1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 OLIMPIA VERA GOMEZ, 7 Case No. 19-cv-04199-JCS Plaintiff, 8 v. ORDER GRANTING MOTION TO 9 DISMISS AND DISMISSING ACTION KEVIN MCALEENAN, et al., WITHOUT PREJUDICE 10 Defendants. Re: Dkt. No. 16 11

12 13 I. INTRODUCTION 14 Plaintiff Olimpia Gomez is a national of Mexico who has lived in the United States since 15 1990. Her severely disabled son, who was twenty years old when this action was filed, is a United 16 States citizen. On April 15, 2019, Gomez filed an application seeking cancellation of removal 17 under 8 U.S.C. § 1229b(b) on the basis that her removal from the United States would result in 18 “exceptional and extremely unusual hardship” to her son, who is unable to care for himself. 19 Complaint ¶ 5. In a decision dated May 28, 2019, an immigration judge found that Gomez was 20 “statutorily eligible” for such relief when the application was filed but reserved decision because 21 the yearly cap that has been placed on visas for those eligible for relief under § 1229b had been 22 reached and there were no visas available. Complaint, Ex. 2 (May 28, 2019 Order of the 23 Immigration Judge); see also 8 U.S.C. § 1229b(e)(1) (placing cap of 4,000 visas per fiscal year 24 for individuals granted cancellation of removal under Section 1229b);

(c)(1). 25 The immigration judge placed Gomez in the “queue” for applicants who qualify for cancellation of 26 removal but for whom visa numbers are not available due to the visa cap. Complaint ¶ 1. 27 Gomez filed an emergency complaint seeking mandamus and declaratory relief. In it, she 1 violates her right to due process under the U.S. Constitution and is contrary to law and applicable 2 regulations. Complaint ¶ 3. She relied on her son’s upcoming birthday, when he would turn 3 twenty-one and therefore “age out” as a qualifying relative, to demonstrate exigent circumstances. 4

. That date has now passed, however. She alleges that the wait time for a visa to become 5 available through the queue is about eighteen months, and that in the past immigration judges 6 commonly secured visa numbers in cases involving exigent circumstances, such as where a 7 qualifying relative was about to age out, so that these individuals did not need to wait until their 8 names reached the top of the queue.

. However, under Operating Policies and Procedures 9 Memorandum 17-04, issued on December 20, 2017 (“OPMM 17-04”), immigration judges are no 10 longer permitted to request the issuance of visas, even in exigent circumstances.

11 Presently before the Court is Defendants’ Motion to Dismiss (“Motion”), in which 12 Defendants contend the Court should dismiss this action, in its entirety, on the grounds that: 1) this 13 Court does not have jurisdiction over Gomez’s complaint; 2) Gomez failed to exhaust her 14 administrative remedies; and 3) Gomez fails to state a claim because she has no legal right to be 15 granted discretionary relief from removal. The Court finds that the Motion is suitable for 16 determination without oral argument and therefore vacates the hearing set for November 8, 2019 17 at 9:30 a.m. pursuant to Civil Local Rule 7-1(b). 18 II. STATUTORY BACKGROUND 19 Under 8 U.S.C. § 1229b(b), the Attorney General may cancel the removal and adjust the 20 status of an alien who is inadmissible or deportable if the alien meets four criteria: 1) she has been 21 physically present in the United States for a continuous period of ten years preceding the 22 application; 2) she has been a person of good moral character during such period; 3) she has not 23 been convicted of certain offenses; and 4) she establishes that removal would result in 24 “exceptional and extremely unusual hardship” to the alien’s United States citizen spouse, parent or 25 child. For the purposes of this provision, an individual must be under twenty-one years of age to 26 be considered a “child.”

(b)(1). The relief that is available under § 1229b is 27 limited, however, under subsection (e), which provides, with limited exceptions that do not apply 1 section, nor suspend the deportation and adjust the status under section 1254(a) of this title (as in 2 effect before September 30, 1996), of a total of more than 4,000 aliens in any fiscal year.” 8 3 U.S.C. § 1229b(e)(1). 4 The Department of Justice, Executive Office for Immigration Review (“EOIR”) 5 promulgates regulations implementing the cap established by 8 U.S.C. § 1229b(e)(1). As of 6 January 4, 2018, those regulations provide that when the cap has been reached, “further decisions 7 to grant such relief must be reserved until such time as a grant becomes available under the annual 8 limitation in a subsequent fiscal year.”

(c)(1). Further, the Immigration Court 9 and the Board may “no longer issue conditional grants of suspension of deportation or cancellation 10 of removal.”

