Oudom v. Tritten et al

Filing 20

ORDER denying 6 Motion to Dismiss (Written Opinion) Signed by Senior Judge David S. Doty on 11/14/2017. (DLO)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 17-1991(DSD/BRT)
Iliana Beatriz Oudom,
Plaintiff,
v.

ORDER

Leslie Tritten, Field Office
Director, U.S. and Immigration
Services, James McCament, U.S.
Citizenship and Immigration Services,
Acting Director, Washington, D.C.,
Elaine Duke, Acting Secretary,
Department of Homeland Security,
Washington, D.C.,
Defendants.
Marc Prokosch, Esq. and Karam & Associates, 2950 Metro Drive,
Suite 201, Bloomington, MN 55425, counsel for plaintiff.
Ubaid Ul-Haq, U.S. Department of Justice, P.O. Box 868, Ben
Franklin Station, Washington D.C. 20044, counsel for
defendants.

This matter is before the court upon the motion to dismiss by
defendants
Citizenship

Leslie
and

Tritten,

Immigration

Field

Office

Services

Director

(USCIS)

in

of

U.S.

Minneapolis,

Minnesota; James McCament, Acting Director of USCIS; and John
Kelly, Secretary of the Department of Homeland Security.1

Based on

a review of the file, record, and proceedings herein, and for the
following reasons, the court denies in part the motion.

1

Although not reflected in the case caption, the court notes
that L. Francis Cissna is now the Director of USCIS and Elaine C.
Duke is currently the Acting Secretary of Homeland Security.

BACKGROUND
This immigration dispute arises out of USCIS’s denial of
plaintiff Iliana Beatriz Oudom’s Application to Register Permanent
Residence or Adjust Status.

On April 17, 2012, Oudom, a citizen

and native of El Salvador, presented herself at a port-of-entry in
Hidalgo, Texas for inspection by a Department of Homeland Security
(DHS) official.

Compl. ¶¶ 6-7; see ECF No. 17-3 at 1.2

Oudom

wanted to apply for asylum, and DHS allowed her to enter the United
States pending her application.3

Compl. ¶ 7.

Oudom was given a

“credible fear interview”4 for her asylum application on February
24, 2014, and the DHS official determined that she had a credible
fear of torture if she were returned to El Salvador.

See ECF No.

17-2 at 4.
On August 8, 2014, while residing in the United States, Oudom
married Prathna Oudom, a United States citizen.

Compl. ¶ 8.

On

February 12, 2015, Oudom applied to Register Permanent Residence or
Adjust Status based on her marriage to a United States citizen.
Id.

USCIS denied her application for failure to demonstrate that

2

Because the parties did not attach their exhibits to an
affidavit, the court will refer to exhibits by electronic filing
number.
3

As far as the court is aware, Oudom’s asylum application is
still pending.
4

During a credible fear interview, a DHS official asks the
asylum applicant a series of questions to ascertain whether she has
a credible fear of persecution or torture.
2

she was admitted or paroled into the United States pursuant to 8
U.S.C. § 1255(a).

Id. ¶ 9.

On June 12, 2017, Oudom filed this suit seeking a writ of
mandamus5 and a declaratory judgment that she is eligible to adjust
her status to lawful permanent resident and that defendants erred
in finding that she was not paroled into the United States.6
Defendants now move to dismiss for failure to state a claim.

DISCUSSION
I.

Standard of Review
In order to survive a motion to dismiss, “a complaint must

contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (citations and

5

At the hearing, plaintiff conceded that her mandamus claim
is moot.
The court, therefore, dismisses that claim with
prejudice.
6

The court notes that it has no jurisdiction to review
USCIS’s adjustment of status determination.
See 8 U.S.C.
§ 1182(d)(5) (stating that parole of aliens into the United States
is
at
the
Attorney
General’s
discretion);
8
U.S.C.
§ 1252(a)(2)(B)(ii) (“[N]o court shall have jurisdiction to review
... any other decision or action ... which is specified under this
subchapter to be in the discretion of the Attorney General or the
Secretary of Homeland Security ....”). The court does, however,
retain jurisdiction to interpret the statutes at issue. See Succar
v. Ashcroft, 394 F.3d 8, 19 (1st Cir. 2005) (“Both the Supreme
Court and this court have consistently rejected arguments that
Congress has eliminated judicial review of the legal question of
interpretation of the statute as to whether an alien is eligible
for consideration of relief.”).
3

internal

quotation

marks

omitted).

“A

claim

has

facial

plausibility when the plaintiff [has pleaded] factual content that
allows

the

court

to

draw

the

reasonable

inference

defendant is liable for the misconduct alleged.”

that

the

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp v. Twombly,
550 U.S. 544, 556 (2007)).

Although a complaint need not contain

detailed factual allegations, it must raise a right of relief above
the speculative level.

See Twombly, 550 U.S. at 555.

“[L]abels

and conclusions or a formulaic recitation of the elements of a
cause of action” are not sufficient to state a claim.

Iqbal, 556

U.S. at 678 (citations and internal quotation marks omitted).
The court does not consider matters outside the pleadings
under Rule 12(b)(6).

Fed. R. Civ. P. 12(d).

The court may,

however, consider matters of public record and materials that are
“necessarily embraced by the pleadings.”

Porous Media Corp. v.

Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (citation and
internal quotation marks omitted).

Here, the court properly

considers documents pertaining to Oudom’s immigration status.
II.

Motion to Dismiss
At issue are two statutes under which the government may

“parole” an alien.
General

may,

at

Under 8 U.S.C. § 1182(d)(5)(A), the Attorney

his

discretion

and

on

a

case-by-case

basis,

temporarily parole an alien into the United States for “urgent
humanitarian reasons or significant public benefit.”
4

After the

purposes of the parole have been served “the alien shall forthwith
return or be returned to the custody from which he was paroled and
... his case shall continue ... in the same manner as that of any
other applicant.”

