court to dismiss any action or deny
relief on any other appropriate legal or equitable ground; or (2) confers
authority to grant relief if any other statute that grants consent to suit
expressly or impliedly forbids the relief which is sought.
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1 5 U.S.C. § 702.
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In Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980), Plaintiff sued the Secretary

3 of U.S. Navy in his official capacity. The United States Court of Appeals for the Ninth
4 Circuit examined the scope of a waiver of sovereign immunity under section 702. The
5 Court of Appeals stated:
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In Glines v. Wade, 586 F.2d 675 (9th Cir. 1978) ... plaintiff Glines, a
Captain in the Air Force Reserves on active duty, violated a regulation
requiring him to obtain approval from his commander before circulating
petitions on Air Force bases. As a result of his unauthorized activities,
Glines was removed from active duty and reassigned to the standby
reserves, with adverse financial consequences. This court concluded the
regulations violated Glines’ first amendment rights. It then held that “the
district court was correct in declaring the regulations void, enjoining their
enforcement, and ordering Glines reinstated in a status that is consistent
with his status before he was relieved from active duty.” 586 F.2d at 681.
The [C]ourt held that sovereign immunity did not bar the district court
from awarding this nonmonetary relief:

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(In) actions claiming that a government official acted in
violation of the Constitution or of a statutory authority ...
Congress has either waived sovereign immunity or the
doctrine does not apply. 5 U.S.C. [§] 702; Larson v.
Domestic and Foreign Commerce Corp., 337 U.S. 682, 68991 (1949); Hill v. United States, 571 F.2d 1098, 1102 (9th
Cir. 1978).

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...

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We construe the decisions in Glines and Hill as holding that section 702
waives sovereign immunity for [the] action brought under 28 U.S.C. §
1331 seeking nonmonetary relief for violation of [Plaintiff’s] Fifth
Amendment rights. We recognize the division of authority on the question
whether and under what circumstances section 702 waives sovereign
immunity in actions brought under 28 U.S.C. [§] 1331.

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...we think [Glines] states the controlling law of this circuit. We therefore
affirm the district court’s determination that it had jurisdiction over
[Plaintiff’s] claims for nonmonetary relief under 28 U.S.C. [§] 1331.
Beller, 632 F.2d at 796-97.
The Court of Appeals addressed the waiver of sovereign immunity under Section
702 again in Presbyterian Church v. U.S., 870 F.2d 518 (9th Cir. 1989). The Court of
Appeals stated: “[Section] 702 of the [APA], 5 U.S.C. § 702 ... waives sovereign
immunity for the churches’ claims for relief [against the United States, the Department
of Justice, and the INS] other than money damages.” Presbyterian Church, 870 F.2d
at 523-24. “The clear objective of the 1976 amendment was to waive sovereign
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1 immunity as a defense in actions seeking relief other than money damages. Congress
2 was quite explicit about its goals of eliminating sovereign immunity as an obstacle in
3 securing judicial review of the federal official conduct.” Id. at 524 (citation omitted).
4 The Ninth Circuit concluded: “[O]n its face, the 1976 amendment to § 702 waives
5 sovereign immunity in all actions seeking relief from official misconduct except for
6 money damages.” Id. at 525.
7 Ruling of Court
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In this case, Plaintiff’s Complaint invokes federal question jurisdiction under 28

9 U.S.C. section 1331. See ECF No. 1. Plaintiff alleges that Defendants are officers or
10 employees of the Department of Homeland Security and the Department of State sued
11 in their official capacities. See ECF No. 1 at 5-6. Plaintiff alleges that Defendants
12 violated Plaintiff’s constitutional rights by “pressuring his mother to make a false
13 statement about his birth,” “determining Plaintiff is not a U.S. citizen,” and “removing
14 Plaintiff from the United States without [a] judicial determination of his claim to U.S.
15 citizenship.” Id. at 19-20. The Court concludes that 5 U.S.C. section 702 waives
16 sovereign immunity for Plaintiff’s action, seeking non-monetary relief from government
17 officials allegedly acting in violation of his Constitutional rights. See Beller, 632 F.2d
18 at 796-97; Presbyterian Church, 870 F.2d at 523-25.
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In Ardestani v. I.N.S., 502 U.S. 129 (1991), the United States Supreme Court held

