Summary
concluding that plaintiffs had failed to carry their burden to show that section 1503 is an inadequate remedy for their APA claims in part because they failed to establish that section 1503"divests a district court of its power to enter a preliminary injunction"
Summary of this case from Alsaidi v. U.S. Dep't of StateOpinion
CIVIL NO. 1:15-CV-111
07-29-2016
Maria Guadalupe VILLARREAL, and Ana Maria Villarreal, Plaintiffs, v. Petra HORN, et al., Defendants.
Jaime M. Diez, Jones Crane, Brownsville, TX, Elisabeth Lisa S. Brodyaga, Attorney at Law, San Benito, TX, for Plaintiffs. T. Monique Peoples, U.S. Department of Justice, Washington, DC, for Defendants.
Jaime M. Diez, Jones Crane, Brownsville, TX, Elisabeth Lisa S. Brodyaga, Attorney at Law, San Benito, TX, for Plaintiffs.
T. Monique Peoples, U.S. Department of Justice, Washington, DC, for Defendants.
MEMORANDUM AND ORDER
Hilda G. Tagle, Senior United States District Judge
This litigation stems from the U.S. Department of State's ("State Department") denial of Plaintiff Maria Guadalupe Villarreal's ("M. Villarreal") application for a passport and the State Department's subsequent revocation of a U.S. passport issued to her sister, Plaintiff Ana Maria Villarreal ("A. Villarreal"). Plaintiffs allege that they are stranded in Mexico, unable to enter the United States without a passport. Pls.' 1st Am. Pet. Writ Habeas Corpus & Compl. Decl. & Injunctive Relief, Dkt. No. 59 (hereinafter "Am. Compl."). The Court has before it, among other motions, Defendants' motion to dismiss Plaintiffs' amended complaint under Federal Rules of Civil Procedure 12(b)(1) and (6), Dkt. No. 66; the response and reply to that motion, Dkt. Nos. 72, 73; and the parties' supplemental memoranda of law, Dkt. Nos. 88, 89.
M. Villarreal and A. Villarreal ask the Court to issue a writ of habeas corpus in accordance with 28 U.S.C. § 2241, and they refer to themselves in their pleadings as "Petitioner/Plaintiff." E.g., Dkt. No. 59 at 1. Solely for brevity's sake, the Court refers to them as Plaintiffs in this order. The Court also uses the term "complaint" when referring to Plaintiffs' pleadings. Plaintiffs titled the pleading that commenced this action "Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief." Dkt. No. 1 at 1; see also Dkt. No. 59 at 1 (adding words "First Amended" to title).
I. Background
Plaintiffs allege that they were born in Mexico in October 1959, (A. Villarreal), and August 1962 (M. Villarreal). Am. Compl. ¶ 11. They claim that they acquired U.S. citizenship at birth by virtue of the physical presence in the United States of their father, Victoriano Villarreal ("V. Villarreal"), a U.S. citizen, before they were born. See Am. Compl. ¶¶ 6, 11, 13. Plaintiffs do not allege that their mother was a U.S. citizen. See Am. Compl. ¶ 11.
The Defendants dispute whether V. Villarreal was physically present in the United States for the required periods of time before Plaintiffs' births. See, e.g. , Falek v. Ashcroft , 127 Fed.Appx. 684, 684 (5th Cir.2005) (per curiam, unpublished) (holding, on petition for review, that evidence did not demonstrate that citizen parent was physically present for the required amounts of time). Under the law in effect in 1959 and 1962, the child of a United States citizen born abroad acquired U.S. citizenship at birth if the citizen parent "was physically present in the United States for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years." 8 U.S.C. § 1401(a)(7) (1952). According to Plaintiffs' amended complaint, the State Department denied M. Villarreal's application for a U.S. passport without explanation on August 25, 2011, Dkt. No. 59 ¶ 3. Plaintiffs also plead that their older brother, Armando Villarreal, who was born in Mexico in 1958, possesses a valid U.S. passport and certificate of citizenship. Am. Compl. ¶ 10.
According to Plaintiffs' amended complaint, the letter from the State Department revoking A. Villarreal's passport cited § 301(g) of the Immigration and Nationality Act. Dkt. No. 59 at 4. While an analogous provision is presently codified as subsection (g), see 8 U.S.C. § 1401(g) (2012), the language quoted appears in subsection (a)(7) of 8 U.S.C. § 1401 (1952), the version of § 301 in effect when Plaintiffs were allegedly born. See Miller v. Albright, 523 U.S. 420, 426, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (quoting language from "Section 301(g) INA (formerly Section 301(a)(7) INA).")
