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Murcia v. Godfrey

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

October 10, 2019

WILBERT ALEXANDER ANAYA MURCIA, Plaintiff,
v.
ELIZABETH GODFREY, et al., Defendants.

          REPORT AND RECOMMENDATION

          BRIAN A. TSUCHIDA, CHIEF UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Wilbert Anaya Murcia, a native and citizen of El Salvador who was lawfully removed from the United States to El Salvador in June 2017, brings this action to obtain a court order requiring the Government to facilitate and pay for his return to the United States so that he can participate in his pending immigration proceedings. See Dkt. 1. Currently before the Court are the Government's motion to dismiss for lack of subject matter jurisdiction or, alternatively, for failure to state a claim, Dkt. 9, and Mr. Anaya Murcia's motion for summary judgment, Dkt. 20. As discussed below, the Court concludes that it does not have jurisdiction over this action and therefore recommends that the Government's motion to dismiss be GRANTED and Mr. Anaya Murcia's motion for summary judgment be DENIED as moot.

         BACKGROUND

         Mr. Anaya Murcia arrived in the United States as a 14-year-old unaccompanied minor in May 2012. Dkt. 1 at ¶ 10. Upon his arrival, he was placed into removal proceedings and detained in the custody of the Office of Refugee Resettlement in San Antonio, Texas. Id. at ¶ 11. In August 2012, he was released into the custody of his mother, who lived in Seattle. Id. at ¶ 12. In November 2016, the Seattle Immigration Court ordered him removed in abstentia. Id. at ¶ 16.

         When Mr. Anaya Murcia learned that he had been ordered removed, he timely filed a motion to reopen his removal proceedings and rescind his in abstentia order so that he would have an opportunity to apply for asylum, withholding of removal, and relief under the Convention Against Torture. Id. at ¶¶ 16-18. After he filed the motion to reopen, the Government took him into custody. Id. at ¶ 19. On March 13, 2017, an immigration judge (“IJ”) denied his motion to reopen, and he filed a timely notice of appeal to the Board of Immigration Appeals (“BIA”). Id. at ¶ 20. In June 2017, while his appeal was pending, the Government removed him to El Salvador.[1] Id. at ¶ 21. He has been living in hiding and fears persecution. Id. at ¶ 49.

         On April 13, 2018, the BIA granted Mr. Anaya Murcia's appeal, vacated the in abstentia order, and remanded his case to the immigration court for further proceedings. Id. at ¶ 22. The immigration court scheduled a master calendar hearing for August 1, 2018. Id. at ¶ 23. The court ultimately rescheduled his master calendar hearing for August 29, 2019, and then granted an additional extension of time to November 7, 2019, to allow time for this action to proceed. Id. at ¶ 24; Dkt. 22. Prior to the August 1, 2018 hearing, Mr. Anaya Murcia retained the Northwest Immigrant Rights Project to represent him in his removal proceedings. Dkt. 1 at ¶ 23. His counsel made numerous efforts to obtain ICE's agreement to facilitate his return to the United States but was unsuccessful. Id. at ¶¶ 25-29. The U.S. Department of Homeland Security (“DHS”) then moved to dismiss his immigration proceedings, and he filed a motion for issuance of a subpoena requiring his presence for his removal hearing. Id. at ¶ 31. On November 15, 2018, the IJ denied the Government's motion and granted Mr. Anaya Murcia's motion, noting that he “can seek an order through a United States District Court to enforce a subpoena.” Id. at ¶ 33; see also Dkt. 13-3 at 5-6 (citing Grace v. Sessions, No. 18-1853, 2018 WL 3812445, at *2-*4 (D.D.C. Aug. 9, 2018)). The IJ issued a subpoena ordering Mr. Anaya Murcia to appear and “give testimony in connection with the removal proceedings . . . relating to you . . . concerning your asylum application, testimony, and presentation of evidence.” Dkt. 13-3 at 3. The subpoena did not order DHS to take any action to facilitate Mr. Anaya Murcia's return. See Id. Mr. Anaya Murcia's counsel subsequently reached out to ICE to request facilitation of his return, but ICE denied the request. Dkt. 1 at ¶¶ 34-35.

