Lopez-Mejia v. United States Attorney General et al
ORDER GRANTING RESPONDENTS' MOTION TO DISMISS (Doc. 17 ). Signed by Judge Timothy S. Black on 1/3/2017. (mr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
ANGELICA LOPEZ-MEJIA ex rel.,
LORETTA E. LYNCH, et al.,
Case No. 1:16-cv-549
Judge Timothy S. Black
ORDER GRANTING RESPONDENTS’ MOTION TO DISMISS (Doc. 17)
This civil action is before the Court on Respondents’ motion to dismiss (Doc. 17)
and Petitioner’s responsive memorandum (Docs. 18). 1
For purposes of this motion to dismiss, the Court must: (1) view the complaint in
the light most favorable to Petitioner; and (2) take all well-pleaded factual allegations as
true. Tackett v. M&G Polymers, 561 F.3d 478, 488 (6th Cir. 2009).
Petitioner Baby Lopez-Mejia, 2 through his mother, Angelica Lopez-Mejia,
challenges the removal of his father, Juan De Leon-Simon, as a violation of his
constitutional rights. Petitioner seeks a declaratory judgment that removal of his father is
The Petitioner fails to produce any new and/or different authority other than that which was
presented in his motion for a Temporary Restraining Order. (Doc. 2). Accordingly, the Court’s
position, that Petitioner has not shown a likelihood of success on the merits, has not changed.
(Doc. 5 at 8).
Petitioner, a boy, was expected to be born on or about July 30, 2016 in Cincinnati, Ohio. (Doc.
1 at ¶ 2). The Court assumes that Petitioner was born alive in Ohio and is a United States
contrary to law and that certain immigration-related statutes are unconstitutional as
applied to him. (Doc. 1 at PageID 4-5).
De Leon-Simon is a native and citizen of Guatemala who was subject to a
reinstated final administrative removal order. (Doc. 17-1 at ¶ 11). His original removal
order resulted from being charged under 8 U.S.C. Section 1182(a)(6)(A)(i) as “an alien
present in the United States without being admitted or paroled, or who arrived in the
United States at any time or place other than as designated by the Attorney General.” (Id.
at ¶¶ 5-6, Exs. A-B). De Leon-Simon did not contest the removal charges, and was first
removed from the United States on July 9, 2009. (Id. at ¶¶ 6-7, Exs. B-C).
De Leon-Simon illegally reentered the United States. (Doc. 17-1 at ¶ 8). On or
about December 4, 2011, his 2009 order of removal was reinstated (Id. at ¶ 9, Ex. D), and
he was removed again from the United States on December 22, 2011 (Id. at ¶ 10, Ex. E).
At some point in time in the last five years, De Leon-Simon illegally reentered the
United States again. (Doc. 17-1 at ¶ 11). On or about February 4, 2016, his 2009 order
of removal was reinstated again (Id. at ¶ 12, Ex. F), and he was removed a third time
from the United States on May 25, 2016 (Id. at ¶ 15, Ex. G).
Again, on June 29, 2016, after illegally reentering the United States, his 2009
order of removal was reinstated and he was removed from the United States for a fourth
time. (Doc. 17-1 at ¶¶ 16-18, Exs. J-K).
Petitioner requests that the Court declare several sections of the Immigration and
Nationality Act (“INA”) “as applied to [Petitioner]’s father as violative of his
Constitutional rights … or [declare] any other remedy this Court may fashion.” (Doc. 1
at PageID 4-5). Petitioner further alleges a violation of the Eighth Amendment because
the summary removal of his father “constitutes a form of cruel and unusual punishment.”
(Id. at ¶ 9). Petitioner also alleges that the separation from his father “will deprive him of
the continued love, affection, care and financial support of his father” in violation of the
Ninth Amendment and “without due process of law.” (Id. at ¶ 10). Petitioner alleges an
equal protection violation because the separation from his father through removal treats
him “differently from other U.S. citizen children in the State of Ohio because the best
interest of the child is “the standard relating to children in domestic and juvenile law in
the State of Ohio.” (Id. at ¶ 11). Petitioner also alleges that the separation from the
father violates the principals of several international treaties of which the United States is
a signator. (Id. at ¶ 12).
