Boyal v. Napolitano
| Decision Date | 10 March 2011 |
| Docket Number | No. 2:09-cv-03263 MCE-KJN,2:09-cv-03263 MCE-KJN |
| Court | U.S. District Court — Eastern District of California |
| Parties | PARDAMANDEEP KAUR BOYAL, Plaintiff, v. JANET NAPOLITANO et al., Defendants. |
Through the present action, Plaintiff Pardamandeep Kaur Boyal ("Plaintiff") seeks redress from this Court based on the claim that Defendants Secretary of the Department of Homeland Security Janet Napolitano, Acting Chief of the United States Administrative Appeals Office ("AAO") John F. Grissom, Acting Deputy Director of the United States Citizenship and Immigration Services Michael Aytes, and United States Attorney General Eric H. Holder (collectively, "Defendants") have violated her constitutional rights by depriving her of her marital union with her husband, Sukhjinder Singh ("Petitioner").
Plaintiff alleges that Defendants' denial of Petitioner's waiver for unlawful presence was based on the erroneous determination that Petitioner was in the country unlawfully for the period of more than one year.
Presently before the Court are the parties' cross Motions for Summary Judgment and Defendants' Motion to Dismiss pursuant to Federal Rules of Civil Procedure 56 and 12(b)(1). Plaintiff moves for summary judgment of her claim that Petitioner was never unlawfully present in the United States. (ECF No. 19.) Defendants move to dismiss for lack of jurisdiction or, in the alternative, seek summary judgment of Plaintiff's claim. (ECF No. 20.) Both parties have filed oppositions to those motions. For the reasons stated below, Plaintiff's motion is denied, Defendants' Motion for Summary Judgment is denied as moot, and Defendants' Motion to Dismiss is granted.
Petitioner is originally from India, and came to the United States to marry Pramil K. Singh, who is not a party to this action. Ms. Singh is a citizen of the United States, and took steps to confer upon Petitioner's permanent resident status as her lawful husband. On April 15, 2002, Ms. Singh, as Petitioner's citizen fiance, filed a Petition for Alien Fiance on his behalf, which was approved by Defendants on July 18, 2002. Petitioner entered the country legally on the alien fiance visa ("K1 visa") on March 7, 2003, and they were married on March 30, 2003 in compliance with federal immigration requirements for all K1 visa holders.Shortly thereafter, Ms. Singh petitioned to register permanent residence or adjust status. However, this union quickly disintegrated ending in divorce. Six months after filing her application to register permanent residence, Ms. Singh withdrew her petition. On January 16, 2004 the couple divorced, and the following month, Petitioner married Plaintiff, also a citizen of the United States. Petitioner remained in the United States throughout this period of time.
On April 9, 2004, Petitioner's previously withdrawn application to register permanent residence or adjust status was officially denied because he failed to appear at a hearing scheduled on the same day. On Petitioner's behalf, Plaintiff filed a Petition for Alien Relative on August 9, 2004, which was approved shortly thereafter. Petitioner departed the United States on May 10, 2005 in order to seek lawful admission to the United States as Plaintiff's spouse. In a somewhat confusing turn, Petitioner subsequently completed an Application for Waiver of Grounds of Inadmissibility, which he filed on December 23, 2005.1
Petitioner's application was denied on July 17, 2006 by the Officer in Charge, on the grounds that Petitioner failed to establish extreme hardship to Plaintiff. The Officer in Charge further found that Petitioner accrued unlawful presence from April 9, 2004, when his application to adjust status filed and withdrawn by Ms. Singh was denied, through May 10, 2005. (Compl. Ex. A at 3.)Petitioner filed an appeal with the Administrative Appeals Office ("AAO"), which was dismissed on February 17, 2007. The AAO found that based on Plaintiff's emotional and psychological problems, she had demonstrated extreme hardship if separated from her husband, but she had not demonstrated extreme hardship to her if she instead moved to India to be with her husband. (Compl. Ex. A at 4.)
