Carranza v. U.S. Immigration

• Decision Date: 07 May 2021
• Docket Number: No. 2:20-CV-424 KG/KRS,2:20-CV-424 KG/KRS
• Parties: FRANKLIN GOMEZ CARRANZA, et al., Plaintiffs, v. UNITED STATES IMMIGRATION and CUSTOMS ENFORCEMENT, et al., Defendants.
• Court: U.S. District Court — District of New Mexico

FRANKLIN GOMEZ CARRANZA, et al., Plaintiffs, v. UNITED STATES IMMIGRATION andCUSTOMS ENFORCEMENT, et al., Defendants.

No. 2:20-CV-424 KG/KRS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

May 7, 2021

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THIS MATTER is before the Court on Plaintiffs' Motion to Certify Class, (Doc. 4); Defendants' Motion to Dismiss, (Doc. 23); and Plaintiffs' Motion for Preliminary Injunction, (Doc. 34). The motions have been fully briefed. (Docs. 24, 28, 29, 31, 38, 39). On October 23, 2020, the presiding judge referred the motions to the undersigned to conduct hearings, perform legal analysis, and recommend an ultimate disposition. (Doc. 42). The Court set a hearing on the motions for November 17, 2020, (Doc. 43); however, the parties requested three continuances, (Docs. 45, 47, 50). Subsequently, at the request of the parties, the Court held a settlement conference on January 19, 2021, which was unsuccessful. (Doc. 59). The Court then heard oral argument on Defendants' Motion to Dismiss on March 10, 2021. (Doc. 63). Having considered the parties' briefing (including supplemental authorities and evidence filed by Plaintiffs in Documents 61 and 66), the arguments of counsel at the hearing, the record of the case, and relevant law, the Court recommends GRANTING Defendants' Motion to Dismiss for lack of jurisdiction and DENYING as moot Plaintiffs' Motions to Certify Class and for Preliminary Injunction.

I. Background

Plaintiffs are immigration detainees who were held in the Otero County and El Paso Processing Centers while they had removal proceedings pending in El Paso Immigration Court. (Doc. 1) at 6. Plaintiffs claim they did not have adequate access to free, confidential phone calls with attorneys at the processing centers. Plaintiffs seek to bring a class action on behalf of themselves and "all current and future adult immigration detained persons who are or will be held in [Immigration and Customs Enforcement] custody in El Paso or Otero and to obtain an order from this Court enjoining the policies, practices, and omissions that are preventing Plaintiffs from realizing their constitutional, statutory, and regulatory rights, including the promise of due process in immigration proceedings." Id. at 5-6, ¶10. Since the filing of their Complaint, both Plaintiffs have been released from the processing centers. Nevertheless, Defendants concede Plaintiffs' claims are not moot because the case is filed as a putative class action. See (Doc. 23) at 1, n.2 (citing Cty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (where named plaintiffs' claims become moot before certification, class certification can relate back to the filing of the complaint); (Doc. 63) at 2.

Plaintiffs assert three claims:

1. Violation of their right to representation of counsel contrary to the Fifth Amendment Due Process Clause, 8 U.S.C. §§ 1362 and 1229a(b)(4)(A), 5 U.S.C. § 555(b), and 8 C.F.R. §§ 1003.16(b) and 1292.5(b);

2. Violation of their right to full and fair hearings contrary to the Fifth Amendment Due Process Clause and 8 U.S.C. §§ 1229a(b)(4)(B) and 1226(a); and

3. Violation of their First Amendment right to petition the government for redress of grievances.

(Doc. 1) at 27-29. For relief, Plaintiffs ask the Court to order Defendants to: (1) comply with the Performance-Based National Detention Standards ["PBNDS"]; (2) provide free, confidential legal phone calls, and reasonably accommodate non-legal calls for detainees who are indigent; (3) establish an adequate process for immigration attorneys to schedule legal calls; (4) provide private, unmonitored, unrecorded calls with attorneys; (5) provide a quiet place for legal calls and calls that do not have poor sound quality; (6) provide the opportunity to penetrate automated voicemail trees and leave voicemails when making legal calls; (7) provide notice of communication options available to detainees; and (8) accommodate non-English speakers, illiterate detainees, and detainees with hearing and speech disabilities that impact their access to legal calls. Id. at 29-30. Plaintiffs also move for certification of a class and for preliminary injunction as to all of the relief sought in their Complaint. (Docs. 4 and 34).

