Martinez et al v. Sessions et al

Filing 12

ORDER of Dismissal granting 5 Motion to Dismiss. Cedillo's action is dismissed without prejudice. She may file a motion for leave to amend by 6/1/2018. Defendants must file an opposition within two weeks of her motion. The Court will decide the motion on the papers. If Cedillo doesn't file anything, the Court will dismiss her case with prejudice. Signed by Judge Larry Alan Burns on 4/13/2018. (jdt)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 TERESA CEDILLO MARTINEZ, et al., Plaintiffs, 11 ORDER OF DISMISSAL vs. 12 13 CASE NO. 17cv1421-LAB (MDD) ATTORNEY GENERAL JEFFERSON B. SESSIONS, III, et al., 14 Defendants. 15 After living in the country illegally for ten years, Teresa Cedillo traveled to Mexico to 16 escort her sick father back to the United States. When she attempted to reenter illegally, the 17 Department of Homeland Security stopped her and ordered her expedited removal. Cedillo 18 sneaked back in ostensibly because she needed to care for her father and her children—all 19 U.S. citizens. When she applied for status adjustment ten years later, Homeland Security 20 denied her application, reinstated her removal order, but granted her deferred action for two 21 years. 22 After twice deferring Cedillo’s deportation, Homeland Security denied Cedillo 23 deferred action last year. She and her family then filed this case. Her complaint challenges 24 the decision by Homeland Security to reinstate her removal, and to deny her deferred action. 25 The linchpin of her argument is this: her reentry was legally justified by necessity. She wants 26 the Court to make a finding to that effect, which would vitiate the reinstated removal order 27 and deferred action decision. Because the Court lacks jurisdiction to review these decisions, 28 and the complaint fails to state a plausible claim for relief, it must be dismissed. -1- 1 I. Reinstatement of Removal 2 Cedillo alleges Homeland Security violated her procedural due process rights in the 3 course of reinstating her removal and denying her adjustment application. She asks the 4 Court to invalidate the reinstatement order, and refer her case to an immigration judge to 5 reconsider her status adjustment based on her necessity defense. The Court declines 6 because Cedillo hasn’t shown she’s entitled to an order granting either of her requests. 7 A. 8 Cedillo maintains the Court has jurisdiction to consider her claim because she’s not 9 asking for review of her removal orders—instead, she wants her 2003 illegal reentry 10 declared legally justified by necessity. But that requires the Court to review the 11 circumstances underlying her 15-year-old expedited removal order. That’s not allowed: “no 12 court shall have jurisdiction to review” “any individual determination or to entertain any other 13 cause or claim arising from or relating to the implementation or operation” of an expedited 14 removal order. 8 U.S.C. § 1252(a)(2)(A)(i) and (e)(5); § 1231(a)(5); see Garcia de Rincon 15 v. Dep't of Homeland, 539 F.3d 1133 (9th Cir. 2008) (no jurisdiction where Homeland 16 Security denied adjustment and reinstated expedited removal order after mother with citizen 17 children illegally reentered following visit to sick parent in Mexico). Removal Orders 18 Even if the Court had jurisdiction, Cedillo hasn’t stated a claim for relief. For example, 19 Cedillo hasn’t offered plausible allegations she had “no other legal alternatives to violating 20 the law” when she reentered illegally. United States v. Arellano-Rivera, 244 F.3d 1119, 1126 21 (9th Cir. 2001). The Court doesn’t doubt Cedillo’s compelling motivation to leave the United 22 States to rescue her father in Mexico, then to reenter this country to care for him and her 23 children. But a necessity defense requires an imposing burden: Cedillo must demonstrate 24 that she had no other legal option. She hasn’t met that burden. 25 B. 26 To the extent Cedillo is challenging the denial of her adjustment application, the Court 27 lacks jurisdiction to review it. 8 U.S.C. § 1252(a)(2)(B); see Hassan v. Chertoff, 593 F.3d 28 785 (9th Cir. 2010). But even assuming there was jurisdiction, there’s only one clear due Adjustment of Status -2- 1 process allegation in the complaint: Homeland Security reinstated Cedillo’s removal before 2 her adjustment application denial was final. She says this violated “her right to renew her 3 application in proceedings under 8 C.F.R part 240” by going to immigration court. 