Monterrubio v. Duke et al, No. 4:2017cv03916 - Document 13 (S.D. Tex. 2018)
Court Description: MEMORANDUM OPINION AND ORDER granting 7 MOTION to Dismiss (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
Download PDF
<![CDATA[
Monterrubio v. Duke et al Doc. 13 United States District Court Southern District of Texas IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION SANTOS MONTERRUBIO, Plaintiff, V. KIRSTJEN M. NIELSEN, 1 Secretary, U.S. Department of Homeland, Security; LEE F. CISSNA, Director, U.S. Citizenship and Immigration Services; and MARK SIEGL, Houston Field Office Director, U.S. Citizenship and Immigration Services, In Their Official Capacities, Defendants. ENTERED May 16, 2018 David J. Bradley, Clerk § § § § § § § § § § § § § § § § § CIVIL ACTION NO. H-17-3916 MEMORANDUM OPINION AND ORDER Plaintiff Santos Monterrubio ("Monterrubio" or "Plaintiff") brings this action against defendants, Kirstjen Nielsen, Secretary, U.S. Department of Homeland Security; Lee F. Cissna, Director, U.S. Citizenship and Immigration Services Houston Field Office Director, U.S. ( "USCIS") ; and Mark Siegl, Citizenship and Immigration Services, in their official capacities (collectively, "Defendants") seeking declaratory and injunctive relief. Pending before the court is Defendants' Motion to Dismiss (Docket Entry No. 7). For the reasons stated below, the court will grant Defendants' Motion to Dismiss. 1 Pursuant to Fed. R. Civ. P. 25 (d), Kirstjen M. Nielsen automatically replaces former Acting Secretary Elaine Duke. Dockets.Justia.com Background2 I . Monterrubio is a citizen of Mexico who was admitted to the United States as a lawful permanent resident in 1978. 1990, a grand jury of Harris County, Texas, for indecency with a child by contact. 3 On April 23, indicted Monterrubio Monterrubio entered a plea of nolo contendere to the charge in the indictment. 4 The Judgment identifies the "Date of Judgment" as October 30, 1990. 5 But the court offense "withheld finding [Monterrubio] indicated above, a felony." 6 guilty of the On March 4, 1991, the court sentenced him to ten years of confinement. 7 Monterrubio Form N-400, on filed May 7, an Application 2013, 2 and for interviewed See Complaint for Declaratory and ("Complaint"), Docket Entry No. 1, pp. 6-8. Naturalization, to determine Injunctive Relief 3 Grand Jury Indictment, Exhibit 1 to Defendants' Motion to Dismiss, Docket Entry No. 7-1. The court may consider this indictment because Plaintiff refers to his criminal conviction for indecency with a child in his Complaint and because the timeline of Plaintiff's conviction is central to his claim. Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 287 (5th Cir. 2004) (citations omitted). Moreover, "it is clearly proper in deciding a 12(b) (6) motion to take judicial notice of matters of public record." Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (citation omitted) . 4 Judgment on Plea of Guilty or Nolo Contendere Before Court Waiver of Jury Trial ("Judgment"), The State of Texas vs. Santos Miguel Monterrubio, Exhibit 2 to Complaint, Docket Entry No. 1-2, p. 1. 5 Id. 6 Id. 7 Id. -2- eligibility on October 12, 2016. 8 On November 1, 2016, the USCIS denied Monterrubio's application explaining that [b] ecause you have been convicted of an aggravated felony on or after November 29, 1990, you are permanently barred from establishing good moral character. Therefore, you are ineligible for naturalization. 9 Monterrubio appealed and the users reaffirmed the denial of naturalization on October 5, 2017. 10 Monterrubio' s u.s.c. § Complaint seeks an order pursuant 1427 declaring that the final agency decision by arbitrary and capricious, accordance with the law, an abuse Administrative Procedure Act injunctive relief. 