Zhu v. Department of Homeland Security

• Court: District Court, W.D. Washington
• Decided: September 9, 2019
• Docket: 2:18-cv-00489
• Status: Unknown

Opinion

HONORABLE RICHARD A. JONES 1

6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 XILONG ZHU, 9

Plaintiff, 10 Case No. 2:18-cv-00489-RAJ v. 11 ORDER GRANTING DEFENDANTS’ MOTION DEPARTMENT OF HOMELAND 12 TO DISMISS SECURITY, et al., 13 Defendants. 14

15 I. INTRODUCTION Before the Court is Defendants’ motion to dismiss. Dkt. # 16. For the reasons 16 below, the Court GRANTS the motion. 17 18 II. BACKGROUND Plaintiff is a Chinese citizen who enlisted in the United States Armed Forces through 19 the Military Accessions Vital to the National Interest (“MAVNI”) program. Dkt. # 10, ¶¶ 20 1, 19. In general, enlistees in the United States Armed Forces must be either United States 21 citizens or lawful permanent residents. 10 U.S.C. § 504(b); Dkt. # 10, ¶ 19. The MAVNI 22 program permits non-citizens who are not permanent residents, but who were lawfully 23 present in the United States, to enlist if they had critical foreign language skills or 24 specialized medical training. Id., ¶ 21. In his enlistment application, Plaintiff affirmed that 25 he was lawfully present on an F-1 foreign student visa based on his enrollment in the 26 University of Northern New Jersey (“UNNJ”). Dkt. # 10, ¶ 138. UNNJ had enrolled 27 Plaintiff in its Curricular Practical Training (CPT) program and authorized Plaintiff’s full- 1 time work for Apple, Inc. as a “full course of study as defined by 8 CFR 214.2(f)(6).” Id., 2 ¶ 133. 3 Plaintiff claims that the Department of Defense and the Department of Homeland 4 Security promised MAVNI recruits United States citizenship in return for their service in 5 the Armed Forces. Id., ¶ 22. After enlisting, Plaintiff applied for naturalization on or about 6 March 29, 2016. Id., ¶ 141. In a written decision dated August 16, 2018, USCIS denied 7 Plaintiff’s application. Id., ¶ 162. Plaintiff alleges that USCIS denied his N-400 petition 8 on the grounds that he is not of good moral character because he knowingly misrepresented 9 that he was in valid F-1 status based on his enrollment at UNNJ to gain enlistment into the 10 U.S. Army and later apply for naturalization. Id., ¶163. 11 Plaintiff alleges that, unbeknownst to him, U.S. Immigration and Customs 12 Enforcement (“ICE”) created the University of Northern New Jersey. Id., ¶ 59. ICE’s goal 13 was to target academic recruiters and brokers who charged foreign students a fee to place 14 them into universities that did not actually offer the course of study or authorized practical 15 training required to satisfy the F-1 visa requirements. Id., ¶ 60. Plaintiff alleges that UNNJ 16 looked like a real university in the sense that it was accredited by the State of New Jersey 17 and DHS listed UNNJ on its website of approved institutions. Id., ¶¶ 80-81. UNNJ 18 maintained a detailed website and active social media accounts. Id., ¶¶ 84-89. According 19 to its website, UNNJ “sought to better educate students by focusing on real world 20 employment knowledge and skills that parallel traditional academia at an affordable cost.” 21 Id., ¶ 84. 22 In his Amended Complaint before this Court, Plaintiff brings six causes of action: 23 estoppel, entrapment by estoppel, entrapment, wrongful failure to naturalize, lack of due 24 process, and breach of contract. Defendants U.S. Department of Homeland Security; U.S. 25 Citizenship & Immigration Services (“USCIS”); U.S. Immigration and Customs 26 Enforcement (“ICE”); Kirstjen Nielsen, in her official capacity; L. Francis Cissna, in his 27 official capacity; Anne Arries Corsano, in her official capacity; Ronald D. Vitiello, in his 1 official capacity; and Cynthia Munita, in her official capacity (collectively, “Defendants”) 2 move to dismiss. Dkt. # 16. 