M. Villarreal commenced this action by filing her complaint on June 18, 2015. Dkt. No. 1. Her complaint declares that "At the moment this action is being filed, Petitioner MARIA GUADALUPE VILLAREAL is at the Port of Entry in Brownsville, Texas, but cannot return to the United States." Id. at 1; accord Am. Compl. ¶ 1. The case was assigned to the Honorable Andrew S. Hanen.
Defendants filed a motion to dismiss M. Villarreal's original complaint on August 28, 2015. Dkt. No. 7.
Four days after Defendants replied to that motion, M. Villarreal moved for a preliminary injunction. Compare Dkt. No. 18 (reply filed Oct. 15, 2015) with Dkt. No. 19 (motion for preliminary injunction filed Oct. 19, 2015). On October 31, 2015, M. Villarreal filed a motion for summary judgment, Dkt. No. 21, supported by, among other evidence, A. Villarreal's then-valid U.S. passport, Dkt. No. 4, Ex. 1, at 10, 11.
By letter dated November 27, 2015, Defendants revoked A. Villarreal's passport. Dkt. No. 29 at 1 (notice filed Dec. 4, 2015). A. Villarreal avers that she was vacationing in Mexico when her passport was revoked and that she, like M. Villarreal, cannot return to the United States. Am. Compl. at 1. The revocation letter dated November 27, 2015, allegedly states that "[a] review of your application shows that the Department erred in calculating your father's physical presence in the United States." Am. Compl. at 4 (quoting alleged letter). Plaintiffs assert that the State Department pointed to no evidence of an arithmetical or other technical error in its calculations, and they characterize the revocation as a "ruse to get around the fact that there was no new evidence to revoke her passport." Am. Compl. at 5. They therefore contend that the revocation of A. Villarreal's passport did not comport with 22 C.F.R. § 51.62(a)(2), which permits the State Department to revoke a passport when "[t]he passport has been obtained illegally, fraudulently or erroneously; was created through illegality or fraud practiced upon the Department; or has been fraudulently altered or misused." 22 C.F.R. § 51.62(a)(2) (2015). Nor, argues A. Villarreal, did her passport revocation comply with § 51.62(b), which allows the State Department to revoke a passport when it "has determined that the bearer of the passport is not a U.S. national," because the State Department must have new evidence to revoke a passport under that subsection. Am. Compl. at 5 (citing deposition of State Department official in support of proposition that new evidence is required).
Plaintiffs bring three claims in their amended complaint. Dkt. No. 59 at 10–14. First, alleging that they are unable to enter the United States or travel internationally, they seek a writ of habeas corpus under 28 U.S.C. § 2241. Am. Compl. ¶¶ 23–24. Second, A. Villarreal asks the Court to review the revocation of her passport under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and set it aside as a violation of her right to due process and 22 C.F.R. 51.62(a)(2). Am. Compl. ¶¶ 27–31. In addition to setting aside the revocation of her passport, A. Villarreal asks the Court to order the State Department "to remove from all databases to which they have access any information indicating that she is not a U.S. citizen." Am. Compl. ¶ 31; see also id. ¶ 32 (asking the Court to order the Secretary of State to issue her a new passport in the event the revocation of cannot be reversed). A. Villarreal also requests a temporary restraining order and preliminary injunction allowing her to return to the United States pending the resolution of this case, and both plaintiffs seek an injunction prohibiting the State Department from attempting to revoke their passports without providing them notice and an opportunity to be heard. Am. Compl. ¶¶ 33–36. Finally, Plaintiffs seek declaratory judgments in accordance with 8 U.S.C. § 1503(a) and Rusk v. Cort , 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962) that they are U.S. citizens. Am. Compl. ¶ 38.