Respondents argue that the Court should dismiss the complaint because:
(1) Petitioner has not alleged a cognizable violation of his rights; and (2) even if this
Court found that the child’s rights were violated, the Court may not intervene in the
execution of a final removal order.
STANDARD OF REVIEW
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the
sufficiency of the complaint and permits dismissal of a complaint for “failure to state a
claim upon which relief can be granted.” To show grounds for relief, Fed. R. Civ. P. 8(a)
requires that the complaint contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.”
While Fed. R. Civ. P. 8 “does not require ‘detailed factual allegations,’ . . . it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007)). Pleadings offering mere “‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’” Id. (citing Twombly, 550 U.S. at 555).
In fact, in determining a motion to dismiss, “courts ‘are not bound to accept as true a
legal conclusion couched as a factual allegation[.]’” Twombly, 550 U.S. at 555 (citing
Papasan v. Allain, 478 U.S. 265 (1986)). Further, “[f]actual allegations must be enough
to raise a right to relief above the speculative level[.]” Id.
Accordingly, “[t]o 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.’” Iqbal, 556 U.S. at 678. A claim is plausible where “plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Plausibility “is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief,’” and the case shall be dismissed. Id. (citing Fed. Rule Civ.
A. Constitutional Rights
Unlawful Removal of Parent Alien
In Newton v. Immigration and Naturalization Services, the Sixth Circuit held that
the rights of U.S. citizen children are not violated by the removal of their parents. 736
F.2d 336, 342 (6th Cir. 1984). See also Martial-Emanuel v. Holder, 523 F. App’x 345,
350 (6th Cir. 2013) (“This Circuit and others have held on numerous occasions that the
removal of aliens does not violate either their constitutional rights or the constitutional
rights of their U.S. citizen family members.”).
The Sixth Circuit explained that “Congress had the power to determine the
conditions under which an alien may enter and remain in the United States … even
though the conditions may impose a certain amount of hardship upon an alien’s wife or
children.” Newton, 736 F.2d at 342 (quoting Mendez v. Major, 340 F.2d 128, 131-32 (8th
Cir. 1965)). The Court of Appeals stated that “a minor child who is fortuitously born
here due to his parents’ decision to reside in this country, has not exercised a deliberate
decision to make this country his home, and Congress did not give such a child the ability
to confer immigration benefits on his parents.” Newton, 736 F.2d at 342 (quoting
Perdido v. Immigration & Naturalization Serv., 420 F.2d 1179, 1181 (5th Cir. 1969)).
Accordingly, as this Court previously held, Petitioner has “failed in the first
instance to evidence a constitutional violation.” (Doc. 5 at 9).
Petitioner alleges that the removal of his father is cruel and unusual punishment.
(Doc. 1 at ¶ 9). However, the prohibition on cruel and unusual punishment only serves to
protect those convicted of crimes and circumscribes criminal process, not civil
immigration proceedings. Whitley v. Albers, 475 U.S. 312, 218 (1986). Petitioner does
not allege that he has been convicted of any crime, so his Eighth Amendment rights are
Petitioner also alleges a Ninth Amendment violation that his father’s removal
“will deprive him of the continued love, affection, care and financial support of their
father.” (Doc. 1 at ¶ 10). The Ninth Amendment ensures that fundamental rights are not
excluded from protection simply because they were not expressly enumerated in the
Constitution. Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991). The Sixth Circuit
has held that the Ninth Amendment “does not confer substantive rights in addition to
those conferred by other portions of our governing law,” which this Court recognized in
rejecting Petitioner’s motion for a temporary restraining order. (Doc. 5 at 4). Moreover,
the argument that the deprivation of a father’s “continued love, affection, care, and
financial support” violates the Ninth Amendment has specifically been rejected by the
courts. See, e.g., Cervantes v. Immigration & Naturalization Serv., 510 F.2d 879, 91-92
(10th Cir. 1975) (holding that the “incidental impact on aliens’ minor children,” caused
by the operation of the deportation laws, does not violate the children’s Ninth
Amendment rights); Papakonstantinou v. Civiletti, 496 F. Supp. 105, 111 (E.D.N.Y.
