Morales v. Acting Sec'y, United States Dep't of Homeland Sec.
| Decision Date | 07 January 2022 |
| Docket Number | 21-10835 |
| Parties | ADRIAN MOJICA MORALES, Plaintiff-Appellant, v. ACTING SECRETARY, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, DIRECTOR, NEBRASKA SERVICE CENTER, U.S.CITIZENSHIP AND IMMIGRATION SERVICES, ACTING DIRECTOR, U.S. CITIZENSHIP ANDIMMIGRATION SERVICES, ACTING DIRECTOR OF U.S. IMMIGRATION ANDCUSTOMS ENFORCEMENT, ACTING MIAMI FIELD OFFICE DIRECTOR, U.S.CITIZENSHIP AND IMMIGRATION SERVICES, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 2:20-cv-14220-AMC
Before Luck, Lagoa, and Hull, Circuit Judges.
Plaintiff-Appellant Adrian Mojica Morales appeals the district court's dismissal of his complaint seeking judicial review of the Department of Homeland Security's ("DHS") termination of his status under the Deferred Action for Childhood Arrivals program ("DACA"). Mojica Morales sued under the Administrative Procedure Act ("APA"). The district court dismissed his complaint for lack of subject matter jurisdiction and, alternatively based on collateral estoppel.
After review, we conclude that the district court had subject matter jurisdiction over Mojica Morales's complaint, but we affirm because his complaint failed to state a claim.
On June 15, 2012, then-Secretary of DHS Janet Napolitano announced the program now known as DACA. DACA makes available "deferred action"-a non-binding decision to forbear from seeking one's removal-to certain young people brought to this country as children. DHS administers its DACA program through Immigration and Customs Enforcement ("ICE") and the United States Citizenship and Immigration Services ("USCIS").
DHS's "DACA Memorandum instructs [ICE] to exercise prosecutorial discretion on an individual basis . . . by deferring action for a period of two years, subject to renewal." Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S.__, 140 S.Ct. 1891, 1902 (2020) (quotation marks and brackets omitted). It also "directs [USCIS] to accept applications to determine whether these individuals qualify for work authorization during this period of deferred action." Id. (quotation marks omitted).
After a background check is completed, successful requestors, at the discretion of USCIS, receive deferred immigration action for two years, subject to renewal. USCIS has also provided its officers with procedural guidance regarding DACA adjudications and terminations through its Standard Operating Procedures ("SOP"). The DACA SOP details how and when to terminate a noncitizen's DACA status in different circumstances. Generally, USCIS officers issue a Notice of Intent to Terminate ("NOIT") to individuals who were mistakenly or wrongfully provided DACA status. However when an individual who already has DACA status is later determined to be an Egregious Public Safety ("EPS") concern, the DACA SOP provides for termination without issuance of a NOIT.
According to an USCIS Policy Memorandum issued on November 7, 2011, an EPS concern is "a case where information indicates the [noncitizen] is under investigation for, has been arrested for (without disposition), or has been convicted of" certain offenses. Those offenses include "[c]rimes of violence for which the term of imprisonment imposed, or where the penalty for a pending case, is at least one year as defined in section 101(a)(43)(F) of the INA." That EPS definition is used by both ICE and USCIS.
With this DACA background, we examine Mojica Morales's appeal.
In October 2002, Mojica Morales, a Mexican citizen, was brought at age two from Mexico to the United States without inspection. Since his arrival, he has resided in Indian River County, Florida.
On January 24, 2018, USCIS approved Mojica Morales's first DACA application, providing him with deferred action on removal for two years, subject to renewal. Then, on October 24, 2019, USCIS approved Mojica Morales's DACA renewal application. Both DACA approval notices issued to Mojica Morales state that USCIS and DHS have "the sole discretion" to provide an opportunity for the requestor "to address derogatory information before deferred action is terminated and/or removal proceedings are initiated."
ICE sent a formal request to USCIS to terminate Mojica Mo-rales's status under DACA. ICE stated that Mojica Morales was determined to be an EPS concern because "he has been charged with Kidnapping (Felony) and Aggravated Battery (Felony)."
