Child v. Napolitano

• Citation: 620 F.3d 615
• Decision Date: 07 September 2010
• Docket Number: No. 09-3285.,09-3285.
• Parties: Youseff HAMDI, on behalf of Sami HAMDI, a minor child, Plaintiff-Appellant, v. Janet NAPOLITANO, in her official capacity as Secretary of Homeland Security; District Director, Department of Homeland Security, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

620 F.3d 615

Youseff HAMDI, on behalf of Sami HAMDI, a minor child, Plaintiff-Appellant,

v.Janet NAPOLITANO, in her official capacity as Secretary of Homeland Security; District Director, Department of Homeland Security, Defendants-Appellees.

No. 09-3285.

United States Court of Appeals,Sixth Circuit.

Argued: Jan. 22, 2010.

Decided and Filed: Sept. 7, 2010.

ARGUED: George A. Katchmer, Jr., Yellow Springs, Ohio, for Appellant. Samuel P. Go, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Appellees. ON BRIEF: George A. Katchmer, Jr., Yellow Springs, Ohio, for Appellant. Samuel P. Go, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Appellees.

Before MERRITT, MOORE, and GIBBONS, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which MERRITT, J., joined. GIBBONS, J. (pp. 629-30), delivered a separate concurring opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Sami Hamdi, the minor child of an undocumented immigrant, filed a complaint under the Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, to prohibit the Department of Homeland Security (“DHS”) from removing his mother on the ground that the mother's removal violated his own constitutional rights as an American citizen. Hamdi is severely disabled and is dependent on his mother's care. The district court dismissed the complaint for lack of jurisdiction under 8 U.S.C. § 1252(g), finding that Hamdi brought his complaint “on behalf of” his mother and that no other statutory or nonstatutory laws provided jurisdiction. Hamdi appeals, arguing first that the “on behalf of any alien” language in § 1252(g) does not bar jurisdiction over an action brought under the DJA to protect the distinct constitutional rights of a minor child affected by a parent's removal proceedings, and, second, that the Constitution, international law, and “the customs and usages of civilized nations” provide jurisdiction under the APA for a minor child to challenge a parent's removal proceedings. For the reasons that follow, we conclude that Hamdi's arguments are without merit and that the district court was correct to dismiss Hamdi's complaint, although we ground our decision on the basis that Hamdi has failed to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 26, 2009, Hamdi filed a complaint under the DJA and the APA requesting that the district court declare that DHS's removal proceeding involving his mother, Fatiha Elgharib, is contrary to law under the U.S. Constitution and international law because Hamdi is a U.S. citizen, has Down syndrome and numerous medical issues, and is dependent on his mother for his care and well-being. Specifically, Hamdi's complaint alleges:

10. Plaintiffs' [sic] father is being prevented from pursuing a remedy available to him in law in violation of his right to due process of law,

11. The separation of this severely handicapped child from his mother constitutes a form of cruel and unusual punishment to this child,

12. The separation of this severely handicapped American child from his mother and primary caretaker treats this child and his family differently from other children in the State of Ohio since the standard relating to children in domestic and juvenile law in the State of Ohio is that of the best interest of the child and thus is violative of the Equal Protection of the law,

13. The separation from his mother deprives this child of the continued love, affection and care of his mother and primary caretaker in violation

of the Ninth Amendment to the United States Constitution,

14. The separation of this severely handicapped child from his mother violates the principles of international treaties and declarations of which the United States is a signatory to wit: The Universal Declaration of Human Rights, UNGA, Resolution 217(III), 10 Dec. 1948, International Covenant on Economic, Social and Cultural Rights, UNGA Res. 220A (XXI), 16 Dec. 1966 (IESCR), Universal Declaration Art. 12 ECHR, Convention on the Rights of the Child, 1989 UNGA Res. 44/25, 20 Dec. 1989, Arts. 9 and 16.

Dist. Ct. Doc. (“Doc.”) 2 (Compl. at ¶¶ 10-14). Hamdi claimed jurisdiction was proper in the U.S. District Court for the Southern District of Ohio under the DJA and the APA because

the Plaintiff's mother, Fatiha Elgharib has been ordered removed from the United States in violation of the Constitution of the United States specifically the Due Process Clause of the Fifth and Fourteenth Amendments, the Equal Protection Clause, the Eighth Amendment, the Ninth Amendment and international treaties of which the United States is a signatory: The Universal Declaration of Human Rights, UNGA, Resolution 217(III), 10 Dec. 1948, International Covenant on Economic, Social and Cultural Rights, UNGA Res. 220A (XXI), 16 Dec. 1966 (IESCR), Universal Declaration Art. 12 ECHR, Convention on the Rights of the Child, 1989 UNGA Res. 44/25, 20 Dec. 1989, Arts. 9 and 16. American citizen children of illegal aliens may file declaratory judgment action since such actions do not violate the Real ID Act, See, Kruer v. Gonza1es, 2005 WL 1529987, 2005 U.S. Dist. LEXIS 13030 (E.D.Ky. June 28, 2005).

