Rocha v. Mayorkas et al

Filing 29

ORDER & OPINION granting 12 Motion to Dismiss. ORDERED that the Petitioner Lizbeth Alejandra Rocha's petition for a writ of habeas corpus is DENIED AS MOOT; and ORDERED that the causes of action within Petitioner Lizbeth Alejandra Rocha' s Second Amended Petition for Writ of Habeas Corpus, Request for Temporary Restraining Order and Complaint for Declaratory and Injunctive Relief (Doc. 17) are DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. Case terminated on 1/7/2022.(Signed by Judge Fernando Rodriguez, Jr) Parties notified.(mperez, 1)

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United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
LIZBETH ALEJANDRA ROCHA,
Petitioner,
VS.
ALEJANDRO MAYORKAS, et al.,
Respondents.

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January 07, 2022
Nathan Ochsner, Clerk

CIVIL ACTION NO. 1:21-CV-064

ORDER AND OPINION
In May 2021, after United States Customs and Border Protection agents detained
Petitioner Lizbeth Alejandra Rocha at a port of entry, she sought her immediate release and other
relief by filing a Writ of Habeas Corpus, Request for Temporary Restraining Order and Complaint
for Declaratory and Injunctive Relief (Doc. 1). On the same day, the Government released her.
Rocha then filed her Second Amended Petition (Doc. 17), seeking the same relief—i.e., a
writ of habeas corpus, and injunctive and declaratory relief, including a declaration under 8 U.S.C.
§ 1503 that she is a United States citizen.
The Government moves to dismiss Rocha’s causes of action for lack of subject-matter
jurisdiction and for failure to state a claim on which relief can be granted. (Motion, Doc. 21) For
the following reasons, the Court concludes that Rocha’s claims do not survive the Government’s
Motion.
I.

Rocha’s Allegations1
In May 2000, Rocha was born in Hidalgo, Texas. (2nd Am. Pet., Doc. 17, ¶ 12) Her parents

For purposes of considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court accepts a
plaintiff’s allegations as true. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Additionally, while in
general a district court must not “go outside the pleadings” to consider such a motion, a court may consider documents
attached to a motion to dismiss if the documents “are referred to in the plaintiff's complaint and are central to the
plaintiff's claim.” Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003) (citing Collins v. Morgan Stanley
Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)).
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were Mexican citizens living near the United States border, and shortly before Rocha’s birth, they
entered the United States with visas. (Id. at ¶ 13) After Rocha was born, the family returned to
Mexico. (Id.) Her birth was timely registered in Texas. (Id. at ¶ 12)
In November 2018, Rocha filed an application for a United States passport. (Id. at ¶ 4)
The Department of State requested that Rocha submit additional information because her birth
certificate “was filed by a birth attendant who is suspected of submitting false birth records”.
(Letter, Doc. 18, 14) Rocha complied. In March 2019, the Department of State informed her that
its researched “revealed that a birth certificate was also recorded for you on 05/25/2000 in
Reynosa, Tamaulipas, Mexico.” (Letter, Doc. 18, 14) The letter stated that the “foreign birth
certificate conflicts with the Texas birth record.” (Letter, Doc. 18, 14) The Department of State
requested a statement regarding the Mexican birth certificate, and advised Rocha that the
Department of State would deny her application if the application and documents she submitted
did not meet her burden of proof to establish entitlement to a U.S. passport.
In response, Rocha submitted additional information, including an affidavit from her
mother regarding the circumstances of Rocha’s birth in the United States and the subsequent
registration of that birth in Mexico. (Materials, Doc. 18, 14–27)
For two years, Rocha received no additional communications from the agency concerning
her application. (2nd Am. Pet., Doc. 17, ¶ 14) Then, in late April 2021, two Department of State
agents attempted to contact Rocha at her residence and employment in Pharr, Texas, but she was
in quarantine at her mother’s residence in Reynosa, Mexico. (Id. at ¶ 6) Rocha called the agents
and agreed to meet with them on May 1, 2021, “to review her application for a U.S. passport.”
(Id.)
On the agreed-upon date, Rocha presented herself at the Anzalduas Point of Entry, where
U.S. Customs and Border Protection (“CBP”) detained her and subjected her to a lengthy
interrogation aimed at extracting a false confession that she had been born in Mexico. (Id. at ¶ 7)
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While the Department of State knew that Rocha had counsel, they did not communicate with
Rocha’s attorney in connection with the scheduling of the meeting or her detention and
interrogation. (Id. at ¶ 6)
On May 1, while still detained, Rocha filed this lawsuit. The same day, CBP released Rocha,
providing her with a Form I-862 Notice to Appear that had no date and time for a hearing before
an Immigration Judge. (Id. at ¶ 3) The NTA charged Rocha with removability under 8 U.S.C. §
1182(a)(6)(C)(ii) as an alien who falsely represented herself to be a citizen of the United States for
a purpose of benefit under the Immigration and Nationality Act (“INA”). (See Notice to Appear,
Doc. 18, 29)
In Rocha’s original Petition, she requested release from custody, a temporary restraining
order (“TRO”), and declaratory and injunctive relief. (Petition, Doc. 1) On May 3, she filed an
Amended Petition asserting the same causes of action (Doc. 4), and the next day, she withdrew
the request for the TRO (Motion to Withdraw, Doc. 8).
On May 24, the Government filed the NTA with an Immigration Court.2
On July 22, the United States denied Rocha’s application for a passport. (2nd Am. Pet.,
Doc. 17, ¶ 9)
II.

