Yu v. Brown, No. CIV 97-1491 MV/WED.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtVazquez
Citation36 F.Supp.2d 922
PartiesYue YU, et al., Plaintiffs, v. Douglas BROWN, et al., Defendants.
Docket NumberNo. CIV 97-1491 MV/WED.
Decision Date28 January 1999
36 F.Supp.2d 922
Yue YU, et al., Plaintiffs,
v.
Douglas BROWN, et al., Defendants.
No. CIV 97-1491 MV/WED.
United States District Court, D. New Mexico.
January 28, 1999.

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COPYRIGHT MATERIAL OMITTED

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Richard W. Hughes, John L. Sullivan, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, Santa Fe, NM, John W. Lawit, Albuquerque, NM, for plaintiffs.

Michael H. Hoses, Joan M. Hart, U.S. Attorney's Office, District of New Mexico, Albuquerque, Pauline Terrelonge, U.S. Department of Justice, Office of Immigration, Washington, DC, for defendants.

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MEMORANDUM OPINION AND ORDER

VAZQUEZ, District Judge.


THIS MATTER is before the Court on Defendants' Motion for Judgment on the Pleadings, filed May 4, 1998 [Doc. 18]. The Court, having considered the motion, response, relevant law, and being otherwise fully informed, finds that the motion is not well taken and will be DENIED, as explained below.

BACKGROUND

Plaintiff Yue Yu ("Yu"), on behalf of herself and a purported class of similarly situated individuals, brings this action requesting this Court to issue an affirmative injunction and/or writ of mandamus commanding officials at the Immigration and Naturalization Service ("INS") to act on their applications for "Special Immigrant Juvenile Status" and for adjustment of status to lawful permanent resident. For the purpose of resolving this motion, the Court assumes the truth of the following facts as plead in the Complaint:

Yu, a citizen of China, is unmarried and was under 21 years of age at the time the Complaint was filed.1 On July 17, 1996, the First Judicial District of New Mexico entered an order appointing Dwight Barrus as Yu's permanent guardian. The court concluded that Yu is dependent on the juvenile court and found Yu eligible for long-term foster care and permanent guardianship. The court further found that it was in Yu's best interest that she be a dependent of the court, under the guardianship of Barrus, and that it was not in her best interest to be returned to China. At the filing of the Complaint, Yu remained dependent on the juvenile court and remained under the guardianship of Barrus.2

The Immigration and Nationality Act ("INA") provides for "special immigrant juvenile status" ("SIJ status") for minors who have been declared dependant on a juvenile court and found eligible for long-term foster care, and for whom a judge has determined that it would not be in the minor's best interest to return to her country of origin. 8 U.S.C. § 1101(a)(27)(J). To qualify for the SIJ status, the individual must be under 21 and unmarried. Id. The INA further provides that a minor with SIJ status may apply for adjustment of status to that of lawful permanent resident ("LPR") and may obtain an immigrant visa regardless of numerical limitations on the number of visas allotted to the minor's country of origin.3 8 U.S.C. § 1255.

Yu filed an application for SIJ status and for adjustment to LPR status on August 21, 1996. According to the Complaint, no action was taken on the application. The Complaint further states that each member of the proposed class has had an SIJ application pending with INS for more than one year. Further, on information and belief, the Complaint alleges that INS previously completed processing SIJ applications in six months. Based on the forgoing, the Complaint asserts that INS has unreasonably delayed in processing the SIJ applications. The Complaint requests that the Court:

"(a) compel Defendants and those acting under them to perform their duty to act on the Special Immigrant Juvenile Status Applications filed by Yu and the members of the Plaintiff class; [and]

(b) compel Defendants and those acting under them to allocate sufficient personnel to the Albuquerque Suboffice to process and act on the Special Immigrant Juvenile

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Status Applications filed by Yu and the members of the Plaintiff class ...."

Complaint, Prayor for Relief, p. 9.

