1 2 3
4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 B.P. and her minor child L.E.S., CASE NO. C23-0890-KKE 8
Plaintiffs, ORDER DENYING DEFENDANTS’ 9 v. MOTION TO DISMISS
10 DREW H. BOSTOCK, et al.,
11 Defendants.
12 This Court’s jurisdiction to consider claims raised by noncitizens in removal proceedings 13 is limited by the Immigration and Nationality Act. See 8 U.S.C. §§ 1252(a)(5), 1252(b)(9). The 14 Court is nonetheless empowered to entertain claims collateral to removal proceedings that do not 15 arise from the removal proceedings themselves. Where, as here, a noncitizen alleges that she and 16 her minor child were illegally taken from the United States, in violation of applicable law and 17 because of affirmative government misconduct, this Court has authority to consider their claims. 18 Because the Court has subject matter jurisdiction over this dispute and Plaintiffs have stated 19 plausible claims upon which some relief may be granted, the Court denies Defendants’ motion to 20 dismiss. 21 // 22 // 23 // 24 1 I. BACKGROUND1 2 Plaintiff B.P. and her minor2 son, Plaintiff L.E.S., are citizens of Guatemala. Dkt. No. 4 3 ¶¶ 6–7. Plaintiffs were threatened, assaulted, and robbed by gang members in Guatemala and
4 interrogated regarding B.P.’s long-term partner and the father of L.E.S., who resisted gang 5 recruitment. Id. ¶ 13. Plaintiffs fled Guatemala and entered the United States without 6 authorization in July 2021. Id. 7 Plaintiffs were eventually apprehended and placed in removal proceedings. Dkt. No. 4 ¶ 8 14. They appeared for several preliminary hearings and ultimately applied for asylum. Id. The 9 final removal hearing was scheduled for August 29, 2022, and B.P. arrived late because of an 10 unexpected reduction in ferry service caused by the COVID-19 pandemic and staffing shortages. 11 Id. ¶ 15. When B.P. did not appear on time, the immigration judge ordered that Plaintiffs be 12 removed in absentia without considering their asylum application. Id. ¶ 16. A court clerk handed
13 B.P. a copy of the in absentia order when she arrived at the courthouse, and wrote her a note 14 indicating that she could move to reopen her removal proceedings within 30 days. Id. ¶ 17. 15 B.P. then contacted Northwest Immigrant Rights Project (“NWIRP”) for assistance. Dkt. 16 No. 4 ¶ 18. A NWIRP attorney agreed to file a motion to reopen and rescind the in absentia 17 removal order. Id. ¶ 19. Plaintiffs’ counsel filed the motion on September 27, 2022 (29 days after 18 the in absentia order was entered), so that B.P. could bring a conformed copy of the motion to her 19 check-in with Immigration and Customs Enforcement (“ICE”) scheduled for that day “to 20 demonstrate that she was diligently pursuing her case.” Id. ¶¶ 20–21. Plaintiffs’ counsel hand- 21 filed the motion at the immigration court that day, received a conformed copy, and electronically 22
23 1 This section assumes, in resolving the motion to dismiss, that the factual allegations in the complaint (Dkt. No. 4) are true.
