Mohamed v. Napolitano et al

Filing 26

ORDER Defendants 13 Motion to Dismiss is GRANTED. Plaintiffs claims in this case are DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. The Clerk shall enter judgment in favor of Defendants, by Judge William J. Martinez on 4/12/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-01803-WJM-CBS
RAMADAN NASIR MOHAMED,
Plaintiff,
v.
JANET NAPOLITANO, Secretary U.S. Department of Homeland Security,
JOHN LONGSHORE, Denver Field Office Director, Immigration and Customs
Enforcement, Enforcement and Removal Operations,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

Plaintiff Ramadan Nasir Mohamed brings this action against Defendants Janet
Napolitano, Secretary of the Department of Homeland Security, and John Longshore,
Denver Field Office Director for Immigration and Customs Enforcement. Plaintiff
alleges that his removal from the United States violated his rights and asks the Court to
issue a writ of habeas corpus compelling the Defendants to promptly return Plaintiff to
the United States. (Complaint (ECF No. 1) pp. 8-9.)
Before the Court is Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P.
12(b)(1) (“Motion”). (ECF No. 13.) For the reasons set forth below, the Motion is
granted and this action is dismissed without prejudice.
I. LEGAL STANDARD
Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of jurisdiction

over the subject matter.” Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not
a judgment on the merits of a plaintiff’s case. Rather, it calls for a determination that
the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction
rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580
(10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may
only exercise jurisdiction when specifically authorized to do so). A court lacking
jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes
apparent that jurisdiction is lacking.” See Basso v. Utah Power & Light Co., 495 F.2d
906, 909 (10th Cir. 1974). The burden of establishing subject matter jurisdiction is on
the party asserting jurisdiction. Id.
A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of
fact in the complaint, without regard to mere conclusory allegations of jurisdiction.”
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule
12(b)(1) motion, however, the Court may consider matters outside the pleadings without
transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d
1000, 1003 (10th Cir. 1995). Where a party challenges the facts upon which subject
matter jurisdiction depends, a district court may not presume the truthfulness of the
complaint’s “factual allegations . . . [and] has wide discretion to allow affidavits, other
documents, and [may even hold] a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1).” Id.

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II. FACTUAL BACKGROUND
Because Defendants’ Motion does not challenge any factual assertions brought
by Plaintiff, the Court takes all facts pled in the Complaint as true. Holt, 46 F.3d at
1002. Plaintiff Ramadan Mohamed (“Plaintiff”) is a native and citizen of Libya who has
lived in the United States since 1975. (Compl. ¶ 6.) Plaintiff was granted asylum status
in 1989 and later adjusted his status to that of a lawful permanent resident. (Id.)
Plaintiff was previously married to a U.S. citizen and has two children (ages 22 and 23)
who are U.S. citizens. (Id.)
On November 24, 2010, Plaintiff was served with a Notice to Appear for removal
proceedings based on his prior convictions for two crimes involving moral turpitude. (Id.
¶ 7.) Plaintiff appeared pro se at these proceedings and did not contest his removal.
(Id.) The Immigration Judge entered an Order of Removal on January 5, 2011. (Id.)
Plaintiff then obtained counsel and filed a Motion to Reopen his removal
proceedings. (Id. ¶ 9.) Plaintiff also filed motion requesting a stay of his removal order
pending consideration of his Motion to Reopen. (Id. ¶ 10.) On the afternoon of
February 15, 2011, the Immigration Judge signed an order granting Plaintiff’s request to
stay. (Id. ¶ 11.) The order was served on Defendants sometime the following day.
(Id.) However, on the morning of February 16, 2011, Defendants executed the removal
order by placing Plaintiff on a plane bound for Dulles Airport in Washington D.C. and
then a flight to Frankfurt, Germany. (Id. ¶ 12.) Neither party has heard from Plaintiff
since his removal. (ECF No. 20 at 6.)

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Based on these facts, Plaintiff contends that his removal was unlawful because
the removal order had been stayed by the Immigration Judge. (Id. ¶ 16.)
III. ANALYSIS
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins.
Co. of America, 511 U.S. 375, 377 (1994). As Congress creates the scope of the
federal court’s jurisdiction, it can also limit such jurisdiction. Bowles v. Russell, 551
U.S. 205, 212-13 (2007); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 375
(1978) (“The limits upon federal jurisdiction, whether imposed by the Constitution or by
Congress, must be neither disregarded nor evaded.”). Defendants argue that Congress
has stripped the Court of jurisdiction over Plaintiff’s claims by way of 8 U.S.C. §
1252(g). (Mot. at 7.) Section 1252(g) provides:
Except as provided in this section and notwithstanding any
other provision of law (statutory or nonstatutory), including
section 2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of such title, 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.
The Supreme Court has construed § 1252(g) narrowly and held that it applies “only to
three types of discretionary decisions by the Attorney General—specifically, to
commence proceedings, to adjudicate cases, or to execute removal orders.” I.N.S. v.
St. Cyr, 533 U.S. 289, 311 n.34 (2001) (citing Reno, 525 U.S. at 486-87).
Plaintiff’s claims in this case clearly arise from the decision to execute the

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removal order by putting Plaintiff on a plane to Libya. (Compl. ¶¶ 20-31.) Thus, his
claims fall within the three types of decisions outlined in Section 1252(g). Plaintiff
argues that Section 1252(g) does not apply to his claims, however, because the
decision to execute his removal order was not discretionary. (Opp. at 3.) Plaintiff
contends that Defendants did not have the discretion to execute the removal order
because the Immigration Judge had stayed the order. (Id.)
Plaintiff’s argument fails because the Tenth Circuit has held that Section 1252(g)
applies to both discretionary and non-discretionary decisions:
Although the Supreme Court in AADC considered
discretionary actions to which § 1252(g) applies, “it did not
explicitly state that the provision applies only to review of
discretionary decisions by the Attorney General in these
areas and not to review of non-discretionary decisions.”
Foster v. Townsley, 243 F.3d 210, 214 (5th Cir. 2001). To
the contrary, explained the Fifth Circuit, the plain language
of § 1252(g) speaks of “ ‘any cause or claim’ that ‘aris[es]
from the decision or action by the Attorney General’ in the
three areas.” Id. (quoting 8 U.S.C. § 1252(g)). For this
reason, just as it was necessary for the Fifth Circuit in
Foster, we must determine whether Mr. Tsering's claims
“arise from” actions over which § 1252(g) precludes judicial
review. We conclude that they do.
Tsering v. U.S. Immigration & Customs Enforcement, 403 F. App’x 339, 342 (10th Cir.
2010). Therefore, regardless of whether the Attorney General’s decision was
discretionary or non-discretionary, if the action arises from the decision to execute a
removal order, the Court lacks jurisdiction. Id. Because Plaintiff’s claims in this action
relate directly to the decision to execute his removal order, the Court finds that it lacks
jurisdiction over Plaintiff’s claims in this case pursuant to 8 U.S.C. § 1252(g).
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IV. CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss is GRANTED.
Plaintiff’s claims in this case are DISMISSED WITHOUT PREJUDICE for lack of
subject matter jurisdiction. The Clerk shall enter judgment in favor of Defendants.
Dated this 12th day of April, 2012.
BY THE COURT:

William J. Martínez
United States District Judge

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