United States District Court, D. Nevada
ORDER GRANTING MOTION TO DISMISS [ECF NO.
P. GORDON UNITED STATES DISTRICT JUDGE.
Vaclav and Vanessa Ondrisek filed this lawsuit seeking
special and general damages and an order that Vaclav Ondrisek
(Vaclav) shall not be removed from the United States. ECF No.
8. Defendant United States Citizenship and Immigration
Services (USCIS) moves to dismiss, arguing I have no subject
matter jurisdiction to award damages or to order that Vaclav
not be removed from the United States. ECF No. 28.
the Ondriseks have not adequately demonstrated the
government’s waiver of sovereign immunity, I grant
USCIS’s motion to dismiss. However, out of an abundance
of caution and because it is not clear that amendment would
be futile, I grant the Ondriseks 30 days to file a motion for
leave to file a second amended complaint. The motion shall
include a proposed amended complaint and must explain how
they intend to overcome the obstacles identified by USCIS.
Ondriseks filed their complaint pro se. ECF No. 4.
After I referred them to the Pro Bono Program, they obtained
pro bono counsel. ECF Nos. 5 and 6.
is a citizen of the Czech Republic. ECF No. 8 at 2. He
entered the United States on a visitor visa on about February
5, 2000. Id. On May 21, 2002, Vaclav was charged
with removability for overstaying his visitor visa and
accepting unauthorized employment. Id. The removal
proceedings are ongoing. Id. at 3.
April 2003, Vaclav married his first wife, a United States
citizen, who filed an I-130 Petition for Alien Relative on
Vaclav’s behalf. Id. at 2. The petition was
initially denied but later approved following an appeal.
Id. However, because Vaclav had divorced his first
wife and remarried another United States citizen, the
immigration court denied his request to terminate removal
proceedings. Id. On May 9, 2018, USCIS interviewed
Vaclav’s second wife, plaintiff Vanessa Ondrisek,
regarding her I-130 petition that she submitted on
Vaclav’s behalf. Id. at 3. On June 11, 2018,
USCIS served the Ondriseks with Notice of Intent to Deny
their I-130 petition; four days later the Ondriseks provided
evidence that their marriage is bona fide.
Id. The I-130 petition is still under review, as
USCIS has not issued a final decision. See Id . at
contends that USCIS violated his procedural due process
rights under the Fifth and Fourteenth Amendments to the
United States Constitution by failing to approve the second
I-130 petition. Id. at 3. Vaclav claims actual harm
as a result of the delay in processing the I-130 petition,
including the loss of his commercial driver’s license
and accompanying livelihood. Id. at 3-4. Vaclav has
child support obligations to his first wife, and as of July
2018 he was expecting a child with his current wife Vanessa.
complaint must be dismissed for lack of subject matter
jurisdiction. Fed.R.Civ.P. 12(b)(1); Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006) (“[W]hen a federal
court concludes that it lacks subject-matter jurisdiction,
the court must dismiss the complaint in its
entirety.”). A jurisdictional attack under Rule
12(b)(1) “may be facial or factual.” Safe Air
for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004). “In a facial attack, the challenger asserts that
the allegations contained in a complaint are insufficient on
their face to invoke federal jurisdiction.”
Id. In resolving a facial attack, courts must
“assume [the plaintiffs’] allegations to be true
and draw all reasonable inferences in [their] favor.”
Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.
2004). “By contrast, in a factual attack, the
challenger disputes the truth of the allegations that, by
themselves, would otherwise invoke federal
jurisdiction.” Safe Air, 373 F.3d at 1039.
Because the Ondriseks are invoking the court’s
jurisdiction, they bear the burden of proving that the case
is properly in federal court. In re Ford Motor
Co./Citibank (S. Dakota), N.A., 264 F.3d 952, 957 (9th
contends that the allegations in the amended complaint are
insufficient on their face to establish subject matter
jurisdiction. Whether subject matter jurisdiction exists
therefore does not depend on resolution of a factual dispute,
but rather on the allegations in the complaint. I thus assume
that the complaint’s allegations are true and draw all
reasonable inferences in the Ondriseks’s favor.
Ondriseks have failed to meet their burden of “showing
an unequivocal waiver of [sovereign] immunity.”
Baker v. United States, 817 F.2d 560, 562 (9th Cir.
1987). They assert that their claim falls within the
court’s federal question jurisdiction under 28 U.S.C.
§ 1331. Because they allege a due process claim under
the United States Constitution, their claim is a federal
question arising under federal law, as § 1331 requires.
However, “[s]ection 1331 does not waive the
government’s sovereign immunity from suit.”
Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.
1983). Further, “the analysis of jurisdiction cannot
stop with § 1331, because the claims in this case are .
. . against the federal government, and thus are barred by
sovereign immunity unless the government has consented to
suit.” N. Side Lumber Co. v. Block, 753 F.2d
1482, 1484 (9th Cir. 1985). The Ondriseks do not identify a
waiver of sovereign immunity so I lack subject matter
jurisdiction. See Id . at ...