Vargas-Ruiz v. Blinken

Opinion

FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Mar 15, 2024 SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON

ARELIS VARGAS-RUIZ and ROBERTO MARTINEZ GONZALEZ, No. 2:23-CV-00130-MKD Plaintiffs, ORDER GRANTING MOTIONS TO v. LOREN K. MILLER, ALEJANDRO ECF Nos. 5, 18 JADDOU, ANTONY J. BLINKEN, VISEK, WENDY R. SHERMAN, ERIC COHAN, and KENT MAY, Defendants.

Before the Court are Defendants’ Motion to Dismiss or Alternatively for Summary Judgment, ECF No. 5, and the Stipulated Motion to Dismiss Defendants Loren K. Miller and Alejandro Mayorkas, ECF No. 18. The Court has reviewed the record and is fully informed. The Court finds oral argument is not warranted. See LCivR 7(i)(3)(B)(iii). For the reasons set forth below, the Court grants Defendants’ Motion to Dismiss or Alternatively for Summary Judgment, ECF No. 5, and the Stipulated Motion to Dismiss Defendants Loren K. Miller and Alejandro

Mayorkas, ECF No. 18. Plaintiffs Arelis Vargas-Ruiz (Plaintiff Vargas-Ruiz) and Plaintiff Roberto

Martinez Gonzalez (Plaintiff Gonzalez) are spouses. ECF No. 1 at 9. Plaintiff Vargas-Ruiz is seeking lawful permanent residency for Plaintiff Gonzalez. Id. This action arises out of delays that have occurred in that process. On November 5, 2014, Plaintiff Vargas-Ruiz filed a Petition for Alien

Relative (Form I-130) on Plaintiff Gonzalez’s behalf. ECF No. 1-1. The petition was approved on June 2, 2015.1 Id. On October 20, 2017, Plaintiff Gonzalez filed a Provisional Unlawful Presence Waiver (Form I-601A). ECF No. 1 at 9; ECF No.

1-1 at 5. The application was approved on January 25, 2018. Id. On November 14, 2018, Plaintiffs submitted an Online Immigrant Visa and Alien Registration Application (DS-260). ECF No. 6 at 4. The same day, the National Visa Center (NVC) advised Plaintiffs that documents were missing from

the Form. Id. at 4. On November 20, 2019, NVC inquired whether Plaintiff

1 Defendants state the petition was approved May 28, 2015. ECF No. 6 at 3. The Court refers to the Notice date as the approval date. ECF No. 1-1 at 4. Gonzalez was interested in further pursuing his application. Id. On July 23, 2022, Plaintiffs’ attorney sent an email to NVC advising NVC of problems with making

the fee payment online. Id. at 5. On August 26, 2022, NVC emailed Plaintiffs advising them the technical issue preventing payment had been resolved. Id. On January 24, 2023, Plaintiffs submitted all necessary filing fees and

paperwork to NVC. ECF No. 5 at 18; ECF No. 6 at 5; see also ECF No. 17 at 3. On May 1, 2023, 97 days later, Plaintiffs filed this Complaint. ECF No. 1. On July 10, 2023, Defendants filed a Motion to Dismiss arguing that the Court lacks subject matter jurisdiction, and that Plaintiffs fail to state a claim for

which relief can be granted. ECF No. 5. “A [Fed. R. Civ. P. 12(b)(1)] jurisdictional attack may be facial or factual.”

Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. The reviewing court is to accept the allegations as true and draw all reasonable inferences in the

plaintiff's favor. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). For a factual attack, the movant challenges the veracity of the allegations. Safe Air for Everyone, 373 F.3d at 1039. “[T]he district court may review evidence beyond

the complaint without converting the motion to dismiss into a motion for summary judgment.” Id. The reviewing court is not required to accept the allegations as true. Id.

“To survive a [Fed. R. Civ. P. 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. In considering a motion to dismiss for failure to state a claim, the Court must accept as true the well-pleaded factual allegations and any reasonable

inference to be drawn from them, but legal conclusions are not entitled to the same assumption of truth. Id. A complaint must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under

some viable legal theory. Twombly, 550 U.S. at 562. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555. A. Stipulated Motion to Dismiss

The parties have stipulated that all claims against Defendants Loren K. Miller and Alejandro Mayorkas should be dismissed without prejudice. A plaintiff may dismiss an action without court order by filing a stipulation of dismissal

signed by all parties who have appeared. Fed. R. Civ. P. 41(a)(1)(A)(ii). The Stipulated Motion to Dismiss is therefore granted.