24 2 L.E.S. was five years old when this case was filed in June 2023. See Dkt. No. 4 ¶ 7. 1 served opposing counsel. Id. ¶ 21. ICE sent an electronic confirmation and acceptance of service 2 that day. Id. Inadvertently, Plaintiffs’ counsel had listed an outdated mailing address for ICE on 3 the certificate of service and had mailed a copy of the motion “to the old address where ICE had
4 been located for over 20 years, before moving earlier that year during the Covid-19 pandemic.” 5 Id. 6 B.P. was scheduled to check in with ICE that day, September 27, under the terms of her 7 supervised release, and had been assured during her most recent supervision call that no adverse 8 action would be taken against her at the check in. Dkt. No. 4 ¶¶ 20, 22. B.P.’s counsel did not 9 expect any adverse action to be taken either, given that the in absentia order had been filed recently 10 and the motion to reopen had been filed, and ICE had not yet served B.P. with a “bag and baggage” 11 letter3 or other notice directing her to prepare for removal. Id. ¶ 22. Plaintiffs’ counsel instructed 12 B.P. to call, or have ICE call, if there was any question about whether the motion to reopen had 13 been filed. Id. 14 The next day, on September 28, B.P.’s partner contacted Plaintiffs’ counsel, frantic that 15 Plaintiffs had not returned from the check-in appointment with ICE. Dkt. No. 4 ¶ 23. Plaintiffs’ 16 counsel emailed ICE early on the morning of September 29 to request an update on Plaintiffs’ 17 whereabouts. A representative for ICE responded later that day, stating that Plaintiffs had been 18 taken into custody at the check-in appointment on September 27 and sent to Guatemala the next 19 day, September 28. Id. Attached to the email was an immigration court notice, dated September 20 27, rejecting the motion to reopen and rescind for listing the incorrect mailing address for ICE in 21 the certificate of service. Id. The notice had been electronically served on ICE, but not on 22
3 See, e.g., Carrillo v. Ashcroft, 111 F. App’x 532, 533 (9th Cir. 2004) (discussing the form “bag and baggage” letters 24 that instruct a noncitizen to appear for removal). 1 Plaintiffs’ counsel. Id. The notice was mailed to Plaintiffs’ counsel and not received until after 2 Plaintiffs had been removed. Id. ¶ 24. 3 That same day (September 29) that Plaintiffs’ counsel learned that the motion to rescind
4 and reopen had been rejected, Plaintiffs’ counsel refiled the motion to rescind and reopen, and it 5 was granted on October 11, 2022, with a hearing set for October 18. Dkt. No. 4 ¶¶ 25–26. 6 Plaintiffs’ counsel subsequently moved to continue the hearing because B.P. was unavailable to 7 attend in person, and the immigration judge granted that motion. Dkt. No. 4 ¶ 26. The immigration 8 judge subsequently granted a motion to administratively close the case to permit the parties “to 9 resolve the issue of [B.P.’s] return to the U.S. to pursue her asylum application.” Id. 10 Plaintiffs’ counsel contacted ICE to request Plaintiffs’ return to the United States to attend 11 removal proceedings in person. Dkt. No. 4 ¶ 27. “After repeated inquiries, local level ICE 12 [officials] informed counsel that they would not facilitate [Plaintiffs’] return on the grounds that:
13 ‘The removal order was final at the time the order was executed and there [sic] no legal 14 impediments to removal.’” Id. ¶ 28. According to those officials, the removal order “was a final 15 decision with no appeal available.” Id. The decision of local ICE officials was affirmed by 16 national ICE officials. Id. ¶ 29. 17 B.P. spoke with her counsel on the telephone after her removal, and she reported that when 18 she appeared for her ICE appointment on September 27, ICE denied her request to call her lawyer. 19 Dkt. No. 4 ¶ 30. When she explained that she had an attorney and a motion to reopen had been 20 filed, ICE officers told her that there was nothing that could be done to stop her removal. Id. ICE 21 officers did not call Plaintiffs’ counsel. Id. 22 Plaintiffs are now in hiding in Guatemala. Dkt. No. 4 ¶ 31. B.P. believes it is not safe for
23 her son to go to school, nor go out in public for any significant period of time. Id. “Because of 24 1 her fear of persecution in Guatemala, she wishes to pursue her asylum case in the [United States].” 2 Id. 3 Plaintiffs filed this action, alleging that Defendants4 violated the Immigration and
4 Nationality Act (“INA”), the Administrative Procedure Act (“APA”), and the Fifth Amendment 5 right to due process, and further alleging affirmative government misconduct and unlawful 6 removal. Dkt. No. 4. Plaintiffs seek declaratory and injunctive relief, and a writ of mandamus 7 ordering Defendants to return Plaintiffs to the United States at government expense so that they 8 can attend their removal proceedings in person. Id. at 19–20. 9 Defendants filed a motion to dismiss. Dkt. No. 15. After considering briefing5 submitted 10 by the parties, along with briefing submitted by amicus curiae National Immigration Litigation 11 Alliance, and the oral argument of counsel, the Court denies Defendants’ motion. 12 II. ANALYSIS
13 Defendants’ motion to dismiss provides two alternate arguments for dismissal: (1) this case 14 should be dismissed for lack of subject matter jurisdiction under 8 U.S.C. §§ 1252(a)(5) and (b)(9); 15 or (2) this case should be dismissed because Plaintiffs have failed to state a valid claim upon which 16 relief can be granted. Dkt. No. 15 at 1–2. For the reasons below, the Court rejects both bases for 17 dismissal. 18 A. The Court Has Subject Matter Jurisdiction. 19 According to Defendants (Dkt. No. 15 at 4–9), this Court lacks jurisdiction to hear 20 Plaintiffs’ claims both because there is no final removal order, and because even if there were, 21
22 4 Defendants are Alejandro Mayorkas, secretary of the U.S. Department of Homeland Security; Drew H. Bostok, Seattle field office director for ICE; Tae D. Johnson, ICE acting director; Troy Miller, acting commissioner of Customs 23 and Border Protection; and Merrick B. Garland, United States attorney general. See Dkt. No. 4 ¶¶ 8–12. Each Defendant has been sued in his official capacity. See id.
