Nancy Perez, et al v. Robert Cowen, et al

Northern District of California, cand-4:2015-cv-01444

ORDER by Judge Yvonne Gonzalez Rogers denying as moot {{42}} Plaintiff's Motion to Remand; granting {{43}} Defendants' Motion to Dismiss.

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 NANCY CAROLINA PEREZ, CASE NO. 15-cv-01444-YGR 7 Plaintiff, ORDER GRANTING MOTION TO DISMISS; 8 vs. DENYING MOTION TO REMAND AS MOOT. 9 ROBERT COWAN, ET AL., Re: Dkt. Nos. 42, 43 10 Defendants. 11 Plaintiff Nancy Carolina Perez is a citizen of El Salvador who currently resides in Daly 12 City, California. (Id. ¶¶ 2, 10.) She entered the United States without inspection on or about April Northern District of California United States District Court 13 1, 1993. (Id.) Thereafter, Perez disclosed her unlawful entry and was granted Temporary 14 Protected Status ("TPS") on September 9, 2002. (Id. ¶¶ 2, 11–12.) On July 23, 2014, Ms. Perez 15 filed a Form I-485, Application to Register Permanent Residence or Adjust Status (the 16 "Application"). (Id. ¶ 15.) The United States Citizenship and Immigration Service ("USCIS") 17 denied plaintiff's application on the ground that plaintiff failed to submit evidence of "lawful 18 admission. . . into the United States." (Id. ¶ 18, Ex. 5.) 19 On March 30, 2015, plaintiff filed this action for mandamus and declaratory relief 20 alleging that defendants unlawfully denied plaintiff's Application. (Dkt. No. 1, Petition.) On June 24, 2015, the parties filed a joint motion to stay the case and hold proceedings in abeyance 21 pending the Ninth Circuit's decision in Ramirez v. Dougherty, No. 14-35633, on the ground that 22 issues presented in Ramirez would affect the above-captioned case. (Dkt. No. 18.) This Court 23 stayed the case on June 29, 2015. (Dkt. No. 20.) 24 On March 31, 2017, the Ninth Circuit held in Ramirez v. Brown (formally titled Ramirez v. 25 Dougherty) that aliens who have received TPS are deemed "admitted" for the purposes of 26 adjusting immigration status. Ramirez v. Brown, 852 F.3d 954, 964 (9th Cir. 2017.) Accordingly, 27 this Court lifted the stay in this case and directed the parties to "file any motions seeking specific 28 1 relief." (Dkt. Nos. 37 and 41.) 2 Now before the Court is plaintiff's motion to remand this case to the USCIS on the ground 3 that the USCIS had reopened plaintiff's Application.1 (Dkt. No. 42 at 3.) Just two days after 4 Perez filed her motion to remand, on November 2, 2017, plaintiff's Application was approved by 5 Senior Immigration Services Officer Jeffrey S. Passage. (Dkt. No. 42-3, Declaration of Senior 6 Immigration Services Officer Jeffrey S. Passage ("Passage Decl.") ¶ 1.) In light of USCIS's 7 approval of plaintiff's Application, defendants now move to dismiss as moot (i) plaintiff's motion 8 to remand and (ii) this case in its entirety. (Dkt. No. 43.) 9 Having carefully considered the pleadings and the arguments of the parties, the Court hereby GRANTS defendants' motion to dismiss the case in its entirety and DENIES plaintiff's 10 motion to remand as moot. 11 I. LEGAL STANDARD 12 Northern District of California United States District Court The constitutional standing doctrine "functions to ensure, among other things, that the 13 scarce resources of the federal courts are devoted to those disputes in which the parties have a 14 concrete stake." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 191 15 (2000). This "case or controversy" requirement is jurisdictional and cannot be waived. City of 16 L.A. v. Cty. of Kern, 581 F.3d 841, 845 (9th Cir. 2009). The party asserting federal jurisdiction 17 must carry the burden of establishing standing under Article III. DaimlerChrysler Corp. v. Cuno, 18 547 U.S. 332, 341 (2006). 19 "The doctrine of mootness, which is embedded in Article III's case or controversy 20 requirement, requires that an actual, ongoing controversy exist at all stages of federal court 21 22 1 Plaintiff also moves for an order "requiring payment of just costs and actual expanse, 23 including attorney fees, incurred as a result of the removal" under the Equal Access to Justice Act (the "EAJA"). (Dkt. No. 42 at 1.) Pursuant to the EAJA, 28 U.S.C. § 2412(d)(1)(B), "[a] party 24 seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is 25 a prevailing party and is eligible to receive an award under this subsection, and the amount sought." 