Vetcher v. Sessions

• Decision Date: 11 June 2018
• Docket Number: Civil Action No. 17–1743 (JEB)
• Citation: 316 F.Supp.3d 70
• Parties: Ivan Alexandrovich VETCHER, Plaintiff, v. Jefferson B. SESSIONS, III, Attorney General, U.S. Department of Justice, et al., Defendants.
• Court: U.S. District Court — District of Columbia

316 F.Supp.3d 70

Ivan Alexandrovich VETCHER, Plaintiff,

v.Jefferson B. SESSIONS, III, Attorney General, U.S. Department of Justice, et al., Defendants.

Civil Action No. 17–1743 (JEB)

United States District Court, District of Columbia.

Signed June 11, 2018

Ivan Alexandrovich Vetcher, Alvarado, TX, pro se.

Danielle Kathleen Schuessler, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Pro se Plaintiff Ivan Vetcher has been detained for over three years while he challenges removal proceedings brought against him by the Department of Homeland Security. After coming up empty in a congeries of cases filed before the Board of Immigration Appeals, the Northern District of Texas, the Eastern District of Texas, the Western District of Louisiana, and the Fifth Circuit, Vetcher brought an action in this Court alleging that Defendants—the United States Attorney General and the Secretary of DHS—oversaw actions and policies that are unconstitutional and in violation of the Administrative Procedure Act. The Government now moves to dismiss, contending that this Court lacks jurisdiction and that Plaintiff has failed to state a claim upon which any relief can be granted. Agreeing as to both, the Court will dismiss some of the claims and order that the remainder be transferred to the Northern District of Texas, where Vetcher is currently detained.

I. Background

As it must at this stage, the Court treats all of the facts in the Amended Complaint as true. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). The Court will also consider the facts set forth in Plaintiff's Opposition to the Motion to Dismiss and his other cases incorporated by reference thereto. See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015).

Plaintiff, a native and citizen of Belarus, entered the United States in 2001 as a refugee. See Vetcher v. Lynch, 2015 WL 10551735, at *1 (W.D. La. June 15, 2015). In 2014, he was convicted under Texas Health and Safety Code § 481.113(d), which makes it a first-degree felony to knowingly manufacture, deliver, or possess with intent to deliver between 4 and 400 grams of any controlled substance. See Compl., Exh. G (BIA Decisions) at 4. Shortly after his conviction, DHS initiated removal proceedings under 8 U.S.C. § 1227(a)(2)(A)(iii), which requires the Attorney General to order "[a]ny alien who is convicted of an aggravated felony at any time after admission ... deportable." By statute, any alien "found ... deportable" under 8 U.S.C. § 1227(a)(2) is subject to mandatory detention during the removal period. Id. § 1231(a)(2). On July 2, 2014, accordingly, Vetcher was taken into ICE custody. See Compl., ¶ 1. On August 6, the Immigration Judge sustained the aggravated-felony charge, found Vetcher ineligible for asylum or withholding of removal, and denied his request for deferral of removal under the Convention Against Torture. See BIA Decisions at 4. He successfully filed a motion to reopen proceedings on March 25, 2015, however, and the BIA then remanded the matter because "the Immigration Judge had not given [him] a meaningful chance to contest the aggravated felony charge during his [pro se ] initial proceedings." Id. at 2, 5.

After Vetcher's case was remanded, DHS withdrew the aggravated-felony basis for removal and instead charged him as "deportable" as an "alien who ... has been convicted of a violation of ... any law ... relating to a controlled substance." 8 U.S.C. § 1227(a)(2)(B)(i). On September 2, 2015, the IJ held a hearing where Plaintiff was denied release on bond and ordered detained pending completion of removal proceedings. In a subsequent remand hearing on the merits the next month, the Government argued that under a recent Supreme Court decision, Mellouli v. Lynch, ––– U.S. ––––, 135 S.Ct. 1980, 192 L.Ed.2d 60 (2015), the IJ could determine that Vetcher's Texas conviction qualified as a controlled-substance offense under § 1227(a)(2)(B)(i). See Compl., Exh. A at 10. Vetcher protested that he did not have access to Mellouli and asked for time to review the case. Id. at 13. The IJ refused and withdrew the § 1227(a)(2)(A)(iii) aggravated-felony charge while sustaining the § 1227(a)(2)(B)(i) drug-possession charge. Id. at 12. The IJ also denied Plaintiff cancellation of removal.

