Offiiong v. Holder

• Decision Date: 27 March 2012
• Docket Number: Civil Action No. H–11–0418.
• Citation: 864 F.Supp.2d 611
• Parties: Stephen Bassey OFFIIONG, a/k/a Stephen Bassey, Plaintiff, v. Eric H. HOLDER, Jr., Attorney General of the United States; Janet Napolitano, Secretary of the Department of Homeland Security; Alejandro Mayorkas, Director, United States Citizenship and Immigration Services; and Kenneth Landgrebe, United States Immigration and Customs Enforcement Field Office Director, Defendants.
• Court: U.S. District Court — Southern District of Texas

864 F.Supp.2d 611

Stephen Bassey OFFIIONG, a/k/a Stephen Bassey, Plaintiff,

v.Eric H. HOLDER, Jr., Attorney General of the United States; Janet Napolitano, Secretary of the Department of Homeland Security; Alejandro Mayorkas, Director, United States Citizenship and Immigration Services; and Kenneth Landgrebe, United States Immigration and Customs Enforcement Field OfficeDirector, Defendants.

Civil Action No. H–11–0418.

United States District Court,

S.D. Texas,

Houston Division.

March 27, 2012.

Amenaghawon O. Obadagbonyi, Attorney at Law, Houston, TX, for Plaintiff.

Adam Laurence Goldman, Department of Justice, Houston, TX, for Defendants.

OPINION AND ORDER OF DISMISSAL

MELINDA HARMON, District Judge.

Pending before the Court in the above referenced cause, seeking declaratory and injunctive relief and a writ of mandamus and alleging that Defendants in their official capacities improperly denied the Form I–130 Visa Petition for Alien Relative (“I–130”) filed on behalf of PlaintiffStephen Bassey Offiiong¹(“Plaintiff” or “Bassey”) and improperly determined that he had never been granted lawful permanent resident status because he had participated in a marriage fraud scheme, is a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)(instrument # 16), filed by DefendantsEric H. Holder, Jr., Attorney General of the United States, Janet Napolitano, Secretary of the Department of Homeland Security(“DHS”), Alejandro Mayorkas, Director of the United States Citizenship and Immigration Services (“USCIS”), and Kenneth Landgrebe, United States Immigration and Customs Enforcement (“ICE”) Field Officer Director.Plaintiff, a native and citizen of Nigeria, did not file a response.

Plaintiff asserts that his Complaint for Declaratory and Injunctive Relief and Petition for Writ of Mandamus(# 1) in this action is based on new evidence, i.e., an April 13, 1993 letter from the former Immigration and Naturalization Service (“INS”),² which refers to an individual named “Ben,” not to Plaintiff, as participating in the marriage fraud scheme.Additionally he seeks an order barring his removal, prohibiting the use of overseas investigations in adjudicating immigration benefits, and requiring the production of certain documents.

Defendants move for dismissal of the complaint on several grounds: (1)Plaintiff's claims are barred by collateral estoppel and res judicata because all the issues have been litigated and decided by the United States District Court for the Northern District of California in 2002 and by the United States Court of Appeals for the Ninth Circuit in ruling on a Petition for Review after Plaintiff was ordered removed in removal proceedings; (2) the April 13, 1993 letter is not “new evidence” because Plaintiff has had it since 2002 litigation in the Northern District of California and because it was provided to him again in 2006 during his Petition for Review(the copy attached to his Complaint here is from the Record on Appeal to the Ninth Circuit); (3)Plaintiff's Complaint is barred by 28 U.S.C. § 2401(a)³ because over six years have passed since the right of action accrued and Plaintiff(a) was informed that he had no lawful permanent resident status; (b) was informed that his I–130 was denied; and (c) obtained the “newly discovered evidence”; (4)Plaintiff's challenges to the determination regarding his lawful permanent resident status and his removal are also barred by 8 U.S.C. § 1252, as amended by the REAL ID Act of 2005, Pub.L. No. 109–13,119 Stat. 231(2005)(“REAL ID Act”); and (5)Plaintiff fails to state a claim upon which relief can be granted because (a) the denial of his visa petition was proper due to his engagement in marriage fraud; (b) there is no basis for his contention that he ever had lawful permanent resident status; and (3) the “newly-discovered evidence” has no effect on these findings because the document at issue does refer to Plaintiff and not to an individual named “Ben.”

Relevant Law

Standard of Review

“When a motion to dismiss for lack of jurisdiction‘is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.’ ”Crenshaw–Logal v. City of Abilene, Texas,436 Fed.Appx. 306, 308(5th Cir.2011), quotingRamming v. United States,281 F.3d 158, 161(5th Cir.2001);see also Randall D. Wolcott, MD, PA v. Sebelius,635 F.3d 757, 762(5th Cir.2011);Fed.R.Civ.P. 12(h)(3).If a complaint could be dismissed for both lack of jurisdiction and for failure to state a claim, “the court should dismiss only on the jurisdictional ground under [Rule]12(b)(1), without reaching the question of failure to state a claim under [Rule]12(b)(6).”Crenshaw–Logal,436 Fed.Appx. at 308,quotingHitt v. City of Pasadena,561 F.2d 606, 608(5th Cir.1977).The reasons behind this practice are to preclude courts from issuing advisory opinions and barring courts without jurisdiction “ ‘from prematurely dismissing a case with prejudice.’ ”Id., citingSteel Co. v. Citizens for a Better Env't,523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210(1998), andRamming,281 F.3d at 161.

