Licea et al v. Pompeo et al

Filing 20

ORDER DENYING AS MOOT 8 Motion to Dismiss and GRANTING 15 Motion to Dismiss. Plaintiff's First Amended Complaint (ECF No. 11 ) is DISMISSED without Prejudice. Signed by Judge Gloria M. Navarro on 9/30/2019. (Copies have been distributed pursuant to the NEF - ASB)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

CINDY LICEA, et al.,
4

Plaintiffs,

5

vs.

6

MICHAEL POMPEO, et al.,
7

Defendants.

8

)
)
)
)
)
)
)
)
)

Case No.: 2:18-cv-01057-GMN-NJK
ORDER

9

Pending before the Court is a Motion to Dismiss, (ECF No. 15), filed by Defendants

10
11

Michael Pompeo, as United States Secretary of State, David T. Donahue, as acting Assistant

12

Secretary of State for Consular Affairs, Edward J. Ramotowski, as Deputy Assistant Secretary

13

of State for Visa Services, and Daria L. Darnell, as United States Consular General for Ciudad

14

Juarez, Mexico (collectively, “Defendants”). Plaintiff Cindy Licea (“Plaintiff”) filed a

15

Response, (ECF No. 16), and Defendants filed a Reply, (ECF No. 19).
Also pending before the Court is Defendants’ Motion to Dismiss, (ECF No. 8). 1

16
17

I.

BACKGROUND

18

This is an action seeking mandamus under 28 U.S.C. § 1361 and declaratory relief under

19

28 U.S.C. § 2201 relating to the denial of an immigrant visa application. (See First Am. Compl.

20

(“FAC”), ECF No. 11).
Plaintiff is a United States citizen. (FAC at 2). Eduardo Romero Flores is a Mexican

21
22

citizen born on September 22, 1980. (Id. at 3). In or around May 1998, Flores (age 17) made

23

two attempts to illegally enter the United States. (Id.). Flores was 17 years old at the time.

24
25

1

As an initial matter, the First Amended Complaint, (ECF No. 11), is the operative complaint, which supersedes
the original Complaint, (ECF No. 1). As such, Defendants’ Motion to Dismiss Complaint, (ECF No. 8), is
DENIED as moot.

Page 1 of 8

1

(Id.). Flores’s first attempt allegedly resulted in his immediate detention, fingerprinting, and

2

voluntary departing from the United States. (Id.). Flores’s second attempt allegedly resulted in

3

his successful, illegal entry into the United States without inspection and his continuous stay

4

until April 2018. (Id.). On November 17, 2007, Plaintiff and Flores were married in Clark

5

County, Nevada. (Id.).

6

On July 9, 2015, Plaintiff’s Form I-130 Petition for Alien Relative to initiate the process

7

to adjust Flores’s immigration status in the United States was received by the United States

8

Customs and Immigration Services (the “USCIS”). (Id. at 3, 19). On January 14, 2016, the

9

USCIS sent a Notice of Approval of the I-130 Petition advising that the visa petition has been

10

sent to the Department of State National Visa Center (“NVC”), who in turn will determine and

11

forward the petition to the appropriate consulate to complete visa processing. (Id. at 3–4, 21).

12

On May 26, 2017, the USCIS sent a Notice of Approval of Flores’s I-601A Provisional

13

Unlawful Presence Waiver, which was subject to various conditions detailed therein, including

14

approval by the applicable consular’s office. (Id. 11 at 4, 23). On April 4, 2018, Flores

15

appeared before a United States consular officer at the United States Consulate in Ciudad

16

Juarez, Mexico, for an interview pertaining to Flores’s visa application. (Id. at 4). On that same

17

date, Flores’s visa was denied based on ineligibility under INA § 212(a)(9)(B)(ii) 2 and INA

18

§ 212(a)(6)(C)(ii) 3. (Id. at 26). As to the former, a violation may be eligible for a waiver

19

through an I-601 Waiver subject to the determination of the USCIS; as to the latter, no waiver

20

was available. (FAC at 26).

21

On June 12, 2018, Plaintiffs Licea and Flores filed the original Complaint, (ECF No. 1).

22

On October 5, 2018, Plaintiff Licea (removing Flores as a plaintiff) filed the operative First

23

Amended Complaint (“FAC”) against Defendants alleging two claims for relief: (1) mandamus;

24
25
2
3

8 U.S.C. § 1182(a)(9)(B)(ii) (“Unlawful Presence”).
8 U.S.C. § 1182(a)(6)(C)(ii) (“False Claim of Citizenship”).

Page 2 of 8

1

and (2) declaratory relief. (FAC 11). Plaintiff seeks an order compelling Defendants to reset

2

Flores’s interview before the consular officer and to reconsider his immigrant visa. (Id. at 9).

3

Plaintiff further seeks a declaration that 8 U.S.C. § 1182(a)(9)(B)(ii) and 8 U.S.C.