Id. (Compl. Jurisdictional Statement) (formatting errors in original).

DHS filed a motion to dismiss for lack of subject-matter jurisdiction on February 11, 2009, in lieu of an answer to the complaint, asserting first that Hamdi did not have standing to bring the suit without a separable injury from his mother's removal proceeding, and, alternatively, that 8 U.S.C. § 1252(b)(9) and (g) preclude jurisdiction and the complaint failed to establish jurisdiction under the DJA, the APA, or other international laws. Hamdi responded on February 20, 2009. In a March 6, 2009 decision, the district court rejected DHS's contention that Hamdi could not satisfy standing requirements because it found that Hamdi's allegation that his mother's removal would deprive him of his primary caregiver was a sufficient injury in fact. Doc. 11 (Dist. Ct. Op. at 2-3). However, the court granted DHS's motion to dismiss, concluding that 8 U.S.C. § 1252(g) barred Hamdi's complaint as one initiated “on behalf of any alien arising from the decision or action by the Attorney General to ... execute removal orders against any alien.” ¹ 8 U.S.C. § 1252(g). The district court construed “on behalf of” as analogous to “in the interest of,” and it found that Hamdi's complaint fell within § 1252(g) because Hamdi's only redress was to prevent his mother's removal-something that his mother had been unsuccessful in accomplishing previously through separate litigation. Doc. 11 (Dist. Ct. Op. at 4 (citing United States v. Romero, 293 F.3d 1120, 1126 (9th Cir.2002) (interpreting the “on behalf of” language under the Sentencing Guidelines with reference to Webster's Third New International Dictionary))).

The district court also rejected Hamdi's other asserted bases for subject-matter jurisdiction, concluding that neither the DJA nor the APA could provide independent sources of subject-matter jurisdiction, that none of the treaties Hamdi cited were binding, and that Hamdi had failed to establish how any alleged “customs and usages of civilized nations” could provide a basis for subject-matter jurisdiction. Id. (Dist. Ct. Op. at 5-7). In the same order, the district court anticipatorily denied a motion to stay Hamdi's mother's removal pending appeal. Id. at 7-8.

Hamdi appeals from the dismissal of his claims. ² A separate panel of this court denied Hamdi's motion to stay his mother's removal pending this appeal, but, on April 2, 2009, DHS, through the U.S. Immigration and Customs Enforcement agency (“ICE”), stayed her removal for one year.

II. ANALYSIS

We review de novo a district-court decision to dismiss a complaint for lack of subject-matter jurisdiction, and we accept any factual findings that the district court made in its analysis unless it committed clear error. ³ Davis v. United States, 499 F.3d 590, 593-94 (6th Cir.2007).

[2] On appeal, the parties focused their briefing on whether 8 U.S.C. § 1252(g) barred the district court from exercising subject-matter jurisdiction over Hamdi's complaint and whether Hamdi was sufficiently aggrieved by agency action to state a claim providing subject-matter jurisdiction under the APA. Neither the parties nor the district court discussed whether Hamdi could assert subject-matter jurisdiction under general federal-question jurisdiction pursuant to 28 U.S.C. § 1331, and whether the district court, by grounding its decision in 8 U.S.C. § 1252(g), avoided the potential jurisdictional impact of 8 U.S.C. § 1252(b)(9) that DHS raised below. Although neither party specifically addressed 28 U.S.C. § 1331 on appeal, we are “ ‘under an independent obligation to examine’ [our] own jurisdiction,” Baird v. Norton, 266 F.3d 408, 410 (6th Cir.2001) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990)), and that of the district court to determine whether Hamdi's complaint could be adjudicated under any grounds supported in the complaint, Estate of Mueller v. Comm'r, 153 F.3d 302, 304 (6th Cir.1998). We may determine that the motion to dismiss for lack of subject-matter jurisdiction should have been denied if facts pleaded in the complaint are sufficient to infer jurisdiction. O'Bryan v. Holy See, 556 F.3d 361, 375-76 (6th Cir.), cert. denied, --- U.S. ----, 130 S.Ct. 361, 175 L.Ed.2d 27 (2009); 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1350, at 200-01 (3d ed.2004) (“[I]f the allegation of the district court's jurisdiction is insufficient or entirely lacking but there are facts pleaded in the complaint from which the court's jurisdiction may be inferred, then the motion to dismiss und...