20 that Title 8 “‘expressly supersedes’ the hearing provisions of the APA” because
21 “Congress intended the provisions of [Title 8] to supplant the APA in immigration
22 proceedings.” In this case, Plaintiff alleges in his Complaint that he does not challenge
23 an expedited removal. There is no indication that a deportation proceeding was
24 conducted or that an order of expedited removal was issued against Plaintiff. Plaintiff
25 alleges that Defendants determined that he was not a U.S. citizen without a “judicial
26 determination of his claim to U.S. citizenship.” (ECF No. 1 ¶ 50). Plaintiff alleges that
27 each Defendant violated the Fifth and Fourteenth Amendments by “illegally, arbitrarily,
28 and capriciously determining Plaintiff is not a U.S. citizen,” “asserting the right to
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1 detain him,” and “removing Plaintiff from the United States without such judicial
2 determination of his claim to U.S. citizenship.” See ECF No. 1 ¶¶ 43, 47, 50, 52. The
3 Court finds that Plaintiff’s claims do not require a waiver of sovereign immunity found
4 in Title 8 because Plaintiff does not seek review of the merits of a deportation
5 proceeding pursuant to 8 U.S.C. section 1225.
6

Finally, the Court finds no authority for Defendant’s contention that this case

7 must be dismissed on grounds that Plaintiff has not cited 5 U.S.C. section 702 in his
8 Complaint. The language in each case relied upon by Defendants refers to whether
9 Congress has waived the sovereign immunity of the government and does not address
10 pleading requirements. See U.S. v. Mitchell, 445 U.S. 535, 536 (1980) (“This case
11 presents the question whether the Indian General Allotment Act of 1887 authorizes the
12 award of money damages against the United States”); Lane v. Pena, 518 U.S. 187, 192
13 (1996) (“waiver of the Federal Government's sovereign immunity must be
14 unequivocally expressed in statutory text.”); Dep’t of Army v. Blue Fox, Inc., 525 U.S.
15 255, 261 (1999) (“Such a waiver must also be unequivocally expressed in the statutory
16 text.”) (internal citations omitted); Blue v. Widnall, 162 F.3d 541, 545 (9th Cir. 1998)
17 (“the general judicial review provisions of the APA never confer jurisdiction to review
18 federal personnel actions”).
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Defendants’ Motion to Dismiss (ECF No. 22) is denied.

20 II.

SUPPLEMENTAL MOTION TO DISMISS (ECF No. 48)

21 Subject Matter Jurisdiction Over Plaintiff’s Action Against CBP
22

Defendants contend that Plaintiff’s constitutional challenges to the expedited

23 removal policies and procedures of CBP are limited by 8 U.S.C. section 1252(e)(3) and
24 may only be brought in the District of Columbia. Plaintiff contends that he does not
25 challenge any expedited removal proceeding or order in this action and section
26 1252(e)(3) does not apply.
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8 U.S.C. section 1252(e)(3) provides:

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(e) Judicial review of orders under section 1225(b)(1)
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1

(3) Challenges on validity of the system

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(A) In general

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Judicial review of determinations under section 1225(b) of this title and its
implementation is available in an action instituted in the United States
District Court for the District of Columbia, but shall be limited to
determinations of–

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(i) whether such section, or any regulation issued to implement such
section, is constitutional; or
(ii) whether such a regulation, or a written policy directive, written policy
guideline, or written procedure issued by or under the authority of the
Attorney General to implement such section, is not consistent with
applicable provisions of this subchapter or is otherwise in violation of law.
8 U.S.C. § 1252(e)(3).
In this case, the Complaint alleges that:
The officers informed [Plaintiff] for the first time that a removal order had
been “internally” issued against him, but that he would not be provided a
copy of the order or even be allowed to view it.
....