In addition to the forgoing, Defendants have attached to their motion an affidavit from an INS employee indicating that Yu's application did not contain a set of fingerprints which conformed to INS requirements. By letter dated June 9, 1997 (nearly 10 months after Yu filed her application), INS informed Yu of the problem and that she had 87 days to correct it. The letter was returned unopened as Yu had moved without providing a forwarding address. After the filing of the Complaint in this action, INS discovered a problem with Yu's medical records which were communicated to Yu's attorney. On or about January 30, 1998, Yu submitted proper fingerprints. The affidavit fails to state whether the problem with the medical records was cured.

Yu's Response to Defendant's Motion also includes the affidavit of her attorney as well as her SIJ Application. Yu's attorney states that he prepared Yu's SIJ application and entered a Notice of Appearance in the matter when he filed the application with INS. Despite the fact that he was attorney of record and despite a regulation requiring INS to communicate all deficiencies in an application to both the individual and her attorney, INS never notified Yu's attorney of the problem with her fingerprints until this action was commenced. Further, Yu's attorney states that the problem with the fingerprints provided was that Yu's birth date was inadvertently left off the form. The birth date was however available on numerous other documents in the application, including Yu's birth certificate.4

Defendants now move for judgment on the pleadings, or in the alternative to dismiss for lack of subject matter jurisdiction. Plaintiffs resist, arguing that the Court has federal question jurisdiction pursuant to the Mandamus Act, the Administrative Procedures Act and the INA, that the Complaint successfully states a claim, and that Defendants are not entitled to judgment as a matter of law.

STANDARDS OF REVIEW

A. Motion For Judgment on Pleadings

A Rule 12(c) motion for judgment on the pleadings is governed by the same standards as a Rule 12(b)(6) motion to dismiss. Mock v. T. G. & Y., 971 F.2d 522, 528 (10th Cir.1992). In reviewing a defendant's Rule 12(c) motion, the court assumes the veracity of the "well-pleaded factual allegations" in the complaint and draws all reasonable inferences in the plaintiff's favor. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987); see Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). The issue is not whether the plaintiff ultimately will prevail, but whether the plaintiff is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). The court may dismiss a case for failure to state a claim only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his theory of recovery that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In order to grant a motion for judgment on the pleadings, it must be apparent that there are no issues fact and that only questions of law exist. 5A Charles A. Wright & Arthur Miller, Federal Practice and Procedure, § 1367 at 509-10 (1990). The harsh remedy of dismissal is to be used cautiously; courts have an obligation to promote the liberal rules of pleading as well as to protect the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357, 1359 (10th Cir.1989). When granting Rule 12(c) motions, courts may give leave to amend and "may dismiss causes of action rather than grant judgment." Moran v. Peralta Community College Dist., 825 F.Supp. 891, 893 (N.D.Cal.1993) (citing Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir.1979)).

B. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction and may only exercise jurisdiction

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when specifically authorized to do so. Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.1994). "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). The party seeking to invoke a federal court's jurisdiction sustains the burden of establishing that such jurisdiction is proper. Penteco Corp. v. Union Gas System, Inc., 929 F.2d 1519, 1521 (10th Cir.1991).

Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction typically take two forms: a facial challenge or a factual challenge. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995). A facial challenge is an attack on jurisdiction that questions the sufficiency of the complaint. Id. In reviewing a facial attack on a complaint, the court must accept the allegations in the complaint as true. A factual attack on subject matter jurisdiction challenges the facts upon which subject matter jurisdiction depends. Id. In reviewing a factual attack on subject matter jurisdiction, a court may not presume the truthfulness of the complaint's factual allegations but must go beyond the allegations and evaluate the evidence presented by the parties. Id. While the court may refer to evidence extraneous to the complaint in making appropriate factual findings on jurisdictional issues, it generally cannot convert a 12(b)(1) motion into one for summary judgment. Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.1987).

A court, however, is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion when "resolution of the jurisdictional question is intertwined with the merits of the case." Holt, 46 F.3d at 1003; Wheeler, 825 F.2d at 259 n. 5. "The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent...

