Vega-Del Roquel v. Barr

United States District Court

District of Massachusetts

)

Santos Marleny Vega-Del Roquel, )

et al., )

)

Plaintiff, )

) Civil Action No.

v. ) 20-11120-NMG

)

William Barr, et al., )

)

Defendant. )

)

MEMORANDUM & ORDER

GORTON, J.

Plaintiffs seek a writ of mandamus requiring the Board of

Immigration Appeals (“BIA”), an agency of the United States

Department of Justice, to exercise jurisdiction over the

immigration matters of plaintiffs Karla Roquel-Vega (“Karla”)

and Diego Roquel-Vega (“Diego”), both of whom are children of

Santos Marleny Vega-Del Roquel (“Vega-Del Roquel”). Pending

before the Court is the defendants’ motion to dismiss.

I. Background

The plaintiffs are immigrants from Guatemala who entered

the United States illegally in June, 2015. The Department of

Homeland Security initiated separate removal proceedings against

each of the plaintiffs in Boston, Massachusetts but the cases

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were subsequently consolidated with Vega-Del Roquel, the mother,

as Lead Respondent, and Karla and Diego as Riders.

In March, 2018, after a series of hearings, the presiding

Immigration Judge (“IJ”) entered a decision denying the

plaintiffs’ relief from removal, listing all three plaintiffs on

the decision. The Notice of Decision sent to the plaintiffs,

however, named only Vega-Del Roquel. Counsel subsequently filed

a timely appeal with the BIA in April, 2018 on behalf of Vega-

Del Roquel but not Karla or Diego.

In July, 2019, counsel filed a motion to reopen the removal

proceedings with the IJ on behalf of Karla and Diego, seeking a

re-issuance of the IJ’s March, 2018 decision so that they too

could appeal the decision to the BIA. According to the

plaintiffs, the IJ rejected the motion because the immigration

court lacked jurisdiction due to the pending appeal of Vega-Del

Roquel. Counsel also received a decision from United States

Citizenship and Immigration Services (“USCIS”) in May, 2020

denying Karla’s application for employment authorization in

which USCIS referenced Karla’s pending BIA appeal filed in

April, 2018.

Plaintiffs seek a writ of mandamus compelling BIA to

exercise jurisdiction over all plaintiffs and to reinstate Vega-

Del Roquel’s appeal on behalf of all plaintiffs.

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II. Motion to Dismiss

A. Legal Standard

To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to “state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). In considering the merits of

a motion to dismiss, the Court may look only to the facts

alleged in the pleadings, documents attached as exhibits or

incorporated by reference in the complaint and matters of which

judicial notice can be taken. Nollet v. Justices of Trial Court

of Mass., 83 F. Supp. 2d 204, 208 (D. Mass. 2000), aff’d, 248

F.3d 1127 (1st Cir. 2000). The Court must also accept all

factual allegations in the complaint as true and draw all

reasonable inferences in the plaintiff's favor. Langadinos v.

Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000). Although a

court must accept as true all factual allegations contained in a

complaint, that doctrine is not applicable to legal conclusions.

Ashcroft v. Iqbal, 556 U.S. 662 (2009).

In opposing a motion to dismiss for lack of subject matter

jurisdiction, the plaintiff bears the burden of establishing

that the Court has jurisdiction. Lujan v. Defenders of Wildlife,

504 U.S. 555, 561 (1992). If the defendant mounts a

“sufficiency challenge,” the court will assess the sufficiency

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of the plaintiff’s jurisdictional allegations by construing the

complaint liberally, treating all well-pled facts as true and

drawing all reasonable inferences in the plaintiff’s favor.

Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir.

2001). A plaintiff cannot assert, however, a proper

jurisdictional basis “merely on unsupported conclusions or

interpretations of law.” Johansen v. United States, 506 F.3d 65,

68 (1st Cir. 2007) (internal citations and quotations omitted).

B. Application

With the “jurisdiction-channeling provision,” Gicharu v.

Carr, 983 F.3d 13, 16 (1st Cir. 2020), of the Immigration and

Nationality Act (INA), as amended by the REAL ID Act of 2005,

Congress unambiguously abrogated the authority of federal

district courts on “all questions of law and fact, including

interpretation and application of constitutional and statutory

provisions, arising from any action taken or proceeding brought

to remove an alien from the United States.” 8 U.S.C.

§ 1252(b)(9). See also 8 U.S.C. § 1252(g) (“no court shall have

jurisdiction to hear any cause or claim by or on behalf of any

alien arising from the decision or action by the Attorney

General to commence proceedings, adjudicate cases, or execute

removal orders against any alien under this chapter”). In other

words:

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enactment of the Real ID Act . . . in the plainest of

language, deprives the district courts of jurisdiction

in removal cases.

Compere v. Riordan, 368 F.Supp.3d 164, 170-171 (2019), quoting

Ishak v. Gonzales, 422 F.3d 22, 27–28 (1st Cir. 2005). Under

this statutory scheme:

the sole and exclusive means for judicial review of an

order of removal [is] a petition for review filed with

an appropriate court of appeals.

8 U.S.C. § 1252(a)(5).

Plaintiffs contend that these provisions are inapplicable

because they seek enforcement of a duty owed, rather than a

review of the order of removal, and that the broad authority

granted to federal district courts under the Mandamus and Venue

Act, 28 U.S.C.A. § 1361, governs. See id. (“The district courts

shall have original jurisdiction of any action in the nature of

mandamus to compel an officer or employee of the United States

or any agency thereof to perform a duty owed to the

plaintiff.”).

This logic is tenuous. As the First Circuit Court of

Appeals has repeatedly articulated, § 1252(b)(9) is:

designed to consolidate and channel review of all

legal and factual questions that arise from the

removal of an alien into the administrative process,

with judicial review of those decisions vested

exclusively in the courts of appeals.

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Gicharu, 983 F.3d at 16, citing Aguilar v. U.S. Immigr. &

Customs Enf't Div. of Dep't of Homeland Sec., 510 F.3d 1, 9 (1st

Cir. 2007). Only claims that are not related in any way to the

removal process are beyond the scope of this proviso and

therefore within the jurisdiction of federal district courts.

Aguilar, 510 F.3d at 11. Contrary to the plaintiffs’

contention, this prohibition extends well beyond claims that

seek direct review of an order of removal. Similar to claims of

insufficient service and ineffective counsel, the BIA’s

appellate jurisdiction is well-defined, see 8 C.F.R. §

1003.1(b), and “inextricably intertwined with the administrative

process that Congress so painstakingly fashioned.” Gicharu, 983

F.3d at 17, citing Aguilar, 510 F.3d at 13 (finding federal

district court lacked subject matter jurisdiction over claims of

insufficient service and ineffective assistance of counsel

stemming from removal proceedings under INA). For these

reasons, this Court lacks subject matter jurisdiction over the

plaintiffs’ claim.

Notwithstanding the sympathy evoked by the plaintiffs’

situation, it would be a dereliction of this Court's duty to

enforce the law if it were to issue the requested writ. Such

action would be directly contrary to congressional efforts to

simplify what it saw as “bifurcated and piecemeal” review of

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orders of removal. Ishak v. Gonzales, 422 F.3d 22, 28 (1st Cir.

2005), quoting H.R. Conf. Rep. No. 109–72, at 173–75 (2005).

The conclusion that this Court lacks subject matter jurisdiction

in this case obviates the need to address the question of

whether a writ should be entered.

ORDER

Accordingly, defendants’ motion to dismiss (Docket No. 10)

is ALLOWED.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated October 25, 2021

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