3 III. LEGAL STANDARD 4 5 A. FRCP 12(b)(1) 6 Federal courts are tribunals of limited jurisdiction and may only hear cases 7 authorized by the Constitution or a statutory grant. Kokkonen v. Guardian Life Ins. Co. of 8 America, 511 U.S. 375, 377 (1994). The burden of establishing subject-matter jurisdiction 9 rests upon the party seeking to invoke federal jurisdiction. Id. Once it is determined that 10 a federal court lacks subject-matter jurisdiction, the court has no choice but to dismiss the 11 suit. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); Fed. R. Civ. P. 12(h)(3) (“If the 12 court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss 13 the action.”). 14 A party may bring a factual challenge to subject-matter jurisdiction, and in such 15 cases the court may consider materials beyond the complaint. PW Arms, Inc. v. United 16 States, 186 F. Supp. 3d 1137, 1142 (W.D. Wash. 2016) (citing Savage v. Glendale Union 17 High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003); see also McCarthy v. United States, 18 850 F.2d 558, 560 (9th Cir. 1988) (“Moreover, when considering a motion to dismiss 19 pursuant to Rule 12(b)(1) the district court is not restricted to the face of the pleadings, but 20 may review any evidence, such as affidavits and testimony, to resolve factual disputes 21 concerning the existence of jurisdiction.”). 22 B. FRCP 12(b)(6) 23 Rule 12(b)(6) requires the court to assume the truth of the complaint’s factual 24 allegations and credit all reasonable inferences arising from those allegations. Sanders v. 25 Brown, 504 F.3d 903, 910 (9th Cir. 2007). The plaintiff must point to factual allegations 26 that “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 27 U.S. 544, 568 (2007). If the plaintiff succeeds, the complaint avoids dismissal if there is 1 “any set of facts consistent with the allegations in the complaint” that would entitle the 2 plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“When there are 3 well-pleaded factual allegations, a court should assume their veracity and then determine 4 whether they plausibly give rise to an entitlement to relief.”). The court typically cannot 5 consider evidence beyond the four corners of the complaint, although it may rely on a 6 document to which the complaint refers if the document is central to the party’s claims and 7 its authenticity is not in question. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). 8 The court may also consider evidence subject to judicial notice. United States v. Ritchie, 9 342 F.3d 903, 908 (9th Cir. 2003). 10 IV. DISCUSSION 11 A. Entrapment and Entrapment by Estoppel Claims 12 Defendants claim that this Court lacks jurisdiction to adjudicate Plaintiff’s estoppel, 13 entrapment, and entrapment by estoppel claims. Federal district courts lack jurisdiction 14 over suits against the United States unless the United States has expressly and 15 unequivocally waived its sovereign immunity. Balser v. Dep’t of Justice, Office of U.S. 16 Tr., 327 F.3d 903, 907 (9th Cir. 2003). Therefore, where the United States is the defendant, 17 the plaintiff must show both subject matter jurisdiction and that the United States has 18 waived its sovereign immunity. Powelson v. United States, By and Through Sec’y of 19 Treasury, 150 F.3d 1103, 1104 (9th Cir. 1998). 20 The government waives its sovereign immunity in certain circumstances. For 21 example, the Tucker Act waives the government’s sovereign immunity in damage suits 22 based on contract as well as for some claims arising under the Constitution and statutes of 23 the United States. See 28 U.S.C. § 1346(a)(2); EEOC v. Peabody Western Coal Co., 610 24 F.3d 1070, 1084 (9th Cir. 2010). For tort claims, the Federal Tort Claims Act (“FTCA”) 25 is a “limited waiver of sovereign immunity, making the Federal Government liable to the 26 same extent as a private party for certain torts of federal employees acting within the scope 27 of their employment.” United States v. Orleans, 425 U.S. 807, 813(1976). 