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74 practice notes
  • Evangelical Lutheran Church in America v. Immigration and Naturalization Service, Civil Action 02-01297 (HHK) (D. D.C. 10/30/2003), Civil Action 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 30 Octubre 2003
    ...Attorney General regarding immigration matters, Congress could have made its intent plain. See McNary, 498 U.S. at 494; Yu v. Brown, 36 F. Supp.2d 922, 934 (D. N.M. 1999). Here, Congress did not do so, and without a clear statement, the court will not find that Congress intended to divest f......
  • Gonzalez v. U.S. Dep't of Homeland Sec., No. 2:20-cv-1262 WBS JDP
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 10 Noviembre 2020
    ...requiring consideration of the particular facts and circumstances before the court." Mashpee, 336 F.3d at 1100 ; see also Yu v. Brown, 36 F. Supp. 2d 922, 935 (D.N.M. 1999) ("What constitutes an unreasonable delay in the context of immigration applications depends to a great extent on the f......
  • Dong v. Chertoff, No. C 07-0266 SBA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 6 Septiembre 2007
    ...action unlawfully withheld or unreasonably delayed." See, e.g., Elmalky v. Upchurch, 2007 WL 944330, at *2 (N.D.Tex.2007); Yu v. Brown, 36 F.Supp.2d 922, 928-29 (D.N.M.1999). As the Ninth Circuit explained in Idaho Watersheds Project v. Hahn, 307 F.3d 815, 830 (9th A good deal of confusion ......
  • Rodriguez v. Nielsen, 16-CV-7092 (MKB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 30 Septiembre 2018
    ...decision is discretionary, [it] does not have discretion to decide not to adjudicate at all." (collecting cases)); Yu v. Brown, 36 F. Supp. 2d 922, 931-32 (D.N.M. 1999) (finding that the INS owed the plaintiff a duty to processPage 21 her application for a change of status to permanent resi......
  • Request a trial to view additional results
74 cases
  • Evangelical Lutheran Church in America v. Immigration and Naturalization Service, Civil Action 02-01297 (HHK) (D. D.C. 10/30/2003), Civil Action 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 30 Octubre 2003
    ...Attorney General regarding immigration matters, Congress could have made its intent plain. See McNary, 498 U.S. at 494; Yu v. Brown, 36 F. Supp.2d 922, 934 (D. N.M. 1999). Here, Congress did not do so, and without a clear statement, the court will not find that Congress intended to divest f......
  • Gonzalez v. U.S. Dep't of Homeland Sec., No. 2:20-cv-1262 WBS JDP
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 10 Noviembre 2020
    ...requiring consideration of the particular facts and circumstances before the court." Mashpee, 336 F.3d at 1100 ; see also Yu v. Brown, 36 F. Supp. 2d 922, 935 (D.N.M. 1999) ("What constitutes an unreasonable delay in the context of immigration applications depends to a great extent on the f......
  • Dong v. Chertoff, No. C 07-0266 SBA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 6 Septiembre 2007
    ...action unlawfully withheld or unreasonably delayed." See, e.g., Elmalky v. Upchurch, 2007 WL 944330, at *2 (N.D.Tex.2007); Yu v. Brown, 36 F.Supp.2d 922, 928-29 (D.N.M.1999). As the Ninth Circuit explained in Idaho Watersheds Project v. Hahn, 307 F.3d 815, 830 (9th A good deal of confusion ......
  • Rodriguez v. Nielsen, 16-CV-7092 (MKB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 30 Septiembre 2018
    ...decision is discretionary, [it] does not have discretion to decide not to adjudicate at all." (collecting cases)); Yu v. Brown, 36 F. Supp. 2d 922, 931-32 (D.N.M. 1999) (finding that the INS owed the plaintiff a duty to processPage 21 her application for a change of status to permanent resi......
  • Request a trial to view additional results

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