Villarreal v. Horn

• Decision Date: 29 July 2016
• Docket Number: CIVIL NO. 1:15-CV-111
• Citation: 203 F.Supp.3d 765
• Parties: Maria Guadalupe VILLARREAL, and Ana Maria Villarreal, Plaintiffs, v. Petra HORN, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

203 F.Supp.3d 765

Maria Guadalupe VILLARREAL, and Ana Maria Villarreal, Plaintiffs,

v.Petra HORN, et al., Defendants.

CIVIL NO. 1:15-CV-111

United States District Court, S.D. Texas, Brownsville Division.

Signed July 29, 2016

Jaime M. Diez, Jones Crane, Brownsville, TX, Elisabeth Lisa S. Brodyaga, Attorney at Law, San Benito, TX, for Plaintiffs.

T. Monique Peoples, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

Hilda G. Tagle, Senior United States District Judge

This litigation stems from the U.S. Department of State's ("State Department") denial of Plaintiff Maria Guadalupe Villarreal's ("M. Villarreal") application for a passport and the State Department's subsequent revocation of a U.S. passport issued to her sister, Plaintiff Ana Maria Villarreal ("A. Villarreal").¹ Plaintiffs allege that they are stranded in Mexico, unable to enter the United States without a passport. Pls.' 1st Am. Pet. Writ Habeas Corpus & Compl. Decl. & Injunctive Relief, Dkt. No. 59 (hereinafter "Am. Compl."). The Court has before it, among other motions, Defendants' motion to dismiss Plaintiffs' amended complaint under Federal Rules of Civil Procedure 12(b)(1) and (6), Dkt. No. 66; the response and reply to that motion, Dkt. Nos. 72, 73; and the parties' supplemental memoranda of law, Dkt. Nos. 88, 89.

I. Background

Plaintiffs allege that they were born in Mexico in October 1959, (A. Villarreal), and August 1962 (M. Villarreal). Am. Compl. ¶ 11. They claim that they acquired U.S. citizenship at birth by virtue of the physical presence in the United States of their father, Victoriano Villarreal ("V. Villarreal"), a U.S. citizen, before they were born. See Am. Compl. ¶¶ 6, 11, 13. Plaintiffs do not allege that their mother was a U.S. citizen. See Am. Compl. ¶ 11.

The Defendants dispute whether V. Villarreal was physically present in the United States for the required periods of time before Plaintiffs' births. See, e.g. , Falek v. Ashcroft , 127 Fed.Appx. 684, 684 (5th Cir.2005) (per curiam, unpublished) (holding, on petition for review, that evidence did not demonstrate that citizen parent was physically present for the required amounts of time). Under the law in effect in 1959 and 1962, the child of a United States citizen born abroad acquired U.S. citizenship at birth if the citizen parent "was physically present in the United States for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years." 8 U.S.C. § 1401(a)(7) (1952).² According to Plaintiffs' amended complaint, the State Department denied M. Villarreal's application for a U.S. passport without explanation on August 25, 2011, Dkt. No. 59 ¶ 3. Plaintiffs also plead that their older brother, Armando Villarreal, who was born in Mexico in 1958, possesses a valid U.S. passport and certificate of citizenship. Am. Compl. ¶ 10.

M. Villarreal commenced this action by filing her complaint on June 18, 2015. Dkt. No. 1. Her complaint declares that "At the moment this action is being filed, Petitioner MARIA GUADALUPE VILLAREAL is at the Port of Entry in Brownsville, Texas, but cannot return to the United States." Id. at 1; accord Am. Compl. ¶ 1. The case was assigned to the Honorable Andrew S. Hanen.

Defendants filed a motion to dismiss M. Villarreal's original complaint on August 28, 2015. Dkt. No. 7.

Four days after Defendants replied to that motion, M. Villarreal moved for a preliminary injunction. Compare Dkt. No. 18 (reply filed Oct. 15, 2015) with Dkt. No. 19 (motion for preliminary injunction filed Oct. 19, 2015). On October 31, 2015, M. Villarreal filed a motion for summary judgment, Dkt. No. 21, supported by, among other evidence, A. Villarreal's then-valid U.S. passport, Dkt. No. 4, Ex. 1, at 10, 11.

By letter dated November 27, 2015, Defendants revoked A. Villarreal's passport. Dkt. No. 29 at 1 (notice filed Dec. 4, 2015). A. Villarreal avers that she was vacationing in Mexico when her passport was revoked and that she, like M. Villarreal, cannot return to the United States. Am. Compl. at 1. The revocation letter dated November 27, 2015, allegedly states that "[a] review of your application shows that the Department erred in calculating your father's physical presence in the United States." Am. Compl. at 4 (quoting alleged letter). Plaintiffs assert that the State Department pointed to no evidence of an arithmetical or other technical error in its calculations, and they characterize the revocation as a "ruse to get around the fact that there was no new evidence to revoke her passport." Am. Compl. at 5. They therefore contend that the revocation of A. Villarreal's passport did not comport with 22 C.F.R. § 51.62(a)(2), which permits the State Department to revoke a passport when "[t]he passport has been obtained illegally, fraudulently or erroneously; was created through illegality or fraud practiced upon the Department; or has been fraudulently altered or misused." 22 C.F.R. § 51.62(a)(2) (2015). Nor, argues A. Villarreal, did her passport revocation comply with § 51.62(b), which allows the State Department to revoke a passport when it "has determined that the bearer of the passport is not a U.S. national," because the State Department must have new evidence to revoke a passport under that subsection. Am. Compl. at 5 (citing deposition of State Department official in support of proposition that new evidence is required).

