N. H., et al. v. THE UNITED STATES DEPARTMENT OF STATE, et al.

• Court: District Court, N.D. California
• Decided: March 17, 2026
• Docket: 3:25-cv-01779
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 N. H., et al., Case No. 25-cv-01779-AMO

8 Plaintiffs, ORDER GRANTING MOTION TO 9 v. DISMISS

10 THE UNITED STATES DEPARTMENT Re: Dkt. No. 10 OF STATE, et al., 11 Defendants.

12 13 This case arises from the denial of a visa by the Department of State. Defendants United 14 States Department of State, Secretary of State Marco Rubio, United States Department of 15 Homeland Security (“DHS”), Secretary of State Kristi Noem, United States Customs and Border 16 Protection (“CBP”), and Acting Commissioner of CBP Pete Flores (together, “Defendants”) move 17 to dismiss this action. The motion to dismiss was heard before this Court on March 12, 2026. 18 Having read the papers filed by the parties and carefully considered their arguments therein and 19 those made at the hearing, as well as the relevant legal authority, the Court hereby GRANTS the 20 motion to dismiss for the following reasons. 21 I. BACKGROUND 22 On August 14, 2014, Plaintiff N.H., an Indian national, was removed from the United 23 States pursuant to an expedited removal order issued under Title 8 U.S.C. § 1225(b)(1). Compl. 24 ¶ 17. The basis for the expedited removal order was CBP’s determination that N.H. was 25 inadmissible under Title 8 U.S.C. § 1182(a)(6)(C)(i), having found that N.H.’s “then-spouse paid 26 monies to a third party to obtain resident status for [N.H.]’s then-spouse through a marriage-fraud 27 scheme.” Compl. ¶ 17. 1 On August 21, 2021, Plaintiff N.S., N.H.’s brother, completed an application for a visa for 2 N.H. (on form DS-260) based on a previously approved I-130 Petition. Compl. ¶¶ 1, 18. On 3 March 20, 2024, at N.H.’s consular interview in Mumbai, India, a consular officer denied N.H.’s 4 visa application based on inadmissibility under Section 1182(a)(6)(C)(i) – the consular officer 5 determined that N.H. previously engaged in fraud or made a material misrepresentation of fact in 6 pursuit of an immigration benefit. Compl. ¶ 21. The consular officer advised N.H. she could 7 address this ineligibility directly with DHS. Compl. ¶ 21. 8 N.H. submitted an inquiry to DHS via the Traveler Redress Inquiry Program (“TRIP”), 9 wherein she requested a reversal of the finding of inadmissibility. Compl. ¶ 22. DHS 10 acknowledged receipt of N.H.’s inquiry and explained that the inadmissibility finding was made in 11 connection with her expedited removal order in 2014, but DHS did not explain the basis for the 12 finding or agree to withdraw it. Compl. ¶¶ 23-24. N.H. submitted a second inquiry asking DHS to 13 reverse its finding. Compl. ¶ 25. DHS refused. Compl. ¶ 26. 14 On May 15, 2024, N.H. contacted the Consulate General in Mumbai, and argued that 15 although DHS had refused to remove the inadmissibility finding via the TRIP process, the 16 consulate must reach an independent decision on inadmissibly because the State Department is not 17 bound by DHS’s determination. Compl. ¶ 27. The Consulate General responded that its decision 18 was based on DHS’s determination of inadmissibly and that N.H. could contact the Office of the 19 Legal Adviser for Consular Affairs (“LegalNet”) with additional questions. Compl. ¶ 28. On 20 June 4, 2024, N.H. contacted LegalNet to ask for an independent assessment of admissibility by 21 Department of State (“DOS”). Compl. ¶ 29. LegalNet responded that the visa was refused based 22 on a finding originally made by DHS and that “ ‘[c]onsular officers cannot remove an 23 inadmissibility finding originally entered by DHS.’ ” Compl. ¶ 30. On July 1, 2024, N.H. 24 responded, asking for reconsideration and a citation for the proposition that DOS cannot remove 25 an inadmissibility finding originally entered by DHS. Compl. ¶ 31. LegalNet has not responded. 26 Compl. ¶ 32. 27 // 1 Plaintiffs allege four causes of action: 2 • (1) Violation of the Immigration and Nationality Act (“INA”) and Regulations; 3 • (2) Violation of the Administrative Procedure Act (“APA”); 4 • (3) Violation of the Fifth Amendment – Due Process and Equal Protection of Laws; and 5 • (4) Violation of the First Amendment – Receiving Information and Ideas. 6 See Compl. ¶¶ 33-54. 7 II. DISCUSSION 8 Defendants move to dismiss for lack of subject matter jurisdiction and for failure to state a 9 claim. Dkt. No. 10. Because the Court finds it lacks jurisdiction, the Court does not reach the 10 remaining arguments. 11 A. Legal Standard – Subject Matter Jurisdiction 12 “Federal courts are courts of limited jurisdiction, possessing only that power authorized by 13 Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. 