8 U.S.C. § 1182(d)(5)(A).

The parties agree

that an alien paroled under this statute is eligible for adjustment
of status to legal permanent resident.
It is also undisputed that an alien paroled under 8 U.S.C.
§ 1226 is not eligible for adjustment of status.

Under this

statute, upon a warrant issued by the Attorney General, “an alien
may be arrested and detained pending a decision on whether the
alien

is

to

§ 1226(a).

be

removed

from

the

United

States.”

8

U.S.C.

The Attorney General has the option of continuing to

detain the alien, release the alien on bond, or release the alien
on “conditional parole.”

See 8 U.S.C. 1226(a)(1)-(2).

The defendants argue that, as a matter of law, Oudom was
conditionally

paroled

pursuant

to

§

1226.

In

support,

the

government cites to Oudom’s apparent failure to provide evidence
that she was paroled pursuant to § 1182(d)(5)(A).

The defendants

contend that if Oudom had been paroled under § 1182, the government
would have made its intention clear by issuing a Form I-94 endorsed
with

a

parole

1182(d)(5)(A).

stamp

or

another

document

that

references

§

See Ortega-Cervantes v. Gonzales, 501 F.3d 1111,

1116 (9th Cir. 2007) (“We see nothing that would preclude the
government from paroling ... an alien into the United States under

5

§ 1182(d)(5)(A), rather than conditionally paroling the alien under
§ 1226(a), so long as the government makes its intention clear
....”).
Oudom concedes that she lacks such documentation, but contends
that under the agency’s regulations and policy, the only way she
could have entered the United States was to be paroled pursuant to
§ 1182(d)(5)(A).

Specifically, the agency’s regulations provide

that “[a]ny alien who is placed in expedited removal proceedings
... will be detained pursuant to ... 8 U.S.C. § 1225(b),7 with
certain exceptions, until removed.

However, aliens determined to

have a credible fear may be considered by DHS for parole in
accordance with [§ 1182(d)(5)] and 8 CFR 212.5.”8

Designating

Aliens for Expedited Removal, 69 Fed. Reg. 48877 (Aug. 11, 2004).
Oudom argues that under this regulation, the agency may only admit,
deport, detain, or parole an arriving alien, and because she was
not admitted, deported, or detained, she must have been paroled.
Oudom also points to Form I-862 - Notice to Appear, issued to
her by DHS, which indicates that her expedited removal order was

7

Section 1225(b) provides that an immigration officer shall
order an arriving alien to be immediately removed if the officer
determined that the alien is inadmissable. The parties agree that
Oudom is an “arriving alien.”
8

8 C.F.R. § 212.5 lists groups under which parole under
§ 1182(d)(5) would be justified. These groups include aliens with
serious medical conditions, pregnant women, juveniles, and “aliens
whose continued detention is not in the public interest.” See 8
C.F.R. § 212.5(b).
6

vacated pursuant to 8 C.F.R. § 208.30.

See ECF No. 17-3.

8 C.F.R.

§ 208.30 provides that “[i]f an alien ... is found to have a
credible fear of persecution or torture, the asylum officer will so
inform the alien and issue a Form I-862. ... Parole of the alien
may be considered only in accordance with [8 U.S.C. 1182(d)(5)].”
Oudom argues that because she was an alien found to have a credible
fear of torture, she could have only been paroled pursuant to
§ 1182(d)(5)(A), per the agency’s own regulation.
Defendants argue, however, that Oudom could not have been
paroled because it would be incongruous for the government to seek
the removal of an alien that has been paroled pursuant to § 1182.9
But

both

the

statute

and

previously paroled aliens.

regulations

contemplate

removal

of

Therefore, it is not inconsistent for

the government to parole an alien and later seek her removal.

See

8 U.S.C. § 1182(d)(5)(A) (“[W]hen the purposes of such parole ...
have been served the alien shall forthwith return ... to the
custody from which he was paroled and thereafter his case shall
continue to be dealt with in the same manner as that of any other
applicant ....”); 8 C.F.R. § 212.5(e)(2) (“When a charging document

9

Contrary to defendants’ contention, the fact that Oudom was
required to follow certain conditions pursuant to an Order of
Supervision, ECF No. 9-1, does not necessarily mean she was
conditionally paroled under § 1226. Parole under § 1182(d)(5)(A)
also contemplates that conditions will be imposed. See 8 C.F.R.
§ 212.5(d) (stating that officials may require reasonable
assurances and impose reasonable conditions on aliens paroled
pursuant to § 1182(d)(5)(A).
7

is served on the alien, the charging document will constitute
written notice of termination of parole ....”).
Although Oudom was not issued a Form I-94 or similar document,
the government does not contend that this is the only sufficient
evidence of parole available.

Further, because Oudom is an

arriving alien with a credible fear of torture, the agency’s own
regulations indicate that Oudom may have been paroled pursuant to
§ 1182(d)(5)(A).

Defendants provide no persuasive alternative

interpretation of the regulations.

Without a more fully developed

record, the court is not able to conclude, as a matter of law, that
Oudom was paroled under § 1226 rather than § 1182(d)(5).

As a

result, the motion to dismiss must be denied.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1. Plaintiff’s writ of mandamus claim is dismissed with
prejudice; and
2.

In all other respects, defendants’ motion to dismiss [ECF

No. 6] is denied.

Dated: November 15, 2017
s/David S. Doty
David S. Doty, Judge
United States District Court

8