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[Plaintiff] has never been permitted to view a copy of the purported order
of removal that was allegedly entered against him. He has never been
informed of any date, time, or place to appear for any hearing before an
immigration judge.... [T]he CBP Defendants have failed to refer
[Plaintiff's] matter to an immigration judge as required by law.

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....

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Although government officials have never allowed [Plaintiff] to view the
purported removal order that was allegedly issued against him, ... , CBP
officers may have executed an "Expedited Removal" order against him.

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20 (ECF No. 1 ¶ 28, 30, 32). The Complaint further asserts that:
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By illegally, arbitrarily, and capriciously determining Plaintiff is not a U.S.
citizen and/or removing Plaintiff from the United States without such
judicial determination of his claim to U.S. citizenship, Defendants
deprived Plaintiff of his right to due process in violation of the Fifth
Amendment to the United States Constitution.

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....

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Defendants denied Plaintiff his Fifth Amendment right to substantive due
process by ... willfully withholding information from him regarding his
removal.

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27 Id. ¶ 50, 53.
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Plaintiff alleges violations of the Fifth and Fourteenth Amendments of the
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1 Constitution on the grounds that Defendants determined that he was not a U.S. citizen
2 without a “judicial determination of his claim to U.S. citizenship.” (ECF No. 1 ¶ 50).
3 There is no allegation that a removal proceeding took place or that an order was issued.
4 Plaintiff’s challenge is not subject to 8 U.S.C. section 1252(e)(3) because it is not a
5 challenge to the validity of expedited removal proceedings pursuant to section
6 1225(b)(1).
7 Improper Venue for Plaintiff’s Action Against the Secretary of State
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Defendants contend that Plaintiff’s action asserting constitutional challenges to

9 certain consular policies and procedures should be dismissed for improper venue.
10 Defendants contend that the constitutional claims asserted against the Secretary of State
11 are separate from the factual allegations and relief sought in the habeas action.
12 Defendants contend that this judicial district is not the proper venue for the action
13 because neither the CBP Commissioner, R. Gil Kerlikowske, nor the U.S. Secretary of
14 State, John Kerry reside in this judicial district, and the policies and procedures being
15 challenged did not occur in this judicial district. Defendants contend that the U.S.
16 District Court for the District of Columbia is the only proper venue because the official
17 residence of the Secretary of State is Washington, D.C., and the Plaintiff resides abroad.
18

Plaintiff contends that he has satisfied the venue statute. Plaintiff contends that

19 he may bring a cause of action against additional officers or employees of the United
20 States in this district because CBP officers Whitford and Flores reside in this district
21 and are appropriately named as custodians of Plaintiff. Plaintiff further contends that
22 he satisfies 28 U.S.C. section 1391(e)(1)(B), because a substantial part of the events
23 giving rise to his claims occurred here.
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28 U.S.C. section 1391(e)(1) states in relevant part:

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A civil action in which a defendant is an officer or employee of the United
States or any agency thereof acting in his official capacity or under color
of legal authority, or an agency of the United States, or the United States,
may, except as otherwise provided by law, be brought in any judicial
district in which (A) a defendant in the action resides, (B) a substantial
part of the events or omissions giving rise to the claim occurred, or a
substantial part of the property that is the subject of the action is situated....

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1 28 U.S.C. § 1391(e)(1)(A), (B). The Complaint alleges that the CBP custodians,
2 Whitford and Flores, reside in this judicial district. The violations alleged against the
3 Secretary of State arise from the events that gave rise to Plaintiff’s claims against the
4 CBP custodians, Whitford and Flores.
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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss Plaintiff’s Complaint

7 (ECF No. 22) is DENIED and the Ex Parte Supplemental Motion to Dismiss (ECF No.
8 48) is DENIED.
9 DATED: March 2, 2015
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WILLIAM Q. HAYES
United States District Judge

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14cv1434-WQH-BLM