Del Angel Cardona v. Wolf et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATIONS re: 17 MOTION to Dismiss 1 Complaint , 24 Report and Recommendations. Ordered that Cardona's Bivens claim is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief c an be granted; ORDERED that Cardona's request for a declaratory judgment under 8 USC 1503(a) is dismissed without prejudice for lack of subject matter jurisdiction; ordered that defendants shall file a response to the opposed motion to file a supplemental and amended complaint by no later than 9/24/2021. (Signed by Judge Fernando Rodriguez, Jr) Parties notified.(dnoriega, 1)

Case 1:20-cv-00132 Document 27 Filed on 09/07/21 in TXSD Page 1 of 6
United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
RAUL DEL ANGEL CARDONA,
Plaintiff,
VS.
ALEJANDRO MAYORKAS, et al.,
Defendants.

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September 07, 2021
Nathan Ochsner, Clerk

CIVIL ACTION NO. 1:20-CV-00132

ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Raul del Angel Cardona filed this lawsuit after his unsuccessful attempt to
obtain a Certificate of Citizenship from the United States Citizenship and Immigration
Services (USCIS). He alleges three causes of action: (1) a federal civil rights claim for
damages–i.e., a Bivens action–against Norma Limon, the Director of the Harlingen Field
Office for USCIS, in her individual capacity; (2) a request under 8 U.S.C. § 1503(a) for a
declaratory judgment that he is a United States citizen, brought against Limon in her
official capacity, Chad Wolf in his official capacity as the Acting Secretary of Homeland
Security, and Kenneth T. Cuccinelli in his official capacity as Senior Official Performing
the Duties of the Director of USCIS; and (3) an action for administrative relief under the
Administrative Procedure Act against Limon in her official capacity.
In May of this year, a Magistrate Judge issued a Report and Recommendation
(Doc. 24) recommending the granting of the Defendants’ Motion to Dismiss Plaintiff’s
Complaint (Doc. 17) and the dismissal of Limon’s three causes of action. The Report and
Recommendation recommends dismissal on the grounds that the Bivens action does not

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state a claim upon which relief can be granted, that the declaratory judgment action is
time barred, and that the APA claim is moot. (R&R, Doc. 24)
Cardona filed objections to the Report and Recommendation. (Objections, Doc.
26) In addition, Cardona filed a Motion to File a Supplemental and Amended Complaint
(Motion to Amend, Doc. 25), in which he seeks, primarily, to amend his APA claim. In
the proposed Amended and Supplemental Complaint (Doc. 25-1), Cardona also includes
additional arguments against the reasoning in the Report and Recommendation.
I.

Objections to Report and Recommendation
As Cardona filed objections to the Report and Recommendation, the Court has

conducted a de novo review of the Motion to Dismiss, the briefing of the parties, the
record in this case, and the applicable law. Based on this review, the Court overrules the
objections that Cardona advances as to the Report and Recommendation.
A. Bivens Claim
Cardona “disagrees” with some of the statements in the Report and
Recommendation as to the first cause of action, but then concedes that he “has abandoned
his Bivens claim”.1 (Objections, Doc. 26, 6) To the extent that Cardona objects to the
Report and Recommendation on this cause of action, the Court overrules the objections.
For the reasons contained within the Report and Recommendation, the Court concludes
that the applicable law does not afford Cardona a Bivens remedy, and that the allegations
do not rise to the level of a constitutional due process violation.

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In his proposed Amended and Supplemental Complaint, Cardona omits his Bivens claim.

