Hinojosa v. Horn

• Decision Date: 08 May 2018
• Docket Number: Nos. 17-40077 & 17-40134,s. 17-40077 & 17-40134
• Citation: 896 F.3d 305
• Parties: Raquel HINOJOSA, also known as Raquel Flores Venegas, Plaintiff-Appellant v. Petra HORN, Port Director, United States Customs and Border Protection ; Mike Pompeo, Secretary, U.S. Department of State; Kirstjen M. Nielsen, Secretary, U.S. Department of Homeland Security; United States of America, Defendants-Appellees and Denisse Villafranca, Plaintiff-Appellant v. Mike Pompeo, Secretary, U.S. Department of State; United States of America; Petra Horn, Customs and Border Protection Port Director, Brownsville, Texas; Jonathan M. Rolbin, Director, Legal Affairs and Law Enforcement Liaison, of the United States Department of State, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

896 F.3d 305

Raquel HINOJOSA, also known as Raquel Flores Venegas, Plaintiff-Appellant

v.Petra HORN, Port Director, United States Customs and Border Protection ; Mike Pompeo, Secretary, U.S. Department of State; Kirstjen M. Nielsen, Secretary, U.S. Department of Homeland Security; United States of America, Defendants-AppelleesandDenisse Villafranca, Plaintiff-Appellant

v.Mike Pompeo, Secretary, U.S. Department of State; United States of America; Petra Horn, Customs and Border Protection Port Director, Brownsville, Texas; Jonathan M. Rolbin, Director, Legal Affairs and Law Enforcement Liaison, of the United States Department of State, Defendants-Appellees

Nos. 17-40077 & 17-40134

United States Court of Appeals, Fifth Circuit.

Filed May 8, 2018

Elisabeth S. Brodyaga, Refugio del Rio Grande, San Benito, TX, Jaime M. Diez, Jones & Crane, Brownsville, TX, for Plaintiff-Appellant

Hans Harris Chen, U.S. Department of Justice, Office of Immigration Litigation—DCS, Washington, DC, for Defendants-Appellees

Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.

PER CURIAM:

Due to the similarity in the factual background and legal issues in these two cases, we resolve both in a single opinion.

Raquel Hinojosa and Denisse Villafranca (collectively, the "Plaintiffs") were denied passports by the Department of State ("DOS") because they were deemed not to be United States citizens. They separately challenged this determination by filing complaints in the United States District Court for the Southern District of Texas, raising similar claims under the habeas corpus statute, 28 U.S.C. § 2241, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 et seq . Rejecting the Plaintiffs’ various arguments, the district court granted the Government’s motion to dismiss in each case. We AFFIRM both dismissals.

I.

Both Hinojosa and Villafranca claim they were born in Brownsville, Texas, and they have United States birth certificates supporting their claims. Both also have birth certificates issued by the Mexican government, which indicate they were born in Mexico—though Villafranca modified her Mexican birth certificate in 2010 to list Brownsville as her birthplace. Both were raised and spent much of their lives in Mexico, but are now seeking entry into the United States.

Hinojosa applied for a U.S. passport in July 2015. Her application included documents tending to prove that the Mexican birth certificate was false. DOS was unpersuaded and denied her application in November 2015, finding that she had presented insufficient evidence to establish that she was born in the United States.

Hinojosa sought immediate judicial review of this determination before the district court. In 2016, she traveled to a port of entry in Brownsville and filed a petition for a writ of habeas corpus, as well as a complaint for declaratory and injunctive relief under the APA. The district court, adopting the report and recommendations of the magistrate judge, ultimately granted the Government’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), finding that it lacked jurisdiction to provide habeas relief or to proceed under the APA. It also considered an as-applied constitutional challenge to the statute that denies entry to U.S. citizens without passports, 8 U.S.C. § 1185(b), but found she lacked standing to assert it. Hinojosa timely appealed.

Unlike Hinojosa, Villafranca applied for and was issued a U.S. passport in August 2005. But in November 2014, DOS revoked Villafranca’s passport, finding that, based on the information contained in her Mexican birth certificate before she had modified it, she had misrepresented her U.S. citizenship in her 2005 application. In its letter notifying Villafranca of the revocation, DOS stated that she was not entitled to a hearing under 22 C.F.R. §§ 51.70 – 51.74 because her passport had been revoked on the grounds of non-nationality. But the letter informed her that she could still contest the decision by "pursu[ing] an action in U.S. district court under 8 U.S.C. Section 1503." She was ordered to surrender her passport immediately.

Before receiving notification that her passport had been revoked, Villafranca had traveled to Mexico. When she attempted to reenter the United States at the port of entry in Brownsville, Texas, she was denied entry and her passport was seized.

