Gonzalez-Garcia v. U.S. Attorney Gen.
Gonzalez-Garcia v. U.S. Attorney Gen.
Opinion of the Court
Before the Court's is Defendants' Motion to Dismiss Plaintiffs' Complaint. (Doc. 29 ("Motion "). Plaintiffs oppose. (Doc. 32.)
*1151On review, the Motion is due to be granted.
I. BACKGROUND
Plaintiffs initiated this action on February 9, 2018 against Defendants alleging violations of their constitutional rights to due process and equal protection. (Doc. 1.) Plaintiffs are minor U.S. citizen-children whose parents are aliens with final orders of removal whose applications to cancel removal under section 240A(b) of the Immigration and Nationality Act ("INA "), 8 U.S.C. § 1229b(b) ("Applications ") were denied. (Doc. 1, p. 2.)
As Plaintiffs are minors, their parents are representing them here. (Id. at 5-7.) Luis Manuel Gonzalez-Garcia is a national and citizen of Mexico. (Id. at 5.) He entered the U.S. around April 1995, without inspection, through Arizona and has three children: co-Plaintiffs M.G. born in 2010, L.F.G.R. born in 2006, and J.M.G. born in 2002. (Id. ) Angel Alpizar-Sanches is also a national and citizen of Mexico who entered the U.S. through Phoenix, Arizona around March 1998 without inspection. (Id. at 6.) He has four children: co-Plaintiffs A.A. born in 2004, R.A. born in 2008, A.J.A. born in 2010, and C.A. born in 2014. (Id. ) Last, Esmeralda Gonzalez-Cano is a national and citizen of Mexico who entered the U.S. through Hidalgo, Texas around August 1994 without inspection. (Id. at 6.) She has four children: co-Plaintiffs R.A.G. born in 1998, E.D.G. born in 2000, J.A.G. born in 2002, and B.G. born in 2005. (Id. )
Plaintiffs take issue with the INA's administrative process for evaluating the Applications, claiming: (1) it violates both procedural and substantive due process because Plaintiffs are not given notice or the opportunity to present evidence at their parents' hearings (id. ¶ VI. ("Due Process Claim ") ); (2) its "exceptional and extremely unusual" hardship standard violates equal protection (id. ¶ VII. ("Equal Protection Claim ") ); and (3) the standard is unconstitutionally vague as-applied to Plaintiffs (id. ¶ VIII ("Vagueness Claim ") ). They seek declaratory and injunctive relief that "requir[es] [Defendants] ... to refrain from applying the current regulatory scheme implementing Section 240A(b) of the INA against [Plaintiffs] until its constitutional deficiencies have been corrected, [Plaintiffs] have been provided a meaningful opportunity to be heard, and this action has reached its final adjudication and conclusion," and that "preserve[s] the status quo and preclude[s] the removal of [Plaintiffs'] parents from the United States and requir[es] [Defendants] ... to refrain from any action to initiate or continue the removal [of] [Plaintiffs'] parents ...." (Id. ¶¶ X.5-6.)
With the Complaint, Plaintiffs moved for a temporary restraining order and preliminary injunction (Doc. 2), which the Court denied without prejudice (Doc. 5). Plaintiffs renewed these motions (Docs. 6, 7); the Court again denied the motion for a temporary restraining order but took under advisement the preliminary injunction motion (Doc. 9 ("PI Motion ") ). Both parties submitted briefing and evidence (Docs. 7, 8, 14, 15, 16), and the Court held a hearing on March 13, 2018 where the PI Motion was orally denied (Doc. 17.) The Court then summarized its findings in a short, written order: Plaintiffs had not met their burden of showing a substantial likelihood of success on the merits. (Doc. 18, p. 3.)
Defendants then filed the instant Motion, seeking dismissal of this action with prejudice under Federal Rule of Civil Procedure 12(b)(6). (Doc. 29.) With Plaintiffs' Response (Doc. 32), the matter is ripe.
