Cardona-Colón v. U.S. Citizenship & Immigration Servs. Dir.
| Decision Date | 31 March 2021 |
| Docket Number | Civil Action No. 2017-0040 |
| Parties | ERIC CARDONA-COLÓN, Petitioner, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES DIRECTOR; CBP PORT DIRECTOR, Respondents. |
| Court | U.S. District Court — Virgin Islands |
Attorneys:
Eugenio W.A. Geigel-Simounet, Esq.,
St. Croix, U.S.V.I.
For Petitioner
Angela Tyson-Floyd, Esq.,
St. Croix, U.S.V.I.
THIS MATTER comes before the Court on the "Motion to Dismiss" (Dkt. No. 6) filed by Respondent U.S. Citizenship and Immigration Services Director ("USCIS Director") and Respondent Customs and Border Protection Port Director for St. Croix, U.S. Virgin Islands ("CBP Port Director") seeking to dismiss Petitioner Eric Cardona-Colón's ("Petitioner") Petition for Writ of Mandamus ("Petition"). Additionally, before the Court is Petitioner's "Motion for Extension of Time to Serve the United States Pursuant [to] FRCP 4(i) and 4(m)" (Dkt. No. 11).
For the reasons discussed below, the Court will grant Respondents' Motion to Dismiss as to the USCIS Director for lack of subject matter jurisdiction. Further, the Court will grant Respondents' Motion to Dismiss as to the CBP Port Director for failure to state a claim on the grounds that the Administrative Procedure Act ("APA") provides an adequate alternative remedy. However, the Court will allow Petitioner an opportunity to amend his Petition and will grant his Motion for Extension of Time to Serve the United States.
Petitioner works for a private employer at the Henry Rohlsen Airport on St. Croix, Virgin Islands. In order to perform his duties, he requires "an airport security seal" to access certain secure areas in the airport. (Dkt. No. 1 at ¶¶ 3-5).
On March 11, 2016, the CBP Port Director revoked Petitioner's airport security seal. (Dkt. No. 1 at ¶ 7). The letter revoking Petitioner's security seal states in relevant part:
This letter is to inform you that your airport security seal access has been revoked in accordance to 19 CFR 122.187(a)(2)(iii) and 19 CFR 122.183(4)(xxxvii). After re-vetting the application, 19 CFR 122.183(a)(6) reveals that a complete background check or investigation was not completed and the violations of 19 USC 1305 and 19 USC 1497, do[] not permit you to have unescorted access to Secured Areas at the airport.
(Dkt. No. 1-2). The letter further states that Petitioner could appeal the decision and request a hearing within 10 days of receiving the notice of revocation under 19 C.F.R. § 122.183(c). Id. Additionally, the letter states that if Petitioner appealed, "[t]he Port Director will render his decision on the appeal in writing within 30 days of the notice of appeal." Id.
Petitioner filed an appeal on March 16, 2016 in which he requested a hearing. (Dkt. Nos. 1 at ¶ 10; 1-3). A hearing was held on March 17, 2016. (Dkt. No. 1 at ¶ 11). Petitioner alleges that at the hearing he "was never given an opportunity to defend himself as to the cancelation of his security pass; nor was he provided an opportunity to defend himself from the alleged charges." Id.
On March 23, 2016, Petitioner, now through counsel, wrote to the CBP Port Director requesting that the "hearing be reopened." (Dkt. Nos. 1 at ¶ 12; 1-4 at 1). Having received no reply, Petitioner, through counsel, again wrote to the CBP Port Director on May 4, 2016. (Dkt. Nos. 1 at ¶ 13; 1-5).
On June 3, 2016, Petitioner received a letter from Marcelino Borges, Director of Field Operations in San Juan, Puerto Rico. (Dkt. No. 1 at ¶ 14). The letter states, in pertinent part:
(Dkt. No. 1-6).
