Monterrubio v. Duke et al
Filing
13
MEMORANDUM OPINION AND ORDER granting 7 MOTION to Dismiss (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SANTOS MONTERRUBIO,
Plaintiff,
V.
KIRSTJEN M. NIELSEN, 1 Secretary,
U.S. Department of Homeland,
Security; LEE F. CISSNA,
Director, U.S. Citizenship and
Immigration Services; and MARK
SIEGL, Houston Field Office
Director, U.S. Citizenship and
Immigration Services, In Their
Official Capacities,
Defendants.
ENTERED
May 16, 2018
David J. Bradley, Clerk
§
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CIVIL ACTION NO. H-17-3916
MEMORANDUM OPINION AND ORDER
Plaintiff Santos Monterrubio
("Monterrubio" or "Plaintiff")
brings this action against defendants, Kirstjen Nielsen, Secretary,
U.S. Department of Homeland Security; Lee F. Cissna, Director, U.S.
Citizenship and Immigration Services
Houston Field Office Director,
U.S.
( "USCIS") ;
and Mark Siegl,
Citizenship and Immigration
Services, in their official capacities (collectively, "Defendants")
seeking declaratory and injunctive relief.
Pending before the
court is Defendants' Motion to Dismiss (Docket Entry No. 7).
For
the reasons stated below, the court will grant Defendants' Motion
to Dismiss.
1
Pursuant to Fed. R. Civ. P. 25 (d), Kirstjen M. Nielsen
automatically replaces former Acting Secretary Elaine Duke.
Background2
I .
Monterrubio is a citizen of Mexico who was admitted to the
United States as a lawful permanent resident in 1978.
1990, a grand jury of Harris County, Texas,
for indecency with a child by contact. 3
On April 23,
indicted Monterrubio
Monterrubio entered a plea
of nolo contendere to the charge in the indictment. 4
The Judgment
identifies the "Date of Judgment" as October 30, 1990. 5
But the
court
offense
"withheld
finding
[Monterrubio]
indicated above, a felony." 6
guilty
of
the
On March 4, 1991, the court sentenced
him to ten years of confinement. 7
Monterrubio
Form
N-400,
on
filed
May
7,
an
Application
2013,
2
and
for
interviewed
See
Complaint
for
Declaratory and
("Complaint"), Docket Entry No. 1, pp. 6-8.
Naturalization,
to
determine
Injunctive
Relief
3
Grand Jury Indictment, Exhibit 1 to Defendants' Motion to
Dismiss, Docket Entry No. 7-1.
The court may consider this
indictment because Plaintiff refers to his criminal conviction for
indecency with a child in his Complaint and because the timeline of
Plaintiff's conviction is central to his claim.
Causey v. Sewell
Cadillac-Chevrolet, Inc., 394 F.3d 285, 287 (5th Cir. 2004)
(citations omitted). Moreover, "it is clearly proper in deciding
a 12(b) (6) motion to take judicial notice of matters of public
record." Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir.
2007) (citation omitted) .
4
Judgment on Plea of Guilty or Nolo Contendere Before Court Waiver of Jury Trial ("Judgment"), The State of Texas vs. Santos
Miguel Monterrubio, Exhibit 2 to Complaint, Docket Entry No. 1-2,
p. 1.
5
Id.
6
Id.
7
Id.
-2-
eligibility on October 12, 2016. 8
On November 1, 2016, the USCIS
denied Monterrubio's application explaining that
[b] ecause you have been convicted of an aggravated felony
on or after November 29, 1990, you
are permanently
barred
from
establishing
good
moral
character.
Therefore, you are ineligible for naturalization. 9
Monterrubio
appealed
and
the
users
reaffirmed
the
denial
of
naturalization on October 5, 2017. 10
Monterrubio' s
u.s.c.
§
Complaint
seeks
an order pursuant
1427 declaring that the final agency decision by
arbitrary and
capricious,
accordance with the law,
an
abuse
Administrative Procedure Act
injunctive relief. 11
of
discretion,
to
users
and
not
8
was
in
(2) de novo review of his eligibility to
seek naturalization under 8 U.S.C.
( 3)
( 1)
§
1421(c) in accordance with the
("APA"),
Defendants
5 U.S.C.
filed a
§§
701-706,
and
motion to dismiss
arguing that Plaintiff has not stated a claim upon which relief may
be granted on de novo review,
and that the court lacks subject
matter jurisdiction under the APA. 12
8
Decision,
U.S.
Citizenship
and
Immigration
Exhibit 3 to Complaint, Docket Entry No. 1-3, p. 2.
Services,
10
Notice of Decision, Re: Santos Miguel Monterrubio, Exhibit 4
to Complaint, Docket Entry No. 1-4, p. 1.
11
See Complaint, Docket Entry No. 1, p. 2.
12
See Defendants' Motion to Dismiss, Docket Entry No. 7, p. 11.
