# Salud v. Department of Homeland Security

> District Court, E.D. California · October 31, 2019

URL: https://www.frixlaw.com/law-library/cases/10014907

## Case

- **Court:** District Court, E.D. California
- **Decided:** October 31, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10 ----oo0oo----
11
12 CECILIA CORONA SALUD and PETER No. 2:19-cv-01321 WBS EFB
JOHNSON,
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Plaintiffs,
14 ORDER RE: DEFENDANTS’ MOTION
v. TO DISMISS FOR LACK OF
15 SUBJECT MATTER JURISDICTION
UNITED STATES DEPARTMENT OF
16 HOMELAND SECURITY, UNITED STATES
DEPARTMENT OF JUSTICE, EXECUTIVE
17 OFFICE FOR IMMIGRATION REVIEW,
MARK MORGAN, KIRSTEN NIELSEN,
18 JAMES MCHENRY, WILLIAM BARR,
RICHARD VALEIKA, JOHN KRAMAR,
19 and MATTHEW ALBENCE,
20 Defendants.
21
22 ----oo0oo----
23 Plaintiffs Cecilia Corona Salud (“Corona”) and her
24 husband, Peter Johnson (collectively, “Plaintiffs”), brought this
25 action against the United States Department of Homeland Security
26 (“DHS”), the Department of Justice (“DOJ”), Immigration and
27 Customs Enforcement (“ICE”), and various governmental officials
28 associated with those agencies (collectively “defendants”)
1 following Cecilia’s deportation from the United States on June 5,
2 2019. (Compl. ¶¶ 7-17, 24 (Docket No. 1).) Plaintiffs seek (1)
3 an order compelling defendants to return Corona to the United
4 States to complete her I-130 application process and (2) a
5 preliminary and permanent injunction barring her deportation
6 while her application is pending. (Compl. at 11-12.) Before
7 this court is defendants’ motion to dismiss under both Federal
8 Rule of Civil Procedure 12(b)(1) for lack of subject matter
9 jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for
10 failure to state a claim. (Mot. to Dismiss (Docket No. 5).)
11 Plaintiff has filed no opposition to the motion.
12 I. Facts
13 Corona is a Mexican national. (DHS Documents at 8
14 (Docket No. 5-1).) Corona entered the United States on a valid
15 visa in 1980 at the age of twelve. (Compl. ¶ 18.) She became a
16 lawful permanent resident on May 31, 1990. (DHS Documents at 4.)
17 On September 16, 1996, Corona was convicted of possession for
18 sale of a controlled substance in violation of California Health
19 and Safety Code § 11351.5. (Id.) In October 1996, the
20 Immigration Judge (“IJ”) terminated deportation proceedings.
21 (Id. at 7.) The government appealed the termination to the Board
22 of Immigration Appeals (“BIA”), and the BIA remanded the case to
23 the IJ in 2002. (Id. at 5.) The IJ ordered Corona removed in
24 2005, pretermitting her application for relief under 8 U.S.C. §
25 212(c).1 (Id. at 2.) The BIA affirmed the Immigration Judge’s
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1 Section 212 of the Immigration and Nationality Act of
27 1952 permitted the Attorney General broad discretion to admit
otherwise excludable aliens (including those convicted of
28 offenses involving moral turpitude or drug trafficking) into the
1 order of removal in 2007. (Id. at 20.) Corona filed a petition
2 for review of the BIA’s decision with the Ninth Circuit in 2010.
3 The Ninth Circuit dismissed the petition in part and denied the
4 petition in part, allowing the BIA’s determination to stand.
5 Corona Duarte v. Holder, No. 07-71327, 373 F. App’x 675 (9th Cir.
6 Apr. 1, 2010). With that dismissal, Corona’s order of removal
7 became final, and Corona’s attempt to reopen the order was denied
8 in March 2019. (Mot. at 3.)
9 Corona married United States citizen Peter Johnson in
10 2016. (Compl. ¶ 20.) Johnson filed an I-1302 visa petition on
11 her behalf, and it was approved on August 22, 2018. (Id.)
12 During the application process, Corona was required to “check in”
13 with ICE every few weeks. (Id. ¶ 23.) On June 4, 2019,
14 plaintiffs appeared at the Sacramento office of the United States
15 Citizenship and Immigration Services to “check in,” and Corona
16 was taken into custody and shortly thereafter deported. (Id. ¶
17 24.) Plaintiffs allege Corona was denied an opportunity to
18 complete the I-130 process and challenge the execution of the
19 BIA’s removal order on three grounds: (1) denial of procedural
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United States. 8 U.S.C. § 1182(c). Congress repealed Section
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212(c) effective April 1, 1997. However, the Supreme Court
22 decided in 2001 that the repeal does not apply to lawful
permanent residents who pleaded guilty to a crime before April 1,
23 1997. I.N.S. v. St. Cyr, 533 U.S. 289, 325 (2001).

