Hinojosa v. Horn et al

Filing 39

ORDER ADOPTING REPORT AND RECOMMENDATIONS re: 19 Report and Recommendations, 7 MOTION to Dismiss 1 Petition for Writ of Habeas Corpus (Signed by Judge Rolando Olvera) Parties notified.(sespinoza, 1)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
RAQUEL HINOJOSA,
Plaintiff,
v.

PETRA HORN, Port Director, U.S.
Customs and Border Protection; Hon.
JOHN KERRY, Secretary of the
Department of State; Hon. JEH
JOHNSON, Secretary, Department of
Homeland Security; and UNITED
STATES OF AMERICA
Defendants.

David J. Bradley, Clerk

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January 20, 2017

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Civil Action No. 1:16-cv-00010

ORDER ADOPTING MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION
This case arises from the government's denial of Raquel Hinojosa's passport
application and her subsequent inability to enter the United States. Hinojosa
(hereafter "Plaintiff') requests that the Court grant her habeas corpus and
Administrative Procedure Act (hereafter "APA") relief, and thereafter issue a
declaratory judgment granting her U.S. citizenship .
Before the Court is the "Report and Recommendation of the Magistrate
Judge" (Docket No. 19) in the above-referenced case. The Magistrate Report and
Recommendation (hereafter "R&R") recommends that Defendants' motion to
dismiss be granted. For the reasons stated below, the "Report and Recommendation
of the Magistrate Judge" (Docket No. 19) is ADOPTED.

I.

FACTUAL BACKGROUND
Plaintiff claims she was born in Brownsville, Texas, through the assistance of

a midwife, sometime in June 1973. Docket No. 21 at 1. Five days after Plaintiffs
birth, her birth was registered with the State of Texas; the Plaintiffs name on said
document is listed as Raquel Hinojosa. Docket No. 2 Ex. 1. Plaintiff also has a
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Mexican birth certificate, stating that she was born in Matamoros, Mexico; the
Mexican birth certificate lists Plaintiffs name as Raquel Flores Venegas. Docket
No. 21 at 1.
Besides the different last names, there is one glaring difference between the
two birth certificates - each certificate lists a different father. Id. The Texas birth
certificate lists Mario Hinojosa Delgado as the father; the Mexican birth certificate
lists Higinio Flores as the father. Docket No. 2 Ex. 2. Plaintiff attributes this
inconsistency to the fact that her mother and biological father, Mario Hinojosa
Delgado, ended their relationship shortly after she was born. Docket No. 21 at 1.
Thereafter, Plaintiffs mother returned to Mexico and registered her as the child of
Higinio Flores. Id. Plaintiff grew up believing Flores was her father. Id. At some
point in Plaintiffs life, she discovered that Flores was not her biological father. Id.
She subsequently procured a DNA test showing Mario Hinojosa Delgado as her
biological father. Id.
In July of 2014, Plaintiff filed a passport application, supported by her Texas
birth certificate, her DNA test, and affidavits from Mario Hinojosa Delgado and
Plaintiffs older half-sister, confirming the Texas birth, with the United States
Department of State (hereafter "DOS"). Id. On September 10, 2015, DOS requested
that Plaintiff provide additional evidence, including information on why she grew
up believing Flores was her father. Id. She responded on October 9, 2015. Id. at 2.
On November 13, 2015, DOS denied her application, citing the Mexican birth
certificate as evidence that her Texas birth certificate, filed by the midwife, was
fraudulent. Id. Thus, Plaintiff claims she is currently unable to enter the United
States. Docket No. 1 at 1.

II.

PROCEDURAL HISTORY
On January 15, 2016, Plaintiff filed a "Petition for Writ of Habeas Corpus

and Complaint for Declaratory and Injunctive Relief' (Docket No. 1), seeking a writ
of habeas corpus, pursuant to 28 U.S.C. § 2241, and a declaratory judgment that

