United States District Court, D. Nevada
M. Navarro, District Judge
before the Court is a Motion to Dismiss, (ECF No. 15), filed
by Defendants Michael Pompeo, as United States Secretary of
State, David T. Donahue, as acting Assistant Secretary of
State for Consular Affairs, Edward J. Ramotowski, as Deputy
Assistant Secretary of State for Visa Services, and Daria L.
Darnell, as United States Consular General for Ciudad Juarez,
Mexico (collectively, “Defendants”). Plaintiff
Cindy Licea (“Plaintiff”) filed a Response, (ECF
No. 16), and Defendants filed a Reply, (ECF No. 19).
pending before the Court is Defendants' Motion to
Dismiss, (ECF No. 8).
an action seeking mandamus under 28 U.S.C. § 1361 and
declaratory relief under 28 U.S.C. § 2201 relating to
the denial of an immigrant visa application. (See
First Am. Compl. (“FAC”), ECF No. 11).
is a United States citizen. (FAC at 2). Eduardo Romero Flores
is a Mexican citizen born on September 22, 1980.
(Id. at 3). In or around May 1998, Flores (age 17)
made two attempts to illegally enter the United States.
(Id.). Flores was 17 years old at the time.
(Id.). Flores's first attempt allegedly resulted
in his immediate detention, fingerprinting, and voluntary
departing from the United States. (Id.).
Flores's second attempt allegedly resulted in his
successful, illegal entry into the United States without
inspection and his continuous stay until April 2018.
(Id.). On November 17, 2007, Plaintiff and Flores
were married in Clark County, Nevada. (Id.).
9, 2015, Plaintiff's Form I-130 Petition for Alien
Relative to initiate the process to adjust Flores's
immigration status in the United States was received by the
United States Customs and Immigration Services (the
“USCIS”). (Id. at 3, 19). On January 14,
2016, the USCIS sent a Notice of Approval of the I-130
Petition advising that the visa petition has been sent to the
Department of State National Visa Center (“NVC”),
who in turn will determine and forward the petition to the
appropriate consulate to complete visa processing.
(Id. at 3-4, 21). On May 26, 2017, the USCIS sent a
Notice of Approval of Flores's I-601A Provisional
Unlawful Presence Waiver, which was subject to various
conditions detailed therein, including approval by the
applicable consular's office. (Id. 11 at 4, 23).
On April 4, 2018, Flores appeared before a United States
consular officer at the United States Consulate in Ciudad
Juarez, Mexico, for an interview pertaining to Flores's
visa application. (Id. at 4). On that same date,
Flores's visa was denied based on ineligibility under INA
§ 212(a)(9)(B)(ii) and INA §
212(a)(6)(C)(ii). (Id. at 26). As to the former, a
violation may be eligible for a waiver through an I-601
Waiver subject to the determination of the USCIS; as to the
latter, no waiver was available. (FAC at 26).
12, 2018, Plaintiffs Licea and Flores filed the original
Complaint, (ECF No. 1). On October 5, 2018, Plaintiff Licea
(removing Flores as a plaintiff) filed the operative First
Amended Complaint (“FAC”) against Defendants
alleging two claims for relief: (1) mandamus; and (2)
declaratory relief. (FAC 11). Plaintiff seeks an order
compelling Defendants to reset Flores's interview before
the consular officer and to reconsider his immigrant visa.
(Id. at 9). Plaintiff further seeks a declaration
that 8 U.S.C. § 1182(a)(9)(B)(ii) and 8 U.S.C. §
1182(a)(6)(C)(ii) are inapplicable to Flores and cannot
therefore be a basis for the denial of his immigrant visa.
(Id. at 9).
instant Motion, Defendants move to dismiss both claims set
forth in the FAC, (ECF No. 11), pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim. The
Court will address each in turn.
12(b)(6) of the Federal Rules of Civil Procedure mandates
that a court dismiss a cause of action that fails to state a
claim upon which relief can be granted. See North Star
Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581
(9th Cir. 1983). When considering a motion to dismiss under
Rule 12(b)(6) for failure to state a claim, dismissal is
appropriate only when the complaint does not give the
defendant fair notice of a legally cognizable claim and the
grounds on which it rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
Court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
Court, however, is not required to accept as true allegations
that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences. See Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic
recitation of a cause of action with conclusory allegations
is not sufficient; a plaintiff must plead facts showing that
a violation is plausible, not just possible. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555) (emphasis added). In order
to survive a motion to dismiss, a complaint must allege
“sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Id. “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.” Id.
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion. . . . However,
material which is properly submitted as part of the complaint
may be considered” on a motion to dismiss. Hal
Roach Studios, Inc. v. Richard Feiner & Co., 896
F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted).
Similarly, “documents whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered in ruling on a Rule 12(b)(6) motion to
dismiss” without converting the motion to dismiss into
a motion for summary judgment. Branch v. Tunnell, 14
F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence
201, a court may take judicial notice of “matters of
public record.” Mack v. S. Bay Beer Distrib.,
798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the
district court considers materials outside of the pleadings,
the motion to dismiss is converted into a motion for summary
judgment. See Fed. R. Civ. P. 12(d); Arpin v.
Santa Clara Valley Transp. Agency, 261 F.3d 912, 925
(9th Cir. 1992).
court grants a motion to dismiss, it must then decide whether
to grant leave to amend. Pursuant to Rule 15(a), the court
should “freely” give leave to amend “when
justice so requires, ” and in the absence of a reason
such as “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of the amendment, etc.” Foman v.
Davis, 371 U.S. 178, 182 (1962). Generally, leave to
amend is only denied ...