24 5 The Court refers to the parties’ briefing using the CM/ECF page numbers. 1 judicial review of such an order is only available in the U.S. Court of Appeals for the Ninth Circuit 2 after exhaustion of administrative remedies based on the jurisdiction-stripping provisions of the 3 INA. See 8 U.S.C. §§ 1252(a)(5), 1252(b)(9). Plaintiffs agree that there is no final removal order
4 here, and contend that their claims are collateral to their administratively stayed removal 5 proceedings and are therefore not subject to the INA’s jurisdictional bar. Dkt. No. 18 at 12–14. 6 In order to resolve Defendants’ motion to dismiss for lack of jurisdiction, the Court will 7 first address the jurisdiction-stripping provisions of the INA, consider the circumstances under 8 which they apply, and then determine whether they apply to bar Plaintiffs’ claims here. 9 1. The Jurisdiction-Stripping Provisions of the INA 10 The INA contains two provisions that limit judicial review of final orders of removal. First, 11 the INA channels all lawsuits arising from removal proceedings to federal appellate courts: 12 Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 13 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for 14 judicial review of an order of removal[.]
15 8 U.S.C. § 1252(a)(5). The INA also requires that all questions of law and fact arising from 16 removal proceedings must be raised in one petition for review: 17 Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken 18 or proceeding brought to remove [a noncitizen] from the United States under this subchapter shall be available only in judicial review of a final order under this 19 section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas 20 corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law 21 or fact.
22 8 U.S.C. § 1252(b)(9). 23 24 1 The Ninth Circuit has explained that these two provisions ensure that immigrants receive 2 their “day in court” by “channel[ing] judicial review over final orders of removal to the courts of 3 appeals” with considerable breadth:
4 Section 1252(b)(9) is, as the First Circuit noted, “breathtaking in scope and “vise- like” in grip and therefore swallows up virtually all claims that are tied to removal 5 proceedings. See Aguilar v. ICE, 510 F.3d 1, 9 (1st Cir. 2007). Taken together, § 1252(a)(5) and § 1252(b)(9) mean that any issue—whether legal or factual— 6 arising from any removal-related activity can be reviewed only through the [petition for review] process. See Viloria v. Lynch, 808 F.3d 764, 767 (9th Cir. 2015) (“It is 7 well established that this court’s jurisdiction over removal proceedings is limited to review of final orders of removal.”); cf. Bibiano v. Lynch, 834 F.3d 966, 972-74, 8 2016 WL 4409351, at *5 (9th Cir. 2016) (holding that 8 U.S.C. § 1252(b)(2)’s venue provision is not jurisdictional, but contrasting the venue statue with other 9 statutes in the INA that use the terms “judicial review” or “jurisdiction”).
10 J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016). The purpose of Section 1252(b)(9) is to 11 “limit all [noncitizens] to one bite of the apple with regard to challenging an order of removal.” 12 Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir. 2012). 13 2. The Scope of the Jurisdictional Bar 14 To determine whether the INA’s jurisdictional bar applies, the Court begins where the 15 parties agreed at oral argument that the Court should begin: the Supreme Court’s discussion of 16 Section 1252(b)(9) in Jennings v. Rodriguez, 583 U.S. 281, 292–95 (2018). 17 In Jennings, a noncitizen detained pending removal proceedings filed a habeas petition 18 alleging that he was “entitled to a bond hearing to determine whether his continued detention was 19 justified.” 583 U.S. at 290. The Jennings Court found that, although the plaintiff had not yet 20 obtained a final order of removal, his failure to exhaust his administrative remedies did not deprive 21 the Court of jurisdiction because the plaintiff’s claim did not “arise from” his removal proceedings. 22 Id. at 292–93. 23 Jennings identified three types of claims that “arise from” actions taken to remove 24 noncitizens, such that the jurisdiction-stripping provisions apply: when a plaintiff challenges (1) a 1 final order of removal, (2) the government’s decision to detain or to seek to remove them in the 2 first place, or (3) any part of the process by which their removability will be decided. See 583 U.S. 3 at 294. Although Jennings acknowledged that a detained noncitizen’s claim for assault in a federal
4 detention center could be said to “arise from” removal proceedings, in that the noncitizen was 5 detained pending removal proceedings, it would be “absurd” to “cram[] judicial review of those 6 questions into the review of final removal orders[.]” Id. at 293. Jennings cautions against an 7 “expansive interpretation” of the jurisdictional bar that “would lead to staggering results.” Id. 8 The Jennings Court found that Section 1252(b)(9) did not bar the Court’s review because 9 the noncitizen’s challenge to prolonged detention during removal proceedings did not fit into any 10 of the three categories of claims that “arise from” removal proceedings. 583 U.S. at 294. The 11 Jennings Court also noted that if a noncitizen could not challenge prolonged detention before 12 obtaining a final order of removal, a claim for prolonged detention would be “effectively
