AISHAT v. U.S. DEPARTMENT OF HOMELAND SECURITY et al

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 35 Report and Recommendations; denying 27 MOTION to Strike filed by U.S. Citizenship and Immigration Services, US Department of Homeland Security, Tracy Tarango, WILLIAM BIERMAN, ELAIN E DUKE, James McCament; and granting 26 MOTION to Dismiss for Lack of Jurisdiction filed by U.S. Citizenship and Immigration Services, US Department of Homeland Security, Tracy Tarango, WILLIAM BIERMAN, ELAINE DUKE, James McCament. Signed by District Judge J. Campbell Barker on 3/25/2020. (ndc)

No. 6:18-cv-00080
Ayman Aishat,
Plaintiff,
v.
U.S. Department of Homeland Security, et al.,
Defendants.
Before B ARKER , District Judge
ORDER
The report and recommendation of United States Magistrate Judge K. Nicole Mitchell (Doc. 35) is adopted as the opinion of the court. No clear error infects the report’s unobjectedto conclusion on defendants’ motion to strike (Doc. 27), which
is denied. On de novo review, no error is found in the report’s
conclusion on the partial motion to dismiss (Doc. 26), which
is granted. Plaintiff’s objection (Doc. 36) to Judge Mitchell’s
redressability conclusion is without merit. Plaintiff cites no
authority holding that the declaration he seeks on his second
and third claims would result in the exclusion of evidence in
his 8 U.S.C. § 1421(c) proceeding. And even if an exclusionary
rule did apply, declaratory relief would not be the vehicle for
invoking it; any request to exclude evidence would be raised
in that proceeding, presumably in a motion before trial. The
Administrative Procedure Act also does not show redressability. It creates a cause of action but cannot cure a standing defect. In any event, the Act authorizes judicial review only if
“there is no other adequate remedy,” 5 U.S.C. § 704, which
does exist here under § 1421(c). Monterrubio v. Nielsen, 2018
WL 2247223, at *3 (S.D. Tex. May 16, 2018) (citing Aparicio v.
Blakeway, 302 F.3d 437, 447 (5th Cir. 2002)).

So ordered by the court on March 25, 2020.

J. C AMPBELL B ARKER
United States District Judge

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