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she is a U.S. citizen. Docket No. 1 at 3. She also asserts federal subject-matter
jurisdiction exists under the APA. Id.
On March 28, 2016, Defendants timely filed "Defendants' Motion to Dismiss
Complaint Pursuant to Fed. R. Civ. P. 12(b) (1)" (Docket No. 7). First, Defendants'
claim that Plaintiffs request for a writ of habeas corpus fails because she is not "in
custody" and she has not exhausted her administrative remedies. Docket No. 7 at 4.
Second, Defendants' claim that Plaintiff cannot assert jurisdiction under 8 U.S. C. §
1503(a) because she is not "within the United States," as required by the statute;
instead, Defendants' argue, she must proceed through § 1503(b) and (c). Id . at 4-5.
Lastly, Defendants' claim that the AP A does not provide the Court with jurisdiction
over Plaintiffs case. Id. at 12.
On April 9, 2016, Plaintiff timely filed "Petitioner's Opposition to
Respondents' Motion to Dismiss Petitioner's Petition/Complaint Pursuant to Fed. R.
Civ. P. 12(b) (1)" (Docket No. 9). Plaintiff argues that she is "in custody" because she
is a U.S. citizen who is unable to return to her home country and that she is not
required to follow § 1503(b) and (c) because these provisions do not provide an
adequate remedy at law. Docket No.9 at 13, 21. She also asserts that the APA,
pursuant to Rusk v. Cart, 369 U.S . 367 (1962) , grants the Court subject-matter
jurisdiction over her claims. Id. at 10.
On April 19, 2016, Defendants timely filed "Defendants' Reply in Support of
Motion to Dismiss Complaint Pursuant to Fed. R. Civ. P. 12(b) (1)" (Docket No. 12).
Defendants reiterate that Plaintiff is not "in custody" and that the APA does not
grant this Court subject-matter jurisdiction over this case . Docket No. 12 at 3-4.
On September 9, 2016, the Magistrate Judge filed the "Report and
Recommendation of the Magistrate Judge" (Docket No. 19). First, the Magistrate
held that Plaintiffs request for habeas corpus fails for two reasons: (1) Plaintiff is
not "in custody," because she "is not being subjected to restraints that are not
shared by all U.S. citizens," and (2) Plaintiff has not exhausted all her
administrative remedies. Docket No. 19 at 8-9. Second, the Magistrate held that
the APA does not grant the Court subject-matter jurisdiction because the denial of
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Plaintiffs application does not constitute "final agency action." Id. at 10. Lastly, the
Magistrate held that§ 1503 (b) and (c), not§ 1503(a), are the correct avenues for
Plaintiff to seek redress for the denial of her passport. Id at 10, 11-14.
On September 23, 2016, Plaintiff filed "Petitioner's Objections to the
Magistrate's Report and Recommendation" (Docket No. 21). Plaintiff re-argues that
she is "in custody," that she is not required to exhaust her administrative remedies,
and that the APA grants the Court subject-matter jurisdiction. Docket No. 21.
Plaintiff also abandons her § 1503(a) claim. Id. at 11 n.5.
On October 6, 2016, Defendants filed "Defendants' Response to Petitioner's
Objections to Magistrate Judge's Report and Recommendation" (Docket No. 24). On
October 17, 2016, Plaintiff filed "Plaintiffs Reply in Support of Her Objections to
the U.S. Magistrates Report and Recommendation" (Docket No. 28). The next day
Plaintiff filed "Plaintiffs Amended Reply in Support of Her Objections to the U.S.
Magistrates Report and Recommendation" (Docket No. 29). The arguments raised
in these documents reiterated points in earlier briefs.
On November 17, 2016, this Court issued an "Order" (Docket No. 34),
ordering the parties to brief Plaintiffs claim that "8 U.S.C. § 1185(b) is
unconstitutional as applied because it infringes on the fundamental right of United
States citizens to return to the United States." On November 28, 2016, Plaintiff
filed "Plaintiffs Response to Court Order [34] to Brief Whether U.S.C. § 1185(b) is
unconstitutional as applied to her" (Docket No. 35); in summary, Plaintiff argues
that although the Government has a compelling interest to keep non-nationals from
entering the United States as U.S. citizens, 8 U.S.C. § 1503(b) and (c) are not
sufficiently narrowly tailored to meet that compelling interest. On December 21 ,
2016, one day after the filing deadline, Defendants filed "Defendants' Reply to
Plaintiffs Supplemental Briefing Relating to 8 U.S.C. § 1185(b)" (Docket No . 36),
arguing that Plaintiff does not have standing to bring an as-applied challenge
because § 1185(b) was never applied to Plaintiff. Docket No. 36 at 3-5. Defendants
also raised constitutional avoidance and Procedural Due Process arguments. Id. at
2, 5. Defendants also filed "Defendants' Motion for Leave to File Reply Out of Time"
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(Docket No. 37). On January 3, 2017, the Court entered an "Order" (Docket No. 38),
granting Defendants' motion for leave to file said reply.

