Hernandez v. Cissna, Civil Action No. 19-20442-Civ-Scola

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
• Writing for the Court: Robert N. Scola, Jr. United States District Judge
• Parties: Gilson Alberto Garcia Hernandez, Plaintiffs v. Lee Francis Cissna, Director of U.S. Citizenship and Immigration Services (USCIS); et al., Defendants
• Decision Date: 27 June 2019
• Docket Number: Civil Action No. 19-20442-Civ-Scola

Gilson Alberto Garcia Hernandez, Plaintiffs
v.
Lee Francis Cissna, Director of U.S. Citizenship
and Immigration Services (USCIS); et al., Defendants

Civil Action No. 19-20442-Civ-Scola

United States District Court for the Southern District of Florida

June 27, 2019

Order Granting Defendants' Motion to Dismiss

Plaintiff Gilson Alberto Garcia Hernandez ("Hernandez") brings this action for injunctive, declaratory, and mandamus relief against U.S. Citizenship and Immigration Services and individual defendants (collectively "Defendants") requesting that the Court order the Defendants to grant Hernandez's derivative asylum application. (ECF No. 1.) Now before the Court is the Defendants' motion to dismiss for lack of subject matter jurisdiction. (ECF No. 7.) Having reviewed the parties' submissions and the applicable law, the Court grants the Defendants' motion (ECF No. 7) as follows.

1. Background

Hernandez, a native and citizen of Honduras, entered the U.S. without inspection on August 11, 2007, at or near Laredo, TX. (ECF No. 7-1.) He was encountered by U.S. Customs and Border Protection (CBP) and issued a Notice to Appear, charging Hernandez as an alien unlawfully present in the United States. (Id.) As an unaccompanied minor, Hernandez was initially placed in the care of the Depart of Health and Human Services, Office of Refugee Resettlement (ORR). (ECF No. 7-2.) Hernandez was later released to the custody of his mother. (Id.) On June 5, 2008, Hernandez failed to appear before the immigration judge and was ordered removed in abstentia. (ECF No. 7-4.)

On April 12, 2013, Hernandez's father filed a Form I-589 Application for Asylum and for Withholding of Removal with the U.S. Citizenship and Immigration Services (USCIS). (ECF No. 1 at ¶ 11.) The application included Hernandez and his mother as derivative beneficiaries. On June 6, 2013, the asylum office issued Hernandez's father a provisional Notice of Recommended Approval of his asylum application. (ECF No. 7-5.) The notice included Hernandez's mother but did not include Hernandez. (Id.) Instead, the asylum office issued Hernandez a No Jurisdiction Letter. (ECF No. 7-6.) The letter

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advised the Plaintiff that USCIS lacked jurisdiction to proceed on his derivative request for asylum because of his in absentia order. (Id. ("Asylum regulations provide that only an immigration judge may adjudicate the asylum application of an individual in proceedings before an immigration court.").)

Hernandez then filed a Joint Motion to Reopen and Terminate proceedings with the immigration court on the basis of his father's recommended approval and the lack of USCIS jurisdiction. The immigration judge granted the motion and terminated proceedings on February 20, 2014. (ECF No. 7-7.) However, the record does not indicate that Plaintiff took any further action to notify USCIS of this decision. (ECF No. 7 at ¶ 5.) Hernandez subsequently filed a Form I-485, Application to Register Permanent Residence or Adjust Status on the purported basis of derivative asylee status. USCIS denied that application on October 17, 2016 because Plaintiff had never been granted derivative asylee status from which he could adjust. (ECF No. 7-9.)

On October 4, 2018, Hernandez was convicted for the offense of First Degree Felony Robbery with a Deadly Weapon, and Grand Theft in the Third Degree. (ECF No. 7 at ¶ 8.) He was sentenced to two years imprisonment, followed by two years probation and community control. (Id.)

Following Hernandez's convictions, Immigration and Customs Enforcement (ICE) issued Plaintiff a Notice of Intent to Issue a Final Administrative Removal Order and referred him to a reasonable fear screening because Hernandez expressed fear of persecution or torture if returned to Honduras. (ECF No. 7-11.) An asylum officer interviewed Hernandez on February 20, 2019 and made a positive reasonable fear determination and referred Hernandez to the immigration court. (ECF No. 7-12.) At the time the Government's motion was filed, Hernandez was scheduled for a master calendar hearing before the immigration Judge on April 25, 2019 to consider his eligibility for withholding of removal. (ECF No. 7-13.)

Hernandez filed his complaint on February 1, 2019 seeking injunctive, declaratory, and mandamus relief. (ECF No. 1.) Hernandez believes that USCIS unlawfully denied him derivative asylee status in 2013. Hernandez asks this Court to compel USCIS to grant him derivative asylum status. (Id.)

2. Legal Standard

The Federal Rules of Civil Procedure require the dismissal of a claim if a court lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1), (h)(3). The party bringing the underlying claim bears the burden of establishing federal subject matter jurisdiction. Sweet Pea Marine, Ltd. V. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005) (examining diversity jurisdiction under 28 U.S.C.§ 1332); Wallace v. Secretary, U.S. Dept. of Homeland Sec., 616 Fed. App'x 958, 959 (11th

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Cir. 2015). Attacks on subject matter jurisdiction under Rule 12(b)(1) come in two forms: "facial attacks" and "factual attacks." Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). Facial challenges to subject matter jurisdiction are based solely on the allegations in the complaint. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). Factual attacks, on the...