26 Here, petitioner fails to explain how the Court can grant the relief which petitioner requests including an award of attorneys' fees in light of the circumstances, namely that Perez's 27 Application was approved just two days after Perez filed the motion to remand. Further, petitioner fails to explain why petitioner is entitled to attorneys' under Section 2412(d)(1)(B) given that no 28 "final judgment" has been entered in this case. Therefore, plaintiff's request for attorney fees is DENIED. 2 1 proceedings." Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011) (citing Burke v. 2 Barnes, 479 U.S. 361, 363 (1987)). Put differently, a case is moot and must be dismissed for lack 3 of jurisdiction "where no actual or live controversy exists." Foster v. Carson, 347 F.3d 742, 745 4 (9th Cir. 2003) (internal citations omitted). "A federal court is presumed to lack jurisdiction in a 5 particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes 6 of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). 7 A motion to dismiss for lack of subject matter jurisdiction may take either a "facial" or a 8 "factual" form. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When the 9 jurisdictional attack is "facial," the Court accepts as true the factual allegations of the complaint. 10 Federation of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). If 11 the attack is "factual," the Court may consider affidavits or other evidence that would be properly 12 before the court. See Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983). Northern District of California United States District Court 13 II. DISCUSSION 14 The Court finds that it lacks subject matter jurisdiction to hear the instant case due to 15 mootness. The Court deems defendant's attack factual in nature because it is based on the recent 16 factual developments regarding plaintiff's Application before the UCIS. Defendants offer the 17 declaration of Jeffrey S. Passage to show that the USCIS granted plaintiff's application on 18 November 2, 2017. (Passage Decl. ¶ 1.) Plaintiff concedes that the USCIS "has granted 19 Plaintiff's application to adjust status and she obtained her permanent resident card on or about 20 November 3, 2017." (Dkt. No. 46 at 2:17-18.) Plaintiff further agrees that the case should be 21 dismissed, but requests that the "Court first remand the case" the USCIS. (Id. at 2:18-19.) 22 However, plaintiff offers no argument or authority as to why this Court should remand the case 23 before granting defendant's motion to dismiss. As noted above the sole remaining issue in this 24 case is plaintiff's request for attorney fees under the EAJA. However, "the existence of an 25 attorneys' fees claim. . . does not resuscitate an otherwise moot controversy." M.M. v. Lafayette 26 Sch. Dist., 767 F.3d 842, 857 (9th Cir. 2014), as amended (Oct. 1, 2014) (citing Cammermeyer v. 27 Perry, 97 F.3d 1235, 1238 (9th Cir. 1996). In any event, the request for attorneys' fees under the 28 EAJA is procedurally improper. See 28 U.S.C. § 2412(d)(1)(B). 3 1 Accordingly, the Court finds that plaintiff cannot satisfy her burden of establishing that "an 2 actual, ongoing controversy exist[s] at [this stage] of [the] federal court proceeding[]." Pitts, 653 3 F.3d at 1086 (citing Burke, 479 U.S. at 363). Therefore, the case is moot and must be dismissed 4 for lack of jurisdiction. See Foster, 347 F.3d at 745. 5 III. CONCLUSION 6 Having carefully considered the papers submitted, the record in this case, and good cause 7 shown, the Court hereby GRANTS defendants' motion to dismiss and DENIES plaintiff's motion to 8 remand as moot. 9 This terminates Dkt. Nos. 42 and 43. 10 IT IS SO ORDERED. 11 12 Dated: December 12, 2017 Northern District of California United States District Court YVONNE GONZALEZ ROGERS 13 UNITED STATES DISTRICT COURT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4