III. DISCUSSION
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life

Ins. Co. of America, 511 U.S. 375, 377 (1994). A party may challenge a district
court's subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b) (1).
The party asserting jurisdiction bears the burden to prove the district court has
jurisdiction. Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001) . In ruling
on a Rule 12(b) (1) motion to dismiss, courts must "accept all factual allegations in
the plaintiffs complaint as true." Den Norske Stats Oljeselkap As v. HeereMac Vof,
241 F.3d 420, 424 (5th Cir. 2001).

A.

The Court lacks jurisd iction to provide habeas relief.

The federal habeas corpus statute, 28 U.S.C § 2241 et seq., allows an
individual who is "in custody" due to a violation of federal law or under authority of
the federal government to challenge his or her "custody." Rosales v. Bureau of

Immigration and Customs Enforcement , 426 F.3d 733, 735 (5th Cir. 2005). In order
seek habeas review , the plaintiff must first exhaust administrative remedies.

United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992).
A person may challenge an agency's denial of a claimed right or privilege as a
U.S . citizen under 8 U.S.C. § 1503. The administrative remedies at issue are
described in§ 1503(b) and (c).
In relevant parts, § 1503(b) states as follows:
[i]f any person who is not within the United States claims a right or privilege
as a national of the United States and is denied such right or privilege by any
department or independent agency, or official thereof, upon the ground that
he is not a national of the United States, such person may make application
to a diplomatic or consular officer of the United States in the foreign country
in which he is residing for a certificate of identity for the purpose of traveling
to a port of entry in the United States and applying for admission. Upon
proof to the satisfaction of such diplomatic or consular officer that such
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application is made in good faith and has a substantial basis, he shall issue to
such person a certificate of identity. From any denial of an application for
such certificate the applicant shall be entitled to an appeal to the Secretary of
State , who, if he approves the denial, shall state in writing his reasons for his
decision.
In relevant parts, § 1503(c) states as follows:
[a] person who has been issued a certificate of identity under the provisions of
subsection (b) of this section, and while in possession thereof, may apply for
admission to the United States at any port of entry, and shall be subject to all
the provisions of this chapter relating to the conduct of proceedings involving
aliens seeking admission to the United States. A final determination by the
Attorney General that any such person is not entitled to admission to the
United States shall be subject to review by any court of competent
jurisdiction in habeas corpus proceedings and not otherwise.
Exhaustion requires that "all those prescribed administrative remedies which
might provide appropriate relief be pursued prior to seeking relief in the federal
courts." Cleto, 956 F.2d at 84 (quoting Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th
Cir. 1985)). "Exceptions to the exhaustion requirement are appropriate where the
available administrative remedies either are unavailable or wholly inappropriate to
the relief sought, or where the attempt to exhaust such remedies would itself be a
patently futile course of action." Fuller v. Rich, 11 F.3d 61, 62 (quoting Hessbrook,
777 F.2d at 1003)).
Plaintiff objects to the Magistrate Judge's finding that the Court lacks
jurisdiction to provide habeas corpus relief. Docket No. 21 at 2. Plaintiff is incorrect
because, even if the Court assumes arguendo that she is "in custody," it 1s
undisputed that she has not exhausted the administrative remedies available to
her.
Plaintiffs exhaustion argument is threefold. First, Plaintiff argues that there
are no administrative remedies to exhaust when a passport application is denied for
non-nationality. Docket No. 21 at 4. She is incorrect because the statute specifically
provides Plaintiff with the administrative remedy to seek redress for the denial of
her application. As § 1503(b) expressly states, a person denied a right on the ground

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that she is "not a national of the United States" may apply for a certificate of
identity at her local embassy or consulate.
Next, Plaintiff argues that she does not have to follow the procedures
prescribe by § 1503(b) and (c) because these procedures are "barely available, if
[they are] available at all." Docket No. 21 at 5. She is incorrect because Plaintiff
cannot escape the exhaustion requirement by arguing that it is "barely available ."