24 2 An I-130 petition permits a citizen of the United
States to sponsor an eligible relative’s immigration to the
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United States. Filing or approving the petition does not give
the relative any status in the United States, but instead allows
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the relative to apply to become a lawful permanent resident. I-
27 130, Petition for Alien Relative, https://www.uscis.gov/i-130
(last visited Oct. 30, 2019).
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1 due process under the Fifth Amendment, (2) denial of a full and
2 fair hearing under the Immigration and Nationality Act (“INA”)
3 and the Administrative Procedure Act (“APA”), and (3) removal was
4 “arbitrary and capricious” in violation of the APA.
5 II. Jurisdiction
6 Federal courts are courts of limited jurisdiction.
7 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
8 (1994). “Without jurisdiction the court cannot proceed at all in
9 any cause. Jurisdiction is power to declare the law, and when it
10 ceases to exist, the only function remaining to the court is that
11 of announcing the fact and dismissing the cause.” Steel Co. v.
12 Citizens for a Better Environment, 523 U.S. 83, 94 (1998) (citing
13 Ex parte McCardle, 7 Wall. 506, 514 (1868)). Plaintiffs bear the
14 burden of establishing jurisdiction. Kokkonen, 511 U.S. at 377
15 (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178,
16 182-83 (1936)).
17 Plaintiffs invoke this court’s jurisdiction under 28
18 U.S.C. §§ 1331,3 1361,4 and 16515 to challenge the execution of
19 Corona’s removal order. (Compl. at 2.) Yet Section 1252(g) of
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3 District courts “shall have original jurisdiction of
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all civil actions arising under the Constitution, laws, or
22 treaties of the United States.” 28 U.S.C. § 1331.

23 4 District courts “shall have original jurisdiction of
any action in the nature of mandamus to compel an officer or
24 employee of the United States or any agency thereof to perform a
duty owed to the plaintiff.” 28 U.S.C. § 1361.
25

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5 The All Writs Act provides “all courts established by
Act of Congress may issue all writs necessary or appropriate in
27 aid of their respective jurisdiction and agreeable to the usages
and principles of law.” 28 U.S.C. § 1651(a).
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1 the INA explicitly strips courts of jurisdiction over any “cause
2 or claim” that “aris[es] from the decision or action by the
3 Attorney General to commence proceedings, adjudicate cases, or
4 execute removal orders against any alien,” including claims
5 | brought under §§ 1361 and 1651.® 8 U.S.C. § 1252(g).
6 The jurisdiction-stripping provision only applies to
7 the “limited subset of deportation claims” specified by the
8 statute’s plain language. Reno v. American-Arab Anti-
9 Discrimination Committee, 525 U.S. 471, 483 (1999). Plaintiffs’
10 challenge to Corona’s removal “aris[es] from” the decision to
11 “execute [her] removal order” and comfortably fits within the
12 statute’s terms. 8 U.S.C. § 1252(g). Accordingly, this court
13 lacks Jurisdiction and must dismiss the action.
14 IT IS THEREFORE ORDERED that defendants’ motion to
15 dismiss for lack of subject matter jurisdiction (Docket No. 5)
16 be, and thereby is, GRANTED. Plaintiffs’ complaint (Docket No.
17 1) is DISMISSED. The Clerk of Court shall enter final judgment
18 in favor of all defendants.
19 Dated: October 30, 2019 “ ak.
20 —
WILLIAM B. SHUBB
21 UNITED STATES DISTRICT JUDGE
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24 6 Congress transferred the Attorney General’s immigration
enforcement responsibilities to the Secretary of the Department
29 of Homeland Security in 2002. See Clark v. Martinez, 543 U.S.
26 371, 375 n.1 (2005). Accordingly, references to “Attorney
General” now refer to the Secretary of DHS and divisions of the
27 Department. BIA decisions are binding on all DHS employees. 8
C.F.R. § 1003.1(g) (1).
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10014907. Public record. Not legal advice.