Defendants filed the pending motion to dismiss on February 19, 2016. Dkt. No. 66. On May 17, 2016, Defendants filed a then-opposed motion to modify the scheduling order. Dkt. No. 81. Judge Hanen signed an order that same day transferring this case to the undersigned "[f]or purposes of judicial economy." Dkt. No. 82 at 1. As explained at the hearing held June 1, 2016, A. Villarreal appears on the list of witnesses for the trial in a case brought by her alleged son, Jorge Eduardo Candelaria v. Kerry, et al. , No. 1:15–CV–5. That trial was then scheduled to commence before the undersigned on July 7, 2016, and this case was transferred to allow coordination of hearing dates in the two cases to avoid unnecessary cost and burden, given the likely need to arrange for the parole of A. Villarreal to testify. After the transfer, Plaintiffs responded to Defendants' motion to amend the scheduling order, stating that they were unopposed to extending the parties' discovery deadline to mid-July 2016 and urging the court to expedite this case and the pending motion to dismiss. Dkt. No. 83 at 2.
Plaintiffs incorrectly state that Judge Hanen recused himself, Dkt. No. 83 at 1.
In an order entered June 14, 2016, this Court directed the parties to submit supplemental memoranda of law on two questions raised by the pending motion to dismiss. Dkt. No. 85 at 2–4. To accommodate the resulting delay, the Court cancelled the trial in Candelaria and reset both cases for final pretrial conference on August 4, 2016. See Dkt. No. 85 at 3–4; Order 1, Candelaria v. Kerry , No. 1:15–CV–5 (S.D.Tex. June 15, 2016), Dkt. No. 22. The parties filed timely supplemental memoranda. Dkt. Nos. 88, 89.
II. Legal Standard
Defendants move to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Dkt. No. 66 at 1. A Rule 12(b)(1) motion challenges the Court's subject-matter jurisdiction. See, e.g. , In re FEMA Trailer Formaldehyde Prods. Liab. Litig. , 668 F.3d 281, 286 (5th Cir.2012). As a general matter, "the proponents of federal-court jurisdiction carry the burden of establishing it." Physician Hosp. of Am. v. Sebelius , 691 F.3d 649, 652 (5th Cir.2012) (citing Ramming v. United States , 281 F.3d 158, 161 (5th Cir.2001) ). "Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims." In re FEMA , 668 F.3d at 286. (citing Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) and Stockman v. Fed. Election Comm'n , 138 F.3d 144, 151 (5th Cir.1998) ). The Court may decide a Rule 12(b)(1) motion on "the complaint alone, the complaint supplemented by the undisputed facts as evidenced in the record, or the complaint supplemented by the undisputed facts plus the court's resolution of the disputed facts." Id. at 287.
"[A]t the Rule 12(b)(1) stage ..., the plaintiffs' burden is to allege a plausible set of facts establishing jurisdiction." Physician Hosp. of Am. , 691 F.3d at 652 (citing Davis v. United States , 597 F.3d 646, 649–50 (5th Cir.2009) ). Moreover, this Court must "accept as true the allegations and facts set forth in the complaint" when conducting a Rule 12(b)(1) analysis. Choice Inc. of Tex. v. Greenstein , 691 F.3d 710, 714 (5th Cir.2012).
III. Habeas Corpus Claims
Defendants mount a two-pronged attack on Plaintiffs' claim for a writ of habeas corpus under 28 U.S.C. § 2241. Defendants first argue that Plaintiffs are not in custody for habeas purposes. Dkt. No. 66 at 6. Second, Defendants argue that Plaintiffs have not exhausted the remedies available to them under 8 U.S.C. § 1503. Dkt. No. 66 at 9. The Court agrees with both contentions.
A. Plaintiffs Have Not Shown That They Are in Custody
For "the habeas court to have jurisdiction," 28 U.S.C. § 2241 requires that a petitioner be "in custody" when she files her petition. Pack v. Yusuff , 218 F.3d 448, 454 n. 5 (5th Cir.2000). This is because the "sole function [of habeas] is to grant relief from unlawful imprisonment or custody ...." Pierre v. United States , 525 F.2d 933, 935–36 (5th Cir.1976). While a petitioner is not required to be in physical custody, she must establish some significant restriction on her liberty. See Jones v. Cunningham , 371 U.S. 236, 240, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (holding that the custody requirement is satisfied when the petitioner is subjected to severe restraints on liberty not shared by the general public). "Nonetheless, the concept of custody has its limits. For example, habeas corpus cannot be invoked to challenge a conviction that resulted in a cash fine only." Spring v. Caldwell , 692 F.2d 994, 996 (5th Cir.1982).
