Opinion
SA CV 02-1200 AHS (ANx)
November 5, 2003
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS COMPLAINT
I. PROCEDURAL BACKGROUND
On February 24, 2003, defendants filed a Motion to Dismiss Complaint for Injunctive and Declaratory Relief. On April 4, 2003, plaintiffs filed an opposition. On April 7, 2003, defendants filed a reply. The matter was set for hearing on the Court's April 21, 2003 hearing calendar. The matter was taken under submission on April 29, 2003.
Having read and considered the foregoing, the Court grants in part and denies in part defendants' motion.
The Court orders the correction of the caption and case name to reflect the renaming defendants following the restructuring of the agencies and their officers pursuant to enactment of the Homeland Security Act on March 1, 2003. Pending civil actions against agencies continue pursuant to the Homeland Security Act of 2002 notwithstanding the transfer of such agency into the Department of Homeland Security. Pub.L. No. 107-296, § 1512(c) (codified as amended at 6 U.S.C. § 552). The Immigration and Naturalization Service was transferred into the Department of Homeland Security as the Bureau of Citizenship and Immigration Services and as the Bureau of Immigration and Customs Enforcement under the Directorate of Border and Transportation Security. Pub.L. No. 107-296, §§ 441 451 (codified at 6 U.S.C. § 251 271). Furthermore, the authority over the Department was vested in the Secretary of Homeland Security. Pub.L. No. 107-296, § 102 (codified at 6 U.S.C. § 112). Governor Tom Ridge has been appointed Secretary of the Department of Homeland Security. Accordingly, Tom Ridge, Secretary of the Department of Homeland Security, is substituted for John Ashcroft, United States Attorney General, and the Bureau of Citizenship and Immigration and the Bureau of Immigration and Customs Enforcement are substituted for the Immigration and Naturalization Service.
II. FACTS
Pursuant to the Special Registration Procedures for Certain Nonimmigrants (SRPCN), non-immigrant males over the age of sixteen born in designated countries must appear before Bureau of Immigration and Customs Enforcement or Bureau of Citizenship and Immigrations (formerly Immigration and Naturalization Service) to notify the Attorney General of their current address and to furnish additional information that may be required. 8 C.F.R. § 264.1(f).
The designated countries include: (1) Iran, Iraq, Libya, Sudan, and Syria, 67 Fed. Reg. 67766 (Nov. 6, 2002); (2) Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates and Yemen, 67 Fed. Reg. 70526 (Nov. 22, 2002); and (3) Pakistan and Saudi Arabia, 67 Fed. Reg. 77642 (Dec. 18, 2002).
The complaint names six individual "DOE" plaintiffs as potential representatives of a class of individuals required to report under the SRPCN. The individual plaintiffs were either born in or are citizens or nationals of one of the enumerated countries and admit to being "out of status," although allegedly eligible for adjustment. Plaintiff John DOE 1 was born in Iran and entered the United States under the Visa Waiver Program (VWP). He was immediately arrested without a warrant when he appeared to register. Plaintiff John DOE 2 was born in Iran and entered the Unites States on a tourist visa which he has overstayed. He did not register at the assigned date due to fear of unlawful arrest and detention. Plaintiff John DOE 3 was born in Iran and entered the United States with a non-immigrant visa which he has overstayed. He was immediately arrested without a warrant when he registered. Plaintiff John DOE 4 was born in Iran and entered the United States under the VWP. He was immediately arrested when he registered and has subsequently been removed from the United States. John DOE 5 is a citizen and national of Pakistan who entered the United States through unspecified means. As of the filing of the complaint, he had not been required to register. John DOE 6 is a citizen and national of Yemen who entered the United States on a visitor's visa which he has overstayed. He was detained when he registered.
III. PARTIES' POSITIONS
Defendants move for dismissal for lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).