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II.
A.
Standards of Review
Motion to Dismiss Under Rule 12(b} (6}
Under the Federal Rules of Civil Procedure a pleading must
contain "a short and plain statement of the claim showing that the
pleader is entitled to relief."
Fed.
R.
Civ.
P.
8 (a) (2).
A
plaintiff's pleading must provide the grounds of his entitlement to
relief, and "a formulaic recitation of the elements of a cause of
action will not do.
s . Ct. 19 55
19 6 5
I
Bell Atlantic Corp. v. Twombly,
"
( 2 0 0 7) .
"' [N] aked assertion [s] '
127
devoid of
'further factual enhancement'" or "[t]hreadbare recitals of the
elements
of
statements,
a
cause
of
action,
do not suffice."
1937, 1949 (2009).
supported
by
See Ashcroft v.
mere
conclusory
Iabal,
129 S. Ct.
"[C]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a
motion to dismiss."
F.2d 278,
284
Fernandez-Montes v. Allied Pilots Ass'n, 987
(5th Cir.
1993).
Instead,
"[a]
claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged."
A Rule 12(b) (6)
pleadings
and
is
Iqbal, 129 S. Ct. at 1949.
motion tests the formal sufficiency of the
"appropriate
when
a
defendant
attacks
the
complaint because it fails to state a legally cognizable claim."
Ramming v.
cert.
United States,
denied sub nom.
(2002) .
281
F.3d 158,
Cloud v.
161
United States,
To defeat a motion to dismiss,
-4-
(5th Cir.
122 S.
2001),
Ct.
2665
a plaintiff must plead
"enough facts to state a claim to relief that is plausible on its
face."
Twombly, 127 S. Ct. at 1974.
The court does not "strain to
find inferences favorable to the plaintiffs" or "accept conclusory
allegations,
unwarranted
deductions,
Southland Securities Corp.
v.
F.3d
2004)
353,
361
(5th
citations omitted).
Cir.
or
legal
INSpire Ins.
conclusions."
Solutions,
365
quotation
(internal
Inc.,
marks
and
"[C] ourts are required to dismiss, pursuant to
Federal Rule of Civil Procedure 12(b) (6), claims based on invalid
legal theories, even though they may be otherwise well-pleaded."
Flynn v. State Farm Fire and Casualty Insurance Co.
F. Supp. 2d 811, 820 (W.D. Tex. 2009)
(Texas),
605
(citing Neitzke v. Williams,
10 9 S. Ct. 18 2 7, 18 3 2 ( 19 8 9) ) .
B.
Motion to Dismiss Under Rule 12{b) {1)
Federal Rule of Civil Procedure 12(b) (1) permits parties to
file
motions
challenging
jurisdiction.
matter
a
district
court's
subject
matter
"'A case is properly dismissed for lack of subject
jurisdiction
when
the
court
lacks
constitutional power to adjudicate the case. '"
of Mississippi,
Inc.
v.
City of Madison,
1006, 1010 (5th Cir. 1998).
the
statutory
or
Home Builders Ass' n
Mississippi,
143 F. 3d
The court must dismiss the action if
it finds that it lacks subject matter jurisdiction.
Fed. R. Civ.
P. 12 (h) (3).
As
the
Monterrubio
party
bears
seeking
the
burden
to
invoke
of
-5-
federal
establishing
jurisdiction,
subject
matter
jurisdiction.
Ramming, 281 F.3d at 161.
The court may find that
subject matter jurisdiction is lacking based on "(1) the complaint
alone; (2) the complaint supplemented by undisputed facts evidenced
in the record;
or
(3)
the complaint supplemented by undisputed
facts plus the court's resolution of disputed facts."
also Randall D. Wolcott, M.D.,
at *4
(5th Cir.
12 (b) (1)
2011,
Id.; see
P.A. v. Sebelius, 2011 WL 870724,
March 15,
2011).
A court should grant a
motion "only if it appears certain that the plaintiff
cannot prove any set of facts in support of [its] claim that would
entitle [it] to relief."
Home Builders Ass'n of Mississippi, Inc.,
143 F.3d at 1010.
III.
A.
Analysis
Date of Conviction of Monterrubio's Aggravated Felony
Pursuant to 8 U.S.C.
§
1427(a), a person shall be naturalized
only if he has been a person of good moral character during the
five-year
period
naturalization.
immediately
8 U.S.C.
§
preceding
1427(a) (3).
the
application
for
A person lacks good moral
character if he has been convicted of an aggravated felony,
as
defined in section 101 (a) (43) of the Immigration and Naturalization
Act ("INA"), at any time on or after November 29, 1990.
8 C.F.R.
316.10(b) (ii).
rape,
An aggravated felony includes
sexual abuse of a minor."
with
a
child
in
violation
8 U.S.C.
of
§
Texas
"murder,
1101(a) (43) (A).
