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Villafranca v. Tillerson

United States District Court, S.D. Texas, Brownsville Division

June 26, 2017

MARTIN VILLAFRANCA, JR., Plaintiff,
v.
REX TILLERSON, Defendants.

          ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Rolando Olvera, United States District Judge

         This case arises from the United States Government's et al (hereafter "Defendants") denial of Martin Villafranca, Jr.'s (hereafter "Plaintiff) passport application and his subsequent inability to enter the United States. Plaintiff requests the Court grant him relief under: (1) habeas corpus, (2) 8 U.S.C. § 1503(a), and (3) the Administrative Procedure Act (hereafter "APA"). For the reasons stated below, the "Report and Recommendation of the Magistrate Judge" (hereafter "R&R") (Docket No. 46) is ADOPTED.

         I. FACTUAL BACKGROUND[1]

         Plaintiff claims he was born in Brownsville, Texas. At the time of the alleged birth, Plaintiffs parents lived in Matamoros, Mexico, and used their valid border crossing cards to enter the United States the day he was born.

         Plaintiff has two birth certificates: one from Texas and one from Mexico. Of note, said birth certificates list the same birth date, September 21, 1982, and both certificates list the same birth location, Cameron County, Texas.[2] Likewise, Plaintiffs Baptismal Certificate confirms the same birth date and location.

         On October 27, 2005, Plaintiff was issued a United States passport, valid for ten years. On October 26, 2015, Plaintiff presented himself at the United States Consulate in Monterrey, Mexico (hereafter "Consulate") to apply for a new passport. On October 30, 2015, Plaintiff received a telephonic communication from Claudia Hernandez (hereafter "Hernandez"), an employee at the Consulate's American Citizen Services Unit (hereafter "ACS"); Hernandez requested Plaintiff to submit his Mexican Birth Certificate. Plaintiff complied with said request.

         On November 23, 2015, Plaintiff called ACS to inquire on the status of his passport application. Plaintiff spoke with Hernandez, who informed Plaintiff that, in order to process his application, his parents needed to attend an interview at the Consulate. Plaintiff informed Hernandez that his parents could not leave the United States because they were in the process of adjusting their status to legal permanent residents. Plaintiff requested Hernandez to allow either a telephonic interview, or alternatively an in-person interview in the United States.

         On December 7, 2015, Plaintiff received an email correspondence from ACS informing him that his parents needed to attend an in-person interview at the Consulate in Mexico, and if no communication was made within ninety days, Plaintiffs application would be denied. On February 1, 2016, Plaintiffs attorney sent ACS a correspondence, which informed ACS that Plaintiffs parents could not travel to Mexico, and offered to arrange an interview or a deposition in the United States. On July 6, 2016, Plaintiffs passport application was denied.

         II. PROCEDURAL HISTORY

         On April 25, 2016, Plaintiff filed his "Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief (Docket No. 1). On June 28, 2016, Defendants filed "Defendants' Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(1) and 12 (b)(6)" (Docket No. 9). On July 18, 2016, Plaintiff filed his "Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief Amended Pursuant to F.R.C.P. Rule 15 (a)(1)(B)" (Docket No. 14). The Magistrate Judge did not issue and order granting said amendment. However, the Magistrate Judge relied and referenced the amended petition in the R&R. Thus, said amended petition was implicitly granted.

         On July 23, 2016, Plaintiff filed "Petitioner's Opposition to Respondents' Motion to Dismiss Petitioner's Petition/Complaint Pursuant to FED. R. CIV. P. 12(b)(1) and 12(b)(6)" (Docket No. 17). On August 3, 2016, Defendants filed "Defendants' Reply to Plaintiffs Opposition to Defendants' Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(1) and 12(b)(6)" (Docket No. 20). On August 16, 2016, Plaintiff filed "Petitioner's Reply to Defendants' Reply to Opposition to Respondents' Motion to Dismiss Petitioner's Petition/Complaint Pursuant to FED. R. CIV. P. 12(b)(1) and 12(b)(6)" (Docket No. 21). On the same day, the Magistrate Judge issued an "Order" (Docket No. 22), striking Plaintiffs reply.

         On September 7, 2016, Plaintiff filed "Petitioner's Opposed Motion for Leave to File Supplemental Affidavit in Support of Petitioner's Brief in Response to Defendants' Motion to Dismiss" (Docket No 23). On September 8, 2016, the Magistrate Judge issued an "Order" (Docket No. 24), ordering Defendants to respond to Plaintiffs opposed motion for leave. On October 6, 2016, Defendants' filed "Defendants' Response to the Court's September 8, 2016 Order and to Plaintiffs Motion for Leave to File Supplemental Affidavit in Support of His Brief in Response to Defendants' Motion to Dismiss" (Docket No. 27). On October 28, 2016, Plaintiff filed "Plaintiffs Reply to Defendants' Response to the Court's Order of September 8, 2016 and to Plaintiffs Motion for Leave to File Supplement Affidavit" (Docket No. 33). On March 15, 2017, the Magistrate Judge issued an "Order" (Docket No. 47), granting Plaintiffs motion to supplement with said affidavit.

         On March 6, 2017, the Magistrate Judge filed the "Report and Recommendation of the Magistrate Judge" (Docket No. 46). On March 27, 2017, Plaintiff filed "Petitioner's Objections to Report and Recommendation of the Magistrate Judge" (Docket No. 52).

         III. ...


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