14 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal quotation marks omitted)). 15 Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may raise a facial or a factual 16 challenge to a federal court’s subject matter jurisdiction. White v. Lee, 227 F.3d 1214, 1242 (9th 17 Cir. 2000). In facial challenges brought under Rule 12(b)(1), the inquiry is confined to the 18 allegations in the complaint, while factual challenges permit the court to look beyond the 19 complaint to extrinsic evidence. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). When a 20 defendant challenges jurisdiction “facially” as Defendants do here, all material allegations in the 21 complaint are assumed true, and the court determines whether the factual allegations are sufficient 22 to invoke the court’s subject matter jurisdiction. Id. 23 B. Jurisdiction to Review CBP Inadmissibility Determination 24 Plaintiffs assert that this Court has subject matter jurisdiction on two bases, federal 25 question and mandamus. Compl. ¶ 10; see also 28 U.S.C. § 1331 (federal question); 28 U.S.C. 26 § 1361 (mandamus). Defendants counter that another statute, however, Title 8 U.S.C. 27 § 1252(a)(2)(A), expressly divests the Court of jurisdiction over Plaintiffs’ claims because they 1 court shall have jurisdiction to review’ an expedited removal order except as provided in” Section 2 1252(e), which sets forth specific scenarios for potential habeas relief. Alvarado-Herrera v. 3 Garland, 993 F.3d 1187, 1192 (9th Cir. 2021) (quoting 8 U.S.C. § 1252(a)(2)(A)); see also Dep’t 4 of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 106 (2020). Section 1252(a)(2)(A) divests 5 federal courts of jurisdiction over claims that “arise from or relate to the implementation or 6 operation of an order of [expedited] removal,” Title 8 U.S.C. § 1252(a)(2)(A)(i), because such 7 claims “ask[] to nullify the continuing effects of that order.” Avendano-Ramirez v. Ashcroft, 365 8 F.3d 813, 818 (9th Cir. 2004). Section 1252(a)(2)(A) thus squarely removes from federal courts 9 any jurisdiction to review issues relating to orders of expedited removal issued pursuant to Section 10 1225(b)(1) except as provided in Section 1252(e). See Singh v. Barr, 982 F.3d 778, 782 (9th Cir. 11 2020). Further, Section 1252(e)(1)(A) similarly provides that, regardless of the nature of the 12 action or claim, no court may “enter declaratory, injunctive, or other equitable relief in any action 13 pertaining to” an order for expedited removal made under Section 1225(b)(1) except for certain 14 actions described in Section 1252(e). 15 Given this clear authority, the Court does not have subject matter jurisdiction here. 16 Though Plaintiffs assert federal question and mandamus jurisdiction, Section 1252(a)(2)(A) 17 divests the Court of jurisdiction because N.H. asks the Court to revisit DHS’s purportedly 18 erroneous basis for her expedited removal in 2014. See Compl. ¶¶ 17, 20. In so doing, N.H. seeks 19 relief from the continuing effects of an expedited removal order issued pursuant to Section 20 1225(b)(1), relief which is barred by Title 8 U.S.C. § 1252(a)(2)(A). See Thuraissigiam, 591 U.S. 21 at 111 (concluding Section 1252(a)(2)(A) bars review of claims seeking additional review of an 22 expedited removal order beyond what is provided by Section 1252(e)(2)). Plaintiffs argue that 23 because they are not seeking to extinguish the 2014 expedited removal order and are not directly 24 challenging its implementation or operation, Section 1252(a)(2)(A) does not pose a jurisdictional 25 bar. See Dkt. No. 17 at 10-11. But that argument fails because Congress made clear that Section 26 1252(a)(2)(A)’s jurisdictional bar applies not only to substantive challenges to expedited removal 27 orders, but also to claims “arising from or relating to the implementation or operation of an order 1 Plaintiffs’ counsel made clear at the hearing that Plaintiffs challenge CBP’s 2014 determination of 2 inadmissibility on the basis of fraud. But by attacking Defendants’ basis for finding N.H. 3 inadmissible, Plaintiffs advance a collateral attack against the expedited removal order, which is 4 not permitted by the jurisdiction-stripping statute. Guerrier v. Garland, 18 F.4th 304, 308-09 (9th 5 Cir. 2021); see also Carriedo-Rosas v. Garland, No. 16-73927, 2022 WL 3973924, at *1 (9th Cir. 6 Aug. 31, 2022) (“We lack jurisdiction to review collateral attacks on underlying expedited 7 removal orders absent three narrow exceptions that may be asserted only in a habeas 8 proceeding.”). No matter the nuanced circumvention Plaintiffs attempt to advance, the 9 jurisdictional bar applies to the challenge to the underlying basis for the expedited removal order 10 they present here. Significantly, Plaintiffs fail to cite a single case in which a court has entertained 11 a challenge like the one they bring here. 12 Defendants, on the other hand, point to two cases that rejected Plaintiffs’ same argument. 