Analysis
In her Second Amended Petition, Rocha continues to present a writ of habeas corpus to

obtain her release from custody, and requests a declaration that she is a United States citizen
under 8 U.S.C. § 1503 and 28 U.S.C. § 2201. In addition, she alleges a cause of action for a
declaratory judgment under 28 U.S.C. § 1331, seeking a declaration that the CBP and Department
of State officers at the port of entry violated her Fifth Amendment due process rights and that the
NTA that CBP issued is invalid. She also seeks a declaration that the Department of State’s failure

2

Rocha does not dispute this date.

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to rule on her passport application for more than two years was “capricious and arbitrary” under
the Administrative Procedure Act. (Id. at ¶ 28) And finally, she requests injunctive relief in the
form of ordering her release from custody and requiring the return of her confiscated documents,
the removal of any “flag” on her birth record, and a permanent injunction against the Government
to prohibit it “from detaining and interrogating a person with facially valid documents showing
U.S. citizenship”. (Id. at ¶ 26)
The Government moves under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) to
dismiss each of Rocha’s causes of action. (Motion, Doc. 21)
A. Standard of Review
Dismissal under Rule 12(b)(1) is proper where “the court lacks the statutory or
constitutional power to adjudicate the case.” Home Builder’s Ass’n of Miss., Inc. v. City of
Madison, 143 F. 3d 1006, 1010 (5th Cir. 2014). The plaintiff bears the burden of proving that a
district court has jurisdiction by a preponderance of the evidence. Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001). “[I]f the defense merely files a Rule 12(b)(1) motion, the trial
court is required merely to look to the sufficiency of the allegations in the complaint because they
are presumed to be true.” Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
To survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); FED. R.
CIV. P. 12(b)(6). A plaintiff satisfies the facial plausibility standard by pleading “factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The allegations in the
complaint are not required to be thoroughly detailed, but must be “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555. A court considers only the allegations in the complaint and must accept them as
true, viewing them in the light most favorable to the plaintiff. Spivey v. Robertson, 197 F.3d 772,
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774 (5th Cir. 1999). If the allegations are sufficient “to raise a right to relief above the speculative
level,” the court will not dismiss the cause of action. Twombly, 550 U.S. at 555.
B. Writ of Habeas Corpus
The Government argues that this Court lacks jurisdiction over Rocha’s habeas claim
because she has been released from custody, rendering her action moot. (Motion, Doc. 21, 13)
The Court agrees.
Federal courts possess limited jurisdiction and can only consider “actual, ongoing
controversies between litigants.” Deakins v. Monaghan, 484 U.S. 193, 199 (1988). A court lacks
subject matter jurisdiction over a moot controversy, which exists when a matter “no longer
present[s] a case or controversy under Article III, § 2, of the Constitution.” Spencer v. Kemna,
523 U.S. 1, 7 (1998); see also Carr v. Saucier, 582 F.2d 14, 15 (5th Cir. 1978). The doctrine of
mootness “requires that, to show a case or controversy under Article III of the Constitution,
‘through all stages of federal judicial proceedings, . . . parties must continue to have a personal
stake in the outcome of the lawsuit.’” Bacilio-Sabastian v. Barr, 980 F.3d 480, 482 (5th Cir.
2020) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477–48 (1990)); see also Bayou Liberty
Ass'n, Inc. v. U.S. Army Corps of Eng’rs, 217 F.3d 393, 396 (5th Cir. 2000) (“[T]o qualify as a case
for federal court adjudication, a case or controversy must exist at all stages of the litigation, not
just at the time the suit was filed.”).
Generally, release from custody renders a habeas petition moot. See, e.g., Lane v.
Williams, 455 U.S. 624, 631 (1982); Lemons v. Swann, 412 F. App'x 672, 673 (5th Cir. 2011) (“In
the context of habeas petitions . . . this court has dismissed a petitioner’s appeal as moot upon the
petitioner’s release from custody”); Sutton v. Johnson, 235 F.3d 1341, *1 (5th Cir. 2000)
(“[Petitioner’s] habeas claims are moot due to his release to mandatory supervision”) (unpubl.).3

