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Lai v. United States

United States District Court, W.D. Washington, Seattle

April 3, 2018

HUIWU LAI, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.



         This matter comes before the Court on Defendants' motion to dismiss (Dkt. No. 10). Having thoroughly considered the parties' briefing and the relevant record, the Court hereby GRANTS in part and DIMISSES in part the motion for the reasons explained herein.

         I. BACKGROUND

         Plaintiff is a Chinese citizen. (Dkt. No. 1 at 2.) He claims to have received lawful U.S. permanent resident (“LPR”) status in 1997 and to have resided in the U.S. ever since. (Id.) Robert Schofield, the U.S. Immigration and Naturalization Service (“INS”) officer who allegedly approved Plaintiff's application for LPR status, pled guilty in 2006 to Bribery of a Public Official and Procurement of Citizenship or Naturalization Unlawfully. (Id. at 6.) Officer Schofield admitted to receiving more than $3.1 million in bribes and payments for the sale of false immigration documents to ineligible individuals. (Id.)

         In March 2013, U.S. Citizenship and Immigration Services (“USCIS”) denied Plaintiff a re-entry permit. (Id. at 6-7.) USCIS indicated at the time its position that Officer Schofield fraudulently processed Plaintiff's application for adjustment of status and Plaintiff has never been an LPR. (Id. at 7.) Plaintiff claims this was the first time INS or DHS had informed him that there were any issues with his original application for adjustment of status and/or his resulting LPR documents. (Id. at 6.) In fact, according to Plaintiff, USCIS had issued Plaintiff a re-entry permit in 2008 and the agency renewed Plaintiff's Green Card in 2009. (Id. at 6-7.)

         In May 2015, U.S. Customs and Border Protection (“CBP”) agents detained Plaintiff as he was returning from a day trip to Vancouver, Canada. (Id. at 8.) CBP informed Plaintiff that he was not an LPR, confiscated his Green Card, and paroled him into the U.S. as a person without legal status. (Id.) DHS has since refused to return the card. (Id.) Plaintiff argues that without a Green Card, he cannot travel to China, where he has “extensive business dealings, ” because he does not know if he will be permitted to reenter the U.S. (Dkt. No. 11 at 3.) Plaintiff's removal proceeding before the Immigration Court is scheduled for May 2021. (See Dkt. No. 10-1 at 2.)

         Plaintiff asserts Defendants' actions violated the Immigration and Nationality Act (“INA”) (“Claim #1), 8 U.S.C. § 1101, et seq., the Administrative Procedure Act (“APA”) (“Claim #2), 5 U.S.C. § 701, et seq., and due process (“Claim #3”). (Dkt. No. 1 at 9-10.) Plaintiff further asserts Defendants should be estopped from now claiming that he is not an LPR (“Claim #4”). (Id. at 10.) Defendants move to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 10 at 10.) They assert that because Plaintiff's removal proceeding is pending, INA strips this Court of jurisdiction to adjudicate Claims #1-3. (Dkt. No. 10 at 6-8.) Furthermore, even if INA did not strip the Court of jurisdiction to hear Claim #2, Defendant argues that there is no final agency action for this Court to review, a jurisdictional prerequisite to an APA claim. (Id. at 5-6.) Defendants also assert Plaintiff's Claims #1 and #4 are not viable. Specifically, Claim #1 is impermissible as a matter of law because INA does not provide a cause of action, and Claim #4 lacks allegations of the “affirmative misconduct” required for estoppel. (Id. at 8-10.)


         A. Subject Matter Jurisdiction

         1. Legal Standard

         A complaint must be dismissed if the Court lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Jurisdiction is a threshold separation of powers issue and may not be deferred until trial. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). A motion to dismiss for lack of jurisdiction may be facial or factual. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In reviewing a facial attack, the Court assumes all material allegations in the complaint are true and only dismisses if those allegations are insufficient to confer federal jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); Thornhill Publ'g Co. v. General Tel. Elec., 594 F.2d 730, 733 (9th Cir. 1979). In reviewing a factual attack, the Court may consider materials beyond the complaint. McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir. 1988); see Americopters, LLC v. F.A.A., 441 F.3d 726, 732 n.4 (9th Cir. 2006) (When determining the existence of subject matter jurisdiction, “the district court is not confined by the facts contained in the four corners of the complaint-it may consider [other] facts and need not assume the truthfulness of the complaint.”).

         2. Impact of Jurisdiction-Stripping Provision

         A district court lacks jurisdiction to hear claims involving issues to be adjudicated in a removal proceeding. 8 U.S.C. § 1252(b)(9); see J.E.F.M v. Lynch, 837 F.3d 1026, 1034 (9th Cir. 2016); see also Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir. 2012) (extending this jurisdictional bar to APA claims). Outside of the Immigration Court and the Board of Immigration Appeals, such issues may only be considered by the court of appeals, through a petition for review, and only once a removal proceeding is complete. 8 U.S.C. § 1252(a)(5), (b)(2). But a district court may consider claims “independent of . . . challenges to removal orders.” Martinez, 704 F.3d at 622 (citing Singh v. Gonzales, 499 F.3d 969, 978 (9th Cir. 2007)). Thus, the Court must determine whether Plaintiff raises “independent claims” or an “indirect challenge” to a removal order. Id. The Court has jurisdiction over the first, but not the second. The distinction “[turns] on the substance of the relief” Plaintiff is seeking. Id. (emphasis added). A claim is “inextricably linked” to a removal order if the order would be “contingent” on the claim raised or if the relief sought could undercut the order. Morales-Izquierdo v. DHS, 600 F.3d 1076, 1082-83 (9th Cir. 2010), overruled in part on other grounds by Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc).

         Plaintiff seeks the following relief: (a) a declaration that he continues to maintain LPR status, (b) an order estopping Defendants from asserting Plaintiff is not an LPR, (c) an order instructing Defendants to return his Green Card, and (d) a declaration that, as an LPR, Plaintiff is entitled to the benefits associated with LPR status. (Dkt. No. 1 at 10.) It is undisputed that the Court lacks jurisdiction to adjudicate whether Plaintiff is an LPR. (Dkt. Nos. 10 at 6, 11 at 2; 12 at 7); see 8 U.S.C. ยง 1252(a)(5), (b)(2), (b)(9). However, Plaintiff also asks the Court to ...

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