See Lee v. Gonzales, 410 F.3d 778, 786 (5th Cir. 2005) (a plaintiff "must exhaust
available avenues of relief and turn to habeas only when no other means of judicial
review exists"). The likelihood of success is not the measure of whether or not a
remedy must be pursued. Instead, the law dictates that available remedies must be
pursued prior to a habeas claim. Here , a remedy is available, pursuant to § 1503(b)
and (c). It is important to note that at the conclusion of § 1503(c) the statute
expressly provides for habeas review.
Lastly, Plaintiff argues that the DOS Manual (hereafter "Manual") supports
her positions because it specially states that a person whose application for a
passport has been denied has three possible options: he or she may (1) reapply; (2)
"file a legal action in Federal court in the United States"; or (3) "apply to the U.S.
embassy or consulate for 'Documentation of Identity for Travel to The United States
to Apply for Admission' pursuant to 8 U.S.C. 1503(b)." Docket No . 21 at 7. She is
incorrect in her interpretation of the scope of said Manual.
The Manual does not state that all of the listed options are available for a
person "not within the United States." It merely provides avenues for possible
challenges, which are consistent with 8 U.S.C. § 1503. The second option - file a
claim in federal court- is consistent with § 1503(a), but applicable in scope only to
a person within the United States. The third option- apply at the U.S. embassy-is
consistent with § 1503(b) and (c), and applicable in scope to a person "not within the
United States." Furthermore, even if the Court assumes arguendo that the Manual
provided that all listed options were available to a person "not within the United
States," such provision cannot override a federal statute. The Manual, unlike §
1503(b) and (c), is not a federal statute; it is merely a manual.
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B. The Court lacks jurisdiction under the APA.
The APA provides judicial review of a "final agency action for which there is
no other adequate remedy in a court ... ." 5 U.S.C. 704. Without a "final agency
action," federal courts lack subject-matter jurisdiction. Veldhoen u. United States

Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994). To be a "final agency action," the
action must (1) "mark the consummation of the agency's decision making process"
and (2) be an action where "rights and obligations have been determined, or from
which legal consequences will flow. " Bennett u. Spears , 520 U .S. 154, 177-78 (1997)
(internal quotations omitted) . An intermediate step in an administrative process
"cannot be viewed as a 'consummation' of agency decision making." Qureshi u.

Holder, 663 F.3d 778, 781 (5th Cir. 2011).
Plaintiff objects to the Magistrate Judge's finding that the Court lacks
jurisdiction under the APA Docket No. 21 at 19. Plaintiff argues that, under Rusk u.

Cort, 369 U.S. 367 (1962) , th e APA provides the Court subject-matter jurisdiction
over her citizenship claim. Plaintiff is incorrect.
First, the denial of Plaintiffs passport application is not a final agency action.
The initial denial is simply the first step in the process, not the final determination
by the applicable agency. See Qureshi, 663 F.3d at 781. Second, Plaintiff has not
exhausted her administrative remedies. See supra III(A).

Subsequent to said

denial, the Plaintiff has existing recourse in 8 U.S .C. § 1503(b) and (c).
Plaintiff argues that no final agency action or exhaustion is required for APA
standing. Docket No. 21 at 19-20. Plaintiff argues that Rusk held that the
procedures laid out in 8 U.S.C . § 1503 (b) and (c) do not need to be followed before
bringing a suit under the APA. Id. She is incorrect because Rusk's holding that the
APA, without a final agency action, grants federal courts subject-matter jurisdiction
has been overruled. Califano u. Sanders , 430 U.S. 99, 105 (1977) ("the APA is not to
be interpreted as an implied grant of subject-matter jurisdiction to review agency
actions"); see also Oryszak u. Sullivan , 576 F.3d 522, 524 (D.C. Cir. 2009) ; Trudeau
u. Federal Trade Com'n, 456 F.3d 178, 183-84 (D.C. Cir. 2006); City of Miami u.

I.C.C. , 669 F .2d 219, 222 n. 12 (5th Cir. 1982).
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Plaintiff attempts to circumvent the overruling of Rusk by arguing that
"while the APA is no longer ... considered jurisdictional, there is no reason that
jurisdiction cannot be laid, as Plaintiff did here, under 28 U.S.C. § 1331." Docket
No. 21 at 19. Plaintiff misinterprets the federal-question statute. To invoke federal
question jurisdiction , "a plaintiffs claim must be based on some federal law
independent of that statute." U.S. on Behalf of F.T.C. v. Larkin, Hoffman, Daly &

Lindgren, Ltd, 841 F. Supp. 899, 903 (D. Minn. 1993) (citing Merrell Dow
Pharmaceuticals Inc. v. Thompson , 478 U.S. 804 (1986)). Without a final agency
action, jurisdiction does not vest under the APA nor§ 1331.