On May 12, 2020, USCIS Headquarters ("HQSCOPS") responded to a Request for Adjudicative Guidance regarding Mojica Morales's pending charges and ICE's EPS finding. HQSCOPS stated that because "the Aggravated Battery charge would have a presumptive minimum sentence of 21 months" and "is a crime of violence," Mojica Morales qualified as an EPS concern under DACA guidelines. As such, Mojica Morales's DACA status could "be terminated without a NOIT."
On May 15, 2020, USCIS sent Mojica Morales a Termination Notice stating that USCIS had "determined that exercising prose-cutorial discretion in your case is not consistent with the Department of Homeland Security's enforcement priorities." As such, Mojica Morales's DACA status was "terminated as of the date of this notice."
On June 2, 2020, formal criminal charges were filed against Mojica Morales in the Indian River County Circuit Court. The charges stated that "[o]n or about April 3, 2020," Mojica Morales and others kidnapped, falsely imprisoned, and battered the victim with a knife.
After Mojica Morales's DACA status was terminated on May 15, 2020, ICE issued a Notice to Appear ("NTA") to Mojica Morales to initiate removal proceedings. The NTA, dated June 5, 2020, stated that Mojica Morales was a native and citizen of Mexico; he arrived in the United States near Laredo, Texas, in 2002; and he was not then admitted or paroled with inspection. It charged him as removable under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), because he was present in the United States without being admitted or paroled.
On June 23, 2020, Mojica Morales filed a complaint against DHS, ICE, and USCIS in the United States District Court for the Southern District of Florida. His complaint sought declaratory and injunctive relief from the termination of his status under DACA. Mojica Morales's complaint asserted jurisdiction under the APA and the Declaratory Judgment Act ("DJA") and claimed that DHS's termination of his DACA status was arbitrary and capricious.
Seven days later, on June 30, 2020, the district court sua sponte dismissed his complaint for lack of subject matter jurisdiction, stating that neither the APA nor the DJA conferred subject matter jurisdiction on federal courts.[1]
On July 1, 2020, Mojica Morales filed a new complaint against DHS and the other same respondents, seeking again declaratory judgment and injunctive relief. Mojica Morales's new complaint asserted identical claims for relief and the same jurisdictional grounds. This time though, under the jurisdiction heading in his new complaint, Mojica Morales added (1) a block quote from the Supreme Court's recent discussion about DACA and APA causes of action in Regents, 140 S.Ct. 1891, and (2) a section of the APA that applies to review of agency rulemaking. 5 U.S.C. § 702.
The government filed a motion to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and, alternatively, under Rule 12(b)(6) for failure to state a claim. Fed.R.Civ.P. 12(b)(1), 12(b)(6). In its order granting the government's motion, the district court (1) dismissed Mojica Morales's new complaint for lack of subject matter jurisdiction, and (2) alternatively found that the new complaint was barred by collateral estoppel because Mo-jica Morales's prior complaint challenged the identical agency action that the district court previously dismissed on the same grounds.[2] Mojica Morales timely appealed.
We review de novo a dismissal for lack of subject matter jurisdiction. Canal A Media Holding, LLC v. U.S. Citizenship & Im-migr. Servs., 964 F.3d 1250, 1255 (11th Cir. 2020). We review the district court's factual findings as to subject matter jurisdiction for clear error. Perez v. U.S. Bureau of Citizenship & Immigr. Servs., 774 F.3d 960, 965 (11th Cir. 2014). We may affirm on any ground supported by the record. Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1059 (11th Cir. 2007).
Rule 12(h)(3) provides that a court must dismiss an action if it "determines at any time that it lacks subject-matter jurisdiction." Fed.R.Civ.P. 12(h)(3). Subject matter jurisdiction cannot be waived by the parties. First Union Nat'l Bank of Fla. v. Hall, 123 F.3d 1374, 1378 n.7 (11th Cir. 1997). "A 'facial attack' on the complaint requires the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).
The district court correctly noted that the APA does not...
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