13 unreviewable” because “[b]y the time a final order of removal was eventually entered, the 14 allegedly excessive detention would have already taken place. And of course, it is possible that 15 no such order would ever be entered in a particular case, depriving that detainee of any meaningful 16 chance for judicial review.” Id. at 293. 17 With these principles in mind, the Court now turns to consider whether it is deprived of 18 jurisdiction to resolve the claims presented in Plaintiffs’ suit. 19 3. Plaintiffs’ Claims Do Not “Arise From” Removal Proceedings. 20 The Court finds that, under Jennings, there is no jurisdictional bar to Plaintiffs’ suit because 21 their claims do not fall into any of the three categories of claims that “arise from” removal 22 proceedings, as identified in that case.
23 First, Plaintiffs’ suit does not seek review of a removal order because there is no such order 24 in effect at this time: the immigration judge rescinded the removal order and reopened the removal 1 proceedings, and those proceedings are currently administratively stayed pending the resolution of 2 this action. See 8 U.S.C § 1229a(b)(5)(C) (“The filing of the motion to reopen described in [§ 3 1229a(b)(5)(C)](i) or (ii) shall stay the removal of the [applicant] pending disposition of the motion
4 by the immigration judge.”); 8 C.F.R. § 1003.23(b)(4)(ii) (“The filing of a motion under this 5 paragraph shall stay the removal of the [applicant] pending disposition of the motion by the 6 Immigration Judge.”); see also Madu v. U.S. Att’y Gen., 470 F.3d 1362, 1366–68 (11th Cir. 2006) 7 (holding that a petitioner who challenges the existence of a removal order cannot be said to 8 challenge a removal order for purposes of the jurisdictional bar). 9 Second and third, Plaintiffs do not challenge either their removability or Defendants’ 10 decision to seek removal in the first place, nor do they seek to challenge any part of the substantive 11 process by which an immigration judge would adjudicate future removal proceedings. Instead, 12 what Plaintiffs seek in this lawsuit is a remedy for the government misconduct that led to their
13 removal and which is preventing the full adjudication of their asylum application. 14 Defendants insist that even allegations of wrongful removal, such as those presented here, 15 must be channeled through the administrative process, although they cite no case supporting that 16 conclusion that involves analogous allegations of affirmative government misconduct. For 17 example, Defendants’ motion cites Conteh v. Wolf, No. 20-cv-10736-ADB, 2020 WL 6363910 (D. 18 Mass. Oct. 29, 2020), a case involving a petitioner removed on grounds he alleged to be legally 19 insufficient,6 and who subsequently succeeded on a motion to rescind and reopen proceedings. 20 The petitioner argued that the Government should be made to facilitate his return to the United 21 States to participate in the reopened removal proceedings because videoconference participation 22 6 Although the petitioner in Conteh alleged that his removal was improper because he was removed because of a 23 marijuana-related conviction that should not have disqualified him from becoming a lawful permanent resident of the United States, the Court agreed with the government that this argument was “logically flawed” because his conviction post-dated the entry of his removal order. 2020 WL 6363910, at *2–3, 7. 24 1 was inadequate. Id. at *5. The court explained that the petitioner’s suit was jurisdictionally barred 2 because petitioner “is asking the Court to consider legal questions that are clearly linked to his 3 pending reopened removal proceeding, the most important of which is: if a person who has been
4 (un)lawfully removed prevails on a motion to reopen, is he or she entitled to be returned to the 5 United States to participate in the reopened removal proceedings?” Id. at *7. 6 The Conteh court found that this result did not deprive the petitioner of judicial review of 7 his day in court because even if, after remote removal proceedings, petitioner was ordered 8 removed, he could “challenge the validity of the final order of removal and raise his arguments in 9 a petition for review in the appropriate court of appeals.” 2020 WL 6363910, at *5. Thus, the 10 court found that petitioner’s claim “is not the now or never variety that appears to have fueled 11 Justice Alito’s apprehension” in Jennings, fearing that an overly broad interpretation of Section 12 1252(b)(9) could result in a noncitizen never being able to bring his or her claim. Id.
