Doe v. U.S. Customs & Border Prot.
| Decision Date | 16 March 2021 |
| Docket Number | Civil Action No. 20-672 (RDM) |
| Parties | JOHN DOE, Plaintiff, v. U.S. CUSTOMS AND BORDER PROTECTION, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiff John Doe, proceeding pro se, brings this action against the United States and the United States Customs and Border Protection agency ("CBP"), alleging that their refusal to allow him to board a flight from Guam to Honolulu violated his "[r]ight to freedom of movement" and was an unlawful "act of discrimination on the basis of immigration status," Dkt. 16 at 4-5 (Am. Compl.), "and/or nationality," Dkt. 8-1 at 6. Doe asserts (or attempts to assert) claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Defendants, in turn, move to dismiss, arguing that (1) the complaint fails to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure; (2) the Court lacks personal jurisdiction over the CBP officer in Guam who prevented Doe from boarding his flight; and (3) the District of Columbia is not the proper venue for Doe's claims against the CBP officer. See generally Dkt. 18-1; see also Dkt. 22.
For the reasons that follow, Defendants' motion to dismiss, Dkt. 18, is GRANTED in part and DENIED in part.
As it must, the Court accepts Doe's factual allegations as true for purposes of evaluating Defendants' motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Court is further mindful that "pro se pleadings should be liberally construed," Nichols v. Vilsack, No. 13-cv-1502, 2015 WL 9581799, at *1 (D.D.C. Dec. 30, 2015) (quotation marks omitted), and that Doe must be afforded "the benefit of all inferences that can be derived from the facts alleged," Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quotation marks omitted).
The Immigration and Nationality Act ("INA") authorizes the Secretary of Homeland Security to parole into the United States certain noncitizens who are neither admissible nor possess any legal basis for entry. 8 U.S.C. § 1182(d)(5)(A); see also 8 C.F.R. § 212.5. The INA makes clear that "parole of such [noncitizen] shall not be regarded as an admission of the [noncitizen]." 8 U.S.C. § 1182(d)(5)(A). Accordingly, when the noncitizen's parole period expires, he "shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States." Id.; see also 8 C.F.R. § 212.5(e). Previously paroled noncitizens—like all noncitizens—are thus prohibited from entering or traveling through the United States unless they possess "a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document." 8 U.S.C. § 1182(a)(7)(A)(i)(I).
In October 2009, the Department of Homeland Security ("DHS") announced that, effective the following month, the agency would begin considering "requests for discretionary parole into the CNMI [Commonwealth of the Northern Mariana Islands] from eligible nationals of Russia." Rescission of Discretionary Parole Policies Relating to Nationals of the RussianFederation Seeking Entry into Guam and/or the Commonwealth of the Northern Mariana Islands for a Temporary Visit for Business or Pleasure, 84 Fed. Reg. 46,029, 46,029 (notice Sept. 3, 2019). In January 2012, "this policy was extended to Russian visitors to Guam," who were thereafter permitted to enter and travel between Guam and the CNMI visa-free for a period of 45 days. Id. at 46,029-30.1 Parole authorization was "limited to Guam and the CNMI only," however, and did "not permit travel to another location within the United States." Id. at 46,030.
On September 3, 2019, DHS announced "that as of October 3, 2019, [it would] rescind[] its policy relating to the exercise of its discretionary parole authority for nationals of Russia who are seeking entry into Guam." Id. The parole program was so rescinded and evidently has not been reinstated since. Dkt. 11 at 2 n.1.
Doe is a citizen and national of Russia currently residing in Guam.2 Dkt. 11 at 1; see also Dkt. 8 at 2. He arrived in Guam on or about September 3, 2018 through the then-extant parole program. Dkt. 11 at 1. Two weeks later, on September 17, 2018, Doe filed an application for asylum with the United States Citizenship and Immigration Services ("USCIS"). Id. at 3. That application is still pending. Id. at 4.
Doe's parole status expired on October 17, 2018. Id. at 3. He was then automatically "restored to the status that he had at the time of parole— namely, an arriving alien seeking admission to the United States." Id. Doe was nevertheless permitted to remain in Guam—andwas not subject to removal proceedings—in light of his outstanding asylum application. Id. at 4. But Doe "does not currently hold, and has never held, lawful nonimmigrant or immigrant status in the United States, as he has never been lawfully admitted to the United States as either a nonimmigrant or immigrant." Id. at 1.