B. Standing Defendants contend Plaintiffs lack standing. ECF No. 5 at 7-9. Plaintiffs have the burden of establishing Article III standing. Spokeo, Inc. v. Robins, 578

U.S. 330, 338 (2016). To satisfy that burden, the plaintiff must show they have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). An

injury in fact is an injury that is concrete and particularized. Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009). Defendants raise a factual attack, challenging the veracity of Plaintiffs’ allegations; thus, the Court is not required to

accept Plaintiffs’ allegations as true and the Court may look to evidence outside of the Complaint, without converting the motion to a motion for summary judgment. See Safe Air for Everyone, 373 F.3d at 1039. Plaintiffs have not demonstrated an injury in fact at the time Plaintiffs

initiated the lawsuit. Standing is measured at the time a complaint is filed. See, e.g., San Luis & Delta-Mendota Water Auth. v. Dep’t of Interior, 905 F. Supp. 2d 1158, 1169 (E.D. Cal. 2012) (citing Lujan, 504 U.S. at 569 n.4); Fathers &

Daughters Nevada, LLC v. Lingfu Zhang, 284 F. Supp. 3d 1160, 1171 (D. Or. 2018) (citing Lujan, 504 U.S. at 569 n.4). An injury in fact must be actual or imminent, not conjectural or hypothetical. Lujan, 504 U.S. at 560.

1. Injury Due to Delay First, Plaintiffs contend they have been injured because they waited 94 months for Plaintiff’s DS-260 application to be scheduled and adjudicated. ECF

No. 1 at 10-11. Plaintiffs assert the application should have been processed within 180 days from the initial filing. Id. However, Defendants challenge the veracity of this allegation and contend Plaintiffs had only waited 97 days, not 94 months, prior to the filing of the Complaint. ECF No. 5 at 15-17. Plaintiffs’ Form I-130 was

approved on May 28, 2015, but Plaintiffs’ visa application was not documentarily complete until January 24, 2023. ECF No. 5 at 17-18; ECF No. 6 at 4-5. Thus, Plaintiffs’ application was not complete until 97 days prior to the filing of the

lawsuit. Plaintiffs concede there was not a 94-month delay but contend instead there is a 188-day delay as of the date Plaintiffs filed the Response. ECF No. 17 at 3. Plaintiffs maintain that this delay is unreasonable based on the 180-day standard

set forth in 8 U.S.C. § 1571(b). Id. at 9. However, Plaintiffs have failed to allege an actual or imminent injury at the time of the Complaint. The crux of Plaintiff’s Complaint was the allegation that a 94-month delay was their injury. ECF No. 1 at

3, 9, 11. Defendants have presented evidence that Plaintiffs’ allegation was factually inaccurate, and Plaintiffs have conceded that fact. When the Complaint was filed, Plaintiffs’ visa could still have been adjudicated prior to the 180-day

standard. Thus, Plaintiffs have not alleged an actual or imminent injury at the time of the Complaint. Further, the injury due to the delay is a purely procedural harm, as discussed further infra.

2. Injury Due to Family Separation or Other Harm Second, Plaintiffs have not demonstrated an injury that is concrete and particularized. See Summers, 555 U.S. at 493. Plaintiffs contend the delay in scheduling and adjudicating the visa application has caused “Plaintiffs ongoing and

substantial injuries personally and emotionally due to the family separation between them and the cost of maintaining households in the U.S. and Mexico.” ECF No. 1 at 11. Defendants challenge the veracity of this allegation. ECF No. 5

at 8. Plaintiffs state they currently live together in Ephrata, Washington and do not allege what family they are separated from. ECF No. 1 at 5, 11. Plaintiffs’ response does not present any facts to support their contention that they are separated from family. ECF No. 17 at 7. Thus, the only family members Plaintiffs

discuss are Plaintiff Vargas-Ruiz and Plaintiff Gonzalez, who reside together. Plaintiffs’ contention that they are separated from family is not supported by any factual allegation in the complaint or any factual basis in the briefing.