(a)(2). The regulations further state that the availability of relief 11 under 8 U.S.C. § 1229b is determined “according to the date the order granting such relief 12 becomes final.”

(c). Thus, the regulations establish a “queue” for the 4,000 13 visas that are issued each year. 14 III. WHETHER THE COURT HAS JURISDICTION OVER GOMEZ’S COMPLAINT 15 A. Contentions of the Parties 16 In the Motion, Defendants argue that there is no subject matter jurisdiction over Gomez’s 17 claims because, pursuant to

(a)(5), exclusive jurisdiction over her claims lies with 18 the Court of Appeals. Motion at 5 (quoting

(a)(5) (“a petition for review filed with 19 an appropriate court of appeals in accordance with this section shall be the sole and exclusive 20 means for judicial review of an order of removal entered or issued under any provision of this 21 chapter,”)). According to Defendants, the exclusive jurisdiction of the Court of Appeals 22 encompasses “all questions of law and fact, including interpretation and application of 23 constitutional and statutory provisions, arising from any action taken or proceeding brought to 24 remove an alien from the United States . . . .”

at 5-6 (quoting

(b)(9)). Based 25 on §§ 1252(a)(5) and 1252(b)(9), Defendants assert, the Ninth Circuit has found that “any issue— 26 whether legal or factual—arising from any removal-related activity can be reviewed only through 27 the [petition for review] process.” Id. at 6 (quoting J..E.F.M. v. Lynch,

(9th 1 In her Opposition brief, Gomez argues that

(a)(5) does not apply because it 2 covers only final removal orders and here, no removal order has been issued as to Gomez. 3 Opposition at 2. She does not address the implications of

(b)(9). She further 4 asserts that the Court has jurisdiction under

(federal question jurisdiction), 28

(giving district courts jurisdiction over mandamus actions),

(the 6 Administrative Procedures Act) and

(creating jurisdiction over claims for 7 declaratory relief).

. She also argues that “the court has jurisdiction under Bark v. INS, 8 511 U.S. F.2d 1200, 1201 (9th Cir. 1975); Bangura v. Hansen,

(6th Cir. 2006); 9 Lutwak v. United States,

,

,

(1953).” Id. at 3. 10 1. Legal Standards Under Rule 12(b)(1) 11 Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of 12 Am.,

(1994). Accordingly, “federal courts have a continuing independent 13 obligation to determine whether subject-matter jurisdiction exists” over a given claim. Leeson v. 14 Transamerica Disability Income Plan,

(9th Cir. 2012) (internal quotation marks 15 and citations omitted). Rule 12(b)(1) allows defendants to move to dismiss a claim for lack of 16 subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). On a motion to dismiss for lack of subject 17 matter jurisdiction under Rule 12(b)(1), it is the plaintiff’s burden to establish the existence of 18 subject matter jurisdiction. Kingman Reef Atoll Invs., LLC v. United States,

, 1197 19 (9th Cir. 2008). 20 A party challenging the court’s subject matter jurisdiction under Rule 12(b)(1) may bring a 21 facial challenge or a factual challenge. See White v. Lee,

(9th Cir. 2000). “If 22 the defendant brings a facial attack, arguing that the allegations in the complaint are insufficient to 23 demonstrate the existence of jurisdiction, the court’s inquiry is much the same as when ruling on a 24 motion to dismiss brought under Rule 12(b)(6).” Org. for Advancement of Minorities with 25 Disabilities v. Brick Oven Rest.,

(S.D. Cal. 2005) (citing Moore’s 26 Federal Practice § 12.30). This means the court accepts the factual allegations in the complaint as 27 true. Miranda v. Reno,

(9th Cir. 2001). Where a defendant brings a factual 1 without having to convert the motion into one for summary judgment.” White,

2 (citation omitted). 3 2. Discussion 4 Under

(a)(5), “a petition for review filed with an appropriate court of 5 appeals in accordance with this section shall be the sole and exclusive means for judicial review of 6 an order of removal entered or issued under any provision of this chapter . . . .” Further, 8 U.S.C. 7 §1252(b)(9), entitled “[c]onsolidation of questions for judicial review” states as follows: 8 Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory 9 provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be 10 available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have 11 jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, 12 or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact. 13 14

(b)(9). The Ninth Circuit has explained that these judicial review provisions were 15 adopted in 1996 “to make perfectly clear ‘that only courts of appeals—and not district courts— 16 could review a final removal order,’ that ‘review of a final removal order is the only mechanism 17 for reviewing any issue raised in a removal proceeding,’ and that the statute was ‘intended to 18 preclude all district court review of any issue raised in a removal proceeding.’” J.E.F.M. v. Lynch, 19