Defendants assert that plaintiffs' complaint should be dismissed on seven grounds: (1) 8 U.S.C. § 1252(f)(1) deprives the Court of jurisdiction to grant class-wide relief; (2) the organizational plaintiffs lack standing and individual plaintiffs lack standing to seek an equitable remedy; (3) unidentified "John DOE" plaintiffs are improperly named; (4) plaintiffs are improperly joined; (5) 8 U.S.C. § 1252(g) deprives the Court of jurisdiction to enjoin commencement of removal proceedings and executing removal orders; (6) plaintiffs have failed to exhaust administrative remedies; (7) 8 U.S.C. § 1187(b)(2) deprives the Court of jurisdiction to enjoin removal of aliens who entered the United States under the VWP; and (8) plaintiffs fail to state a claim upon which relief can be granted.
Plaintiffs argue that (1) the Court does have jurisdiction to enjoin defendants from removing or detaining individuals with long-pending immigration petitions; (2) they have stated a claim for relief for defendants' failure to adjudicate pending immigration applications; (3) they have set out a valid claim for relief against defendants' warrant less arrests; (4) individual plaintiffs have standing; (5) institutional plaintiffs have standing; (6) pseudonyms are appropriate under certain circumstances and, given that those circumstances are present, not a sufficient reason to dismiss; (7) plaintiffs are properly joined; and (8) no administrative remedies exist for certain plaintiffs to exhaust.
IV. DISCUSSION
Plaintiffs' complaint states two causes of action.
First claim for relief: Unlawful warrant less Arrests (sic).
38. Defendant's policy and practice to arrest SRPCN registrants without warrants and without determining whether the individuals arrested are to flee before a warrant can be obtained is an unlawful seizure violative of the Immigration and Nationality Act, 8 U.S.C. § 1226 and 1357(a)(2) and the Fourth and Fifth Amendments to the United States Constitution,
(Complaint, at 13).
Second claim for relief: Unlawful removal and denial of release on bail or RECOGNIZANCE TO CERTAIN APPLICANTS FOR LAWFUL RESIDENT STATUS (sic).
Defendants' policy and practice to remove and deny any possibility of release on bond or recognizance to SRPCN registrants who are prima facie eligible to adjust their status to that of lawful permanent resident, and who either —
(A) have pending applications for relief from removal pursuant to INA § 245; or
(B) would become immediately eligible for relief from removal pursuant to INA § 245 were the INS to approve a pending application or petition that is predicate the eligibility for relief under INA § 245, violate the Immigration and Nationality Act, 8 U.S.C. § 1255, and the Due Process and Equal Protection Guarantee of the Fifth Amendment to the United States Constitution.
(Complaint at 13-14).
Plaintiffs seek a declaratory judgment that the defendants' policies and practices violate the Immigration and Nationality Act and the due process and equal protection clauses of the Fifth Amendment to the United States Constitution and also an injunction preventing enforcement of the policies and practices identified.
A. Jurisdiction
1. First Claim for Class Relief
Defendants' motion to dismiss plaintiffs' first claim for class relief is granted in part and denied in part. Insofar as the claim is based on defendants' polices and practices pursuant to 8 U.S.C. § 1226, the motion is granted. Otherwise the motion is denied.
Title 8 U.S.C. § 1226 confers on the United States Attorney General the authority to apprehend and detain aliens on warrant:
The Attorney General's discretionary judgment regarding application of this section shall not be subject to review. No court may set aside any action or decision of the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.8 U.S.C. § 1226(e).
Title 8 U.S.C. § 1357 carves an exception from the warrant requirement of the Attorney General's authority. Section 1357 provides:
Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant —
to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States.8 U.S.C. § 1351(a)(2).
While the statutory exception to the warrant requirement exists, the dual requirements, of a violation and the likelihood of escape, are to be seriously applied. United States v. Cantu, 519 F.2d 494, 497 (7th Cir. 1975); Pearl Meadows Mushroom Farm, Inc. v. Nelson, 723 F. Supp. 432 (N.D. Cal. 1989).