Ten days after the appeal was dismissed, Plaintiff filed a Motion to Reopen/Reconsider with the AAO and submitted additional evidence to demonstrate hardship if she were to move to India. In this motion, Plaintiff argued that the AAO's decision was abuse of discretion because it was based on additional criteria not required by the INA or regulations. The additional criteria considered whether Plaintiff would suffer extreme hardship if she were to leave the United States to be with her husband, rather than a more general showing of extreme hardship to Plaintiff. (Compl. Ex. B at 7-8.) In her motion, Plaintiff also submitted new facts to demonstrate that she would meet the additional criteria if it were found to be within the AAO's discretion to consider. (Id. at 8-9.)
On September 2, 2009, the AAO granted Plaintiff's Motion to Reconsider, but dismissed the appeal because Plaintiff had failed to overcome the initial bases for denial. Plaintiff now contends that a waiver of grounds of inadmissibility should never have been required, as Defendants' initial determination that Petitioner was unlawfully present in the country for a period of over a year was erroneous, and hence Petitioner was never inadmissible to lawfully remain in the United States.Plaintiff alleges she has exhausted all administrative remedies to the extent possible, and seeks judicial intervention to require Defendants to vacate their September 2, 2009 decision denying Petitioner admission to the United States based on the waiver application.
Rule 12(b)(1) permits the dismissal of a civil matter if a party can establish that the court lacks subject matter jurisdiction over the claim. Since federal courts are presumptively without jurisdiction over civil actions, the burden of establishing jurisdiction rests upon the party asserting jurisdiction. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) ( that either diversity of citizenship or a federal question is required for federal court to assert subject matter jurisdiction over a case); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (the burden of establishing federal jurisdiction lies upon the party asserting jurisdiction). The "objection that a federal court lacks subject-matter jurisdiction" under Rule 12(b)(1), may "be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). "Nothing is to be more jealously guarded by a court than its jurisdiction." In re Mooney, 841 F.2d. 1003, 1006 (9th Cir. 1988) (overruled on other grounds by Partington v. Gedan, 923 F.2d 686 (9th Cir. 1991)).Subject matter jurisdiction requirements can never be forfeited or waived. United States v. Cotton, 535 U.S. 625, 630 (2002).
In moving to dismiss for lack of subject matter jurisdiction, the challenging party may either make a "facial attack" on the allegations contained in the complaint, or take issue with subject matter jurisdiction on a factual basis ("factual attack"). Thornhill Publ'g Co. v. Gen. Tel. & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). If the motion constitutes a facial attack, the court must consider the factual allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981); Mortensen, 549 F.2d at 891. In a factual attack, however, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891).
If the Court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. Generally, leave to amend should be denied only if it is clear that the deficiencies of the complaint cannot be cured by amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980).
The federal court has no jurisdiction to review a consular official's decision to withhold a visa, as it is a matter of sole discretion for the Attorney General. Bustamante v. Mukasey, 531 F.3d 1059, 1061 (9th Cir. 2008) (citing Kleindienst v. Mandel, 408 U.S. 753 (1972)). A limited exception to the doctrine of consular non-reviewability is if the denial of a visa implicates constitutional rights of an American citizen. Id. Freedom of personal choice in matters of marriage and family life is a liberty interest protected by the Due Process Clause. Cleveland Bd. Of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974). There is, however, no constitutionally protected right to live with one's spouse. Morales-Izquierdo v. Dep't of Homeland Sec., 600 F.3d 1076, 1091 (9th Cir. 2010); Blackwell v. Thornburgh, 745 F. Supp. 1529, 153839 (C.D. Cal. 1989).
Plaintiff argues that Defendants' denial of Petitioner's waiver of grounds of inadmissibility resulted in the deprivation of her marital union with Petitioner, and cites Bustamante as precedent recognizing Constitutional protection for such an injury. Bustamante noted that the "freedom of personal choice in matters of marriage and family life" is protected by the Due Process Clause in the context of admission and exclusion of aliens. 531 F.3d at 1062. Further, in Din v. Clinton, the Northern District of California found that there is a protected liberty interest in personal choice of matters of marriage and family life in the context of a denial of visa.No. 10-0533, 2010 WL 2560492 at *3 (N.D. Cal. Jun. 22, 2010). However, neither of these cases is on-point, nor are they persuasive in the instant case.
Substantive due process protects an enumerated...
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