(quoting H.R. Rep. No. 109–72, at 173). 20 The court in J.E.F.M. v. Lynch found that the language used in § 1252(b)(9) was drawn 21 directly from a recent Supreme Court case, McNary v. Haitian Refugee Center, in which the “the 22 [Supreme] Court offered a blueprint for how Congress could draft a jurisdiction-channeling statute 23 that would cover not only individual challenges to agency decisions, but also broader challenges to 24 agency policies and practices.” Id. (citing McNary v. Haitian Refugee Ctr., Inc.,

, 25 487 (1991)). In McNary, a group of asylum seekers from Haiti sought to challenge in district court 26 the way the Immigration and Naturalization Service was administering the Special Agricultural 27 Worker (“SAW”) amnesty program, governed by provisions of the Immigration Reform Control 1 jurisdiction to “hear a challenge to INS practices and policies because the statute channeled only 2 individual—not wider policy—claims through the [petition for review] process.” J.E.F.M. v. 3 Lynch,

(citing McNary,

). It noted that Congress could have 4 enacted a broader provision if it had intended to channel such cases to the Court of Appeals by 5 using broader language: “Congress could, for example, have . . . channel[ed] into the Reform 6 Act’s special review procedures ‘all causes . . . arising under any of the provisions’ of the 7 legalization program. It moreover could have . . . referr[ed] to review ‘on all questions of law and 8 fact’ under the SAW legalization program.” McNary,

. Because the language of 9 the provisions Congress subsequently enacted “neatly tracks the policy and practice jurisdiction- 10 channeling language suggested in McNary,” the Ninth Circuit concluded that “§§ 1252(a)(5) and 11 1252(b)(9) channel review of all claims, including policies-and-practices challenges, through the 12 [petition for review] process whenever they ‘arise from’ removal proceedings.” J.E.F.M. v. Lynch, 13

. 14 In J.E.F.M., the Ninth Circuit further explained that § 1252(b)(9) has “built-in limits.” Id. 15 at 1032. In particular, because this section channels only questions “arising from any action taken 16 or proceeding brought to remove an alien,” it excludes from the petition for review process 17 “claims that are independent of or collateral to the removal process.” Id. “[T]he distinction 18 between an independent claim and indirect challenge turns “‘on the substance of the relief that a 19 plaintiff is seeking.’” Martinez v. Napolitano,

(9th Cir. 2012) (quoting 20 Delgado v. Quarantillo,

(2d Cir. 2011)). In Martinez, the plaintiff brought an 21 action in a federal district court under the Administrative Procedures Act, asserting that the Board 22 of Immigration Appeals (“BIA”) decision to deny his application for asylum, withholding of 23 removal, and relief under the Convention Against Torture (“CAT”) was arbitrary and capricious. 24

. The Ninth Circuit held that the district court did not have jurisdiction, rejecting 25 the plaintiff’s argument that his claim was independent from the removal proceeding on the basis 26 that “it [was] simply another attempt to obtain judicial review of his removal order.” Id. at 622. 27 The court further held that “[w]hen a claim by an alien, however it is framed, challenges the 1 removal, it is prohibited by section 1252(a)(5).” Id. at 623. 2 Here, Gomez argues that her complaint is not governed by

because a 3 |} removal order has not yet been issued. However, she does not point to any authority in support of 4 || her argument. She also fails to address the Ninth Circuit authority discussed above holding that § 5 1252 is not limited to challenges to final removal orders but extends to claims that challenge 6 || agency procedures that are “inextricably linked” to an order of removal. As Gomez asks the 7 Court to grant relief that will have the effect of negating an order of removal, should one be 8 issued, the Court concludes that her challenge to the policy that governs the issuance of visas 9 || under 8 U.S.C. § 1229b(b) must be brought in the Court of Appeals. The Court further notes that 10 || none of the cases cited by Gomez in her Opposition brief in support of the existence of jurisdiction 11 in this court (listed above) addresses the question of district court jurisdiction under

1252.

|| IV. CONCLUSION 14 For the reasons stated above, the Court GRANTS the Motion on the basis that it does not 3 15 have jurisdiction over this action. Accordingly, the Court DISMISSES this case without prejudice. a 16 IT IS SO ORDERED.

18 Dated: November 5, 2019 19 5 Z CZ J PH C. SPERO 20 ief Magistrate Judge 21 22 23 24 25 26 27 28