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Monterrubio v. Nielsen

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

May 16, 2018

KIRSTJEN M. NIELSEN,[1] Secretary, U.S. Department of Homeland, Security; LEE F. CISSNA, Director, U.S. Citizenship and Immigration Services; and MARK SIEGL, Houston Field Office Director, U.S. Citizenship and Immigration Services, In Their Official Capacities, Defendants.



         Plaintiff 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.

         I. Background[2]

         Monterrubio 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.[3] Monterrubio entered a plea of nolo contendere to the charge in the indictment.[4] The Judgment identifies the "Date of Judgment" as October 30, 1990.[5] But the court "withheld finding [Monterrubio] guilty of the offense indicated above, a felony."[6] On March 4, 1991, the court sentenced him to ten years of confinement.[7]

         Monterrubio filed an Application for Naturalization, Form N-400, on May 7, 2013, and interviewed to determine eligibility on October 12, 2016.[8] 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.[9]

         Monterrubio appealed and the USCIS reaffirmed the denial of naturalization on October 5, 2017.[10]

         Monterrubio's 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.[11] 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 APA.[12]

         II. Standards of Review

         A. Motion to Dismiss Under Rule 12(b)(6)

         Under 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.

         A Rule 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)).

         B. Motion to Dismiss Under Rule 12(b)(1)

         Federal 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) .

         As the 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 ...

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