Cardona v. Mayorkas
| Decision Date | 27 May 2021 |
| Docket Number | Civil Action 1:20-cv-132 |
| Parties | RAUL DEL ANGEL CARDONA, Plaintiff, v. ALEJANDRO MAYORKAS, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
On August 26, 2020, Plaintiff Raul Del Angel Cardona filed suit against Chad F. Wolf, Acting Secretary of Homeland Security; Kenneth T. Cuccinelli, Senior Official Performing the Duties of the Director of United States Citizenship and Immigration Services (“USCIS”), and Norma Limon, Director of the Harlingen Field Office for USCIS.[1] Dkt. No. 1. Del Angel Cardona raised three claims: a federal civil rights damages claim against Limon; a request for a declaratory judgment that he is a U.S. citizen; and, a request for administrative relief under the Administrative Procedures Act (“APA”). Id.
On February 12, 2021, the Defendants timely filed a motion to dismiss. Dkt. No. 17. The motion has been fully briefed. Dkt Nos. 20, 23.
After reviewing the record and the relevant case law, it is recommended that the motion to dismiss be granted. As to the federal civil rights claim, Del Angel Cardona fails to state a claim upon which relief can be granted. As to the declaratory judgment and APA claims, the motion should be granted based upon lack of subject matter jurisdiction.
Del Angel Cardona was born in 1960 in Matamoros, Tamaulipas, Mexico to a U.S. citizen mother. He claims, under the U.S. law in effect at his birth, he has acquired derivative citizenship from his mother, by virtue of being born out of wedlock. Dkt. No. 1.
On August 1, 2012, Del Angel Cardona applied for Certificate of Citizenship with USCIS, seeking recognition of his citizenship. Dkt. No. 1, p. 4. On December 17, 2012, his application was denied on the grounds that he was not born out of wedlock under Mexican law. Id. Del Angel Cardona timely appealed the decision to the U.S. CIS Administrative Appeals Office. Id. On August 28, 2013, the appeal was dismissed “for failure to submit a legal brief.” Id.
On August 23, 2019, Del Angel Cardona filed a renewed application for a Certificate of Citizenship. Dkt. No. 1, p. 4. Federal regulations provide that when there is a renewed application, it is rejected and the applicant is required to file a motion to reopen the prior case. 8 C.F.R. § 341.5(e). Del Angel Cardona asserts that pursuant to 8 C.F.R. § 103.5 (a)(1)(ii), the motion to reopen the prior case should have been decided by the Administrative Appeals Office, but, instead, was decided by the Field Operations Directorate office in Harlingen, Texas, led by Norma Limon. Dkt. No. 1, p. 5.
The Field Operations Directorate reopened and denied the case. Dkt. No. 1, p. 5.
On November 3, 2020, USCIS sua sponte reopened the matter and certified it for review before the Administrative Appeals Office. Dkt. No. 17-1, p. 2.
On May 5, 2021, the Administrative Appeals Office denied the request for a Certificate of Citizenship, finding that Del Angel Cardona was not born out of wedlock, as his parents had a common-law marriage that was legally recognized as a marriage under Mexican law. Dkt. No. 23-1.[2]
On August 26, 2020, Del Angel Cardona filed suit against Wolf, Acting Secretary of Homeland Security; Cuccinelli, Senior Official Performing the Duties of the Director of USCIS, and Limon, Director of the Harlingen Field Office for USCIS. Dkt. No. 1. Del Angel Cardona raised three claims: he sued Limon, in her individual capacity, for violating his Fifth Amendment due process rights by her “usurpation of jurisdiction” of the case from the Administrative Appeals Office; he sued all three defendants, in their official capacities, for a declaration of citizenship pursuant to 8 U.S.C. § 1503(a); and, lastly, he sued Limon, in her official capacity, under the Administrative Procedures Act (“APA”), for failing to forward the renewed application to the Administrative Appeals Office. Dkt. No. 1.
On February 12, 2021, the Defendants filed a motion to dismiss. Dkt. No. 17. As to the claims against Limon for violating Del Angel Cardona's due process rights, Limon argues that the claim is non-justiciable and seeks to extend Bivens into a “disfavored context.” Id. As to the claims against all of the Defendants for a declaration of citizenship, Defendants argued that Del Angel Cardona's claim was filed outside of the five-year statute of limitations period. Id. As to the APA claim, at that time, Limon argued that the Court lacks jurisdiction because there was no final agency action and Del Angel Cardona had other adequate legal remedies. Id.