This Court recently dismissed the habeas petition of an individual whose passport application was denied even though she commenced the action as she stood on the U.S. side of one of the international bridges linking Brownsville, Texas with Matamoros, Mexico. Meza v. Johnson , No. 1:14-CV-60, slip op. at 1, 3–4 (S.D. Tex. Aug. 11, 2015) [hereinafter Meza II ]. This Court reasoned as follows:
Meza alleges that the inability to engage in international travel and to return to the United States to see her family and further her career constitute custody for habeas purposes. This Court has held that habeas relief is not available when the only restriction on a petitioner's liberty is the inability to travel internationally. E.g. , Uribe de Leon v. Freeman , Civ. A. No. B–12–006 (S.D.Tex. May 15, 2012) Dkt. No. 13 at 5–7. As Defendants argue, Meza does not make any allegation showing that the restraint on her liberty is not experienced by the general public. See Jones , 371 U.S. at 240, 83 S.Ct. 373. The U.S. general public is also required to present a passport to travel internationally. See 8 U.S.C. § 1158(b) ("[I]t shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United
States unless he bears a valid United States passport.").
Id. at 4. Here, Plaintiffs rely on Jones to make a similar argument that they are in custody. Dkt. No. 69 at 6–11. Their arguments fail for the same reasons. See Meza II, slip op. at 4.
Plaintiffs contend that the foregoing analysis of the generally applicable rule that all U.S. citizens must present a valid passport to enter the United States confuses the concepts of custody and the lawfulness of that custody, but the distinction between custody and lawfulness they draw stands in tension with Fifth Circuit case law on whether a person deported from the United States is in custody for habeas purposes. Dkt. No. 69 at 10–11. According to Plaintiffs, all U.S. citizens abroad who do not have and have not applied for passports are in lawful custody, but their custody becomes unlawful upon a wrongful revocation of a passport or the unlawful denial of a passport application. See Dkt. No. 69 at 11. Plaintiffs' custody analysis, if accepted, would seem to be applicable to non-citizens removed from the United States, rendering them all in custody and making the legal validity of their removal the test of whether their custody is lawful, yet the Fifth Circuit has held that a person who is removed from the United States is not ordinarily in custody for habeas purposes. Merlan v. Holder , 667 F.3d 538, 539 (5th Cir.2011) (holding petitioner was not in custody because he "failed to show that his deportation was the result of any extreme circumstances or that he is subject to any restraints in Mexico not experienced by other non-citizens who lack the documentation to enter the United States"). Similar to the petitioner in Merlan , Plaintiffs have not shown here that they are subject to any restraints not shared by citizens in Mexico who lack a valid U.S. passport. See id.
B. Plaintiffs Have Not Exhausted Their Remedies by Seeking a Certificate of Identity
Plaintiffs do not address Defendants' alternative arguments that they have failed to exhaust their remedies by applying for a certificate of identity and seeking entry to the United States by following the procedure set out in 8 U.S.C. § 1503(b) –(c). Under § 1503(b), a person not in the United States who is denied a right or privilege claimed as a U.S. citizen by an agency or official "may make application to a diplomatic or consular officer of the United States in the foreign country in which he is residing for a certificate of identity for the purpose of traveling to a port of entry in the United States and applying for admission." § 1503(b). Subsection (c) specifies how a certificate of identity may be used:
A person who has been issued a certificate of identity under the provisions of subsection (b) of this section, and while in possession thereof, may apply for admission to the United States at any port of entry, and shall be subject to all the provisions of this chapter relating to the conduct of proceedings involving aliens seeking admission to the United States. A final determination by the Attorney General that any such person is not entitled to admission to the United States shall be subject to review by any court of competent jurisdiction in habeas corpus proceedings and not otherwise.
As this Court explained on reconsideration in Meza II , supra, the Supreme Court in Brownell v. Tom We Shung , 352 U.S. 180, 183, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956) stressed that § 1503(c) requires the holder of a certificate of identity "to test the validity of their exclusion by habeas corpus only." Id. (footnote omitted). Even if Plaintiffs are in custody, a holding that they could in effect test the validity of the basis for their nonadmisson, i.e., their citizenship, without first obtaining a certificate of identity would eviscerate the exclusive-remedy language of § 1503(c). See Tom We Shung , 352 U.S. at 183, 77 S.Ct. 252 ; Meza II , slip op. at 5; Avina v. Brownell , 112 F.Supp. 15, 16–19 (S.D.Tex.1953) (citing § 1503(c) to dismiss habeas petition because petitioner failed to exhaust by seeking a certificate of identity).
