Martinez v. Napolitano et al
Filing
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ORDER granting 17 Defendants' partial Motion to Dismiss. Claim challenging the 2/26/03 decision is dismissed and claim seeking an injunction is dismissed. Defendants John Longshore and John Morton are dropped from this action, by Judge Robert E. Blackburn on 3/28/12.(gmssl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-01158-REB-KMT
EDGAR NIEBLA MARTINEZ,
Plaintiff-petitioner,
v.
JANET NAPOLITANO, Secretary, U.S. Department of Homeland Security,
ALEJANDRO MAYORKAS, Director, U.S. Citizenship and Immigration Services,
ROBERT M. COWAN, Director, National Benefits Center, U.S. Citizenship and
Immigration Services,
JOHN MORTON, Director, Immigration and Customs Enforcement, and
JOHN LONGSHORE, Field Office Director, Immigration and Customs Enforcement,
Denver Field Office,
Defendants-respondents.
ORDER GRANTING MOTION TO DISMISS
Blackburn, J.
This matter is before me on the Defendants’ Partial Motion To Dismiss
Pursuant To fed. r. civ. p. 12(b)(1) [#17]1 filed July 26, 2011. The plaintiff-petitioner
filed a response [#22], and the defendants-respondents filed a reply [#26]. I grant the
motion.
I. JURISDICTION
I have putative jurisdiction over this case under 28 U.S.C. § 1331 (federal
question).
II. STANDARD OF REVIEW
The defendants-respondents seek partial dismissal for lack of jurisdiction under
1
“[#17]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
12(b)(1). Federal courts are courts of limited jurisdiction and thus may only adjudicate
claims that the Constitution or Congress have given them authority to hear and
determine. Morris v. City of Hobart, 39 F.3d 1105, 1110 (10th Cir. 1994), cert. denied,
514 U.S. 1109 (1995); Fritz v. Colorado, 223 F.Supp.2d 1197, 1199 (D. Colo. 2002). A
motion to dismiss under Rule 12(b)(1) may consist of either a facial or a factual attack
on the complaint. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).
Addressing a facial attack, I must accept the allegations of the complaint as true. Id.
The plaintiff bears the burden of establishing that subject matter jurisdiction exists.
Henry v. Office of Thrift Supervision, 43 F.3d 507, 512 (10th Cir. 1994); Fritz, 223
F.Supp.2d at 1199. “‘[The] motion must be determined from the allegations of fact in
the complaint, without regard to mere conclusory allegations of jurisdiction.’” Fritz, 223
F.Supp.2d at 1199 (quoting Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971)).
In contrast, when a party goes beyond the allegations of the complaint to
challenge the facts on which subject matter jurisdiction rests, the court may not
presume the truth of the allegations of the complaint. Sizova v. National Institute of
Standards & Technology, 282 F.3d 1320, 1324 (10th Cir. 2002); Holt, 46 F.3d at 1003.
“A court has wide discretion to allow affidavits, other documents, and a limited
evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Holt,
46 F.3d at 1003. The consideration of such materials generally does not convert the
motion into one for summary judgment, except “where the jurisdictional question is
intertwined with the merits of the case,” that is, “[w]hen subject matter jurisdiction is
dependent upon the same statute which provides the substantive claim in the case.”
Sizova, 282 F.3d at 1324 (quoting Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.),
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cert. denied, 108 S.Ct. 503 (1987); internal quotation marks omitted); see also Holt, 46
F.3d at 1003. Stated differently, “the underlying issue is whether resolution of the
jurisdictional question requires resolution of an aspect of the substantive claim.”
Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir. 2000).
In this case, the defendants present a facial attack. The plaintiff includes exhibits
with his response [#22]. However, the allegations in the complaint are consistent with
the additional facts cited by the plaintiff, and the defendant does not dispute the facts
evidenced in the plaintiff’s exhibits. I treat the defendants’ motion as a facial attack.
III. FACTS
In his Complaint for Declaratory and Injunctive Relief and Petition for Writ
of Mandamus [#1] filed April 29, 2011 (Complaint), the plaintiff-petitioner, Edgar Nielba
Martinez, challenges the propriety of the denial of two applications he made for benefits
under the Family Unity Program.2
The first application was filed on September 9, 2002. ¶ 24. The application form
requested information about the relative through whom Mr. Niebla Martinez sought
benefits. Mr. Niebla Martinez designated his father, who was an applicant for
adjustment of status under the LIFE Act. Mr. Niebla Martinez’s mother was also an
applicant for adjustment of status under the LIFE Act, and Mr. Niebla Martinez’s could
have sought benefits based on her application. However, the form only allowed for the
selection of one qualifying parent. ¶ 24.