Plaintiff Gonzalez states that he “must continue to live his life stuck in limbo status” and the delay has caused him “serious harm.” ECF No. 17 at 5. He

contends that if his immigrant visa interview were scheduled and his application were adjudicated, he would become a legal permanent resident or he would know he must take a different path to obtain lawful status. Id. at 6. He argues that the

delay has prevented him from trying to obtain lawful status. Id. Plaintiffs contend that their “serious hardship” gives them standing to bring the claim. Id. at 7. However, Plaintiffs do not present any facts to support the contention they have experienced any specific serious hardship. Thus, Plaintiffs have not demonstrated

a concrete and particularized harm due to family separation or any other alleged harm. 3. Procedural Injury Next, Plaintiffs’ contentions amount to only a procedural violation. Plaintiffs first contended their injury was a 94-month delay, and they now contend the delay of longer than 180 days is their injury. ECF Nos. 1, 17. Article III standing requires that the plaintiffs have suffered some harm that actually exists in

the world, not an abstract or merely procedural harm. Robins v. Spokeo, Inc., 867 F.3d 1108, 1112 (9th Cir. 2017). As discussed supra, Plaintiffs do not allege that the procedural delay has

caused Plaintiffs any specific harm. For example, in Filazapovich, the plaintiffs had standing when the cessation and deprioritizing of DV-2021 visa adjudications put the plaintiffs at an increased risk of losing their procedural right to have their

applications adjudicated that year. Filazapovich v. Dep’t of State, 560 F. Supp. 3d 203, 226-27 (D.D.C. 2021). The plaintiffs demonstrated that even with the delays caused by the pandemic, they would have been substantially likely to receive their

visas that year but for the defendants’ allegedly unlawful actions. Id. In Ortiz, the plaintiffs had standing when a family faced immediate, irreparable harm due to the prospect of losing the chance to immigrate together, because the failure to expedite the process within six months would cause plaintiff’s son to be too old to be a

beneficiary to plaintiff’s petition. Ortiz v. Dep’t of State, No. 1:22-CV-00508- AKB, 2023 WL 4407569, at *3 (D. Idaho July 7, 2023). In Jacob, the plaintiff had standing when plaintiff’s visa category was more adversely impacted, causing a

bigger backlog and delay for their category of visas, which the Court found was a cognizable injury. Jacob v. Biden, 542 F. Supp. 3d 938, 951 (N.D. Cal. 2021). In a case where the plaintiff was separated from his family, and he then required treatment for depression, the plaintiff had standing. R. v. USCIS, No.

223CV05460DDPASX, 2023 WL 9197564, at *1 (C.D. Cal. Dec. 6, 2023). Here, Plaintiffs do not contend that their category of visa was more adversely impacted, nor do they point to any concrete injury regarding the alleged

injury due to the delay. While Plaintiffs generally state they are separated from family, they do not offer factual allegations to support the theory and do not contend any specific family members are impacted by the delay. As such,

Plaintiffs’ allegation that the delay has exceeded 180 days and the delay has generally harmed them is insufficient—Plaintiffs have failed to demonstrate a real, as opposed to a purely legal alleged harm. Plaintiffs thus have not met their

burden in demonstrating they have standing. Defendants’ Motion to Dismiss is therefore granted. C. Failure to State a Claim and Plaintiffs’ Delay Defendants contend Plaintiffs have failed to state a claim and contend

Plaintiffs’ delay was due to their own inaction. ECF No. 5 at 9-21. As the Court dismisses the case for the reasons discussed supra, the Court declines to reach the remaining issues.

Accordingly, IT IS HEREBY ORDERED: 1. Defendants’ Motion to Dismiss, ECF No. 5, is GRANTED. 2. The Stipulated Motion to Dismiss Defendants Loren K. Miller and Alejandro Mayorkas, ECF No. 18, is GRANTED.

3. Plaintiff’s Complaint, ECF No. 1, is DISMISSED without prejudice.

The District Court Executive is directed to file this Order, enter judgment accordingly, provide copies to counsel, and CLOSE THE FILE.

DATED March 15, 2024. s/Mary K. Dimke UNITED STATES DISTRICT JUDGE