1 In his response to the Motion, Plaintiff concedes that estoppel, entrapment, and 2 entrapment by estoppel are not stand-alone claims. See Dkt. # 19 at 12-13. It follows then 3 that the government did not waive its sovereign immunity as to these alleged affirmative 4 claims. Therefore, those claims are DISMISSED. 5 B. Failure to Naturalize 6 Plaintiff alleges that he is bringing the denial of his naturalization application to this 7 Court for de novo consideration. Dkt. # 19. The government argues that dismissal is proper 8 because Plaintiff’s Amended Complaint alleges a claim for “wrongful failure to naturalize” 9 and he failed to show the Government waived sovereign immunity. Alternatively, the 10 government argues that if the Court accepts Plaintiff’s claim as one under 8 U.S.C. § 11 1421(c), it should be dismissed for failure to exhaust administrative remedies. After the 12 denial of his naturalization application, Plaintiff did not appeal the denial requesting a 13 hearing before a senior immigration examiner pursuant to 8 U.S.C. § 1447(a) and 8 C.F.R. 14 § 336.2. Because the Court must evaluate whether there are “any set of facts consistent 15 with the allegations in the complaint” that would entitle the plaintiff to relief, the Court 16 construes Plaintiff’s claim as one under 8 U.S.C. § 1421(c). Twombly, 550 U.S. at 562. 17 “Unsuccessful applicants must first take an administrative appeal of the denial and 18 complete the [USCIS’s] administrative process before seeking judicial review.” 8 U.S.C. 19 § 1421(c). Generally, “[w]here Congress specifically mandates” it, exhaustion is not 20 merely appropriate, but “required.” Barron v. Ashcroft, 358 F.3d 674 (9th Cir. 2004). The 21 government argues that Plaintiff should not be encouraged to bypass the administrative 22 review processes to directly pursue this Court’s review of USCIS’s decision. Indeed, 23 whether the “relaxation of the [exhaustion] requirement would encourage the deliberate 24 bypass of the administrative scheme” is a key consideration for the Court in making its 25 determination. Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004); Montes v. 26 Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990). The Court finds that allowing Plaintiff to 27 forego review before an immigration officer would disrupt the streamlined procedure 1 intended by Congress and that the typical concerns permitting waiver of the exhaustion 2 requirement are not met here. Compare, e.g., Nakaranurack v. United States, 68 F.3d 290, 3 294 (9th Cir. 1995) (waiver appropriate because it was unfair to impute the negligence of 4 the alien’s attorney in filing an untimely petition for review to the alien himself) with Laing 5 v. Ashcroft, 370 F.3d 994 (9th Cir. 2004) (exhaustion may not be achieved through a 6 litigant’s procedural default of his or her available remedies). Accordingly, because 7 Plaintiff fails to allege exhaustion, this claim is DISMISSED without prejudice. 8 C. Due Process Claim 9 Plaintiff states that he has an interest “in the fair and full consideration of his 10 naturalization application and in not being deprived of his fair chance at naturalization.” 11 Dkt. # 19 at 11. He claims that he was deprived due process because the government 12 ascribed visa fraud to him without notice of the charge or an opportunity to respond to it, 13 faulting him for relying on the government’s affirmative misrepresentations, and denying 14 his application based on “secret” evidence. Id. 15 A plaintiff asserting a due process claim must first show that he has a protected 16 interest in liberty or property. See Board of Regents v. Roth, 408 U.S. 564, 569 (1972). 17 Plaintiff identifies two purported protected interests: (1) the right to naturalization based 18 upon his satisfaction of all statutory requirements; and (2) the right to not be deprived 19 naturalization based on the government’s affirmative misrepresentations and conduct. 