13 Although the Conteh court found that the petitioner’s claims were not “truly collateral to 14 the removal decision” (2020 WL 6363910, at *5), Plaintiffs here raise claims based on affirmative 15 government misconduct separate from issues related to how any future removal proceedings will 16 be conducted. The Court is thus persuaded that Plaintiffs’ claims do not “arise from” removal 17 proceedings.7 As a result, these collateral claims are not barred by the jurisdiction-stripping 18 provisions of the INA. See Dep’t of Homeland Sec. v. Regents of Univ. of Calif., 591 U.S. 1, 19 19 (2020) (finding no jurisdictional bar if “the parties are not challenging any removal proceedings”). 20 Claims collateral to the removal process need not be channeled through the administrative process. 21 See, e.g., Arce v. United States, 899 F.3d 796, 800 (9th Cir. 2018) (holding that a jurisdiction- 22 7 Although Defendants seek to characterize Anaya Murcia v. Godfrey, No. 19-cv-587-JLR, 2019 WL 5597883 (W.D. 23 Wash. Oct. 10, 2019), report and recommendation adopted, 2019 WL 5589612 (W.D. Wash. Oct. 30, 2019), as presenting the “nearly identical” considerations presented here, they also acknowledge that the plaintiff there did not challenge the lawfulness of his removal. Dkt. No. 15 at 6. The existence of that challenge here presents a different 24 question as to whether Plaintiffs’ claims are collateral, and therefore the Court finds Anaya Murcia has limited utility. 1 stripping provision of the INA (8 U.S.C. § 1252(g)) should be read narrowly and does not apply 2 to petitioner’s tort claim for damages suffered as a result of a wrongful removal); J.E.F.M., 837 3 F.3d at 1032 (INA does not channel “claims that are collateral to, or independent of, the removal
4 process” through the administrative process). 5 Furthermore, to require Plaintiffs to continue with their removal proceedings remotely 6 would require them to forfeit the opportunity to be granted asylum. At oral argument, Defendants 7 agreed that asylum cannot be granted to individuals residing outside the United States in their 8 country of citizenship. Although Defendants theorized at oral argument that an immigration judge 9 could find that Plaintiffs were entitled to asylum and condition an award of asylum on Plaintiffs’ 10 returning to the United States on their own, Defendants provided no authority that this scenario is 11 permissible, let alone possible. Moreover, even if possible, proceeding in this manner would again 12 permit the government misconduct alleged here to evade review, and as a direct result of the
13 misconduct itself. Because the allegations of affirmative government misconduct as well as 14 Plaintiffs’ pending asylum application distinguish this case from Conteh, the Court thus finds 15 Conteh’s reasoning less persuasive here. 16 The Court can also distinguish its conclusion here from a Seventh Circuit opinion 17 Defendants cited at oral argument, as support for their argument that the district court lacks 18 jurisdiction to hear a challenge to the execution of a removal order, even where the challenge is 19 based on an allegation of a wrongful removal. See Rivas-Melendrez v. Napolitano, 689 F.3d 732, 20 737–38 (7th Cir. 2012). In Rivas-Melendrez, the petitioner attempted to challenge in district court 21 the execution of a removal order against him, contending that it was “invalid because it occurred 22 too soon, while his time to appeal was still running.” Id. at 737. The petitioner requested that the
23 district court order that he be returned to the United States so that he could file an appeal of the 24 removal order. Id. at 736. The Seventh Circuit affirmed the district court’s finding that this action 1 was jurisdictionally barred as a challenge to the execution of a removal order under 8 U.S.C. § 2 1252(g), because “[r]eview by district courts of [administrative decisions to commence removal 3 proceedings, adjudicate cases, or execute removal orders] is not otherwise provided for in [Section
4 1252] and is therefore blocked.” Id. at 738. 5 The Court’s considerations here are distinguishable from Rivas-Melendrez on several 6 grounds. First, although petitioner there sought to be returned to the United States so that he could 7 appeal his removal order,8 Plaintiffs here have already obtained the relief Rivas-Melendrez sought: 8 Plaintiffs have obtained the rescission of the removal order and seek now to be returned to the 9 United States so that their asylum application can be fully adjudicated. Thus, although the Seventh 10 Circuit agreed with the district court that Rivas-Melendrez’s challenge was jurisdictionally barred, 11 this case is distinguishable based on its procedural posture, given that there is no final order of 12 removal currently in place here. 13 Second, the Rivas-Melendrez court noted that in that case, applying the jurisdictional bar 14 left petitioner with “effectively no remedy for what may have been procedural violations 15 committed by ICE agents and perhaps other immigration officials in connection with the order of 16 removal.” 689 F.3d at 739. Although that court felt nonetheless constrained to affirm the district 17 court’s dismissal for lack of jurisdiction given the relief sought there, the Court need not 18 compartmentalize its sympathies here. Rather, Plaintiffs’ claims here center on not only alleged 19 procedural violations in executing the in absentia removal order, but also allegations of affirmative 20 government misconduct collateral to the issues to be presented in any future removal proceedings. 21 22