On February 26, 2003, the former Immigration and Naturalization Service
(Service) denied the plaintiff’s application. The denial stated:
2
I refer to the Complaint by paragraph number, e.g. ¶ 1.
3
Service records and the supporting documentation submitted with your
application of Family Unity Benefits (I-817) fail to establish that the
Legalized Alien has filed an Application to Register permanent Resident or
Adjust Status (I-485) under the LIFE Act.
¶ 25. At the time of the denial, the Service had denied the application of Mr. Niebla
Martinez’s father, but his mother’s application remained pending. On March 29, 2004,
his mother’s application was approved, and she was granted the status of lawful
permanent resident.
The second application was filed on January 28, 2005. Mr. Niebla Martinez
relied on his mother’s approval under the LIFE Act, granted previously. On May 3,
2005, the Service denied Mr. Niebla Martinez’s second application because he was over
21 and, therefore, not eligible for the benefits he sought. Mr. Niebla Martinez turned 21
on February 10, 2004.
In his Complaint, Mr. Niebla Martinez seeks review of both the February 26,
2003, decision, and the May 3, 2005, decision. Mr. Niebla Martinez concedes that he
“chose the ‘wrong’ parent on his 2003 application and he was not eligible for Family
Unity benefits based on the denial of his father’s application. ¶ 36. However, he alleges
that the Service failed in its obligation to provide him with specific reasons for the denial
so he could identify the filing error and “provide Plaintiff with a guide for providing the
relevant information about his mother’s application.” ¶ 36. The plaintiff alleges also that
the second application was denied improperly. However, the defendants do not seek
dismissal of Mr. Niebla Martinez’s challenge to the denial of the second application.
The denial of the second application prompted the Service to initiate removal
proceedings against Mr. Niebla Martinez. ¶ 30. Mr. Niebla Martinez pursued
challenges to these proceedings, but, ultimately, a final order of removal was issued.
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Mr. Niebla Martinez seeks an injunction prohibiting the defendants from enforcing the
order of removal while this case is pending and during any subsequent re-adjudication
of his case by the defendants. Complaint, p. 15.
A stay of removal was granted and was set to expire on April 28, 2011. ¶ 33.
The Complaint was filed on April 29, 2011. The plaintiff has been granted an additional
stay of removal through April 28, 2012. Motion, p. 4.
IV. STATUTE OF LIMITATIONS
The defendants contend that Mr. Niebla Martinez’s challenge to the first
application must be dismissed because that challenge is barred by the applicable
statute of limitations. Mr. Niebla Martinez’s challenge is brought under the
Administrative Procedures Act (APA). A suit challenging a final agency action must be
brought within six years after the right of action first accrues. 28 U.S.C. § 2401(a). The
denial of Mr. Niebla Martinez’s first application was a final agency action and his APA
claim challenging that action accrued on February 26, 2003. This case was filed on
April 29, 2011, more than six years after the final agency action.
Timeliness of suit is one of the conditions of the government's waiver of
sovereign immunity under § 2401. Therefore, a district court lacks subject matter
jurisdiction if a plaintiff fails to satisfy the timing requirements of the statute. In re
Franklin Savings Corp, 385 F.3d 1279 1287 (10th Cir. 2004) (applying § 2401(b)).
Mr. Niebla Martinez argues that equitable tolling should be applied to this claim
and, with equitable tolling, his challenge to the February 26, 2003, decision is timely.
Equitable tolling can be applied under § 2401(a). See, e.g., Hart. v. Dept. of Labor,
116 F.3d 1338, 1339 (10th Cir. 1997) (addressing § 2401(b)). Federal courts apply
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equitable tolling sparingly. U.S. v. Clymore, 245 F.3d 1195, 1199 (10th Cir. 2001).
Equitable tolling may be proper when the plaintiff “has been induced or tricked by his
adversary's misconduct into allowing the filing deadline to pass.” Id. (internal quotation
and citation omitted).
In civil actions, this court has applied equitable tolling when the
defendant's conduct rises to the level of active deception; where a plaintiff
has been lulled into inaction by a defendant, and “[l]ikewise, if a plaintiff is
actively misled or has in some extraordinary way been prevented from
asserting his or her rights.”
Id. (quoting Biester v. Midwest Health Servs., Inc, 77 F.3d 1264, 1267 (10th Cir.
1996). In addition, equitable tolling may be appropriate when the plaintiff demonstrates
“extraordinary circumstances” that made it “impossible” for the plaintiff to file a timely l
lawsuit. Id.