II. LEGAL STANDARDS
Under the minimum pleading requirements of the Federal Rules of Civil Procedure, *1152plaintiffs must provide short and plain statements of their claims with simple and direct allegations set out in numbered paragraphs and distinct counts. See Fed. R. Civ. P. 8(a), 8(d), & 10(b). If a complaint does not comport with these minimum pleading requirements, if it is plainly barred, or if it otherwise fails to set forth a plausible claim, then it is subject to dismissal under Rule 12(b)(6). See Ashcroft v. Iqbal ,
Plausible claims must be founded on sufficient "factual content" to allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." See Iqbal ,
III. ANALYSIS
It is well-settled that lawfully removing a parent does not deprive a U.S. citizen child of a constitutional right. See Perdido v. I.N.S. ,
Thus, it is well-established that removal itself does not establish a constitutional violation. But Plaintiffs do not sweepingly make this claim. Rather, they seek to challenge the constitutionality of how the Government arrives at the decision to not suspend deportation proceedings against individuals with children who are U.S. citizens. (Doc. 32, p. 2.) Specifically, they challenge the way Defendants implement Section 240A(b) of the INA (id. ), which allows cancellation of removal if the alien:
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of [certain types of offenses]; and
(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
8 U.S.C. § 1229b(b)(1)(A)-(D). Plaintiffs zero in on the last provision: the standard of establishing "exceptional and extremely unusual hardship" as unconstitutional. (Doc. 32.) But for each alleged constitutional violation, Plaintiffs' arguments are foreclosed.
A. Due Process Claim
First, Plaintiffs argue that Defendants' removal proceedings violate their procedural due process by not affirmatively granting them a number of rights related to the hearing, such as the right to be notified of the hearing, the right to testify, the right to an attorney, and the right to be represented by a guardian ad litem. (Doc. 1, ¶ VI.) Yet at the heart of procedural due process is a constitutional right that the government seeks to abridge-a liberty or property interest. See Mathews v. Eldridge ,
Here, Plaintiffs are children of aliens subject to removal. No court has extended procedural due process to constitutionally require their presence and representation at these hearings. Rather, courts have uniformly recognized that "the removal of aliens does not violate either their constitutional rights or the constitutional rights of their U.S. citizen family members." See Martial-Emanuel v. Holder ,
*1154(citing cases). Furthermore, as the Government points out, Plaintiffs do not contend that they were not allowed to be present at their parents' removal hearings or that their testimony could not be encapsulated in their parents' argument-since aliens have the right to present witnesses at deportation hearings. (See Doc. 29, p. 7 (citing Rocha v. Holder , No. 3:07-cv-1115(RNC),
Moreover, to the extent Plaintiffs seek to assert a substantive due process claim (Doc. 1, ¶ VI.), that also fails. As the Ninth Circuit found in Mendez-Garcia , [d]enial of such discretionary relief cannot violate a substantive interest protected by the Due Process clause. Because [c]ancellation of removal is a form of discretionary relief which does not give rise to a substantive interest protected by the Due Process Clause, its denial likewise does not deprive an applicant of a constitutionally protected liberty or property interest."
B. Equal Protection Claim
Next, Plaintiffs attempt to bring an equal protection challenge to § 240A(b) by comparing the "exceptional and extremely unusual hardship" standard for cancellation of removal with other sections of the INA that only require an alien to show "extreme hardship" to receive discretionary relief. (Doc. 1, ¶ VII.); see, e.g. , 8 U.S.C. § 1229b(b)(2)(A)(v) (allowing the Attorney General to cancel removal for a battered spouse or child if, among other factors, the alien can show that "the removal would result in extreme hardship to the alien, the alien's child, or the alien's parent"). Plaintiffs allege there is no rational basis for this differential treatment. (See Doc. 1, ¶ VII.) This claim has been weighed and found wanting.