An exception applies in the criminal context if the petitioner “continue[s] to suffer collateral consequences” as a result
of the challenged conviction or detention. See Bacilio-Sabastian, 980 F.3d at 482. In the present case, Rocha does not
argue that this exception applies.
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As the Government released Rocha on the day she filed her lawsuit, her petition for writ
of habeas corpus is moot. She provides only a cursory response to the Government’s Motion on
this issue, arguing only that her “subsequent release[] from custody does not take jurisdiction
from the court.” (Response, Doc. 24, 5) She presents no further argument or legal authority for
this position. The Court has found none, and concludes that it lacks subject-matter jurisdiction
over her petition for a writ of habeas corpus.
C. Claim under 8 U.S.C. § 1503(a)
Under Section 1503(a), Rocha seeks a declaratory judgment that she is a United States
citizen. The Government argues that the Court lacks subject-matter jurisdiction over this cause
of action because Rocha is in removal proceedings and was not “within the United States” when
she filed her lawsuit.
Section 1503(a) provides the vehicle for an individual “within the United States” to
challenge the denial of a right or privilege based on the determination of her citizenship. A person
denied such a right and who is within the United States “may institute an action . . . for a judgment
declaring him to be a national of the United States”. 8 U.S.C. § 1503(a). The statute, however,
also expressly provides that “no such action may be instituted in any case if the issue of such
person’s status as a national of the United States (1) arose by reason of, or in connection with any
removal proceeding under the provisions of this chapter or any other act, or (2) is in issue in any
such removal proceeding.” 8 U.S.C. § 1503(a).
Beginning with the Government’s initial argument under Section 1503(a)(2), a person may
not initiate an action under Section 1503(a) if the person’s citizenship is in issue in removal
proceedings. The provision applies only if the Government initiated removal proceedings before
the person filed her lawsuit. See Rios-Valenzuela v. Dep’t of Homeland Sec., 506 F.3d 393, 397
(5th Cir. 2007) (explaining that the citizenship issue “cannot, logically, be ‘in issue in a removal
proceeding’ unless there is a removal proceeding pending”). The Government initiates removal
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proceedings by filing a charging document, such as an NTA, with an Immigration Court. See
Pereida v. Wilkinson, 141 S. Ct. 754, 758, 209 L. Ed. 2d 47 (2021) (“Removal proceedings begin
when the government files a charge against an individual, and they occur before a hearing officer
at the Department of Justice, someone the agency refers to as an immigration judge.”); ArevaloMartinez v. Garland, No. 19-60919, 2021 WL 3412512, *1 (5th Cir. August 4, 2021) (“DHS
commenced removal proceedings against Arevalo-Martinez by filing an NTA charging him as
removable.”) (unpubl.); Pierre-Paul v. Barr, 930 F.3d 684, 686 (5th Cir. 2019) (“[T]he
government initiated removal proceedings [] by filing a notice to appear with the immigration
court.”); see also 8 C.F.R. § 1003.14(a) (“Jurisdiction vests, and proceedings before an
Immigration Judge commence, when a charging document is filed with the Immigration Court.”).
In the present case, the Government argues that it “initiated removal proceedings” when
immigration officers “issued and served on [Rocha] an NTA expressly alleging that she is not a
U.S. citizen.” (Motion, Doc. 21, 15) But the Government provides no authority for the contention
that removal proceedings commence upon service of an NTA. And such a position runs counter
to the applicable legal authorities. In fact, the Fifth Circuit, albeit in dicta, recognized that a
difference exists between the service of an NTA and the filing of one: “An alien's period of
continuous physical presence for purposes of cancellation ends when the alien is served a NTA
that fully complies with the statutory requirements. [ ] The filing of the NTA, in turn, initiates
removal proceedings against the alien, during which the alien may request cancellation.”
Mauricio-Benitez v. Sessions, 908 F.3d 144, 148 n.1 (5th Cir. 2018) (emphasis added; citations
omitted).
The parties agree that the Government did not file the NTA until May 24, 2021, weeks after
Rocha filed her lawsuit. As a result, when Rocha filed her lawsuit on May 1, no removal