8 C.F.R. 4 § 245.2(a)(5)(ii). But the last sentence of that regulation states: “Nothing in this section shall 5 entitle an alien to proceedings under section 240 of the Act who is not otherwise so entitled.” 6 Id. Cedillo isn’t so entitled because she’s subject to an expedited removal order—that means 7 she has no right to a hearing before an immigration judge. 8 U.S.C. §1231(a)(5); see Padilla 8 v. Ashcroft, 334 F.3d 921 (9th Cir. 2003). 1 9 What’s more, it’s not good enough to point to a procedural violation—Cedillo must 10 show how that violation prejudiced her. Id. at 925. She hasn’t show this. And it’s difficult to 11 see how she could: she’s not entitled to status adjustment under § 1255(i)—despite her 12 approved visa petition—because she reentered the United States after Homeland Security 13 ordered her expedited removal. 8 U.S.C. § 1182(a)(9)(C); In Re Briones, 24 I. & N. Dec. 14 355, 371 (BIA 2007); Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (denying 15 adjustment to alien who left to care for sick parent in Mexico). 16 II. Deferred Action 17 Cedillo attempts to attack Executive Order 13768, but the Court construes her 18 complaint as challenging Homeland Security’s decision to deny her request for deferred 19 action. In other words, the relief here ultimately asks the Court to review Homeland 20 Security’s discretionary decision to execute the removal orders against Cedillo. This type of 21 challenge isn’t allowed: “no court shall have jurisdiction to hear any cause or claim by or on 22 behalf of any alien arising from the decision or action by the Attorney General to” “execute 23 removal orders against any alien.” 8 U.S.C. § 1252(g); see Reno v. Am.-Arab Anti- 24 Discrimination Comm., 525 U.S. 471, 485 (1999) (“Section 1252(g) seems clearly designed 25 to give some measure of protection to ‘no deferred action’ decisions and similar 26 discretionary determinations”); Fabian-Lopez v. Holder, 540 F. App'x 760, 761 n.2 (9th Cir. 27 1 28 Cedillo’s opposition raises several other theories for procedural violations. Since they’re not in the complaint, the Court doesn’t consider them. -3- 1 2013). To the extent Cedillo is requesting deferred action under DAPA, that program was 2 enjoined by the Fifth Circuit which found DAPA unconstitutional. See Texas v. United States, 3 809 F.3d 134 (5th Cir. 2015). The Court agrees with that finding and therefore will not rely 4 on provisions of that unconstitutional executive order. 5 Cedillo argues the new Executive Order “transformed denial of her Deferred Action 6 extension request from an unreviewable discretionary act to a reviewable ministerial act.” 7 But she doesn’t offer any plausible allegations or authority for this interpretation, and the 8 Court finds none in the plain wording of the Executive Order. While Homeland Security is 9 “expected to exercise discretion in a judicious manner at all stages of the enforcement 10 process,” Cedillo hasn’t offered authority suggesting this Court can second-guess whether 11 it did. Villa-Anguiano v. Holder, 727 F.3d 873, 878 (9th Cir. 2013). Even if the Court had 12 jurisdiction to review Homeland Security’s decision, Cedillo’s complaint fails to offer 13 plausible allegations to support her causes of action for violations of the INA and APA. She 14 likewise fails to offer any argument in opposition on the various problems Defendants 15 pointed out with these causes of actions in their motion to dismiss. 16 Disposition 17 Cedillo’s action is dismissed without prejudice. Fed. R. Civ. P. 12(b)(1) and (6). If she 18 thinks she can fix her complaint, she may file a motion for leave to amend by June 1, 2018. 19 Defendants must file an opposition within two weeks of her motion. The Court will decide 20 the motion on the papers. If Cedillo doesn’t file anything, the Court will dismiss her case with 21 prejudice. 22 23 24 25 IT IS SO ORDERED. Dated: April 13, 2018 HONORABLE LARRY ALAN BURNS United States District Judge 26 27 28 -4-

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