IV. APA Claims
In their amended complaint, Plaintiffs bring three APA claims. First, they ask "the Court to conduct judicial review of the revocation of [A. Villarreal's] passport," Am. Compl. ¶ 31, and judicial review of the denial of M. Villarreal's passport application, id. ¶ 34. Second, A. Villarreal seeks a declaration "that 22 C.F.R. § 51.62(a)(2) does not authorize DOS to revoke a passport based solely on a reevaluation of the evidence initially presented, and that the term ‘erroneously’ as used therein refers to an actual, demonstrable, error ... but does not include discounting evidence previously accepted as credible." Id. ¶ 29; see also id. ¶ 30 (requesting finding that revocation "was accomplished for an improper motive"). Finally, Plaintiffs invoke their right to Due Process guaranteed by the Fifth Amendment. Id. ¶¶ 25, 28, 35. A. Villarreal asserts that 22 C.F.R. § 51.62(a)(2) as applied to her violates the Due Process Clause, id. ¶ 28, and Plaintiffs jointly seek an injunction preventing the Secretary of State "from again attempting to revoke their passports under 22 C.F.R. § 51.62(a)(2), or under any other provision, without providing notice and an opportunity to be heard before their passports are revoked." Id. ¶ 36. Plaintiffs have not demonstrated that the United States has waived its sovereign immunity from these claims.
Plaintiffs also argue for the first time in their supplemental memorandum of law that 8 U.S.C. § 1185(b) is unconstitutional as applied to them. Dkt. No. 88 at 7–8. Plaintiffs offer no reason why that argument could not have been raised in their response, see id. and it exceeds the scope of the questions on which this Court authorized supplemental briefing, see Dkt. No. 85 at 1–3. As Plaintiffs did not plead an as-applied challenge to § 1185(b) or raise such a challenge in their response, the Court deems it waived and expresses no view on its merits. See, e.g., Branch v. CEMEX, Inc., Civ. A. No. H–11–1953, 2012 WL 2357280, at *9 (S.D.Tex. June 20, 2012) ("Legal arguments raised for the first time in a surreply, like arguments raised for the first time in a reply, are waived." (citing United States v. All Assets Held at Bank Julius Baer & Co., 772 F.Supp.2d 205, 215 (D.D.C.2011) (other citations omitted)).
As a general jurisdictional statute, 28 U.S.C. § 1331"does not provide a general waiver of sovereign immunity." Belle Co. v. U.S. Army Corps of Eng'rs , 761 F.3d 383, 395 (5th Cir.2014) (quoting Shanbaum v. United States , 32 F.3d 180, 182 (5th Cir.1994) ). Plaintiffs have the burden to establish that sovereign immunity has been waived. Id. (citing Taylor–Callahan–Coleman Counties Dist. Adult Probation Dep't v. Dole , 948 F.2d 953, 956 (5th Cir.1991) ). The APA waives the sovereign immunity of the United States in certain circumstances for claims seeking relief other than money damages. Belle Co. , 761 at 387 (citing 5 U.S.C. § 702 ) (other citations omitted).
At issue is whether the Villarreals have an adequate remedy for their APA claims in § 1503. The APA declares that "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704 (2012). Like the requirement of final agency action, Belle Co. , 761 at 388 (citing Am. Airlines, Inc. v. Herman , 176 F.3d 283, 287 (5th Cir.1999) ) (other citation omitted), whether there is no other adequate remedy in a court under § 704 is a jurisdictional question, see, e.g. , Dresser v. Meba Ed. & Benefits Plan , 628 F.3d 705, 712 (5th Cir.2010) (affirming dismissal for lack of subject-matter jurisdiction of APA claim because plaintiff had adequate remedy). A procedural Due Process challenge to a federal regulation may be brought under the APA. E.g. , Lyng v. Payne , 476 U.S. 926, 942–43, 106 S.Ct. 2333, 90 L.Ed.2d 921 (1986) (holding notice published in Federal Register satisfied requirements of Due Process). Nevertheless, an APA challenge under the Due Process Clause must be dismissed for lack of subject-matter jurisdiction if the plaintiff does not show she challenges "final agency action for which there is no adequate remedy in a court," 5 U.S.C. § 704. See Belle Co. , 761 F.3d at 395–96 (collecting cases) (affirming dismissal of as-applied Due Process challenge for lack of subject-matter jurisdiction because the plaintiff did "not argue or establish that the administrative appeal process that culminated in the [challenged action], as applied to [the plaintiff], is final agency action" within the meaning of § 704 ) (citing Taylor–Callahan–Coleman , 948 F.2d at 956 ). The Court therefore looks to whether Plaintiffs have proven that there is no adequate remedy in a court for their APA claims. See id.