4

§ 1182(a)(6)(C)(ii) are inapplicable to Flores and cannot therefore be a basis for the denial of

5

his immigrant visa. (Id. at 9).

6

In the instant Motion, Defendants move to dismiss both claims set forth in the FAC,

7

(ECF No. 11), pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

8

The Court will address each in turn.

9

II.

10

LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure mandates that a court dismiss a

11

cause of action that fails to state a claim upon which relief can be granted. See North Star Int’l

12

v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to

13

dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the

14

complaint does not give the defendant fair notice of a legally cognizable claim and the grounds

15

on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering

16

whether the complaint is sufficient to state a claim, the Court will take all material allegations

17

as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v.

18

Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

19

The Court, however, is not required to accept as true allegations that are merely

20

conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden

21

State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action

22

with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a

23

violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

24

Twombly, 550 U.S. at 555) (emphasis added). In order to survive a motion to dismiss, a

25

complaint must allege “sufficient factual matter, accepted as true, to state a claim to relief that

Page 3 of 8

1

is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff pleads factual

2

content that allows the court to draw the reasonable inference that the defendant is liable for the

3

misconduct alleged.” Id.

4

“Generally, a district court may not consider any material beyond the pleadings in ruling

5

on a Rule 12(b)(6) motion. . . . However, material which is properly submitted as part of the

6

complaint may be considered” on a motion to dismiss. Hal Roach Studios, Inc. v. Richard

7

Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly,

8

“documents whose contents are alleged in a complaint and whose authenticity no party

9

questions, but which are not physically attached to the pleading, may be considered in ruling on

10

a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for

11

summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule

12

of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay

13

Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers

14

materials outside of the pleadings, the motion to dismiss is converted into a motion for

15

summary judgment. See Fed. R. Civ. P. 12(d); Arpin v. Santa Clara Valley Transp. Agency, 261

16

F.3d 912, 925 (9th Cir. 1992).

17

If the court grants a motion to dismiss, it must then decide whether to grant leave to

18

amend. Pursuant to Rule 15(a), the court should “freely” give leave to amend “when justice so

19

requires,” and in the absence of a reason such as “undue delay, bad faith or dilatory motive on

20

the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,

21

undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the

22

amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is

23

only denied when it is clear that the deficiencies of the complaint cannot be cured by

24

amendment. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).

25

Page 4 of 8

1

III.

2

DISCUSSION
In the instant Motion, Defendants argue that dismissal is proper because the visa denial

3

was facially legitimate and bona fide under Kleindienst v. Mandel, 408 U.S. 753 (1972),

4

because the visa denial was based on two legitimate, statutory grounds: (1) 8 U.S.C.

5

§ 1182(a)(9)(B)(ii); and (2) 8 U.S.C. § 1182(a)(6)(C)(ii). (Mot. to Dismiss (“MTD”) at 10, 12–

6

13).

7

“[I]t has been consistently held that the consular official’s decision to issue or withhold a

8

visa is not subject either to administrative or judicial review.” Li Hing of Hong Kong, Inc. v.

9

Levin, 800 F.2d 970, 971 (9th Cir. 1986). “However, courts have identified a limited exception

10

to the doctrine where the denial of a visa implicates the constitutional rights of American

11

citizens.” Bustamante v. Mukasey, 531 F.3d 1059, 1061 (9th Cir. 2008). “The exception is

12

rooted in Kleindienst v. Mandel[.]” Id. “[U]nder Mandel, a U.S. citizen raising a constitutional

13

challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for

14

the decision.” Id. at 1062. “As long as the reason given is facially legitimate and bona fide the

15

decision will not be disturbed.” Id. (citing Mandel, 408 U.S. at 770).

16

“First, the consular officer must deny the visa under a valid statute of inadmissibility.”

17

Cardenas v. United States, 826 F.3d 1164, 1172 (9th Cir. 2016). Here, the consular officer

18

gave two facially legitimate reasons to deny Flores’ visa because the consular officer cited two

19

specific provisions of a valid statute of inadmissibility: (1) 8 U.S.C. § 1182(a)(9)(B)(ii); and (2)

20

8 U.S.C. § 1182(a)(6)(C)(ii). (See FAC at 26). Title 8 U.S.C. § 1182(a) provides in relevant

21

part as follows:

22
23
24
25

(6) Illegal entrants and immigration violators
....
(C) Misrepresentation
....
(ii) Falsely claiming citizenship
(I) In general. Any alien who falsely represents, or has
falsely represented, himself or herself to be a citizen of the
Page 5 of 8

1

United States for any purpose or benefit under this chapter
(including section 1324a of this title) or any other Federal or
State law is inadmissible.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