Mr. Niebla Martinez asserts three bases for equitable tolling: (1) the defendants
erroneously read an “age out” provision into the Family Unity procedures; (2) the
defendants violated their regulations when the February 26, 2003, denial was not
sufficiently specific; and (3) A notario retained by Mr. Niebla Martinez’s family gave him
erroneous advice after the February 26, 2003, denial. Whether considered separately
or together, I conclude that these circumstances do not merit the application of
equitable tolling.
First, the age out argument concerns what Mr. Niebla Martinez says is the
promulgation of an improper regulation that provided that Family Unity benefits are not
available to a person who is over 21. Mr. Niebla Martinez asserts that such benefits
are, in some cases, available to persons over 21. For the sake of this analysis, I
assume without deciding that Mr. Niebla Martinez is correct. Mr. Niebla Martinez
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argues that the regulation actively misled him into not pursuing an earlier challenge to
the February 26, 2003, decision. Response, p. 6.
Second, Mr. Niebla Martinez argues that the February 26, 2003, denial was not
sufficiently specific and that this left Mr. Niebla Martinez with the “reasonable, yet
erroneous, understanding that he needed to wait until his mother’s application was
actually approved before re-filing.” Response, p. 7. According to Mr. Niebla Martinez,
had the denial specified that it referred only to Mr. Niebla Martinez’s father, Mr. Niebla
Martinez would have been on notice of the precise deficiency in his application, and he
“potentially” could have brought suit to challenge the agency’s failure to consider his
mother’s pending application as part of his application. Id.
Third, Mr. Niebla Martinez says he was confused further by the erroneous
advice his advisor gave to him after the February 26, 2003, denial. The advisor said the
denial was correct and Mr. Niebla Martinez had to wait until his mother’s application was
approved before taking further action.
The Service denied Mr. Niebla Martinez Family Unity benefits, based on the ageout issue, on May 3, 2005. That decision is at issue in this case. Any unfair delay or
confusion caused by the regulation, an insufficiently specific decision by the Service, or
the bad advice ended when the May 3, 2005, decision was issued. On May 3, 2005,
Mr. Niebla Martinez had an explicit decision from the Service on the key issue. At that
point, his only option was to challenge that decision and the earlier decision by filing
suit. At that point, it was not too late to challenge the February 26, 2003, decision. At
that point, Mr. Niebla Martinez was obligated to take timely action if he wished to do so.
Rather than act, he waited until April 29, 2011, to file this suit challenging the February
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26, 2003, decision. There is no explanation for Mr. Niebla Martinez’s decision to sit on
his rights concerning the February 26, 2003, decision from May 3, 2005, to April 29,
2011. With this long, unexplained inaction, equitable tolling does not apply.
Mr. Niebla Martinez’s challenge to the February 26, 2003, decision was filed long
after the six year statute of limitations had expired. Equitable tolling is not applicable.
This claim must be dismissed because it is time barred and for lack of jurisdiction.
V. JURISDICTION - INJUNCTIVE RELIEF
Mr. Niebla Martinez seeks an injunction against the defendants prohibiting them
from executing the order of removal against him during the pendency of this case and
any subsequent re-adjudication of his Family Unity applications. The defendants argue
that this court lacks jurisdiction to hear this claim.
Except as provided in this section . . . no court shall have jurisdiction to
hear any cause or claim by or on behalf of any alien arising from the
decision or action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against any alien under this
chapter.
8 U.S.C. § 1252(g). See also § 1252 (b)(9). This statute deprives the court of
jurisdiction over claims that arise from one of three decisions or actions by the Attorney
General. Those are (1) to commence removal proceedings; (2) to adjudicate removal
proceedings; or (3) to execute removal orders. Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 482 (1999).
Mr. Niebla Martinez argues that this jurisdictional limitation does not apply to this
case because he “is asserting the existence of a legal impediment to the Defendants’
ability to execute an administratively final and otherwise legally valid, removal order.”
Response, p. 9. According to Mr. Niebla Martinez, if the defendants had adjudicated his
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application for Family Unity benefits under the correct legal standards, then execution of
the order of removal would be stayed as a matter of law. Response, p. 9. At this point,
this contention applies only to the application for Family Unity benefits that was denied
on May 3, 2005.
8 C.F.R. § 245a.34 concerns the enforcement of orders of removal against
applicants for Family Unity benefits and those who have been granted such benefits.
Section 245a.34(a) provides that an application for Family Unity benefits does not limit
the authority of the Service to commence removal proceedings against the applicant or
limit the authority of the Service to enforce an order of removal, except for orders of
removal entered on four grounds specified in that subsection. The regulation provides
“(p)rotection from removal” based on orders of removal entered based on the four
specified grounds. Mr. Niebla Martinez’s order of removal appears to fall under these
grounds. If Mr. Niebla Martinez is an applicant for Family Unity benefits, then execution
of the order of removal against him is stayed under 8 C.F.R. § 245a.34(a). Mr. Niebla
Martinez filed a timely appeal of the May 3, 2005, denial of his application for Family
Unity benefits. On that basis, I conclude that he should be treated as an applicant for
such benefits.