This Court and other courts have repeatedly dismissed APA claims challenging the denial of a passport application or a passport revocation on grounds that the holder is not a U.S. national, reasoning that, "[u]nder § 704, review of agency action under the APA is precluded because the relief that [the plaintiff] seeks—a judicial declaration of citizenship and entitlement to a passport—may be directly sought through 8 U.S.C. § 1503(a)." Meza v. Johnson , No. 1:14–CV–60, slip op. at 4, (S.D.Tex. Feb. 5, 2015), Dkt. No. 15 (Tagle, J.) (quoting Sanchez v. Clinton , Civ. A. No. H–11–2084, 2012 WL 208565, at *5 (S.D.Tex. Jan. 24, 2012) ); see authorities cited in id. , Garcia v. Clinton , Civ. A. No. L–10–101, 2011 WL 2173689, at *3 (S.D.Tex. June 1, 2011) (collecting cases); see also, e.g. , Harris v. Dep't of Homeland Sec. , 18 F.Supp.3d 1349, 1359–1360 (S.D.Fla.2014) ; Hassan v. Holder , 793 F.Supp.2d 440, 446 (D.D.C.2011). In Castro v. Freeman , for instance, this Court dismissed APA claims challenging the State Department's revocation of U.S. passports for lack of subject-matter jurisdiction. No. 1:09–CV–208, 2011 WL 11535494, at *6 (S.D.Tex. Nov. 22, 2011) (Tagle, J). The plaintiffs in Castro claimed that the State Department misapplied the preponderance-of-the-evidence standard when it revoked their passports. Id. at *5. This Court held "that APA review [is not] ... available for the procedures used by the Department of State in reaching their final decisions regarding [the revocation of] Passports" because the State Department's internal decision-making processes are not "final agency action" as that phrase is used in the APA. Id. (citing Tavera v. Harley–Bell , Civil Action No. 4:09–0299, 2010 WL 1308800, *3 (S.D.Tex. Mar. 31, 2010) and Patel v. Rice , 403 F.Supp.2d 560 (N.D.Tex.2005). This Court also determined that because "the relief [the plaintiffs in Castro ] [sought] is available under 8 U.S.C. § 1503(a), review of agency action under the APA is precluded." Id. (citing Council of and for the Blind of Delaware County Valley, Inc. v. Regan , 709 F.2d 1521, 1532–33 (D.C.Cir.1983) ).
In their response to the pending motion to dismiss, the Villarreals contend that § 1503 does not afford them an adequate remedy because they cannot obtain preliminary injunctive relief under that subsection. Pls.' Resp. 19–21, Dkt. No. 69. Assuming arguendo that § 1503(a) would not be an adequate remedy if it precluded entry of a preliminary injunction, the single case on which Plaintiffs rely does not establish that § 1503(a) divests this Court of its equitable jurisdiction to enter a preliminary injunction.
"The Supreme Court has long held that "[a]bsent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction." Sierra Club, Lone Star Chapter v. F.D.I.C. , 992 F.2d 545, 548 (5th Cir.1993) (quoting Califano v. Yamasaki , 442 U.S. 682, 705, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979) ) (citing Amoco Prod. Co. v. Gambell , 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) ). That is, "[u]nless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied." Id. (quoting Amoco Prod. Co. , 480 U.S. at 542, 107 S.Ct. 1396 ). The "full scope" of equitable jurisdiction to which this rule applies includes the power to award a preliminary injunction. See id. at 548 (conducting analysis to determine whether district court had the power to enter preliminary injunction); see also Janvey v. Alguire , 647 F.3d 585, 594–95 (5th Cir.2011) (analyzing text of Federal Arbitration Act, 9 U.S.C. §§ 1 –16, and concluding that it did not divest district court of equitable jurisdiction to enter preliminary injunction preserving status quo before deciding arbitrability). Under this framework, the Villarreals must demonstrate that § 1503"in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity" to show that their APA claims fall within the scope of the waiver of sovereign immunity in the APA. Amoco Prod. Co. , 480 U.S. at 522, 107 S.Ct. 1396.