13 See Dkt. No. 18 at 7 (citing Shunaula v. Holder, 732 F.3d 143 (2d Cir. 2013); Lister v. United 14 States Customs & Border Prot., et al., 431 F. Supp. 3d 141, 145 (W.D.N.Y. 2019)). In the first 15 case, Shunaula, CBP removed the plaintiff via an expedited removal order after finding a 16 fabricated green card in his possession. Id., 732 F.3d at 144-45. The plaintiff re-entered the 17 country without authorization, and years later, sought legal status. Id. at 145. U.S. Citizenship 18 and Immigration Services (“USCIS”) denied his application based on the inadmissibility finding 19 underlying the expedited removal order. Id. The plaintiff challenged the denial in federal court. 20 Id. He raised five arguments, one of which was a merits argument that the inadmissibility finding 21 was improper because “he had made no misrepresentation and intended none.” Id. The Second 22 Circuit held that Section 1252(a)(2)(A) deprived the court of jurisdiction to review his challenge 23 and did not reach the other arguments. Id. at 147. Section 1252(a)(2)(A) similarly deprives this 24 Court of jurisdiction to review Plaintiffs’ challenge to the 2014 expedited removal order. 25 In the second case cited by Defendants, Lister, the district court was even more explicit 26 about its lack of jurisdiction in a case implicating the same requests for relief advanced by N.H. 27 and N.S.: Plaintiff contends that § 1252(a)(2)(A) does not bar his claim, 1 because he “has been aggrieved by two separate and distinct CBP actions: (1) the issuance of the expedited order of removal under 2 INA § 235(b)(1) and (2) the inadmissibility charge pursuant to INA § 212(a)(6)(C)(i),” and he is challenging only the inadmissibility 3 charge. This argument is inconsistent with the plain language of § 1252(a)(2)(A), which states that it extends to “any . . . cause or 4 claim arising from or relating to the implementation or operation of an expedited order of removal issued under INA § 235(b)(1).” 8 5 U.S.C. § 1252(a)(2)(A)(i). 6 Lister, 431 F. Supp. 3d at 145. The Lister court accordingly determined that it lacked jurisdiction 7 over the plaintiff’s APA claim. Id. at 146. The same result follows here to all Plaintiffs’ claims. 8 In Plaintiffs’ opposition brief and at the hearing, they attempted to distinguish these and 9 other cases on the basis that the statutory scheme does not divest this Court of jurisdiction. They 10 argue in significant part that more than five years have passed since the 2014 inadmissibility 11 finding, and, accordingly, Title 8 U.S.C. § 1182(a)(9)(A)(i) does not prevent N.H. from applying 12 for admission. See Dkt. No. 17 at 11 (citing Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 817 13 (9th Cir. 2004)); see also 8 U.S.C. § 1182(a)(9)(A)(i) (making those subject to expedited removal 14 “inadmissible” within five years following such removal). Section 1182(a)(9)(A)(i), in this 15 context, amounts to nothing more than a red herring because it has nothing to do with the case 16 presented – Plaintiffs’ challenge focuses on the propriety of DHS’s 2014 inadmissibility finding, 17 not the timing of a new application for admission. No matter the length of time between the 18 inadmissibility finding and Plaintiffs’ lawsuit to challenge that finding, Section 1252 governs the 19 district court’s jurisdiction to hear the suit. 20 Because Plaintiffs attack an expedited removal determination, Section 1252(a)(2)(A) 21 governs, and this Court lacks jurisdiction unless N.H. can invoke Section 1252(e)(2). But 22 Plaintiffs do not raise a habeas claim, the only type of action which Section 1252(e)(2) permits. 23 See 8 U.S.C. § 1252(e)(2). That dooms the complaint because federal courts lack jurisdiction to 24 consider any collateral challenge to expedited removal orders – including the underlying bases for 25 them. Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1135 (9th Cir. 2008) (courts 26 lack “jurisdiction to review the merits of an expedited removal order”); Mendoza-Linares v. 27 Garland, 51 F.4th 1146, 1154 (9th Cir. 2022) (Section 1252(a)(2)(A) is a jurisdiction-stripping ] process.”). Because Plaintiffs challenge the merits underlying N.H.’s expedited removal order, the 2 || Court must dismiss the action for lack of jurisdiction. 3 || I. CONCLUSION 4 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss. The Court 5 lacks subject matter jurisdiction and accordingly DISMISSES the action with prejudice. 6 7 IT IS SO ORDERED. 8 Dated: March 17, 2026 9 - 1. 10 | Mnacoh Med ARACELI MARTINEZ-OLGUIN United States District Judge a 12

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