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proceedings had commenced. This fact in turn means that Section 1503(a)(2) does not divest the
Court of subject matter jurisdiction over Rocha’s cause of action under Section 1503(a).4
The Government’s second argument, however, has merit. Section 1503(a) authorizes an
individual “within the United States” to seek a declaration of United States citizenship. For those
individuals who are “not within the United States”, but who desire to seek such a declaration,
Section 1503(b) provides the statutory authority and applicable process. In the present matter,
the Government contends that because Rocha was paroled into the United States pending removal
proceedings, she was not “within the United States” for purposes of Section 1503. (Motion, Doc.
21, 16–17 (relying, inter alia, on Zadvydas v. Davis, 533 U.S. 678 (2001))) In her Response,
Rocha does not address this argument.
Controlling law establishes that an individual at a port of entry is not “within the United
States” for purposes of Section 1503(a). Hinojosa v. Horn, 896 F.3d 305, 316 (5th Cir. 2018).
Even before Hinojosa, at least two federal district courts had reached the same conclusion. See
Villafranca v. Tillerson, Civil Action no. 1:16-cv-00077, 2017 WL 2735589, *4 (S.D. Texas June
26, 2017) (adopting Magistrate Judge’s Report and Recommendation); Villarreal v. Horn, Civil
No. 1:15-CV-111, 2017 WL 6442839, *11 (S.D. Texas Sept. 9, 2017). Rocha alleges that when she
filed her lawsuit, she “was detained at the Anzaldua’s Port of Entry by CBP”. (2nd Am. Pet., Doc.
17, 1) Accepting that allegation as true, and under Hinojosa, Rocha was not “within the United
States” when she filed her lawsuit. She could not have relied on Section 1503(a).
The Government, however, claims that when Rocha filed this action, she had already been
paroled into the United States. (Motion, Doc. 21, 17) Under this factual assumption, Rocha still
would not be within the United States, as a “paroled alien is in the same position as one who seeks

In light of this conclusion, the Court need not reach whether the NTA that the Government served on Rocha was
defective because it did not include the time or place for a hearing before an Immigration Judge.
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admission at the border”. Delgado-Carrera v. INS, 773 F.2d 629, 632 (5th Cir. 1985). Thus,
under either factual scenario, Rocha could not rely on Section 1503(a).5
For these reasons, the Court concludes that Rocha has not carried her burden of
demonstrating that subject matter jurisdiction exists for her cause of action under 8 U.S.C.
§ 1503(a).
D. Declaratory and Injunctive Relief
The Government also challenges Rocha’s request for declaratory and injunctive relief.6
(Motion, Doc. 21, 20) The Court agrees that these claims do not survive the Motion to Dismiss.
As an initial matter, neither requests for injunctive relief nor requests for declaratory relief
provide an independent basis for subject-matter jurisdiction. See Higareda v. U.S. Postal Serv.,
5 F.3d 1495, 1993 WL 391492, *1 (5th Cir. 1993); Nixon v. Att’y General of Tex., 537 F. App’x 512,
512 (5th Cir. 2013) (unpubl.); Jones v. Alexander, 609 F.2d 778, 781 (5th Cir. 1980) (“Declaratory
Judgment Act is not an independent ground for jurisdiction; it permits the award of declaratory
relief only when other bases for jurisdiction are present.”); Enter. Int'l, Inc. v. Corporación
Estatal Petrolera Ecuatoriana, 762 F.2d 464, 470 (5th Cir. 1985) (“The district court has no
power to grant an interlocutory or final injunction against a party over whom it has not acquired
valid jurisdiction . . . .”). The Court has concluded that it does not possess subject matter
jurisdiction over Rocha’s claims under Section 1503(a). And Rocha presents no independent basis
to support subject matter jurisdiction over her requested declaratory and injunctive relief. As a