On July 11, 2016 Petitioner filed an appeal using Form I-290B for the Department of Homeland Security, U.S. Citizenship and Immigration Services. (Dkt. Nos. 1 at ¶ 16; 1-7). The appeal was rejected noting that the incorrect form was used for this type of appeal. (Dkt. Nos. 1 at ¶ 17; 1-8). Petitioner then wrote to the Transportation Security Administrator Peter Neffenger about the matter and requested an extension of the appeal process. (Dkt. Nos. 1 at ¶ 19; 1-9). The Transportation Security Administration then forwarded the letter on September 22, 2016 to Mr. Ronald Alkinson of U.S. Citizenship and Immigration Services, stating that "[a]fter careful review, we have determined that this issue falls within the purview of U.S. Citizenship and Immigration Services." (Dkt. Nos. 1-10; 1 at ¶ 20). Petitioner wrote to follow up with Mr. Alkinson on September 27, 2016 and additionally on April 27, 2017. (Dkt. Nos. 1 at ¶¶ 21-22; 1-11; 1-12). On May 5, 2017, Petitioner's counsel received an email from the Customer Assistance Unit at U.S. Citizenship and Immigration Services stating the they had received his inquiry and that they would respond in 30 business days. (Dkt. Nos. 1 at ¶ 23; 1-13). Petitioner never received a response. (Dkt. No. 1 at ¶ 23).
Petitioner then filed this Petition requesting that the Court "issue a Mandamus against Respondents so they rule on the basis for the denial of the unescorted access seal as well as to act pursuant to CFR § 122.183 (c) and (d) and grant him his right to appeal or in the alternative they should immediately revoke their finding and return his access pass to him." (Dkt. No. 1 at 7).
Through their Motion to Dismiss (Dkt. No. 6) and accompanying Memorandum of Law (Dkt. No. 7), Respondents move pursuant to Fed. R. Civ. P. 12(b)(1), (b)(4), (b)(5) and (b)(6) to dismiss the Petition for lack of subject matter jurisdiction, insufficient process, insufficiency of service of process, and failure to state a claim upon which relief may be granted. (Dkt. No. 6 at 1). Respondents included with their Motion to Dismiss an affidavit from the CBP Port Director presenting additional facts to the Court. (Dkt. No. 7-1). Specifically, the CBP Port Director states that in March 2014—prior to the events at issue in this action—Petitioner had applied for an access seal but was rejected pursuant to 19 C.F.R. § 122.183(a)(2) and (a)(4) on the grounds that he had previously attempted to commit a disqualifying offense. (Dkt. 7-1 at ¶ 6). According to the CBP Port Director, the disqualifying offense occurred in May 2013 when CBP officers discovered a backpack full of lottery tickets during an inspection of an outbound flight from St. Croix to Puerto Rico. Id. at ¶ 7. Petitioner told CBP officers that the backpack belonged to him. Id. Under 19 U.S.C. § 1305, it is illegal to import lottery tickets from the Virgin Islands to the United States, including Puerto Rico. However, Petitioner was not criminally charged for the offense. Id. In 2015, when Petitioner reapplied for an access seal, "CBP in St. Croix mistakenly approved the request and issued [Petitioner] a CBP access seal." Id. at ¶ 8. In March 2016 during an audit of CBP access seals, "CBP in St. Croix identified the error and realized that the seal should have never been issued." Id. at ¶ 9. The CBP Port Director states that the justification forthe revocation of Petitioner's access seal was Petitioner's attempt in 2013 to illegally import lottery tickets. Id. at ¶ 19.
Petitioner filed his Opposition to Respondent's Motion Dismiss (Dkt. No. 12), and a "Motion for Extension of Time to Serve the United States Pursuant [to] FRCP 4(i) and 4(m)." (Dkt. No. 11). Respondents did not file an Opposition to the Motion for Extension of Time.
Pursuant to Fed. R. Civ. P. 12(b)(1), a defendant may move to dismiss a complaint for lack of subject matter jurisdiction. An attack under Rule 12(b)(1) to a court's subject matter jurisdiction can be either a facial or factual attack. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). A facial attack—as it is denominated—challenges the sufficiency of the jurisdictional allegations in the complaint on their face. Petruska v. Gannon University, 462 F.3d 294, 302, n.3 (3d Cir. 2006). In contrast, a factual attack disputes "the factual allegations underlying the complaint's assertion of jurisdiction," and involves the presentation of competing facts. Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack requires that a court "only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Gould Elecs., Inc., 220 F.3d at 176. On the other hand, a court may consider evidence beyond the complaint in reviewing a factual attack. Id. In so doing, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case" and "no presumptive truthfulness attaches to plaintiff's allegations." Mortensen, 549 F.2d at 891.
Federal Rule of Civil Procedure 12(b)(6) calls for dismissal of a complaint if it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Third Circuit, as articulated in Connelly v. Lane Const. Corp.,...
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