11 of discretion, to users and not 8 was in (2) de novo review of his eligibility to seek naturalization under 8 U.S.C. ( 3) ( 1) § 1421(c) in accordance with the ("APA"), Defendants 5 U.S.C. filed a §§ 701-706, and motion to dismiss arguing that Plaintiff has not stated a claim upon which relief may be granted on de novo review, and that the court lacks subject matter jurisdiction under the APA. 12 8 Decision, U.S. Citizenship and Immigration Exhibit 3 to Complaint, Docket Entry No. 1-3, p. 2. Services, 10 Notice of Decision, Re: Santos Miguel Monterrubio, Exhibit 4 to Complaint, Docket Entry No. 1-4, p. 1. 11 See Complaint, Docket Entry No. 1, p. 2. 12 See Defendants' Motion to Dismiss, Docket Entry No. 7, p. 11. -3- II. A. Standards of Review Motion to Dismiss Under Rule 12(b} (6} Under the Federal Rules of Civil Procedure a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8 (a) (2). A plaintiff's pleading must provide the grounds of his entitlement to relief, and "a formulaic recitation of the elements of a cause of action will not do. s . Ct. 19 55 19 6 5 I Bell Atlantic Corp. v. Twombly, " ( 2 0 0 7) . "' [N] aked assertion [s] ' 127 devoid of 'further factual enhancement'" or "[t]hreadbare recitals of the elements of statements, a cause of action, do not suffice." 1937, 1949 (2009). supported by See Ashcroft v. mere conclusory Iabal, 129 S. Ct. "[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." F.2d 278, 284 Fernandez-Montes v. Allied Pilots Ass'n, 987 (5th Cir. 1993). Instead, "[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." A Rule 12(b) (6) pleadings and is Iqbal, 129 S. Ct. at 1949. motion tests the formal sufficiency of the "appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim." Ramming v. cert. United States, denied sub nom. (2002) . 281 F.3d 158, Cloud v. 161 United States, To defeat a motion to dismiss, -4- (5th Cir. 122 S. 2001), Ct. 2665 a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 127 S. Ct. at 1974. The court does not "strain to find inferences favorable to the plaintiffs" or "accept conclusory allegations, unwarranted deductions, Southland Securities Corp. v. F.3d 2004) 353, 361 (5th citations omitted). Cir. or legal INSpire Ins. conclusions." Solutions, 365 quotation (internal Inc., marks and "[C] ourts are required to dismiss, pursuant to Federal Rule of Civil Procedure 12(b) (6), claims based on invalid legal theories, even though they may be otherwise well-pleaded." Flynn v. State Farm Fire and Casualty Insurance Co. F. Supp. 2d 811, 820 (W.D. Tex. 2009) (Texas), 605 (citing Neitzke v. Williams, 10 9 S. Ct. 18 2 7, 18 3 2 ( 19 8 9) ) . B. Motion to Dismiss Under Rule 12{b) {1) Federal Rule of Civil Procedure 12(b) (1) permits parties to file motions challenging jurisdiction. matter a district court's subject matter "'A case is properly dismissed for lack of subject jurisdiction when the court lacks constitutional power to adjudicate the case. '" of Mississippi, Inc. v. City of Madison, 1006, 1010 (5th Cir. 1998). the statutory or Home Builders Ass' n Mississippi, 143 F. 3d The court must dismiss the action if it finds that it lacks subject matter jurisdiction. Fed. R. Civ. P. 12 (h) (3). As the Monterrubio party bears seeking the burden to invoke of -5- federal establishing jurisdiction, subject matter jurisdiction. Ramming, 281 F.3d at 161. The court may find that subject matter jurisdiction is lacking based on "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." also Randall D. Wolcott, M.D., at *4 (5th Cir. 12 (b) (1) 2011, Id.; see P.A. v. Sebelius, 2011 WL 870724, March 15, 2011). A court should grant a motion "only if it appears certain that the plaintiff cannot prove any set of facts in support of [its] claim that would entitle [it] to relief." Home Builders Ass'n of Mississippi, Inc., 143 F.3d at 1010. III. A. Analysis Date of Conviction of Monterrubio's Aggravated Felony Pursuant to 8 U.S.C. § 1427(a), a person shall be naturalized only if he has been a person of good moral character during the five-year period naturalization. immediately 8 U.S.C. § preceding 1427(a) (3). the application for A person lacks good moral character if he has been convicted of an aggravated felony, as defined in section 101 (a) (43) of the Immigration and Naturalization Act ("INA"), at any time on or after November 29, 1990. 