Title 8 U.S.C. § 1252(f) states in the pertinent parts: Regardless of the nature of the action or claim or the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction to enjoin or restrain the operation of the provisions of part IV of this subchapter other than with respect to the application of such provision to an individual alien against who proceedings under such part have been initiated.8 U.S.C. § 1252(f)(1). The term "enjoin" includes the panoply of injunctive relief available to a court. Andreiu v. Ashcroft, 253 F.3d 477, 480 (9th Cir. 2001). Section 1252(f) prohibits federal courts from granting class-wide injunctive relief against the operation of 8 U.S.C. § 1221-1231. Andreiu, 253 F.3d at 481; citing Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 481-82, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). While a district or appellate court can protect the interests of an individual alien against an immediate violation of rights, the courts do not have authority to enjoin procedures established by Congress. Andreiu, 253 F.3d at 481 n.l.
The Court does not have authority to grant class-wide injunctive relief against the operation of § 1226.
Section 1357 confers the authority on an INS agent to conduct a warrantless arrest. Section 1252(f) does not apply to § 1357. Defendants motion to dismiss the first claim for lack of jurisdiction over a class is granted insofar as plaintiffs are asserting a claim under § 1226 but denied insofar as plaintiffs are asserting a claim under § 1357.
2. Second Claim: Non-Visa Waiver Program Entrants
Defendants' motion to dismiss for lack of jurisdiction plaintiffs' second claim as it relates to class-wide relief is granted. Defendants' motion to dismiss plaintiffs' second claim for lack of jurisdiction as it relates to individual, non-Visa Waiver Program plaintiffs' claims is denied. Plaintiffs may have abandoned the second claim insofar as it relates to non-Visa Waiver Program entrants.
Plaintiffs include two classes of entrants to the United States: (1) those who entered under the VWP, 8 U.S.C. § 1187; and (2) those who entered under some other visa or program. It appears that defendant may be asserting the second claim only as to the former class of entrants.
As stated above, 8 U.S.C. § 1252(f) prevents class-wide injunctive relief against the operation of §§ 1221-1231. Andreiu, 253 F.3d at 481;citing American-Arab, 525 U.S. at 481-82, 119 So. Ct. 936. While a district or appellate court can protect the interests of an individual alien against an immediate violation of rights, the courts do not have authority to enjoin procedures established by Congress. Andreiu, 253 F.3d at 481 n.l.
Title 8 U.S.C. § 1252(g) states that "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."
The Supreme Court has rejected the assumption that § 1252(g) covers the universe of deportation claims; it is limited to discrete actions by the Attorney General: the decision to commence proceedings, adjudicate cases, or execute removal orders. American-Arab, 525 U.S. at 482, 119 S.Ct. 936.
Plaintiffs other than John DOES 1 and 4 are subject to removal proceedings under 8 U.S.C. § 1229(a), which provides for administrative review of individual claims and judicial review by the appropriate court of appeals. 8 U.S.C. § 1229(a); 8 U.S.C. § 1252(a). Plaintiffs seek an injunction on the policy and practice of the INS whereby SRPCN registrants might be subject to removal despite a pending application for change of status under the INA § 245 ( 8 U.S.C. § 1255). They appear to seek to enjoin commencement of proceedings and removal under § 1229. The claim and relief sought would require the Court to dictate the manner in which the Citizenship and Immigration Services and Bureau of Immigration and Customs Enforcement arrest and detain aliens or prosecute the proceedings by which aliens' removal and petitions for adjustment of status are adjudicated. Section 1252(f) clearly enjoins this Court from any injunctive relief related to the administrative removal proceedings applicable to a class.
Furthermore, the Court does not have jurisdiction to entertain the claims of plaintiffs John DOES 2, 3, 5, and 6 as such claims relate to the commencement of proceedings against them or the entry, though perhaps not execution, of an order of removal.