....
(9) Aliens previously removed
....
(B) Aliens unlawfully present
(i) In general. Any alien (other than an alien lawfully admitted for
permanent residence) who—
....
(II) has been unlawfully present in the United States for one
year or more, and who again seeks admission within 10
years of the date of such alien’s departure or removal from
the United States,
is inadmissible.
....
(ii) Construction of unlawful presence. For purposes of this
paragraph, an alien is deemed to be unlawfully present in the United
States if the alien is present in the United States after the expiration
of the period of stay authorized by the Attorney General or is
present in the United States without being admitted or paroled.
(iii) Exceptions
(I) Minors. No period of time in which an alien is under 18
years of age shall be taken into account in determining the
period of unlawful presence in the United States under clause
(i).
....
(v) Waiver. The Attorney General has sole discretion to waive
clause (i) in the case of an immigrant who is the spouse or son or
daughter of a United States citizen or of an alien lawfully admitted
for permanent residence, if it is established to the satisfaction of the
Attorney General that the refusal of admission to such immigrant
alien would result in extreme hardship to the citizen or lawfully
resident spouse or parent of such alien. No court shall have
jurisdiction to review a decision or action by the Attorney General
regarding a waiver under this clause.
See 8 U.S.C. § 1182(a).
“Second, the consular officer must cite an admissibility statute that ‘specifies discrete
factual predicates the consular officer must find to exist before denying a visa, or there must be

Page 6 of 8

1

a fact in the record that 'provides at least a facial connection to’ the statutory ground of

2

inadmissibility.” Cardenas, 826 F.3d at 1172 (quoting Kerry v. Din, 135 S. Ct. 2128, 2141

3

(2015) (Kennedy, J., concurring)). Here, for each statutory ground, the consular officer

4

provided a bona fide factual reason that provided a “facial connection” to the respective

5

statutory ground of inadmissibility. (See FAC at 26). As to the False Claim of Citizenship, the

6

consular officer provided that “the applicant made a false claim to U.S. citizenship.” (Id.). As

7

to the Unlawful Presence, the consular officer provided that “[t]he applicant was unlawfully

8

present in the U.S. for more than 365 days. This ineligibility will expire after [Mar. 2028].”

9

(Id.).

10

The consular officer denied Flores’s immigrant visa under a valid statute of

11

inadmissibility and found factual predicates to exist before denial of the same. Based on the

12

record, the visa denial was facially legitimate and bona fide. See, e.g., Cardenas, 826 F.3d at

13

1172 (“The consular officer gave a facially legitimate reason to deny Mora’s visa because he

14

cited a valid statute of inadmissibility, § 1182(a)(3)(A)(ii), which denies entry to an alien who

15

intends to enter with the intent to engage in ‘unlawful activity.’ He also provided a bona fide

16

factual reason that provided a ‘facial connection’ to the statutory ground of inadmissibility: the

17

belief that Mora was a ‘gang associate’ with ties to the Sureno gang.”).

18

Plaintiff’s assertion—that Flores “emphatically denies the existence of any facts which

19

would provide a facial connection to a false claim of U.S. citizenship”—without more is

20

insufficient under the instant limited judicial inquiry. (Resp. at 4). As the FAC acknowledges,

21

Flores’s first attempted entry resulted in his immediate detention, fingerprinting, and voluntary

22

departure from the United States. (FAC at 3). Plaintiff argues that “[i]f the false claim basis for

23

the visa denial fails, so too does the unlawful presence visa denial.” (Resp. at 4). Plaintiff

24

argues that the first ground for unlawful presence only survives if the second survives because

25

Flores had a valid Form I-601A waiver at the time of the consular interview. (Id. at 3–4).

Page 7 of 8

1

Plaintiff’s reliance on the Form I-601A, however, is misplaced as it was a provisional unlawful

2

presence waiver and the consular officer additionally found that Flores made a false claim to

3

U.S. citizenship. (FAC at 26). With respect to the remainder of Plaintiff’s arguments, the Court

4

finds that they are insufficient in light of the limited inquiry authorized under Mandel.

5

Based on the foregoing, the Court finds that the visa denial was facially legitimate and

6

bona fide and the decision will therefore not be disturbed. As Plaintiff’s declaratory relief

7

claim is predicated on the same grounds as Plaintiff’s request for mandamus, Plaintiff’s claim

8

for declaratory relief fails for the same reasons. Accordingly, Defendants’ Motion to Dismiss

9

Amended Complaint, (ECF No. 15), is GRANTED and Plaintiff’s Amended Complaint, (ECF

10

No. 11), is DISMISSED without prejudice.

11

IV.

12
13
14
15
16
17
18

CONCLUSION
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss Amended Complaint,

(ECF No. 15), is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s First Amended Complaint, (ECF No. 11),
is DISMISSED without prejudice.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss Complaint, (ECF
No. 8), is DENIED as moot.
30
DATED this _____ day of September, 2019.

19
20
21

___________________________________
Gloria M. Navarro, District Judge
United States District Court

22
23
24
25

Page 8 of 8