Nino v. Johnson
| Decision Date | 30 November 2016 |
| Docket Number | Case No. 16-cv-2876 |
| Parties | MARVIN NINO, et al. Plaintiff, v. JEH JOHNSON, et al. Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
AMY J. ST. EVE, District Court Judge:
Defendants Jeh Johnson, Sarah Saldeña, Ricardo Wong, and Jose T. Martinez (collectively, "Defendants") have moved the Court to dismiss the Complaint of Marvin Nino, Norma Morales-Nino, Angel Nino, Maria Nino, and Santiago Nino (collectively, "Plaintiffs") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3). (R.14). For the following reasons, the Court grants Defendants' motion and dismisses the Complaint with prejudice.
In March 2016, Plaintiffs filed this action against the Secretary of the Department of Homeland Security ("DHS"), the Director of Immigration and Customs Enforcement ("ICE"), the Field Director of the ICE Chicago Field Office, and a Docket Officer in the ICE Chicago Field Office. Plaintiffs request habeas corpus relief, declaratory judgment, mandamus and injunctive relief arising from the allegedly unlawful deportation of Plaintiff Norma Morales-Nino. . Plaintiffs seek, inter alia, to have Mrs. Morales returned to the United States and placed in the position she was in prior to Defendants' actions. (Id.).
Mrs. Morales is a native and citizen of Mexico who entered the United States in May 2003 without authorization. . She is the wife of Plaintiff Marvin Nino and the mother of Plaintiffs Angel Nino, Maria Nino, and Santiago Nino, two of whom are United States citizens. . Law enforcement arrested Mrs. Morales at her workplace for allegedly using improper work documents, and subsequently turned her over to ICE. (Id. ¶ 13). The criminal charges against Mrs. Morales were ultimately dismissed. She has no criminal convictions. (Id.).
On February 9, 2009, DHS initiated removal proceedings against Mrs. Morales, releasing her on her own recognizance. (R.14-2, Martinez Decl. ¶ 6). On May 24, 2010, an immigration judge ("IJ") sitting in Omaha, Nebraska issued an order of removal against Mrs. Morales. (Id. at ¶ 7). Mrs. Morales appealed that decision to the Board of Immigration Appeals ("BIA"). BIA remanded the case back to the IJ. (Id. ¶ 8). On April 2, 2012, the IJ again ordered removal. (Id. ¶ 9). BIA denied Mrs. Morales' appeal of that order. (Id. ¶ 10). Mrs. Morales then appealed to the Eight Circuit, which dismissed her petition for review on July 2, 2013. (Id. ¶ 11).
In 2013, meanwhile, DHS initiated removal proceedings against Mrs. Morales' husband, Plaintiff Marvin Nino. . Mr. Nino has "no criminal record other than traffic violations and a single minor conviction." (Id.). In late 2013, Plaintiffs' counsel submitted a request for prosecutorial discretion with respect to both Mr. Nino and Mrs. Morales-Nino, based on ICE's 2011 policy memo entitled, "Exercising Prosecutorial Discretion Consistent with Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens" (the "ICE Policy Memo"). (Id. ¶¶ 16-17). In December 2013, ICE informedPlaintiffs' counsel that it would approve Mr. Nino's request, but that "Mrs. Morales' request would need to be forwarded to ICE officers in Chicago because her case had already been reviewed by the Eighth Circuit." (Id. ¶¶ 18, 35). Mrs. Morales then filed an Application for Stay of Removal, which ICE subsequently denied. (Id. ¶¶ 19, 21).
After taking Mrs. Morales into custody, ICE Docket Officer Jakcubzak—who is not a defendant—agreed to issue an Order of Supervision (the "OS") instead of executing the Removal Order. (Id. ¶¶ 20, 22-23). According to Plaintiffs, the factors influencing this decision were: "(1) the fact that her husband had been granted [prosecutorial discretion] and was allowed to stay in the United States rather than be removed; (2) the fact that she had two children who were United States Citizens and another child who was prima facie eligible for Deferred Action for Childhood Arrivals ("DACA"); (3) the fact that she has no criminal convictions; (4) the fact that she is an outstanding mother, involved with her children's school and education and an upstanding member of the community; (5) the length of time she and her husband had been in the United States ((20 years); and (6) the severe hardship that removing her would have on her children and husband." (Id.). ICE required that Mrs. Morales wear an ankle bracelet and that she stay within the borders of Illinois. (Id.). She "complied with all requests and requirements of her OS." (Id. ¶ 24).