The Court does not have jurisdiction to entertain a class action seeking injunction of the INS policy and practice.
Plaintiffs' second cause of action also seeks to have the timing and decision to commence proceedings against an alien declared unconstitutional. Plaintiffs' argue in their opposition that the Court has jurisdiction to hear constitutional claims regarding removal and immigration procedures and should not decline to consider the second cause of action, which seeks a declaration that defendants' immigration proceedings are not constitutionally permissible. See Walters v. Reno. 145 F.3d 1032, 1053 (9th Cir. 1998). The Court lacks jurisdiction not only over the Attorney General's decision to bring proceedings, but when to bring them, Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 599 (9th Cir. 2002). Furthermore, nothing in the law precludes the commencement of a removal proceeding against an immigration violator merely because he files an application for adjustment. Yao v. Immigration and Naturalization Services, 2 F.3d 317, 319 (9th Cir. 1993); Tongatapu Woodcraft Hawaii, Ltd, v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984). Section 1252(g) prevents the court from hearing the claim of an individual arising from the decision to commence proceedings. Insofar as plaintiffs directly challenge the policy and practice of delaying removal proceedings, the Court does not have jurisdiction.
The Court does not have jurisdiction to hear a claim arising from defendants' decision to commence proceedings as to individuals subject to removal pursuant to § 1229 or a class.
Plaintiffs do not appear to be requesting injunctive or declaratory relief related to the named, non-Visa Waiver Program entrants. (See Pls.' Opp. to Defs.' Mot. to Dismiss, at 7:2-4.) In their complaint, plaintiffs invoked habeas corpus and requested an injunction against removal of individuals whose applications are pending. While the Court cannot, pursuant to §§ 1252 and 1255, grant class-wide injunctive relief, the individual claims may persist. However, plaintiffs appear to have abandoned these claims.
3. VWP Entrants
Title 8 U.S.C. § 1187 allows tourists from certain enumerated countries to enter the United States for 90 days or less without obtaining a visa. 8 U.S.C. § 1187. Entrance under this VWP is not allowed unless the alien waives any right "to contest, other than on the basis of an application for asylum, any action for removal of the alien." 8 U.S.C. § 1187 (b)(2).
Generally, aliens facing deportation are entitled to due process under the Fifth Amendment. Landon v. Plascencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982); Matthews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). Due Process rights can be waived. Waiver of the entitlement to these rights is valid upon a showing by the government of an intentional relinquishment of a known right or privilege. United States v. Lopez-Vazguez, 1 F.3d 751, 754 (9th Cir. 1993).
The limitations on duration of stay and challenges to a removal are a trade-off for entry without a visa. An alien who entered under the VWP can only contest a removal by a request for asylum. See Wigglesworth v. Immigration and Naturalization Service, 319 F.3d 951, 956 (7th Cir. 2003); Itaeva v. Immigration and Naturalization Service, 314 F.3d 1238, 1240-41 (10th Cir. 2003); Nose v. Attorney General of the United States, 993 F.2d 75, 78-80 (5th Cir. 1993); McGuire v. United States Immigration and Naturalization Service, District Director, 804 F. Supp. 1229, 1232-1233 (N.D. Cal. 1992).
Plaintiffs concede that John DOES 1 and 4 entered the United States under the VWP. The complaint is limited to asserting that VWP entrants are entitled to some form of removal proceedings where they have applied or are would otherwise be eligible for adjustment of status under § 245 of the INA. Plaintiffs do not allege in their complaint that John DOES 1 and 4 did not knowingly accept the clear waiver provision provided in the VWP. While plaintiffs' opposition suggests that the waiver was made unknowingly, the complaint merely seeks to stay deportation for those prima facie eligible to adjust their status to lawful and who have, or will become, immediately eligible for relief pursuant to the INA § 245.