8 C.F.R. 316.10(b) (ii). rape, An aggravated felony includes sexual abuse of a minor." with a child in violation 8 U.S.C. of § Texas "murder, 1101(a) (43) (A). Penal Code § or Indecency 21.11 (a) (1) constitutes sexual abuse of a minor and is therefore an aggravated -6- felony within the meaning of section 101(a) (43) (A) of the INA, U.S.C. § 1101(a) (43) (A). Dec. 991, 993-96 In re Rodriguez-Rodriguez, (BIA 1999) Ayala, 542 F.3d 494, 495 22 I. 8 & N. (en bane); see also United States v. (5th Cir. 2008) (per curium) (affirming the district court's decision "[e)quating 'indecency with a child' under Texas law with purposes) . Mon~errubio person of good moral naturalization, 1990. for sentencing Because indecency with a child is an aggravated felony under the INA, 13 a 'sexual abuse of a minor'" is barred from establishing that he is character and that if he was he is eligible for "convicted" on or after November 29, 8 C.F.R. 316.10(b) (ii). Monterrubio alleges that he is not barred from seeking naturalization because he was "convicted" for purposes of the INA on October 30, 1990. 14 He alleges that the users used an incorrect date of judgment and requests the court to set aside the denial of his N-400 Application for Naturalization. 15 Defendants argue that Monterrubio was "convicted" on March 4, 1990. 16 "[W)hether or not a is a conviction exists for immigration purposes question of federal law and is not dependent on the vagaries of state law." Matter of Ali Mohamed Mohamed, Respondent, 27 I. & N. Dec. 92, 96 (BIA 2017) (quotation and citations omitted). Under the INA: 13 Plaintiff does not contest that his conviction constitutes an aggravated felony under the INA. ~ 14 Complaint, Docket Entry No. 1, p. 9 15 Id. at 9 16 Defendants' Motion to Dismiss, Docket Entry No. 7, pp. 11-12. ~ 4 0. 45. -7- 4 8 (A) The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. 8 U.S.C. 1101(48) (A) (i-ii) § The Judgment states that the "Date of Judgment" was October 30, finding [Monterrubio] 1990, guilty." 17 but that the court "withheld Because the court "withheld" a finding of guilt, the conviction date is the date the judge ordered some form of punishment. 18 The Judgment states that the "Date Sentence Imposed" was "3-4-91"; on that date the court sentenced Monterrubio to ten years of confinement. 19 it was "[s]igned and entered this 1991. " 20 Therefore, "convicted" for on March 4, purposes 1991. The Judgment states that the 4th day of March, of the INA, A.D., Monterrubio was Because he was convicted of an aggravated felony "on or after November 29, 1990," and thus cannot establish that he is eligible for naturalization under 8 C.F.R. § 316(b) (1) (ii), Monterrubio has failed to state a claim upon which relief may be granted. 17 Judgment, The State of Texas vs. Santos Miguel Monterrubio, Exhibit 2 to Complaint, Docket Entry No. 1-2, p. 1. 18 Id. at 1. -8- B. Review Under the APA The statute APA and adequate 5 U.S.C. states final remedy § 704. that agency in a " gency [a] action court In 8 U.S.C. for are § action which subject made there to reviewable is judicial no by other review." 1421(c) Congress provided that [a] person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of title 5. Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application. Because denied naturalization applications are reviewed de novo by the court under section 1421, "Congress has [] afforded the [applicants] a complete and wholly adequate review" that precludes Monterrubio from invoking the APA's judicial review procedures. Aparicio v. Blakeway, 302 F.3d 437, 447 (5th Cir. 2002). IV. Conclusions and Order For the reasons explained above, Defendants' Motion to Dismiss (Docket Entry No. 7) is GRANTED pursuant to Federal Rule of Civil Procedure 12(b) (6) for failure to state a claim, and this action will be dismissed with prejudice. SIGNED at Houston, Texas, on this the 16th day of May, 2018. SIM LAKE UNITED STATES DISTRICT JUDGE -9-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