Penal
Code
§
or
Indecency
21.11 (a) (1)
constitutes sexual abuse of a minor and is therefore an aggravated
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felony within the meaning of section 101(a) (43) (A) of the INA,
U.S.C.
§
1101(a) (43) (A).
Dec. 991,
993-96
In re Rodriguez-Rodriguez,
(BIA 1999)
Ayala, 542 F.3d 494,
495
22 I.
8
& N.
(en bane); see also United States v.
(5th Cir. 2008)
(per curium)
(affirming
the district court's decision "[e)quating 'indecency with a child'
under Texas law with
purposes) .
Mon~errubio
person of good moral
naturalization,
1990.
for sentencing
Because indecency with a child is an aggravated felony
under the INA, 13
a
'sexual abuse of a minor'"
is barred from establishing that he is
character and that
if he was
he
is
eligible
for
"convicted" on or after November 29,
8 C.F.R. 316.10(b) (ii).
Monterrubio
alleges
that
he
is
not
barred
from
seeking
naturalization because he was "convicted" for purposes of the INA
on October 30, 1990. 14
He alleges that the
users
used an incorrect
date of judgment and requests the court to set aside the denial of
his N-400 Application for Naturalization. 15
Defendants argue that
Monterrubio was "convicted" on March 4, 1990. 16
"[W)hether or not
a
is a
conviction exists
for
immigration purposes
question of
federal law and is not dependent on the vagaries of state law."
Matter of Ali Mohamed Mohamed, Respondent, 27 I. & N. Dec. 92, 96
(BIA 2017)
(quotation and citations omitted).
Under the INA:
13
Plaintiff does not contest that his conviction constitutes
an aggravated felony under the INA.
~
14
Complaint, Docket Entry No. 1, p. 9
15
Id. at 9
16
Defendants' Motion to Dismiss, Docket Entry No. 7, pp. 11-12.
~
4 0.
45.
-7-
4 8 (A) The term "conviction" means, with respect to an
alien, a formal judgment of guilt of the alien entered by
a court or, if adjudication of guilt has been withheld,
where(i) a judge or jury has found the alien guilty or
the alien has entered a plea of guilty or nolo
contendere or has admitted sufficient facts to
warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment,
penalty, or restraint on the alien's liberty to be
imposed.
8 U.S.C.
1101(48) (A) (i-ii)
§
The Judgment states that the "Date
of Judgment" was October 30,
finding
[Monterrubio]
1990,
guilty." 17
but that the court "withheld
Because the court "withheld" a
finding of guilt, the conviction date is the date the judge ordered
some
form of punishment. 18
The Judgment
states
that
the
"Date
Sentence Imposed" was "3-4-91"; on that date the court sentenced
Monterrubio to ten years of confinement. 19
it was
"[s]igned and entered this
1991. " 20
Therefore,
"convicted"
for
on March 4,
purposes
1991.
The Judgment states that
the 4th day of March,
of
the
INA,
A.D.,
Monterrubio
was
Because he was convicted of an
aggravated felony "on or after November 29, 1990," and thus cannot
establish that he is eligible for naturalization under 8 C.F.R.
§
316(b) (1) (ii), Monterrubio has failed to state a claim upon which
relief may be granted.
17
Judgment, The State of Texas vs. Santos Miguel Monterrubio,
Exhibit 2 to Complaint, Docket Entry No. 1-2, p. 1.
18
Id. at 1.
-8-
B.
Review Under the APA
The
statute
APA
and
adequate
5 U.S.C.
states
final
remedy
§
704.
that
agency
in
a
"
gency
[a]
action
court
In 8 U.S.C.
for
are
§
action
which
subject
made
there
to
reviewable
is
judicial
no
by
other
review."
1421(c) Congress provided that
[a] person whose application for naturalization under
this subchapter is denied, after a hearing before an
immigration officer under section 1447(a) of this Title,
may seek review of such denial before the United States
district court for the district in which such person
resides in accordance with chapter 7 of title 5.
Such
review shall be de novo, and the court shall make its own
findings of fact and conclusions of law and shall, at the
request of the petitioner, conduct a hearing de novo on
the application.
Because denied naturalization applications are reviewed de novo by
the
court
under
section
1421,
"Congress
has
[]
afforded
the
[applicants] a complete and wholly adequate review" that precludes
Monterrubio from invoking the APA's judicial review procedures.
Aparicio v. Blakeway, 302 F.3d 437, 447 (5th Cir. 2002).
IV.
Conclusions and Order
For the reasons explained above, Defendants' Motion to Dismiss
(Docket Entry No. 7) is GRANTED pursuant to Federal Rule of Civil
Procedure 12(b) (6)
for failure to state a claim, and this action
will be dismissed with prejudice.
SIGNED at Houston, Texas, on this the 16th day of May, 2018.
SIM LAKE
UNITED STATES DISTRICT JUDGE
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