United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
A. TSUCHIDA, CHIEF UNITED STATES MAGISTRATE JUDGE.
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.
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.
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. Id. at ¶ 21. He has been
living in hiding and fears persecution. Id. at
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.
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
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.
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.
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 ¶¶
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.
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.
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
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 ...