Addressing the jurisdictional issue, the defendants argue that the Complaint
indicates that Mr. Niebla Martinez failed to exhaust his administrative remedies
concerning that denial and, therefore, his claim in this case should not be seen as
impairing enforcement of the order of removal. The defendants read Mr. Niebla
Martinez’s application for Family Unity benefits as a “denial of adjustment of status.”
Motion, p. 5. Both the plaintiff and the defendants agree that further administrative
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remedies are available after the denial of adjustment of status. In contrast, under 8
C.F.R. § 245a.33(b), a denial of Family Unity benefits “may not be appealed.” Rather,
Mr. Niebla Martinez contends, he has no administrative forum in which to challenge the
denial of Family Unity benefits and, therefore, he must bring a challenge to the denial in
a United States District Court under the APA. Although the record on this issue is not
fully complete, for the purpose of the present motion to dismiss, I conclude that Mr.
Niebla Martinez has exhausted his administrative remedies concerning the May 3,
2005, denial of Family Unity benefits.
Under § 1252(a)(5), “the sole and exclusive means for judicial review of an order
of removal” is a petition for review filed with the appropriate court of appeals. Mr.
Niebla Martinez contends he is not challenging the order of removal because he has no
basis to challenge that order. Therefore, he argues, § 1252(a)(5) does not apply here.
Rather, Mr. Niebla Martinez says he is challenging here the denial of Family Unity
benefits. He asserts that this court has jurisdiction over that issue under the APA and
related law. With a pending challenge to the denial of Family Unity benefits, he
contends, 8 C.F.R. § 245a.34 prohibits the defendants from enforcing the valid order of
removal.
With that background, the question is whether this court has jurisdiction over Mr.
Niebla Martinez’s effort to obtain an injunction barring execution of the order of removal
pending against him because 8 C.F.R. § 245a.34 prohibits the defendants from
enforcing the valid order of removal. I conclude that this court does not have jurisdiction
over this claim for injunctive relief. To rehearse, § 1252(g) deprives the court of
jurisdiction over claims that arise from a decision the Attorney General to execute
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removal orders. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,
482 (1999). Mr. Niebla Martinez’s claim for injunctive relief arises from precisely such a
decision by the Attorney General, a decision to execute the order of removal against Mr.
Niebla Martinez. Section 1252(b) begins with the qualifying phrase “(e)xcept as
provided in this section,” but the court is not aware of an applicable exception. Thus,
under the plain language of § 1252(g) as interpreted in Reno, I conclude that this court
does not have jurisdiction over Mr. Niebla Martinez’s claim for injunctive relief.
The defendants note in their motion that the only claim asserted against
defendant, John Morton, Director of Immigration and Customs Enforcement, and John
Longshore, Field Office Director for the Immigration and Customs Enforcement Denver
Office, is Mr. Niebla Martinez’s claim for injunctive relief. If the claim for injunctive relief
is dismissed, the defendants argue, then these two defendants should be dismissed
from this action. The plaintiff did not respond to this assertion. I agree with the
defendants.
VI. CONCLUSION & ORDERS
Mr. Niebla Martinez’s challenge to the February 26, 2003, is time barred, and, as
a result, this court lacks jurisdiction over that claim. Under 8 U.S.C. § 1252(g), this
court does not have jurisdiction over Mr. Niebla Martinez’s claim for injunctive relief
enjoining the enforcement of the removal order pending against him. Both of these
claims must be dismissed.
THEREFORE, IT IS ORDERED as follows:
1. That under FED. R. CIV. P. 12(b)(1), the Defendants’ partial Motion To
Dismiss Pursuant To fed. R. Civ. P. 12(b)(1) [#17] filed July 26, 2011, is GRANTED;
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2. That the plaintiff-petitioner’s claim challenging the February 26, 2003, decision
of the Immigration and Naturalization Service to deny Family Unity benefits to the
plaintiff-petitioner is DISMISSED for lack of jurisdiction and because it is barred by the
applicable statute of limitations;
3. That the plaintiff-petitioner’s claim seeking an injunction enjoining the
enforcement of an order of removal is DISMISSED for lack of jurisdiction; and
4. That defendant-respondents John Morton, Director of Immigration and
Customs Enforcement, and John Longshore, Field Office Director for the Immigration
and Customs Enforcement Denver Office, are DROPPED from this action and the
caption shall be AMENDED accordingly.
Dated March 28, 2012, at Denver, Colorado.
BY THE COURT:
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