23 8 The Rivas-Melendrez court also noted that the Board of Immigration Appeals procedures allowed petitioner to request discretionary reconsideration of his removal order. 689 F.3d at 739–40. The Court knows of no such alternative forms of relief available to Plaintiffs that would allow them to be granted asylum while they are outside 24 the United States. 1 Specifically, Plaintiffs allege that they had not been told to prepare for removal, they had 2 received assurances that no adverse actions would be taken against them at their ICE check-in 3 appointment, ICE denied Plaintiffs’ request to speak with counsel while they were detained, and
4 ICE did not notify Plaintiffs’ counsel that the motion to reopen had been rejected until after 5 Plaintiffs were sent to Guatemala. See Dkt. No. 4 ¶¶ 20–24, 30. Adjudication of the claims based 6 on these allegations does not require this Court to comment on the ultimate question of Plaintiffs’ 7 removability. To the contrary, if Plaintiffs are eventually denied asylum and an order of removal 8 is entered against them, any challenge to that removal order would have to be channeled through 9 the administrative process and eventually to the Ninth Circuit. 10 For all of these reasons, as to the claims presented in this lawsuit, seeking a remedy for the 11 alleged government misconduct that resulted in Plaintiffs’ forced return to Guatemala, the Court 12 finds that Sections 1252(a)(5) and 1252(b)(9) do not strip this Court of jurisdiction.
13 B. Plaintiffs’ Complaint States Claims Upon Which Relief Can Be Granted. 14 Plaintiffs confirmed at oral argument that despite raising several claims, they seek only one 15 remedy: facilitated return to the United States. Defendants argue that, even if the Court finds that 16 it has jurisdiction to hear Plaintiffs’ claims, the complaint should be dismissed because it fails to 17 state any valid claim upon which that relief can be granted. For the reasons below, the Court finds 18 that Plaintiffs’ complaint states valid claims upon which some relief may be granted, and the 19 Government has therefore failed to show that the complaint should be dismissed. Whether 20 Plaintiffs’ claims entitle them to a return to the United States facilitated by the U.S. government 21 need not be resolved now. 22 1. Legal Standards
23 In evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court 24 examines the complaint to determine whether, if the facts alleged are true, the plaintiff has stated 1 “a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible if plaintiff has pleaded 3 “factual content that allows the court to draw the reasonable inference that the defendant is liable
4 for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). 5 Failure to request the proper remedy is not equivalent to a failure to state a claim: “[A] 6 plausibly alleged claim – under which the pleading party would be entitled to some relief – should 7 not be dismissed simply because the party has requested a specific form of relief that is legally 8 unavailable.” Hyp3r Inc. v. Mogimo Inc., No. 17-cv-02977-JSW, 2017 WL 11515712, at *3 (N.D. 9 Cal. Nov. 8, 2017). “[I]t need not appear that plaintiff can obtain the specific relief demanded as 10 long as the court can ascertain from the face of the complaint that some relief can be granted.” 11 Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1104 (D.C. Cir. 1985). 12 2. Wrongful Removal
13 Plaintiffs’ complaint alleges a claim for wrongful removal. Dkt. No. 4 ¶¶ 52–56. 14 Individuals who are wrongfully removed are entitled to be readmitted to the United States to 15 “pursue any administrative and judicial remedies to which [they are] lawfully entitled.” Mendez 16 v. INS, 563 F.2d 956, 959 (9th Cir. 1977); see also Singh v. Waters, 87 F.3d 346, 350 (9th Cir. 17 1996) (finding that because a noncitizen’s deportation was unlawful, and “physically removing 18 him made the full reopening of his case impossible[,]” the government needed to permit him to 19 return to appear at his reopened proceedings in person). 20 Plaintiffs contend that they were wrongfully removed because they were removed before 21 the expiration of the 180-day period to file a motion to rescind and reopen removal proceedings, 22 after being assured by the government that no such action would be taken. Dkt. No. 4 ¶¶ 52–53.