Aliens who admittedly entered the United States under the VWP are not prima facie entitled to an adjustment to legal status except where such adjustment is based on asylum. As plaintiffs argue, aliens who entered under the VWP may be eligible for discretionary adjustment of status under INA § 245. See 8 U.S.C. § 1255(i)(1)(B)(i). However, eligibility for such adjustment does not mean that the INS is barred from commencing proceedings. See Yao, 2 F.3d at 319; Tongatapu Woodcraft Hawaii, Ltd., 736 F.2d at 1308.
Plaintiffs' opposition does suggest that plaintiffs 1 and 4 may not have knowingly waived their rights. However, the complaint did not allege individual plaintiffs' waiver under the VWP was unknowing; the complaint merely complained that John DOES 1 and 4 should not be removed without a removal hearing and without the opportunity to adjust their status under INA § 245. Plaintiffs urge that alternative procedures preventing removal should be available to VWP entrants.
Even if the WP entrants might be eligible for discretionary relief pursuant to INA § 245, plaintiffs' due process rights are defined and limited to a request for asylum. Procedures preventing immediate removal other than an asylum petition are not available to VWP entrants John DOES 1 and 4.
Defendants' motion to dismiss plaintiffs' second claim is granted.
B. Standing
As the Court finds that it does not have jurisdiction to review plaintiffs' second claim, it declines to address defendants' standing arguments as to that claim.
1. Organizational Plaintiffs
An association has standing to bring suit on behalf of its members when: (1) its members would otherwise have standing to suit in their own right; (2) the interests at stake are germane to the organization's purpose; (3) and neither the claim asserted nor the relief requested requires the individual members of the lawsuit. Friends of the Earth, Inc. v. Laidlaw Environmental Service, Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
To succeed on a motion to dismiss, the moving party must show that relief cannot be granted, accepting as true the allegations of the well-pleaded complaint. United States ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181 (9th Cir. 2001); Big Bear Lodging Assoc. v. Snow Summit, Inc., 182 F.3d 1096, 1101 (9th Cir. 1999).
Defendants do not challenge the first or second prong of the analysis under this analysis. Defendants assert that the individual members are necessary for determination of the claims and relief.
a. First Claim
The first claim for relief as to the individuals alleges that defendants arrested plaintiffs without an individual determination of the likelihood of flight and that defendants have a policy and procedure of arresting SRPCN registrants without such a determination. By definition, the arrest of a person requires an individualized analysis of whether defendants determined the likelihood of any particular registrant to flee. To the extent that plaintiffs challenge the individual arrests, the organizations may not have standing because an individual is necessary.
However, plaintiffs challenge more than individual arrests, alleging that the defendants have a policy and procedure of arresting individuals without determining a likelihood of flight. Plaintiffs do not merely challenge the individual arrests. While instances of individual arrests are germane, the individual plaintiffs are not necessary to establish the policy and procedure challenged.
The organizational plaintiffs do have standing as to plaintiffs' first claim. Defendants' motion is denied.
2. Individual Plaintiffs
A plaintiff seeking injunctive relief must establish: (1) the likelihood of substantial and immediate irreparable injury; and (2) the inadequacy of remedies at law. City of Los Angeles v. Lyons, 461 U.S. 95, 110, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); see also Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1044 (9th Cir. 1999); LaDuke v. Nelson, 762 F.2d 1318, 1330 (9th Cir. 1985).
In Lyons, the Court found that plaintiff did not have standing to seek injunctive relief against the city's policy of using a chokehold on arrestees because, although he had previously been subjected top the chokehold, plaintiffs was not likely to be arrested and subject to the injury again. Defendants argue that, as in Lyons, plaintiffs here show no likelihood of arrest, even if they have been previously arrested.