On November 30, 2019, at approximately 7:00-7:30 a.m., Doe attempted to board a flight from Guam to Honolulu, Hawaii. Dkt. 16 at 4 (Am. Compl.). He had "arrived at Guam Airport" earlier that morning "on time with a pre-purchased ticket for [his] flight." Id. Once at the airport, Doe was inspected by a CBP officer in accordance with 8 C.F.R. § 235.5(a). Dkt. 16 at 4 (Am. Compl.).3 Doe provided the officer "all [of his] documents," namely his driver's license, social security number, employment authorization, and a statement that he had prepared. Dkt. 8 at 2; see also Dkt. 8-1 at 3. The officer considered the documents and then left to consult his supervisor. Dkt. 8 at 2. After the officer and supervisor finished speaking, the officer informed Doe that he would not be allowed to board his flight. Id. The officer then handed Doe a "[]prepared explanatory paper" detailing the reasons for his decision and escorted Doe to the exit. Dkt. 16 at 4 (Am. Compl.); see also Dkt. 8-1 at 5 (). According to Defendants, Doe "was not permitted to board the aircraft" because there was no "evidence [that Doe had] a legal basis to enter the United States." Dkt. 11 at 4. Doe disagrees.
Doe filed his initial complaint against the CBP on March 2, 2020. Dkt. 1 (Compl.). In it, Doe alleged that his "right to freedom of movement was violated" and that "[a]n act of discrimination based on immigration status ha[d] been committed." Id. at 4 (Compl.). Doe further alleged that Defendants' actions caused him "[e]motional suffering, including, but not limited to, a sense of hopelessness, doomed fate, despair, [and] fear." Id. at 5 (Compl.). As recompense, Doe sought declaratory relief "[r]ecogniz[ing] CBP's actions . . . as illegal and discriminatory," injunctive relief "oblig[ating] CBP to [permit Doe] unhindered admission [to his] . . . Guam-Honolulu flight at any date convenient to [Doe]," and money damages. Id.
Roughly one month later, Doe filed a memorandum with the Court indicating that he had attempted but failed to reach a pretrial settlement with the CBP and further explaining the factual and legal basis for his suit. Dkt. 8; Dkt. 8-1. Doe noted, for instance, that the acknowledgement of receipt that DHS sent in response to his asylum application stated: "You may remain in the U.S. until your asylum application is decided." Dkt. 8-1 at 2. Doe argues that this notice permitted him to "legally remain[] in the United States without . . . any restrictions on [him] regarding [his] freedom of movement." Id. at 1. Doe further explained that he had obtained a social security number, employment authorization, and a driver's license, which, in his view, demonstrated that he was '"not subject to removal under the immigration laws'" and was '"entitled[] under . . . the immigration laws . . . to enter the United States."' Id. (quoting 8 C.F.R. § 235.1(f)(1) (emphasis omitted)). Finally, Doe attached to his memorandum a series of letters he had sent DHS, in which Doe (1) accused CBP Officer Nededog of "committing an act of discrimination on the basis of immigration status and/or nationality" by "not allow[ing him] to board" his flight, id. at 6; (2) argued that his stay in the United States had been authorized by thegovernment, id. at 7; (3) claimed that the CBP's refusal to let him board his flight violated his "human rights" and ran afoul of Article 12.1 of the International Covenant on Civil and Political Rights, id. at 9; and (4) contended that the CBP had both misread its own regulations and applied them in a manner inconsistent with the U.S. Code, id. at 22-23 ().
Two days after Doe filed his memorandum, the Court issued a Minute Order requiring the CBP to address "whether Plaintiff has been precluded from flying from Guam to Honolulu and, if so, for what reason." Minute Order (Apr. 10, 2020). The CBP responded by providing a status report detailing Doe's immigration status and the reasons that he was precluded from flying. Dkt. 11.
Later that same month, on May 29, 2020, the CBP moved to dismiss Doe's original complaint. Dkt. 13. Because Doe was proceeding pro se, the Court notified him that he was "entitled to file a memorandum and supporting evidence in response" to the CBP's motion. Dkt. 14 at 1. The Court further informed Doe that if he "fail[ed] to respond to [the CBP's] motion in the time provided, the Court [could] (1) treat the motion as conceded; . . . (2) rule on [the] motion based on [the CBP's] arguments alone and without considering [Doe's] arguments; or (3) dismiss [Doe's] claims for...
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