23 Plaintiffs allege that B.P. had also been told that she had 30 days in which to move to rescind and 24 reopen, and that she filed such a motion even within this shortened timeframe. See id. ¶ 53; Dkt. 1 No. 18 at 3 (citing Cui v. Garland, 13 F.4th 991, 996 (9th Cir. 2021)). Plaintiffs cite Cui for its 2 finding that 8 U.S.C. § 1229a(b)(5)(C)(i) provides a “statutorily allotted 180 days to challenge an 3 in absentia [removal] order” and that the in absentia removal order “becomes final at the end of
4 the 180-day period.” 13 F.4th at 993, 996. Because Plaintiffs were removed before the 180-day 5 period had run, Plaintiffs contend that their removal was unlawful. Dkt. No. 18 at 24–26. 6 Defendants dispute whether Plaintiffs have alleged an unlawful removal, citing a regulation 7 that, contrary to Cui, provides that an in absentia order of removal is final upon entry. See 8 C.F.R. 8 § 1241.1(e). Defendants also distinguish Cui because in that case, the noncitizen did not move to 9 rescind and reopen within the 180-day period, but in this case, Plaintiffs did file such a motion and 10 the immigration judge had denied it by the time they were removed. Dkt. No. 15 at 13–14. This 11 argument overstates the outcome of Plaintiffs’ first motion to rescind and reopen: it was not, as 12 suggested by Defendants (id. at 13), denied on its merits. Rather, it was rejected by the court clerk
13 as improperly served, and Defendants conceded as much at oral argument. Defendants do not 14 dispute that Plaintiffs had 180 days in which to move to rescind and reopen the removal order, and 15 that if such a motion had been filed, Defendants could not have removed Plaintiffs. Defendants 16 have not explained why the statute would provide Plaintiffs 180 days in which to file a motion that 17 would prevent her removal, if Plaintiffs could in fact be removed at any time after the removal 18 order was entered. See, e.g., id. at 13–14. 19 In any event, the Court need not, at this stage, determine whether Plaintiffs should prevail 20 on their claim for wrongful removal. The Court finds that Plaintiffs have pleaded facts that, if true, 21 would suggest that their removal did not comply with all of the governing authority and was 22 therefore unlawful. Plaintiffs’ claim for unlawful removal therefore withstands Defendants’
23 motion to dismiss. 24 1 3. Affirmative Government Misconduct 2 The complaint lists a claim for affirmative misconduct, based on the allegations that 3 Defendants removed Plaintiffs after assuring B.P. that she would not be removed so soon, before
4 the order of removal was final, without notice to counsel and while refusing to allow Plaintiffs to 5 speak to their attorney. Dkt. No. 4 ¶¶ 20–21, 53–55. Plaintiffs also note that although the 6 immigration court clerk immediately notified ICE electronically that the first motion to rescind 7 had been rejected, the clerk mailed notice of that fact to Plaintiffs’ counsel. Id. ¶ 23. Moreover, 8 the clerk had provided counsel with a conformed copy of the motion to rescind, which led counsel 9 to believe the filing had been accepted. Id. ¶ 21. 10 Defendants’ motion to dismiss does not address affirmative misconduct as a separate claim, 11 but argues more broadly that none of the misconduct alleged would render a removal order 12 improper or unenforceable and thus does not support a claim for wrongful removal. See Dkt. No.