Vetcher again appealed to the BIA, arguing that he had been "denied access to court and due process." Compl., ¶ 4. The BIA nonetheless affirmed the IJ's decision to sustain the removability charge but remanded for further factual findings as to the IJ's denial of his application for cancellation of removal. See BIA Decisions at 5. On February 21, 2017, the BIA further denied Plaintiff's request for appointed counsel to assist him in accessing legal information because "there is no Sixth Amendment right to counsel in immigration proceedings." Id. at 11; see also Compl., ¶ 5. Following remand, the IJ again denied Plaintiff cancellation of removal and ordered him removed. The BIA affirmed this decision on May 11, 2018, entering a final order of removal. See ECF No. 17. Vetcher has not yet, to this Court's knowledge, filed a petition for review.

In addition to agency proceedings, Vetcher has also brought several actions in various federal courts. He attempted to challenge the "denial of counsel" from the IJ and BIA through an interlocutory appeal to the Fifth Circuit, which was dismissed for lack of jurisdiction. See Opp. at 3. He also filed a habeas action in the Western District of Louisiana, which was ultimately dismissed. See Vetcher v. Lynch, 2016 WL 1230560 (W.D. La. Mar. 23, 2016) (denying habeas petition and dismissing with prejudice). Plaintiff next attempted to challenge his underlying state conviction and, after he was transferred to a Texas facility, he filed an additional habeas petition. See Vetcher v. Lynch, No. 16–4, ECF No. 17 (N.D. Tex. Feb. 13, 2017) (dismissed for lack of jurisdiction). He has additionally filed suit contesting his conditions of confinement, which is currently pending. See Vetcher v. ICE, No. 16–164 (N.D. Tex.); Opp. at 4.

On August 21, 2017—prior to receiving a final order of removal—Plaintiff filed a "petition for review under Administrative Procedures [sic ] Act" in this Court. See Compl. Endeavoring to combine all of the claims from his prior suits, he challenges both his detention and his conditions of confinement. The Government now moves to dismiss.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails "to state a claim upon which relief can be granted." In evaluating Defendants' Motion to Dismiss, the Court must "treat the complaint's factual allegations as true ... and must grant [P]laintiff ‘the benefit of all inferences that can be derived from the facts alleged.’ " Sparrow, 216 F.3d at 1113 (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) ); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1250 (D.C. Cir. 2005). The pleading rules are "not meant to impose a great burden upon a plaintiff," Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), and he must thus be given every favorable inference that may be drawn from the allegations of fact. See Sparrow, 216 F.3d at 1113.

Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). The Court need not accept as true, then, "a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (internal quotation marks omitted) ). For a plaintiff to survive a 12(b)(6) motion even if "recovery is very remote and unlikely," the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ).

The standard to survive a motion to dismiss under Rule 12(b)(1) is less forgiving.

Under this Rule, Plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear his claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A court also has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). For this reason, " ‘the [p]laintiff's factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim." Id. at 13–14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original) ). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens, 402 F.3d at 1253 ; see also Venetian Casino Resort, LLC v. EEOC, 409 F.3d 359, 366 (D.C. Cir. 2005).

III. Analysis

Although Vetcher filed a "petition for review," because only a court of appeals has jurisdiction over such actions related to removal, see 8 U.S.C. § 1252(a)(5), the Court will construe his filing as a civil Complaint brought under the APA. See Compl. at 5; Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (court must construe ...