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B. Declaratory Judgment Action under 8 U.S.C. § 1503(a)
Cardona makes several objections to the Report and Recommendation’s
conclusion that Cardona’s action under 8 U.S.C. § 1503 for a declaratory judgment is time
barred. (See, e.g., Objections, Doc. 26, ¶¶ 5, 6, 11, 12) The Report and Recommendation
rests the conclusion primarily on the application of the Fifth Circuit’s decision in Gonzalez
v. Limon, 926 F.3d 186 (5th Cir. 2019). That decision concerned whether the denial of a
renewed motion for a certificate of citizenship, seeking reconsideration of an earlier
denial of such a motion, begins anew the statute of limitations for initiating an action
under Section 1503(a). The Fifth Circuit concluded that duplicative denials do not restart
the statute of limitations, and that the initial denial controls for purposes of whether the
individual timely filed his declaratory judgment action. Applying Gonzalez to Cardona’s
allegations, the Report and Recommendation concludes that the statute of limitations
began to run on Cardona’s claim in August 2013, requiring that he file his lawsuit under
Section 1503(a) by August 2018, a deadline that he did not meet.
In his objections, Cardona primarily disagrees with the Gonzalez decision, arguing
that “the decision is inconsistent with the Fourteenth Amendment to the Constitution of
the United States and 8 U.S.C. § 1409(c)”. (Objections, Doc. 26, 3 (emphasis in original)).
He also claims that “[t]he barring of jurisdiction by [Gonzalez] is inconsistent with the
broad language of 8 U.S.C. § 1452”. (Id. at 9) However, although Cardona takes issue
with Gonzalez, he provides no grounds that would authorize the Court to disregard that
controlling precedent. No such grounds exist: The Court will apply Gonzalez.
In addition, Cardona attempts to distinguish Gonzalez by pointing out that the
plaintiff in that case “failed to appeal” the initial denial of a N-600 application for
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citizenship, and then “argued that [the initial application] was not a final decision because
she had not appealed.” (Id. at 7) Cardona asserts that the applicant’s argument in
Gonzalez “is similar but different” than the one that he makes in the present lawsuit,
because he “did appeal” the initial decision denying his application for a certificate of
citizenship. (Id. (emphasis added))
The Report and Recommendation, however, correctly rejects Cardona’s attempt to
distinguish Gonzalez. The distinction in the procedural histories of Gonzalez and the
present matter do not affect the legal analysis. In fact, Gonzalez favorably cites to a
district court decision in which the applicant also appealed the denial of an initial
application for citizenship, and then years later filed a second application for citizenship
based on new evidence. See Gonzalez, 926 F.3d 186, 189 (5th Cir. 2019)(citing Henry v.
Quarantillo, 684 F.Supp.2d 298 (E.D.N.Y 2010)). In Henry, the district court likewise
concluded that the statute of limitations began to run based on the denial of the initial
application. The same conclusion applies to Cardona’s action under Section 1503(a).
C. Administrative Procedure Act Claim
In his Complaint, Cardona alleges that when he submitted his motion to reopen to
the USCIS, Limon “had a non-discretionary duty to forward the motion [] to the Chief of
the AAO for review and decision.” (Complaint, Doc. 1, ¶ 25) Limon failed to do so, and
instead denied the motion to reopen. In his requested relief as to the APA claim, Cardona
asks that the Court “set aside [Limon’s] Denial [and] Remand to the Harlingen Field
Office Director with an order compelling her to forward the case to the AAO in
conformance with her duty under the federal regulation.” (Id. at ¶ 29)

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It is undisputed that in November 2020, “USCIS sua sponte reopened the matter
and certified it for review before the [AAO].” (Report and Recommendation, Doc. 23, 2)
Moreover, the AAO considered Cardona’s motion and, in May 2021, denied the request
for a Certificate of Citizenship. Based on these factual developments, the Report and
Recommendation recommends dismissing the APA claim as moot, as the USCIS’s actions
conform exactly to Cardona’s requested relief–i.e., consideration by the AAO of his
motion to reopen. In his objections, Cardona does not contest that the APA claim as
alleged in his Complaint is moot. And the Court agrees.
II.

Motion to Amend
Cardona moves to amend his Complaint to include a cause of action under the

Administrative Procedure Act with respect to the AAO’s May 2021 decision to deny
Cardona’s request for a Certificate of Citizenship. (Motion to Amend, Doc. 25) The
Defendants oppose the Motion to Amend, but have not submitted a response. To facilitate
the Court’s consideration of the Motion to Amend, the Court will order the Defendants to
submit a response.
III.

Conclusion
Based on the Report and Recommendation, the record in this case, and the

applicable law, it is:
ORDERED that the Report and Recommendation is ADOPTED;
ORDERED that the Defendants’ Motion to Dismiss Plaintiff’s Complaint (Doc.
17) is GRANTED;
ORDERED that Cardona’s Bivens claim is DISMISSED WITH PREJUDICE
for failure to state a claim upon which relief can be granted;
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ORDERED that Cardona’s request for a declaratory judgment under 8 U.S.C.
§ 1503(a) is DISMISSED WITHOUT PREJUDICE for lack of subject matter
jurisdiction;
ORDERED that Cardona’s cause of action under the Administrative Procedure
Act is DISMISSED as moot; and
ORDERED that Defendants shall file a response to the Opposed Motion to File a
Supplemental and Amended Complaint (Doc. 25) by no later than September 24, 2021.
The Court is considering only whether to grant leave for Cardona to add a cause of action
under the Administrative Procedure Act based on the AAO’s May 2021 decision. The
Court will consider Defendants’ failure to submit a response as an indication that they do
not oppose the addition of such a cause of action.
Signed on September 7, 2021.
____________________________
Fernando Rodriguez, Jr.
United States District Judge

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