13 15 at 14. In their opposition, Plaintiffs separate the misconduct claim from the wrongful removal 14 allegations, noting that the “government in immigration cases may be subject to equitable estoppel 15 if it has engaged in affirmative misconduct.” Salgado-Diaz v. Gonzales, 395 F.3d 1158, 1165 (9th 16 Cir. 2005). Applying equitable estoppel allows a Court to ensure that “‘no one shall be permitted 17 to … take advantage of [its] own wrong[,]’” including the government. Schwebel v. Crandall, 967 18 F.3d 96, 106 (2d Cir. 2020) (quoting Corniel-Rodriguez v. INS, 532 F.2d 301, 302 (2d Cir. 1976)). 19 While Plaintiffs’ allegations, if proved true, would support a finding of affirmative 20 misconduct, it is unclear if or how equitable estoppel might apply to achieve the result Plaintiffs 21 seek here, namely their return to the United States facilitated by the government, because 22 Plaintiffs’ complaint does not discuss estoppel. Still, the Court need not resolve, at this stage,
23 whether Plaintiffs have requested the proper remedy for an affirmative misconduct claim. Because 24 1 Plaintiffs have alleged facts that would support a finding of affirmative misconduct, the Court will 2 deny Defendants’ motion to dismiss this claim. 3 4. INA and APA Violations
4 Plaintiffs’ complaint alleges that Defendants violated the INA and the APA by removing 5 Plaintiffs before their removal order was final.9 Dkt. No. 4 ¶¶ 37, 42–44, 46–51. 6 Defendants argue that Plaintiffs have cited no provision of the INA or the APA that requires 7 them to facilitate Plaintiffs’ return to the United States to participate in their removal proceedings, 8 and that because Defendants retain discretion to refuse to parole a noncitizen, the Court cannot 9 order Defendants to exercise their discretion in a particular way. See Dkt. No. 15 at 10–13 (citing 10 8 U.S.C. § 1252(a)(2)(B)(ii) (indicating that the INA prevents courts from reviewing discretionary 11 decisions, including decisions to parole or not parole noncitizens into the United States)). 12 That may be true, but this argument invites the Court to consider ultimate questions at a 13 preliminary stage. At this stage in the proceeding, the Court considers only whether Plaintiffs’ 14 claims can withstand a motion to dismiss, not how to resolve the claims on their merits. The Court 15 finds that Plaintiffs have adequately stated claims for violation of the INA and the APA because 16 they have plausibly alleged that they were removed from the United States before the removal 17 order became final, as a result of affirmative misconduct. See Dkt. No. 4 ¶¶ 37, 42–44, 46–51. 18 And although Defendants contend that the INA does not mandate Plaintiffs’ return to the United 19 States, and thus could not have been violated by Defendants’ decision not to parole Plaintiffs, the 20 Court need not find that Defendants’ refusal to parole Plaintiffs violated the INA in order to deny 21 Defendants’ motion to dismiss. Because Plaintiffs’ complaint plausibly alleges that their removal 22 did not comply with all applicable statutes and regulations, they have adequately stated a claim for
9 Plaintiffs assert that their APA claim merges with their mandamus claims, and therefore these claims rise and fall 24 together. See Dkt. No. 18 at 18 n.3. 1 violation of the INA and APA, and the Court will save for another day whether such a claim can 2 or should be remedied by a facilitated return to the United States. 3 5. Due Process
4 The complaint includes a claim for violation of the due process clause of the Fifth 5 Amendment of the United States Constitution. Dkt. No. 4 ¶¶ 57–63. An immigration proceeding 6 fails to provide the requisite process if “(1) the proceeding was so fundamentally unfair that the 7 [noncitizen] was prevented from reasonably presenting his case, and (2) the [noncitizen] 8 demonstrates prejudice, which means that the outcome of the proceeding may have been affected 9 by the alleged violation.” Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012) (quoting Lacsina 10 Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009)). Plaintiffs allege that their due process 11 rights were violated because their removal was fundamentally unfair and because their removal 12 from the United States deprives them of the ability to meaningfully participate in their removal
13 proceedings and prevents the full adjudication of her asylum application. Dkt. No. 4 ¶¶ 57–63. 14 Defendants contend that Plaintiffs have cited no authority indicating that due process 15 requires their in-person participation in their removal proceedings. Dkt. No. 15 at 15–16. Even if 16 that is true, it would not follow that Defendants’ motion to dismiss should be granted, because the 17 Court need not determine the proper remedy for Plaintiffs’ claims at this stage. It is enough that 18 the facts alleged in the complaint adequately state a due process claim: Plaintiffs have plausibly 19 alleged that their removal was fundamentally unfair, deprives them of their ability to fully 20 participate in their proceedings, and prevents their asylum application from being granted. The 21 Court therefore finds that Plaintiffs’ allegations address both elements of a due process claim in 22 this context, and therefore denies Defendants’ motion to dismiss this claim.
23 // 24 // 1 III. CONCLUSION 2 For these reasons, the Court DENIES Defendants’ motion. Dkt. No. 15. The parties are 3 directed to file a joint status report and serve initial disclosures no later than July 3, 2024.
4 Dated this 12th day of June, 2024. 5 A 6 Kymberly K. Evanson 7 United States District Judge
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