         In April 2019, Mr. Anaya Murcia initiated the instant action. In Count One, he alleges that the Government has violated the Immigration and Nationality Act (“INA”). Id. at ¶¶ 42-49. Specifically, he alleges he had a statutory right to move to reopen-a right that survived his removal-and that the Government should not be allowed to undermine that right by preventing his return after he prevailed on his motion to reopen. Id. at ¶ 45. He further alleges the Government's refusal to facilitate his return violates his rights under the INA to be present at his removal proceedings, present evidence on his behalf, cross-examine witnesses and the Government's evidence, and effectively communicate with his attorney and meaningfully participate in his defense. Id. at ¶¶ 46-49.

         In Count Two, Mr. Anaya Murcia alleges the Government has violated his rights under the Administrative Procedures Act (“APA”). Id. at ¶¶ 50-60. He alleges, “By obstructing Mr. Anaya Murcia's return to the United States to participate in removal proceedings, Defendants have acted arbitrarily and capriciously, and otherwise contrary to law in violation of the INA and 5 U.S.C. § 706.” Id. at ¶ 51. He points to ICE Directive 11061.1 (Feb. 24, 2012), which explicitly provides for facilitation of return after success in a petition for review before a U.S. Court of Appeals where the individual's “presence is necessary” for the continuation of removal proceedings. Id. at ¶ 55. He claims that his case would fall within the ICE Directive if he had prevailed before the Ninth Circuit, instead of the BIA, and that there is no meaningful basis to distinguish the different procedural postures. Id. at ¶ 56.

         In Count Three, Mr. Anaya Murcia alleges the Government has violated his Fifth Amendment due process rights. Id. at ¶¶ 61-67. He alleges the right to be present at one's own removal proceeding is fundamental to due process, and the fact the Government is preventing him from being present hinders his ability to testify, present witnesses and evidence, consult with his attorneys, and cross-examine the Government's witnesses and evidence. Id. at ¶ 63. He thus argues the Government is depriving him of a fundamentally fair hearing in violation of due process. Id. at ¶ 67.

         In Count Four, Mr. Anaya Murcia alleges a violation of the Mandamus Act. Id. at ¶¶ 68-73. He alleges that the Government has “a ministerial, nondiscretionary obligation to fairly administer removal proceedings against Mr. Anaya Murcia, and therefore to allow Plaintiff to participate in his removal proceedings and access counsel where he has prevailed on a timely filed appeal that is binding on Defendants.” Id. at ¶ 71. He also alleges the Government has a duty to comply with orders issued by the immigration courts or BIA that are binding upon it, including the BIA's order vacating his in abstentia removal order and the IJ's order requiring him to appear for his removal proceedings. Id. at ¶ 72. He maintains the Government's refusal to facilitate his return entitles him to mandamus relief. See Id. at ¶¶ 68-73.

         Finally, in Count Five, Mr. Anaya Murcia alleges a violation of the All Writs Act. Id. at ¶¶ 74-76. He asserts, “If this Court finds that there is no other vehicle for providing relief to Plaintiff for Defendants' violations to Mr. Anaya Murcia, the Court may still grant relief through the All Writs Act as deemed necessary and proper to ensure that Mr. Anaya Murcia can attend and fully participate in his removal proceedings, as is his right having prevailed on his motion to reopen.” Id. at ¶ 76.

         As relief, he asks the Court to assume jurisdiction over the matter; declare that the Government's refusal to facilitate his return violates the INA, the APA, and the Fifth Amendment's Due Process Clause; order the Government to immediately facilitate his return to the United States, including paying for the expenses of his return flight; enjoin the Government from preventing him from being present at and participating in his removal proceedings and meaningfully accessing his counsel; and award reasonable attorneys' fees and costs. Id. at 21.

         On July 26, 2019, the Government moved to dismiss, arguing that the Court does not have jurisdiction over Mr. Anaya Murcia's claims or, alternatively, Mr. Anaya Murcia fails to state a claim upon which relief may be granted. Dkt. 9. On July 30, 2019, Mr. Anaya Murcia filed a motion for a temporary restraining order, which the Court denied without prejudice because Mr. Anaya Murcia had not established a likelihood of irreparable harm. Dkts. 12, 17. On August 22, 2019, Mr. Anaya Murcia filed a motion for summary judgment. Dkt. 20. The motions have been fully briefed and are ripe for consideration.

         DISCUSSION

         The Government argues that the Court does not have jurisdiction to consider Mr. Anaya Murcia's claims. Because the Court agrees, it does not consider the Government's alternative argument that Mr. Anaya Murcia fails to ...


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