1980) (“Nor does the [N]inth [A]mendment prevent the deportation of the alien parents
of a citizen child, where the impact on the child, while strong, is nevertheless incidental
to the enforcement of the immigration laws.”).
Accordingly, the Ninth Amendment provides no basis for a cognizable claim.
Procedural and Substantive Due Process Claims
Next, Petitioner alleges that he has been separated from his father “without due
process of law.” (Doc. 1 at ¶ 10). However, Petitioner has not alleged any requisite
protected liberty or property interest that would entitle him to any procedural due process
regarding his father’s removal. See Gunasekera v. Irwin, 551 F.3d 461, 467 (6th Cir.
2009) (petitioner must establish a life, liberty, or property interest to establish a
procedural due process claim); Martial-Emanuel, 523 F. App’x at 350 (illegal aliens
subject to deportation have no protected property or liberty interest in discretionary relief
such as cancellation of removal). Thus, Petitioner has no cognizable right to the notice
and meaningful opportunity to be heard provided under the Equal Protection Clause of
the Fifth Amendment without a protected liberty or property interest.
In Martial-Emanuel, the Sixth Circuit addressed an alien’s claim that her removal
violated her constitutional rights due to the hardship that would be placed on her husband
and children. 523 F. App’x at 347. The Court recognized that due process protects
against “governmental encroachment on certain fundamental rights,” but the doctrine of
substantive due process “does not prevent the government from controlling when and
how an alien may remain in the United States.” Id. at 350.
The Sixth Circuit has set forth a two-part analysis for examining substantive due
process claims. Ziss Bros. Constr. Co., Inc. v. City of Independence, Ohio, 439 F. App’x
467, 471 (6th Cir. 2011). Under this analysis, the Court must first “determine whether
the interest at stake is a protected liberty or property interest” and then “consider whether
the deprivation of that interest contravened the notions of due process.” Id.
“Substantive due process ‘prevents the government from engaging in conduct that shocks
the conscience…or interferes with rights implicit in the concept of ordered liberty.’”
United States v. Green, 654 F.3d 637, 652 (6th Cir. 2001). Moreover, “irrespective of the
constitutional sufficiency of the processes afforded, government may not deprive
individuals of fundamental rights unless the action is necessary and animated by a
compelling purpose.” Bartell v. Lohiser, 215 F.3d 550, 557-58 (6th Cir. 2000).
Petitioner has not pleaded facts that shock the conscience. 3 Furthermore, the
government has a compelling state interest, based on border security and national
sovereignty, to enforce its immigration statutes.
Petitioner states that “[i]f a court’s conscience is not shocked by the separation of children from
their non-criminal parents, it had best say so and not hide behind routine. Many monsters have
so done.” (Doc. 18 at 8). In an effort to maintain and enforce high standards of conduct and
preserve the integrity of the judiciary, the Court declines to address counsel’s suggestion that the
undersigned is a monster. See Code of Conduct for United States Judges, Canon 1.
Petitioner also alleges that his father should not have been removed because this
removal resulted in Petitioner being treated differently from other U.S. citizen children in
Ohio. (Doc. 1 at ¶ 11). The basis for this contention is that the standard relating to
children in domestic and juvenile law in the State of Ohio is that of the best interest of the
child, and, thus, his father’s removal violates his equal protection rights.