C. The Court lacks jurisdiction to decide Plaintiffs as-applied
challenge.
Under 8 U.S.C. § 1185(b), "it is unlawful for any citizen of the United States
to depart from or enter, or attempt to depart from or enter, the United States unless
he bears a valid United States passport ." Any plaintiff may present a facial or asapplied challenge to the constitutionality of a statute. See Citizens United v. Fed.

Election Comm'n, 558 U .S. 310, 331 (2010). A facial challenge is "a claim that a
statute is unconstitutional on its face-that is, that it always operates
unconstitutionally." Facial Challenge, Black's Law Dictionary (lOth ed. 2014). An
as-applied challenge is "a claim that a law or governmental policy, though
constitutional on its face , is unconstitutional as applied" to an individual. As-

Applied Challenge, Black's Law Dictionary (lOth ed. 2014). Here, Plaintiffbrings an
as-applied challenge.
A Plaintiff "generally cannot prevail on an as-applied challenge without
showing that the law has in fact been (or is sufficiently likely to be)
unconstitutionally applied to him." McCullen v. Coakley, 134 S.Ct. 2518, 2534 n. 4
(2014). "When [a federal court] is presented with an as-applied challenge, [it]
examine[s] only the facts of the case before [it] and not any set of hypothetical facts
under which the statute might be unconstitutional." United States v. Phillips, 645
F.3d 859, 863 (7th Cir. 2011) .
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In Plaintiffs objection to the Magistrate Judge's R&R, she raise s a new issue.
Plaintiff now argues that 8 U.S.C. § 1185(b) is unconstitutional as-applied to her.
Plaintiff is incorrect.
Plaintiff has failed to plead sufficient facts to show that §1185(b) has been, or
is sufficiently likely to be , unconstitutionally applied to her. First, it is undisputed
that§ 1185(b) has not been applied to Plaintiff. At no point does Plaintiff argue that
§ 1185(b) was applied to her. See generally Docket Nos. 21, 29, 35. Second, Plaintiff
admits to entering the United States without a passport. Plaintiff states, "when I
found out that I was born in Texas[,] I began to cross into the U.S. with my birth
certificate." Docket No. 2 Ex. 4(c).
In the supplemental briefing ordered by the Court, Plaintiff failed to plead
sufficient facts to support her§ 1185(b) challenge. Instead, Plaintiff argued that the
procedures spelled out in§ 1503(b) and (c) are not the least restrictive means
necessary to support the Government's "compelling interest in not admitting, as
U.S. citizens, individuals who are not, in fact , U.S. citizens." Docket No . 35 at 7-8.
Plaintiffs argument is incorrect; § 1503(b) and (c) are not relevant to her as-applied
challenge to§ 1185(b)- these are two different statutes.

IV. CONCLUSION

Although Plaintiff currently does not have standing to sue in federal court,
she is not without recourse. Plaintiff can seek redress through§ 1503 (b) and (c) .
Plaintiff may apply to "a diplomatic or consular officer ... for a certificate of identity
for the purpose of traveling to a port of entry in the United States and applying for
admission." 8 U.S .C. § 1503(b). If the diplomatic or consular officer is satisfied that
the "application is made in good faith and has a substantial basis, he shall issue ...
a certificate of identity." Id. If the application for the certificate of identity is
denied, Plaintiff is entitled to appeal the decision to the Secretary of State. Id. If the
Secretary of State denies the appeal, the Court will then have jurisdiction to hear
Plaintiffs APA claim.

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Alternatively, if Plaintiff is issued a certificate of identity, she "may apply for
admission to the United States at any port of entry." 8 U.S. C. § 1503(c). "A final
determination by the Attorney General that [Plaintiff] is not entitled to admission
to the United States shall be subject to review by any court of competent
jurisdiction in habeas corpus proceedings and not otherwise." Id. If the Attorney
General denies Plaintiff admission, the Court will then have jurisdiction to hear
Plaintiffs habeas corpus claim.
For the foregoing reasons, the "Report and Recommendation of the
Magistrate Judge" (Docket No. 19) is ADOPTED. The Clerk's Office is hereby

ORDERED to close this case.

Signed on this

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' 2017.