Congress holds expansive authority over immigration matters. See Mathews v. Diaz ,
C. Vagueness Claim
Last, Plaintiffs claim that § 240A(b) is unconstitutionally vague as applied to them (Doc. 1, ¶ VIII.) As Defendants note (Doc. 29, pp. 8-9), the Eleventh Circuit rejected this argument in a similar context to Plaintiffs. See Miranda v. U.S. Atty. Gen. ,
Here, Plaintiffs did not mention Miranda in their Response. (Doc. 32.) Rather, they rely on the recent U.S. Supreme Court decision, Sessions v. Dimaya , --- U.S. ----,
First, in this context, the Supreme Court has separately noted that any suspension of deportation should be considered an "act of grace," wholly accorded pursuant to "unfettered discretion." INS v. Yueh-Shaio Yang ,
Second, in this context where the hardship standard was applied to Plaintiffs'
*1156parents , it is unclear how Plaintiffs can allege the standard was unconstitutionally vague as applied to them. Plaintiffs' Response offers no clarity, rather it recites the same claim that determining what constitutes an exceptional and extremely unusual standard "has been impermissible delegated to Immigration Judges and BIA Board members for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." (Doc. 32, p. 8.) Such statements are merely conclusory; as such, Plaintiffs fail to state a plausible claim that the standard, as-applied to them, was unconstitutionally vague. The Court rejects Plaintiffs' Vagueness Claim.
D. The Court Cannot Award Plaintiffs Relief
Ultimately, even if Plaintiffs had stated plausible claims, the Complaint cannot survive Defendants' Motion because this Court cannot grant Plaintiffs their requested relief. Plaintiffs' parents' final removal orders have already been issued, but remain unexecuted. (See Doc. 1, pp. 5-7.) Plaintiffs seek a court order directing the Government to continue discretionarily staying their parents' removal and maintain the "status quo." (Doc. 1, ¶ X.) They ask this Court to insert itself into the pending removal proceedings and halt them, while claiming that doing so would not require the Court to "review or cancel the removal order[s]." (Doc. 32, p. 12.) They characterize their relief this way because
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.
In the face of § 1252(b)(9), the Court finds no authority to provide Plaintiffs' requested relief of preventing Defendants from carrying out their removal orders. Cf. Hamdi , 620 F.3d at 628 ("But under the current interpretation of § 1252(b)(9), no federal court has the authority to review the order of removal of the mother ... to determine whether a violation of the child['s] ... constitutional rights renders the imposition of the mother's removal order invalid or whether the Immigration Court would have decided, in its discretion, not to order [the mother's] removal if it had otherwise entertained the claims now presented by [the child].") To do this necessarily involves reviewing the removal proceedings and pending orders, and the Court finds no authority for Plaintiffs' contentions otherwise (see Doc. 32, p. 12). Indeed, none of Plaintiffs cited cases contemplate a district court awarding such relief, and the Court could not find authority otherwise to allow such judicial intrusion pending removal. So with this roadblock, Plaintiffs' claims have stalled out. See, e.g., Hamdi , 620 F.3d at 628 ; Lopez-Mejia v. Lynch , No. 1:16-CV-549,
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
*11571. Defendants' Motion to Dismiss (Doc. 29) is GRANTED .
2. Plaintiffs' Complaint (Doc. 1) is DISMISSED WITH PREJUDICE .
3. The Clerk is DIRECTED to terminate all pending deadlines and close the file.
DONE AND ORDERED in Chambers in Orlando, Florida, on June 26, 2018.
Although Defendants do not launch a 12(b)(1) attack on the Court's subject matter jurisdiction, following the guidance of other courts that have considered similar claims, the Court finds that it has jurisdiction over Plaintiffs' claims, as they are not "by or on behalf of any alien arising from" the removal decision; rather, these claims are by Plaintiffs as citizen-children, to vindicate their personal constitutional rights. See Hamdi ex rel. Hamdi v. Napolitano ,
"Unpublished opinions are not controlling authority and are persuasive only insofar as their legal analysis warrants." Bonilla v. Baker Concrete Const., Inc. ,
The decisions of the former Fifth Circuit rendered before October 1, 1981 are binding on this Circuit. Bonner v. City of Prichard ,
Notably, Plaintiffs' Response does not rebut the Government's argument for their Equal Protection Claim. (See Doc. 32.) Rather, the Response focuses on Plaintiffs' Due Process and Vagueness Claims. (See id. at 2-9.)
Reference
- Full Case Name
- Luis Manuel GONZALEZ-GARCIA Angel Alpizar-Sanches and Esmeralda Gonzalez-Cano v. U.S. ATTORNEY GENERAL and Secretary of the Department of Homeland Security
- Status
- Published