20 As to Plaintiff’s first contention, an alien petitioner has no substantive right to 21 citizenship contrary to an act of Congress. See I.N.S. v. Pangilinan, 486 U.S. 875, 883 22 (1998) (aliens seeking citizenship can only obtain it upon terms and conditions specified 23 by Congress); Brown v. Holder, 763 F.3d 1141, 1147 (9th Cir. 2014) (noting that the 24 statutory requirements for the naturalization of aliens are set out in the INA). His complaint 25 alleges that USCIS found him to be noncompliant with the good moral character 26 requirement. Accordingly, Plaintiff’s first theory fails because he cannot allege a 27 legitimate property interest. Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) (“[A] 1 benefit is not a protected entitlement if government officials may grant or deny it in their 2 discretion”); see also Ching v. Mayorkas, 725 F.3d 1149, 1155 (9th Cir. 2013) (finding a 3 constitutionally protected interest in nondiscretionary immigration applications). As to 4 Plaintiff’s second theory, the Ninth Circuit and other courts have held that naturalization 5 applicants have a property interest in seeing their applications adjudicated lawfully. Brown 6 v. Holder, 763 F.3d 1141, 1147 (9th Cir. 2014). However, Plaintiff fails to allege a denial 7 of adequate procedural protections. See, e.g., Foss v. Nat’l Marine Fisheries Serv., 161 8 F.3d 584, 588 (9th Cir. 1998) (explaining that procedural due process claims hinge on both 9 a protected liberty or property interest and a denial of adequate procedural protections); see 10 also Dent v. Sessions, 900 F.3d 1075, 1083 (9th Cir. 2018) (explaining that a naturalization 11 petitioner can succeed on a due process claim where there was “deliberately indifferent to 12 whether his application was processed” and that he or she suffered prejudice). Despite 13 arguing that Defendants failed to properly adjudicate his application, Plaintiff fails to plead 14 facts about Defendants’ deliberate indifference toward his opportunity to naturalize in 15 order to state a claim. See, e.g., Dent, 900 F.3d at 1083 (alleging deliberate indifference 16 where INS did not expedite application for derivative citizenship after learning minor child 17 was near cutoff age). Therefore, Plaintiff’s due process claim is DISMISSED without 18 prejudice. 19 D. Breach of Contract 20 Plaintiff’s claim for breach of contract asserts that Defendants explicitly or 21 impliedly promised Plaintiff that UNNJ was a legitimate school, that UNNJ was acting in 22 accordance with U.S. immigration laws, and that UNNJ was properly authorized to issue 23 him, and had issued him, a valid Form I-20. Dkt. # 10, ¶192. He clarifies that he seeks 24 relief for this breach pursuant to the Tucker Act. 25 The Court finds that Plaintiff has failed to state a claim under the Tucker Act. To 26 prevail on such a claim, Plaintiff must ultimately demonstrate (1) that he and the 27 government mutually intended to enter into a contract; (2) that consideration was offered 1 by both parties to the contract; (3) that there is a lack of ambiguity in the offer and 2 acceptance; and (4) that the government’s representative had actual authority to bind the 3 government in contract. 28 U.S.C. § 1346; Horowitz v. Tschetter, 2007 WL 1381608, No. 4 C 06-05020 CRB (N.D. Cal. May 8, 2007). Here, Plaintiff fails to allege the specific terms 5 of the contract that were offered and accepted, and subsequently breached. Plaintiff also 6 fails to allege facts that plausibly show a government’s representative had actual authority 7 to bind the government in contract. Accordingly, Plaintiff’s claim is DISMISSED without 8 prejudice. 9 V. CONCLUSION 10 For the reasons stated above, the Court, the Court GRANTS Defendants’ motion. 11 Dkt. # 16.

12 DATED this 9th day of September, 2019. 13

14 A 15 16 The Honorable Richard A. Jones 17 United States District Judge 18 19 20 21 22 23 24 25 26 27