Villafranca filed a petition in the district court in June 2016. She asserted similar claims for habeas relief under 28 U.S.C. § 2241 and declaratory and injunctive relief under the APA. She also argued that she could bring a declaratory judgment action under 8 U.S.C. § 1503(a). The petition was heard by the same judge that heard Hinojosa’s petition. The judge again granted the Government’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), finding that it lacked jurisdiction to hear Villafranca’s APA and habeas claims. It rejected her argument that she could pursue a declaratory judgment action under 8 U.S.C. § 1503(a) because she was not "within the United States" as required by the statute. Villafranca timely appealed.

II.

The first issue is whether the Plaintiffs may seek relief under the APA. This court reviews a district court’s dismissal for lack of subject matter jurisdiction de novo. Ctr. for Biological Diversity v. BP Am. Prod. Co. , 704 F.3d 413, 421 (5th Cir. 2013) ; Musslewhite v. State Bar of Tex. , 32 F.3d 942, 945 (5th Cir. 1994).

The Plaintiffs sought similar relief under the APA: Hinojosa challenged the denial of her application for a U.S. passport because she was a non-citizen. Villafranca challenged the revocation of her passport because its issuance was based on the misrepresentation that she was a U.S. citizen. The district court rejected Villafranca’s petition because it concluded she was not appealing a final agency action. By contrast, it rejected Hinojosa’s petition because it concluded there was an adequate alternative means of receiving judicial review under 8 U.S.C. § 1503. Both grounds provide independent bases to reject an APA claim. See Am. Airlines, Inc. v. Herman , 176 F.3d 283, 287 (5th Cir. 1999) (finality requirement); Bowen v. Massachusetts , 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (no other adequate remedy requirement).

Section 1503 outlines the process by which individuals can receive judicial review of the denial of "a right or privilege as a national of the United States" by a government official, department or independent agency "upon the ground that he is not a national of the United States."

8 U.S.C. §§ 1503(a), (b). On appeal, both Villafranca and Hinojosa challenge the dismissal of their APA claims by arguing that the procedures under 8 U.S.C. § 1503 are inadequate.¹ We disagree. After reviewing the adequacy requirement under the APA and the procedures afforded under § 1503, we conclude that the district court’s denial on this basis was proper.²

A. The Adequate Alternative Remedy Requirement

The APA provides judicial review for "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. Notwithstanding this broad definition, the APA limits the sort of "agency action[s]" to which it applies. Specifically, the statute requires that the challenged act be an "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court." Id. § 704. Section 704 imposes both finality and exhaustion requirements on the agency action appealed, see 2 RICHARD J. PIERCE, ADMINISTRATIVE LAW TREATISE §§ 15.3, 15.11 (5th ed. 2010), but it also limits the APA to the review of those agency actions which otherwise lack an "adequate remedy in a court." Bowen , 487 U.S. at 903, 108 S.Ct. 2722 ("[T]he provision as enacted also makes it clear that Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action."). It is this latter requirement that is before us.

At a minimum, the alternative remedy must provide the petitioner "specific procedures" by which the agency action can receive judicial review or some equivalent. Id. The adequacy of the relief available need not provide an identical review that the APA would provide, so long as the alternative remedy offers the "same genre" of relief. Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice , 846 F.3d 1235, 1245 (D.C. Cir. 2017) (quoting El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep’t of Health & Human Servs. , 396 F.3d 1265, 1272 (D.C. Cir. 2005) ); see also Rimmer v. Holder , 700 F.3d 246, 262 (6th Cir. 2012) ; Garcia v. Vilsack , 563 F.3d 519, 522 (D.C. Cir. 2009) ("The relevant question under the APA ... is not whether [the alternatives to APA relief] are as effective as an APA lawsuit against the regulating agency, but whether the private suit remedy provided by Congress is adequate.").

This requirement entails a case-specific evaluation. For example, the Supreme Court in Bowen v. Massachusetts analyzed whether review by the Claims Court was an adequate alternative remedy, when the petitioner, the Commonwealth of Massachusetts, sought review of an agency determination denying Medicaid expense reimbursement. 487 U.S. at 904–08, 108 S.Ct. 2722. Finding this review inadequate, the Supreme Court noted that the Claims Court could not grant equitable relief, which might be necessary to remedy the state’s alleged harm, and that the Claims Court might not have jurisdiction for similar claims brought by other states. Id. The Court’s conclusion regarding adequacy, in other words, was based on the facts of the case—looking specifically at the party seeking relief and its particular claim. See Consol. Edison Co. of N.Y., Inc. v. U.S. Dep’t of Energy , 247 F.3d 1378, 1384 (Fed. Cir. 2001) ("In Bowen , the Supreme Court linked its judgment to a specific set of circumstances that are not...