To establish that a preliminary injunction is unavailable under § 1503(a), the Villarreals cite Hizam v. Kerry , which reversed an order requiring "the State Department to return Hizam's [Counselor Report of Birth Abroad] to him." 747 F.3d 102, 107 (2d Cir.2015). Hizam does not expressly address the availability of preliminary or permanent injunctive relief under § 1503. See id. at 107–08. Nor does it discuss abrogation of equitable jurisdiction under the applicable framework. See id. Instead, the Hizam court rejects a distinction "between declaring [the plaintiff] a citizen and returning his citizenship documents." Id. at 108. The plaintiff conceded that he was not a U.S. citizen, and the Hizam court therefore held that "[o]nce the district court concluded it could not declare [him] a U.S. national, its inquiry should have ended." Id. (holding § 1503(a) did not authorize entry of final judgment ordering State Department to return document evidencing the plaintiff's citizenship). That is, Hizam holds that § 1503(a) authorizes a district court to answer one, and only one, question—whether the plaintiff is a national of the United States. Id.Hizam stands silent on whether a preliminary injunction is available under § 1503(a) when the case properly presents that question. See id.
Plaintiffs cite no authority other than Hizam to establish the proposition that § 1503 divests a district court of its power to enter a preliminary injunction. See Pls.' Resp. 19–21, Dkt. No. 69. Accordingly, they have not carried their burden to show that § 1503 is an inadequate remedy for their APA claims. See Belle Co. , 761 F.3d at 395–96. Consequently, the Court need not, and does not, hold that preliminary injunctive relief is available under § 1503. The Court determines only that Plaintiffs have failed to meet their burden to demonstrate that sovereign immunity is waived by citing Hizam.
V. § 1503(a) Claims
Defendants also move to dismiss Plaintiffs' claims under 8 U.S.C. § 1503(a) for lack of subject-matter jurisdiction. With certain exceptions, § 1503(a) allows "any person who is within the United States [and who] claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, .... [to] institute an action ... for a judgment declaring him to be a national of the United States." 8 U.S.C. § 1503(a) (2012). Further, "[a]n action under [§ 1503(a) ] ... shall be filed in the district court of the United States for the district in which such person resides or claims a residence, and jurisdiction over such officials in such cases is conferred upon those courts." Id. A. Villarreal concedes that she cannot bring a claim under § 1503(a) because she "is [not] within the United States" as that phrase is used in § 1503(a). Pls.' Resp. 17, Dkt. No. 69. The Court therefore dismisses A. Villarreal's § 1503(a) claim. The parties, however, dispute whether M. Villarreal was within the United States when she commenced this action and whether she "resides or claims a residence" in Brownsville.
How this Court resolves the parties' factual contentions about M. Villarreal's residence depends on whether § 1503(a)'s residence clause is jurisdictional. Different standards govern a motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for improper venue under Rule 12(b)(3). When a Rule 12(b)(1) motion is filed, this Court may ordinarily find disputed jurisdictional facts. See Montez v. Dep't of Navy , 392 F.3d 147, 149 (5th Cir.2004) (citing Land v. Dollar , 330 U.S. 731, 735 & n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947) ) ("In general, where subject matter jurisdiction is being challenged, the trial court is free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case."). But see id. at 159 ("However, where issues of fact are central both to subject matter jurisdiction and the claim on the merits, we have held that the trial court must assume jurisdiction and proceed to the merits." (citations omitted)). On a Rule 12(b)(3) motion to dismiss for improper venue, by contrast, "[t]he court must accept undisputed facts in a plaintiff's pleadings as true and resolve factual conflicts in the plaintiff's favor." Fernandez v. Soberon , Civil Action No. H–13–0325, 2013 WL 2483345, at *2 (S.D.Tex. June 10, 2013) (citing Braspetro Oil Servs. Co. v. Modec (USA), Inc. , 240 Fed.Appx. 612, 615 (5th Cir.2007) (per curiam) and Ambraco, Inc. v. Bossclip B.V. , 570 F.3d 233, 237–38 (5th Cir.2009) ). Here, Defendants have injected factual contentions based on material outside the pleadings into the residence-clause issue. Defendants do not cite Rule 12(b)(3) in the instant motion, but they point to M. Villarreal's attorney's statements in the record, not the complaint, to challenge her averment in her amended complaint that she claims a residence in Brownsville. Dkt. No. 66 at 13 (citing hearing transcripts). At one hearing in this case, M. Villarreal's counsel represented that M. Villarreal was "living in Mexico primarily, but she also had her base—had a base here," meaning Brownsville, Texas. Misc. Hr'g Tr. 27:25–28:1, Feb. 4, 2016, Dkt. No. 64. Hence, the propriety of resolving factual disputes depends on whether Rule 12(b)(1) or 12(b)(3) applies.
