United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE
Santos Monterrubio ("Monterrubio" or
"Plaintiff") brings this action against defendants,
Kirstjen Nielsen, Secretary, U.S. Department of Homeland
Security; Lee F. Cissna, Director, U.S. Citizenship and
Immigration Services ("USCIS"); and Mark Siegl,
Houston Field Office Director, U.S. Citizenship and
Immigration Services, in their official capacities
(collectively, "Defendants") seeking declaratory
and injunctive relief. Pending before the court is
Defendants' Motion to Dismiss (Docket Entry No. 7). For
the reasons stated below, the court will grant
Defendants' Motion to Dismiss.
is a citizen of Mexico who was admitted to the United States
as a lawful permanent resident in 1978. On April 23, 1990, a
grand jury of Harris County, Texas, indicted Monterrubio for
indecency with a child by contact. Monterrubio entered a plea
of nolo contendere to the charge in the
indictment. The Judgment identifies the "Date of
Judgment" as October 30, 1990. But the court "withheld
finding [Monterrubio] guilty of the offense indicated above,
a felony." On March 4, 1991, the court sentenced him
to ten years of confinement.
filed an Application for Naturalization, Form N-400, on May
7, 2013, and interviewed to determine eligibility on October
12, 2016. On November 1, 2016, the USCIS denied
Monterrubio's application explaining that
[b]ecause you have been convicted of an aggravated felony on
or after November 29, 1990, you are permanently barred from
establishing good moral character. Therefore, you are
ineligible for naturalization.
appealed and the USCIS reaffirmed the denial of
naturalization on October 5, 2017.
Complaint seeks (1) an order pursuant to 8 U.S.C. § 1427
declaring that the final agency decision by USCIS was
arbitrary and capricious, an abuse of discretion, and not in
accordance with the law, (2) de novo review of his
eligibility to seek naturalization under 8 U.S.C. §
1421(c) in accordance with the Administrative Procedure Act
("APA"), 5 U.S.C. §§ 701-706, and (3)
injunctive relief. Defendants filed a motion to dismiss
arguing that Plaintiff has not stated a claim upon which
relief may be granted on de novo review, and that
the court lacks subject matter jurisdiction under the
Standards of Review
Motion to Dismiss Under Rule 12(b)(6)
the Federal Rules of Civil Procedure a pleading must contain
"a short and plain statement of the claim showing that
the pleader is entitled to relief." Fed.R.Civ.P.
8(a)(2). A plaintiff's pleading must provide the grounds
of his entitlement to relief, and "a formulaic
recitation of the elements of a cause of action will not do.
. . ." Bell Atlantic Corp. v. Twombly, 127
S.Ct. 1955, 1965 (2007). " ' [N]aked assertion[s]
' devoid of 'further factual enhancement'"
or "[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." See Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009). "[C] onclusory allegations or legal
conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss."
Fernandez-Montes v. Allied Pilots Ass'n, 987
F.2d 278, 284 (5th Cir. 1993). Instead, "[a] claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal, 129 S.Ct. at 1949.
12(b)(6) motion tests the formal sufficiency of the pleadings
and is "appropriate when a defendant attacks the
complaint because it fails to state a legally cognizable
claim." Ramming v. United States, 281 F.3d 158,
161 (5th Cir. 2001), cert. denied sub nom. Cloud v.
United States, 122 S.Ct. 2665 (2002) . To defeat a
motion to dismiss, a plaintiff must plead "enough facts
to state a claim to relief that is plausible on its
face." Twombly, 127 S.Ct. at 1974. The court
does not "strain to find inferences favorable to the
plaintiffs" or "accept conclusory allegations,
unwarranted deductions, or legal conclusions."
Southland Securities Corp. v. INS pire Ins. Solutions,
Inc., 365 F.3d 353, 361 (5th Cir. 2004) (internal
quotation marks and citations omitted). "[C]ourts are
required to dismiss, pursuant to Federal Rule of Civil
Procedure 12(b)(6), claims based on invalid legal theories,
even though they may be otherwise well-pleaded."
Flynn v. State Farm Fire and Casualty Insurance Co.
(Texas), 605 F.Supp.2d 811, 820 (W.D. Tex. 2009) (citing
Neitzke v. Williams, 109 S.Ct. 1827, 1832 (1989)).
Motion to Dismiss Under Rule 12(b)(1)
Rule of Civil Procedure 12(b)(1) permits parties to file
motions challenging a district court's subject matter
jurisdiction. "VA case is properly dismissed
for lack of subject matter jurisdiction when the court lacks
the statutory or constitutional power to adjudicate the
case.'" Home Builders Ass'n of Mississippi,
Inc. v. City of Madison, Mississippi, 143 F.3d 1006,
1010 (5th Cir. 1998). The court must dismiss the action if it
finds that it lacks subject matter jurisdiction. Fed.R.Civ.P.
12(h) (3) .
party seeking to invoke federal jurisdiction, Monterrubio
bears the burden of establishing subject matter jurisdiction.
Ramming, 281 F.3d at 161. The court may find that subject
matter jurisdiction is lacking based on "(1) the
complaint alone; (2) the complaint supplemented by undisputed
facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court's
resolution of disputed facts." Id.; see
also Randall D. Wolcott, M.D., P.A. v. Sebelius, 2011 WL
870724, at *4 (5th Cir. 2011, March 15, 2011) . A court
should grant a 12(b) (1) motion "only if it appears
certain that the plaintiff ...