United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
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.
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.
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.)
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.)
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.)
Subject Matter Jurisdiction
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.”).
Impact of Jurisdiction-Stripping Provision
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).
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. § 1252(a)(5),
(b)(2), (b)(9). However, Plaintiff also asks the Court to