Rule 12(b)(1) allows a party to move for dismissal of an action for lack of subject matter jurisdiction.The party asserting that subject matter exists, here the plaintiff, must bear the burden of proof for a 12(b)(1) motion.Ramming,281 F.3d at 161.In reviewing a motion under 12(b)(1)the court may consider (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.Williamson v. Tucker,645 F.2d 404, 413(5th Cir.1981).

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is characterized as either a “facial” attack, i.e., the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a “factual” attack, i.e., the facts in the complaint supporting subject matter jurisdiction are questioned.In re Blue Water Endeavors, LLC, Bankr.No. 08–10466, Adv.No. 10–1015, 2011 WL 52525, *3(E.D.Tex.Jan. 6, 2011), citingRodriguez v. Texas Comm'n of Arts,992 F.Supp. 876, 878–79(N.D.Tex.1998), aff'd,199 F.3d 279(5th Cir.2000).A facial attack happens when a defendant files a Rule 12(b)(1) motion without accompanying evidence.Paterson v. Weinberger,644 F.2d 521, 523(5th Cir.1981).In a facial attack, allegations in the complaint are taken as true.Blue Water,2011 WL 52525 at *3,citingSaraw Partnership v. United States,67 F.3d 567, 569(5th Cir.1995).

If it is a factual attack, as is the case here, the Court may consider any evidence (affidavits, testimony, documents, etc.) submitted by the parties that is relevant to the issue of jurisdiction.Id., citingIrwin v. Veterans Admin.,874 F.2d 1092, 1096(5th Cir.1989).A defendant making a factual attack on a complaint may provide supporting affidavits, testimony or other admissible evidence.Paterson v. Weinberger,644 F.2d 521, 523(5th Cir.1981).The plaintiff, to satisfy its burden of proof, may also submit evidence to show by a preponderance of the evidence that subject matter jurisdiction exists.Id.The court's consideration of such matters outside the pleadings does not convert the motion to one for summary judgment under Rule 56(c).Robinson,2008 WL 4692392 at *10,citingGarcia,104 F.3d at 1261.“Unlike in a facial attack where jurisdiction is determined upon the basis of allegations of the complaint, accepted as true[,] when a factual attack is made upon federal jurisdiction, no presumption of truthfulness attaches to the plaintiffs' jurisdictional allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.In a factual attack, the plaintiffs have the burden of proving that federal jurisdiction does in fact exist.”Evans v. Tubbe,657 F.2d 661, 663(5th Cir.1981).In resolving a factual attack on subject matter jurisdiction under Rule 12(b)(1), the district court, which does not address the merits of the suit,⁴ has significant authority “ ‘to weigh the evidence and satisfy itself as to the existence of its power to hear the case.’ ”Robinson v. Paulson,No. H–06–4083, 2008 WL 4692392, *10(S.D.Tex.Oct. 22, 2008), quotingGarcia v. Copenhaver, Bell & Assocs.,104 F.3d 1256, 1261(11th Cir.1997), and citing Clark v. Tarrant County,798 F.2d 736, 741(5th Cir.1986).

Res Judicata and Collateral Estoppel

“ ‘Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.’ ”Oreck Direct, LLC v. Dyson, Inc.,560 F.3d 398, 401(5th Cir.2009), quotingAllen v. McCurry,449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308(1980).The doctrine “ ‘insures the finality of judgments and thereby conserves judicial resources and protects litigants from multiple lawsuits.’ ”Id., quotingUnited States v. Shanbaum,10 F.3d 305, 310(5th Cir.1994).To demonstrate that res judicata bars a later suit, a party must satisfy four conditions: (1)the parties are identical [or in privity] in the two actions; (2) the prior judgment was rendered by a court of competent jurisdiction; (3) there is a final judgment on the merits; and (4) the same claim or cause of action must be involved in both suits.Id., citingIn re Ark–La–Tex Timber Co.,482 F.3d 319, 330(5th Cir.2007);see alsoMatter of Swate,99 F.3d 1282, 1286(5th Cir.1996).Usually the Court determines if two suits involve the same claim or cause of action by applying the transactional test of the Restatement (Second) of Judgments§ 24.Petro–Hunt, LLC v. United States,365 F.3d 385, 395(5th Cir.2004).That test focuses upon whether the two cases under review are based on “the same nucleus of operative facts.”In re Southmark Corp.,163...