Defendants move to dismiss Plaintiffs claims for three reasons: First, Defendants argue Plaintiffs lack standing to bring claims relating to injuries they have not personally suffered. Second, Defendants contend this Court does not have jurisdiction over Plaintiffs' claims under 8 U.S.C. § 1252(b)(9) because they arise from Plaintiffs' removal proceedings and, thus, may only be reviewed by the Board of Immigration Appeals and the courts of appeals. And third, Defendants move to dismiss Plaintiffs' claims because they failed to allege prejudice as a result of Defendants' actions. (Doc. 23). Because Defendant's Motion to Dismiss implicates this Court's jurisdiction, the Court will address it first. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) ("Without jurisdiction the court cannot proceed at all in any cause."); Citizens Concerned for Separation of Church & State v. City & Cnty. of Denver, 628 F.2d 1289, 1301 (10th Cir. 1980) ("A federal court must in every case, and at every stage of the proceeding, satisfy itself as to its own jurisdiction, and the court is not bound by the acts or pleadings of theparties."); CNSP, Inc. v. City of Santa Fe, 2018 WL 1737549, at *2 (D.N.M.), aff'd, 753 Fed. Appx. 584 (10th Cir. 2018) ("[A] court ... retains an independent obligation to ensure, even sua sponte, that it has jurisdiction over the claims before it").

II. Legal Standard

Defendants seek to dismiss Plaintiffs' claims pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Courts apply different standards to a motion to dismiss based on lack of subject matter jurisdiction under Rule 12(b)(1) and a motion to dismiss for failure to state a claim under Rule 12(b)(6). Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir. 2012). When faced with a motion to dismiss which relies on both aspects of Rule 12, a court must determine whether it has subject matter jurisdiction under Rule 12(b)(1) before addressing the merits of the claims under a Rule 12(b)(6) analysis. State v. Nat'l Indian Gaming Comm'n, 151 F. Supp. 3d 1199, 1208 (D. Kan. 2015) (citing Bell v. Hood, 327 U.S. 678, 682 (1946)).

Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take the form of facial attacks on the complaint or factual attacks on the accuracy of its allegations. City of Albuquerque v. U.S. Dept. of Interior, 379 F.3d 901, 906 (10th Cir. 2004) (quoting Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002)). "A facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint," and "[i]n reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true." Holt v. United States, 46 F.3d 1000 (10th Cir. 1995). However, when a party goes beyond allegations contained in the complaint and challenges the facts upon which subject matter jurisdiction depends, "a district court may not presume the truthfulness of the complaint's factual allegations." Id. "In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion." Id. at 1002-03. When ruling ona factual attack on subject matter jurisdiction, a court "has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts" without converting the motion into a motion for summary judgment." Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (quoting Holt, 46 F.3d at 1003).

Courts may exercise jurisdiction only when specifically authorized to do so and must "dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee Cty. Bd. of Cty. Comm'rs, 895 F.Supp. 279, 280 (D. Kan. 1995) (citing Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); see also Fed. R. Civ. P. 12(h)(3), Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994). Plaintiffs bear the burden of showing that jurisdiction is proper and must demonstrate that the case should not be dismissed. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002). Because federal courts are courts of limited jurisdiction, the law imposes a presumption against jurisdiction. Marcus v. Kan. Dept. of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999).

III. Discussion

The Immigration and Nationality Act ("INA") authorizes noncitizens to obtain direct review of final orders of removal in the courts of appeals. 8 U.S.C. § 1252(a)(1). The INA also provides that "[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section," and "[e]xcept as otherwise provided in this section, no court shall have jurisdiction ... to review such an order or such questions of law and fact." 8 U.S.C. § 1252(b)(9). The United States Supreme Court has explained that these two subchapters read together mean that "a noncitizen's various challengesarising from the removal proceeding must be 'consolidated in a petition for review and considered by the courts of appeals.'" Nasrallah v. Barr, 140 S.Ct. 1683, 1690 (2020) (quoting INS v. St. Cyr, 533 U.S. 289, 313 (2001)) (describing Section 1252(b)(9) as a "zipper clause" which consolidates judicial review of a final order of removal into one action in the courts of appeals). "By consolidating the issues arising from a final order of removal, eliminating review in the district courts, and supplying direct review in the courts of...