Plaintiffs bring three claims in their amended complaint. Dkt. No. 59 at 10–14. First, alleging that they are unable to enter the United States or travel internationally, they seek a writ of habeas corpus under 28 U.S.C. § 2241. Am. Compl. ¶¶ 23–24. Second, A. Villarreal asks the Court to review the revocation of her passport under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and set it aside as a violation of her right to due process and 22 C.F.R. 51.62(a)(2). Am. Compl. ¶¶ 27–31. In addition to setting aside the revocation of her passport, A. Villarreal asks the Court to order the State Department "to remove from all databases to which they have access any information indicating that she is not a U.S. citizen." Am. Compl. ¶ 31; see also id. ¶ 32 (asking the Court to order the Secretary of State to issue her a new passport in the event the revocation of cannot be reversed). A. Villarreal also requests a temporary restraining order and preliminary injunction allowing her to return to the United States pending the resolution of this case, and both plaintiffs seek an injunction prohibiting the State Department from attempting to revoke their passports without providing them notice and an opportunity to be heard. Am. Compl. ¶¶ 33–36. Finally, Plaintiffs seek declaratory judgments in accordance with 8 U.S.C. § 1503(a) and Rusk v. Cort , 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962) that they are U.S. citizens. Am. Compl. ¶ 38.

Defendants filed the pending motion to dismiss on February 19, 2016. Dkt. No. 66. On May 17, 2016, Defendants filed a then-opposed motion to modify the scheduling order. Dkt. No. 81. Judge Hanen signed an order that same day transferring this case to the undersigned "[f]or purposes of judicial economy."³ Dkt. No. 82 at 1. As explained at the hearing held June 1, 2016, A. Villarreal appears on the list of witnesses for the trial in a case brought by her alleged son, Jorge Eduardo Candelaria v. Kerry, et al. , No. 1:15–CV–5. That trial was then scheduled to commence before the undersigned on July 7, 2016, and this case was transferred to allow coordination of hearing dates in the two cases to avoid unnecessary cost and burden, given the likely need to arrange for the parole of A. Villarreal to testify. After the transfer, Plaintiffs responded to Defendants' motion to amend the scheduling order, stating that they were unopposed to extending the parties' discovery deadline to mid-July 2016 and urging the court to expedite this case and the pending motion to dismiss. Dkt. No. 83 at 2.

In an order entered June 14, 2016, this Court directed the parties to submit supplemental memoranda of law on two questions raised by the pending motion to dismiss. Dkt. No. 85 at 2–4. To accommodate the resulting delay, the Court cancelled the trial in Candelaria and reset both cases for final pretrial conference on August 4, 2016. See Dkt. No. 85 at 3–4; Order 1, Candelaria v. Kerry , No. 1:15–CV–5 (S.D.Tex. June 15, 2016), Dkt. No. 22. The parties filed timely supplemental memoranda. Dkt. Nos. 88, 89.

II. Legal Standard

Defendants move to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Dkt. No. 66 at 1. A Rule 12(b)(1) motion challenges the Court's subject-matter jurisdiction. See, e.g. , In re FEMA Trailer Formaldehyde Prods. Liab. Litig. , 668 F.3d 281, 286 (5th Cir.2012). As a general matter, "the proponents of federal-court jurisdiction carry the burden of establishing it." Physician Hosp. of Am. v. Sebelius , 691 F.3d 649, 652 (5th Cir.2012) (citing Ramming v. United States , 281 F.3d 158, 161 (5th Cir.2001) ). "Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims."

In re FEMA , 668 F.3d at 286. (citing Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) and Stockman v. Fed. Election Comm'n , 138 F.3d 144, 151 (5th Cir.1998) ). The Court may decide a Rule 12(b)(1) motion on "the complaint alone, the complaint supplemented by the undisputed facts as evidenced in the record, or the complaint supplemented by the undisputed facts plus the court's resolution of the disputed facts." Id. at 287.

"[A]t the Rule 12(b)(1) stage ..., the plaintiffs' burden is to allege a plausible set of facts establishing jurisdiction." Physician Hosp. of Am. , 691 F.3d at 652 (citing Davis v. United States , 597 F.3d 646, 649–50 (5th Cir.2009) ). Moreover, this Court must "accept as true the allegations and...