In August 2014, ICE transferred Mrs. Morales' case from the Alternative to Detention (ATD/GPS) Unit to the Non-Detain Unit with Telephonic Reporting. (R.14-2, Martinez Decl. ¶ 12). She received a revised OS in September 2014. (Id.). On February 24, 2015, Mrs. Morales reported to Defendant Martinez in the ICE Chicago Field Office, per OS requirement. Martinez reviewed her case and informed her that ICE would execute the Removal Order, as an IJ had twice ordered her removal, and the Eighth Circuit had denied her petition for review. (Id. ¶ 13).According to Plaintiffs, however, Defendant Martinez provided no explanation for the revocation of the OS, either during that February 24, 2015 meeting or in subsequent conversations with Plaintiffs' counsel. . Instead, Martinez "inaccurately interrogated Mrs. Morales on the fact that she had obtained a valid work permit," told her that "she had no entitlement to said permit," and threatened "to arrest and detain her." (Id.).2 He engaged in other "loud and aggressive behavior" and, with respect to her OS, "simply stated that Officer Jakcubzak no longer worked there and that he was revoking the [OS]." (Id. ¶¶ 27-28, 30, 32-34).
On May 28, 2015, Mrs. Morales filed another Application for Stay of Removal, which ICE again denied "in a few sentence decision that did not analyze any of the individual circumstances of Mrs. Morales' case, [including] that her husband had been granted prosecutorial discretion." (Id. ¶ 36). According to Plaintiffs, this denial—and the decision to revoke the OS—ran counter to an "ICE Operating Instruction" providing that an "informal interview with the alien is to be conducted to afford the alien the opportunity to respond to the reasons for the revocation." (Id.; R.1-1, Exhibit C to the Compl. at § 17.12(b)). In addition, Plaintiffs note that the February 24, 2015 meeting occurred days after a district court in Texas issued an injunction barring federal agents from implementing Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA") and from expanding DACA. See Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. Feb. 16, 2015), aff'd, 809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25, 2015), cert. granted, 136 S. Ct. 906, 193 L. Ed. 2d 788 (2016). . On June 19, 2015, Mrs. Morales self-deported from Chicago to Mexico. (R.14-2, Martinez Decl. ¶¶ 14-15).
Plaintiffs now bring six counts against Defendants, alleging that: (1) the revocation of the OS was arbitrary and capricious and violated Plaintiffs' due process rights; (2) the "flaws in the decision making process" concerning Mrs. Morales' stay applications violated Plaintiffs' due process rights; (3) Defendants acted with prosecutorial vindictiveness against Mrs. Morales for exercising her right to an appeal, in violation of her due process rights; (4) the denial of Mrs. Morales' stay application following Texas v. United States, was the result of prosecutorial vindictiveness; (5) the deportation of Mrs. Morales violated Article 23 of the International Covenant on Civil and Political Rights ("ICCPR"); and (6) Plaintiffs detrimentally relied on the OS, estopping Defendants from revoking it without cause. . Plaintiffs bring this action under the United States Constitution, the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1255, the federal habeas statute, 28 U.S.C. § 2241, the Administrative Procedures Act ("APA"), 5 U.S.C. § 706, The All Writs Act, 28 U.S.C. § 1651(a), and the Declaratory Judgment Act, 28 U.S.C. § 2201. (Id. ¶ 9).
Defendants now move to dismiss for lack of subject-matter jurisdiction. In particular, Defendants argue that: (1) the INA deprives district courts of jurisdiction to hear challenges relating to the commencement, execution, or adjudication of removal orders; (2) the habeas statute does not confer jurisdiction because Mrs. Morales is not in Defendants' custody; (3) the APA expressly bars judicial review of this matter; and (4) the ICCPR does not create a private right of action enforceable in federal court. (R.14-1).
Under Federal Rule of Civil Procedure 12(b)(1), a court must dismiss a claim if it lacks subject-matter jurisdiction over it. See Aljabri v. Holder, 745 F.3d 816, 818 (7th Cir. 2014) () (citations omitted); see also Fed.R.Civ.P. 12(h)(3) (). In reviewing a Rule 12(b)(1) motion to dismiss, courts take all well-pleaded factual allegations in the complaint as true. Smith v. United States, 196 F.3d 774, 776 n.1 (7th Cir. 1999). Courts may, however, "properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Calderon v. United States, 123 F.3d 947, 951 n.2 (7th Cir. 1997); see also Apex Digital, 572 F.3d at 443-44; St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007). "Where jurisdiction is in question, ...
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