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Licea v. Pompeo

United States District Court, D. Nevada

September 30, 2019

CINDY LICEA, et al., Plaintiffs,
v.
MICHAEL POMPEO, et al., Defendants.

          ORDER

          Gloria M. Navarro, District Judge

         Pending 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).

         Also pending before the Court is Defendants' Motion to Dismiss, (ECF No. 8).[1]

         I. BACKGROUND

         This is 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).

         Plaintiff 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.).

         On July 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)[2] and INA § 212(a)(6)(C)(ii)[3]. (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).

         On June 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).

         In the 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.

         II. LEGAL STANDARD

         Rule 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. 1986).

         The 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.

         “Generally, 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).

         If the 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 ...


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