On March 31, 2021, Del Angel Cardona filed a response. Dkt. No. 20. As to the due process claim against Limon, he argued that he must be permitted to have a remedy for the “extensive injury” she caused. Id. As to the citizenship claim under § 1503, Del Angel Cardona asserted that a renewed decision by the Administrative Appeals Office would also restart the statute of limitations clock. Id. As to the APA claim, he argued that subject matter jurisdiction exists for the Court to “set aside unlawful agency action and compel compliance with the Court's Order.” Id.
On May 20, 2021, the Defendants filed a reply brief. Dkt. No. 23. In it, they argued that the Administrative Appeals Office decision of May 5th, which denied Del Angel Cardona's citizenship claim, mooted any claim to relief under the APA. Id. They also reiterated their prior arguments regarding the § 1503 citizenship claim and the Bivens claim.
Dismissal under Rule 12(b)(6) is appropriate when the plaintiff has failed to plead sufficient facts “to state a claim to relief that is plausible on its face.” Ferguson v. Bank of New York Mellon Corp., 802 F.3d 777, 780 (5th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” then dismissal is proper. Id. at 679.
“In determining whether a plaintiff's claims survive a Rule 12(b)(6) motion to dismiss, the factual information to which the court addresses its inquiry is limited to the (1) the facts set forth in the complaint, (2) documents attached to the complaint, and (3) matters of which judicial notice may be taken under Federal Rule of Evidence 201.” Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019). All well-pled facts must be viewed in the light most favorable to the plaintiff. Schweitzer v. Inv. Comm. of Phillips 66 Sav. Plan, 960 F.3d 190, 194 (5th Cir. 2020).
Dismissal, for failing to state a claim upon which relief can be granted, is a dismissal on the merits and with prejudice. Memon v. Allied Domecq QSR, 385 F.3d 871, 874 n. 6 (5th Cir. 2004).
While 42 U.S.C. § 1983 applies to a defendant acting under color of state law, a different basis exists for claims against individual federal actors, who may have violated a plaintiff's constitutional rights. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 391-96 (1971). Bivens actions are the federal analog to suits brought against state actors under 42 U.S.C. § 1983. Ashcroft v. Iqbal, 556 U.S. 662, 675-76 (2009). The only cause of action for a constitutional violation by a federal actor is pursuant to Bivens. De La Paz v. Coy, 786 F.3d 367, 372 (5th Cir. 2015).
Bivens is a judicially created remedy, where no other remedy exists under the law. Bivens, 403 U.S. at 396-97. There is no “automatic entitlement” to a damages remedy under Bivens. Wilkie v. Robbins, 551 U.S. 537, 550 (2007). Bivens actions are limited to actions against federal actors for constitutional violations of the Fourth Amendment; the Due Process Clause of the Fifth Amendment; and, the Cruel and Unusual Punishments Clause of the Eighth Amendment. Correctional Svcs. Corp. v. Malesko, 534 U.S. 61, 67 (2001). Expanding Bivens beyond its previously recognized boundaries is a “disfavored” remedy. Ziglar v. Abbasi, __ U.S. __, 137 S.Ct. 1843, 1857 (2017).
Federal law provides that when a person claims to be a citizen of the U.S. and is denied any “right or privilege” of citizenship by a federal department or agency, the putative citizen can sue in federal court for a judicial declaration of citizenship. 8 U.S.C. § 1503(a). Such a claim “may be instituted only within five years after the final administrative denial of such right or privilege.” § 1503(a). This requirement is “jurisdictional.” Gonzalez v. Limon, 926 F.3d 186, 188 (5th Cir. 2019). The Fifth Circuit has held that in cases where they are multiple administrative denials, “the final administrative denial means the first final administrative denial.” Id., at 190 (internal quotation marks omitted). In other words, the five-year limitations period begins when the first denial is administratively final and future proceedings cannot reset that window. Id.
Mootness is part of the standing doctrine; it requires that the elements of standing be present throughout the litigation. Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006). ...
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