United States District Court, W.D. Washington
ORDER DENYING DEFENDANTS' MOTION TO
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants' Motion to
Dismiss the Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction.
Dkt. #38. Defendants argue that Plaintiffs lack standing to
bring their claims because any potential harm is too remote
and speculative to qualify as an injury in fact. Dkt. #38 at
4-9. Defendants further argue that this Court lacks
subject-matter jurisdiction to review Plaintiffs' claims
because they can raise their claims in their immigration
proceedings. Id. at 9-12. Plaintiffs essentially
respond that the Court has already decided these arguments
against Defendants. Dkt. #40. For the reasons set forth
below, the Court agrees with Plaintiffs and DENIES
Court has previously set forth the background of this action
and incorporates it by reference herein. Dkt. #37 at 1-5.
Court must dismiss a Complaint under Rule 12(b)(1) if,
considering the factual allegations in a light most favorable
to the plaintiff, the action: (1) does not arise under the
Constitution, laws, or treaties of the United States, or does
not fall within one of the other enumerated categories of
Article III Section 2 of the Constitution; (2) is not a case
or controversy within the meaning of the Constitution; or (3)
is not one described by any jurisdictional statute. See
Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7
L.Ed.2d 663 (1962); see also D.G. Rung Indus., Inc. v.
Tinnerman, 626 F.Supp. 1062, 1063 (W.D. Wash. 1986); 28
U.S.C. §§ 1331 and 1346. When considering a motion
to dismiss under Rule 12(b)(1), the Court is not restricted
to the face of the pleadings, but may review any evidence to
resolve factual disputes concerning the existence of
jurisdiction. See McCarthy v. United States, 850
F.2d 558, 560 (9th Cir. 1988), cert. denied, 489
U.S. 1052, 109 S.Ct. 1312, 103 L.Ed.2d 581 (1989); see
also Biotics Research Corp. v. Heckler, 710 F.2d 1375,
1379 (9th Cir. 1983). A federal court is presumed to lack
subject matter jurisdiction until the plaintiff establishes
otherwise. See Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391
(1994); see also Stock West, Inc. v. Confederated
Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Therefore,
Plaintiffs bear the burden of establishing subject matter
jurisdiction. See Stock West, 873 F.2d at 1225.
Court has previously reviewed Defendants' arguments as to
standing in its previous Order on class certification.
Defendants acknowledge that fact, but assert that their
motion to dismiss is based on “further develop[ed]
arguments”. Dkt. #38 at 4 fn. 3. The Court remains
unpersuaded. As it previously explained, Plaintiffs are not
challenging any denial, past or future, of asylum. Dkt. #37
at 8. Rather, they challenge the denial of an opportunity to
apply within the one-year deadline, which they allege is
caused by Defendants' failure to provide adequate notice
of the deadline and an alleged failure to implement a uniform
method through which Plaintiffs can comply with that
deadline. Id. The Ninth Circuit has made clear that
Plaintiffs and the proposed class members have a statutory
right to apply for asylum:
Section 201(b) of the Refugee Act, 8 U.S.C. § 1158,
conferred upon all aliens a statutory right to apply for
asylum. Orantes-Hernandez v. Thornburgh, 919 F.2d
549, 553 (9th Cir. 1990). That right may be violated by a
pattern or practice that forecloses the opportunity to apply.
See Id. at 564 (upholding finding that coercion of
aliens to accept voluntary departure violated their right to
apply for asylum). The same provision of the Refugee Act
required the Attorney General to establish means by which
aliens, regardless of status, may apply for political asylum.
See 8 U.S.C. § 1158.
Campos v. Nail, 43 F.3d 1285, 1288 (9th Cir. 1994).
Plaintiffs allege that the failures by Defendants have caused
them to lose this right, and they must now rely on an
immigration judge to find, in his or her discretion, that
either changed circumstances or extraordinary circumstances
justified their delayed filings. Dkt. #30 at 2; 8 U.S.C.
§ 1158(a)(2)(D) and 8 C.F.R. § §
208.4(a)(2)(B), a(4)-(5). If Plaintiffs' allegations are
true, they have lost the statutory right to apply for asylum
and must now depend on the discretion of an adjudicator to
apply. None of Defendants' arguments or legal authority
persuade this Court to reach a different conclusion that it
previously reached. Accordingly, the Court finds that
Plaintiffs have demonstrated standing.
next argue that this Court has no jurisdiction to review the
claims made by Plaintiffs in this case, and that such claims
must go to review through the immigration proceedings and
ultimately in the Circuit Court of Appeals. Dkt. #38 at 9-12.
As with their standing arguments, the Court continues to
remain unpersuaded. Again, the Court finds that
Defendants' arguments misconstrue Plaintiffs' claims.
Plaintiffs are not asking this Court to make any finding with
respect to how immigration judges analyze the extraordinary
circumstances exception or on the asylum applications
themselves. Rather, they allege that Defendants' action
or inactions have deprived them of a statutory right to apply
for asylum by foreclosing their opportunity to apply within
the one year statutory time period. Dkt. #37 at 9. ...