Because the parties have not briefed whether the residence requirement of § 1503(a) is jurisdictional, this Court does not reach Defendants' motion to dismiss M. Villarreal's § 1503(a) claim. The parties apparently assume in their briefing that the "resides or claims a residence" clause of § 1503(a) ("the residence clause") is a jurisdictional requirement. This Court treated the residence clause as jurisdictional in Ortiz – Arriaga v. Castro , Civ. A. No. 1:12–26 (S.D.Tex. May 29, 2013), Dkt. No. 69. Several other courts have approached a claim that § 1503(a)'s residence clause is not satisfied as a venue challenge rather than a jurisdictional claim. See Johnson v. Immigr. & Customs Enforcement , 960 F.Supp.2d 347, 348–50 (D.P.R .2013) (granting motion to transfer venue of § 1503 claim to district to which plaintiff, a prisoner, had been transferred and declining to reach jurisdictional arguments, leaving them for the transferee court); Roman – Salgado v. Holder , 730 F.Supp.2d 126, 129–31 (D.D.C.2010) (granting motion under Rule 12(b)(3) to transfer venue to district of inmate's residence); see Fujiko Furusho v. Acheson , 94 F.Supp. 1021, 1023 (D.Haw.1951) (citing Acheson v. Yee King Gee , 184 F.2d 382 (9th Cir.1950) ) (holding requirement that action be brought where plaintiff "claims a permanent residence," in § 1503(a)'s predecessor statute "is one of venue rather than jurisdiction"). In recent years, the Supreme Court has more than once admonished lower courts to distinguish carefully between jurisdictional requirements of a statute and claim-processing rules. E.g. , Reed Elsevier, Inc. v. Muchnick , 559 U.S. 154, 161, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) ("In light of the important distinctions between jurisdictional prescriptions and claim-processing rules we have encouraged federal courts and litigants to ‘facilitat[e]’ clarity by using the term ‘jurisdictional’ only when it is apposite." (quoting Kontrick v. Ryan , 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) ) (internal citation omitted)). Generally, "[i]f the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character." Reed Elsevier, Inc. , 559 U.S. at 161–62, 130 S.Ct. 1237 (quoting Arbaugh v. Y&H Corp. , 546 U.S. 500, 515–16, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ). Consistent with the Supreme Court's admonitions, the Fifth Circuit held in 2005 that a provision of the Immigration and Nationality Act requiring a petition for review to be "filed in the court of appeals for the judicial circuit in which the immigration judge completed the proceedings." 8 U.S.C. § 1252(b)(2) (2012), is a venue provision. Jama v. Gonzales , 431 F.3d 230, 232 (5th Cir.2005). In light of this authority, the Court directs the parties to brief whether § 1503(a)'s residence clause is jurisdictional.
Additionally, in Meza v. Johnson, the Court raised the issue of the plaintiff's residence on its own motion, implying that it is jurisdictional, but the plaintiff there ultimately conceded that jurisdiction did not lie under § 1503(a). See Meza v. Johnson, No. 1:14–CV–60, slip op. at 5 (S.D.Tex. Aug. 11, 2015) (Tagle, J.). As a result, the Court never decided whether the residence clause is jurisdictional. See id.
--------
VI. Conclusion
For the foregoing reasons, the Court GRANTS Defendant's motion to dismiss, Dkt. No. 66, IN PART. The Court DISMISSES A. Villarreal's claims in their entirety and all of M. Villarreal's claims except her claim under 8 U.S.C. § 1503(a) for lack of subject matter jurisdiction.
The Court vacates the setting for docket call and final pretrial conference and ORDERS the parties to file, within 14 days after the entry of this order, memoranda of law directed to the question whether the residence clause of 8 U.S.C. § 1503(a) is jurisdictional.
It is so ORDERED.