In Lopez v. Franklin, the District of Michigan rejected the application of the best
interest of the child standard to the removal of U.S. citizens’ parents. 427 F. Supp. 345,
349 (D. Mich. 1977). The Lopez court concluded that U.S. citizen children would not be
deprived of their opportunity to grow up in the United States. Id. The Court rejected the
parents’ arguments that their removal would not be in the “best interest of the children”
by turning the argument on its head, stating that if this were the standard applied to all
aliens, the government would be unduly interfering in parental decisions to take their
children back to their home country under circumstances where the parents were not
subject to removal orders. “Following such logic the government would have to forcibly
retain custody” of the children if their parents decided to return to their home country. Id.
(citing Mendez v. Major, 340 F.2d 128 (8th Cir. 1965) (concluding that because Congress
has the power to determine the conditions under which an alien may enter and stay in the
United States, enforcement of the laws does not violate any due process rights of the
Furthermore, in Hernandez-Lea, the Sixth Circuit held that the decision to deport
an alien who entered the United States illegally did not implicate the equal protection
rights of the alien’s U.S.-born daughter. Hernandez-Lea v. Holder, 563 F. App’x 401,
403 (6th Cir. 2014). “[T]he law on this point is settled: a United States-citizen child’s
constitutional rights are not implicated by the government’s otherwise valid decision to
deport that child’s parents.” Id. (citing Newton, 736 F.2d at 343). “As we noted in
Newton, ‘[w]ere we to hold otherwise, we would create a substantial loophole in the
immigration laws, allowing all deportable aliens to remain in this country if they bear
children here.’” Hernandez-Lea, 563 F. App’x at 403 (quoting Newton, 736 F.2d at 343).
Finally, Petitioner alleges that the separation “from his father violates the
principles of international treaties to which the United States is a signatory.” (Doc. 1 at
¶ 12). However, Petitioner fails to identify the principles, fails to explain the United
States’ participation in the treaties, and fails to explain how the treaties are the prevailing
law in this jurisdiction. In holding that the rights of United States citizen children are not
violated with their parents’ removal, the First Circuit held that these treaties “do not have
the force of domestic law,” and even if they did, “the clear intent of Congress
[concerning immigration law] would control.” Payne-Barahona v. Gonzales, 474 F.3d 1,
3 (1st Cir. 2007). Because the treaties are not self-executing, they do not constitute
judicially enforceable laws. Thap v. Mukasey, 544 F.3d 674, 676 (6th Cir. 2008) (holding
that non-self-executing treaties do not constitute judicially enforceable laws). In fact,
Judge Rice observed that even if these treaties had the “force of domestic law,” “the clear
intent of Congress [concerning immigration law] would control.” Saldana v. Holder,
3:15cv105, Doc. 9 at PageID 62, n. 3 (S.D. Ohio Apr. 2, 2105).
Even if this Court found that Petitioner’s rights were violated, this Court is
prohibited from reviewing and vacating a removal order. The Sixth Circuit rejected
claims nearly identical to Petitioner’s for failure to state a claim because district courts
“are prohibited from reviewing and vacating a removal order.” Hamdi v. Napolitano, 620
F.3d 615, 625 (6th Cir. 2010). In Hamdi, the minor child of an alien subject to removal
alleged that his mother’s removal would violate his own rights as a United States citizen.
Hamdi sought a court order prohibiting the removal, but the Sixth Circuit dismissed his
claims in holding that 8 U.S.C. Section 1252(b)(9) precluded the district court from
reviewing and cancelling a parent’s order of removal as a result of any finding that the
alien’s children would be harmed by the removal. Id. at 626. As in Hamdi, the only
substantive relief that will potentially remedy Petitioner’s claims was the cancellation of
his father’s removal, which this Court is barred from granting under 8 U.S.C. Section
For these reasons, Respondents’ motion to dismiss (Doc. 17) is GRANTED. The
Clerk shall enter judgment accordingly, whereupon this case is TERMINATED on the
docket of this Court.
IT IS SO ORDERED.
Timothy S. Black
United States District Judge
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