In addition, Section 1503(a) also requires individuals to exhaust administrative remedies before filing a lawsuit. RiosValenzuela v. Dep’t of Homeland Sec., 506 F.3d 393, 397 n.4 (5th Cir. 2007). The requirement is jurisdictional.
Gonzalez v. Limon, 926 F.3d 186, 188 n.7 (5th Cir. 2019). And a court may raise the issue of subject-matter jurisdiction
sua sponte if it appears that the Court lacks such jurisdiction. See MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170,
173 (5th Cir. 1990). In the present case, Rocha unambiguously alleges that when she filed her lawsuit, her application
for a passport remained pending. She had received no agency decision on that application, much less exhausted any
administrative remedies as to an adverse decision. Even if Rocha had been “within the United States” when she filed
her lawsuit, her claims under Section 1503(a) would have been subject to dismissal for failure to exhaust administrative
remedies.
6 Rocha’s live pleading seeks a temporary restraining order for her release and the return of certain documents that the
Government took from her. (2nd Am. Pet., Doc. 17, ¶ 24) But she previously withdrew this request after the
Government released her and returned her documents. (See Order, Doc. 8 (granting motion to withdraw the request
for a temporary restraining order)) The Court considers these requests as withdrawn.
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result, the Court finds that it also lacks subject-matter jurisdiction over these requests.
In addition, even if the Court possessed subject matter jurisdiction in this case, it would
still find that the bulk of Rocha’s requests for declaratory and injunctive relief warrant dismissal.
She seeks a declaration that CBP and Department of State officers at the port of entry violated her
rights under the Fifth Amendment “by detaining and interrogating her at the request of DOS, and
by confiscating her lawfully issued documents, without giving her a hearing, before or after, to
contest their right to do so.” (2nd Am. Pet., Doc. 17, ¶ 24) And she requests a permanent
injunction “enjoining Defendants from detaining and interrogating a person with facially valid
documents showing U.S. citizenship, absent a showing that the person presents a danger to the
community, and/or a significant risk of flight.” (Id.) But as the Supreme Court has written, “[the
Government’s power to exclude aliens from the country] can be effectuated by routine inspections
and searches of individuals or conveyances seeking to cross our borders.” Almeida-Sanchez v.
United States, 413 U.S. 266, 272 (1973). And federal law provides that “all persons coming into
the United States from foreign countries shall be liable to detention and search by authorized
officers or agents of the Government under such regulations.” 19 U.S.C. § 1582. Limits do apply,
and the Government may exceed its broad powers in this context. But Rocha’s allegations, even
accepting them as true, do not present a viable claim that the Government violated her due process
rights so as to warrant declaratory or injunctive relief.
III.

Conclusion
For the reasons explained in this Order and Opinion, it is:
ORDERED that Defendant’s Motion to Dismiss Plaintiff’s Second Amended Petition and

Complaint by Defendants Secretary of Homeland Security, Secretary of State, and the U.S.
Attorney General (Doc. 21) is GRANTED; and
ORDERED that the Petitioner Lizbeth Alejandra Rocha’s petition for a writ of habeas
corpus is DENIED AS MOOT; and
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ORDERED that the causes of action within Petitioner Lizbeth Alejandra Rocha’s Second
Amended Petition for Writ of Habeas Corpus, Request for Temporary Restraining Order and
Complaint for Declaratory and Injunctive Relief (Doc. 17) are DISMISSED WITHOUT
PREJUDICE for lack of subject matter jurisdiction.
Signed on January 7, 2022.
____________________________
Fernando Rodriguez, Jr.
United States District Judge

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