Defendants' reliance on Lyons is misplaced. Plaintiffs' claims are distinguishable on four grounds. First, plaintiffs are alleging class-wide relief. While plaintiffs have not yet sought class certification, the claim of a policy and procedure of arrest without warrant is brought on behalf of a class of people. The low likelihood of one person being wrongfully arrested pursuant to the policy does not demonstrate the likelihood that class members are unlikely to be subjected to the policy. The individual interest in the claim or probability of recurrence does not show an unlikelihood of injury preventing standing to obtain injunctive relief. Second, there is an allegation of officially-sanctioned agent-behavior and a policy and pattern of improper law enforcement conduct which may be appropriate for injunctive relief. A determination of the merits of the existence or bases of such a policy is premature. Third, in contrast to Lyons' low likelihood of future injury, the named plaintiffs and members of a class are required to report and to thereafter re-report annually for registration. As regular registrants, plaintiffs and proposed class members may be subject to arrest pursuant to that policy. They are required to face such risk on a regular basis. Indeed, some plaintiffs failed to register, citing the imminence of arrest. The likelihood of arrest and detention is not as speculative as that in Lyons or Hodgers-Durgin.
Plaintiffs motion to dismiss individual plaintiffs for lack of standing to obtain injunctive relief is denied.
C. Improperly Named "DOE" Plaintiffs
Federal Rule of Civil Procedure 10 requires that plaintiff set out the names of all parties. Fed.R. Civ, P. 10(a). However, the Court of Appeals for the Ninth Circuit has permitted plaintiffs to proceed anonymously in special circumstances. DOES I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000). Some Circuits require that plaintiffs obtain leave of the court to file an anonymous pleading before filing. See Schwarzer, Tashima, and Wagstaffe, Rutter Group Prac. Guide; Fed. Civ. Proc. Before Trial (The Rutter Group 2003) at 8:120.10; W.N.J v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001). However, this Circuit does not require prior application, although plaintiffs must nevertheless obtain leave to proceed under fictitious names. See Advanced Textile, 214 F.3d at 1163-1164, 1167-1168. Nevertheless, plaintiffs are allowed to proceed under "pseudonyms only in the `unusual case' when nondisclosure of the party's identity `is necessary. — to protect a person from harassment, injury, ridicule or personal embarrassment.'" Advanced Textile, 214 F.3d at 1067-68; citing United States v. DOE, 655 F.2d 920, 922 n.l (9th Cir. 1981). The district court must balance the need for anonymity against the general presumption that parties identities are public information and the risk of unfairness to the opposing party. Courts have permitted plaintiffs to use pseudonyms: (1) when identification creates a risk of retaliatory physical or mental harm; (2) when anonymity is necessary to protect privacy in a sensitive and highly personal manner; and (3) when the anonymous party is compelled to admit his or her intention to engage in illegal conduct, creating a risk of criminal prosecution. Advanced Technologies, 214 F.3d at 1168 (citations omitted).
Plaintiffs state that they filed "Plaintiffs (sic) Application to proceed under fictitious names" on December 24, 2002. The Court has not received such an application. Plaintiffs attached to their certificate of interested parties, filed December 24, 2002, a list identifying the "DOE" plaintiffs. There was no proof of service on defendants of that list. While plaintiffs assert that the list has been provided to the defendants on December 26, 2002, and as part of the application for a temporary restraining order, defendants assert that they still do not have notice of the identities of the "DOE" plaintiffs.
Plaintiffs assert that the number of hate crimes against Muslims and Arabs has increased dramatically since the September 11, 2001 terrorist attacks. Plaintiffs suggest that the publication of the individual plaintiffs' names would result in risk of harm to them. Plaintiffs state that the factual information necessary to the defense has been and will be provided while maintaining the privacy of the "DOE" plaintiffs.
Plaintiffs have failed to properly apply for or obtain leave to proceed under fictitious names. However, plaintiffs should have the opportunity to correct the complaint to reflect the true names of plaintiffs.
Accordingly, plaintiffs may file either a corrected complaint containing the true names of all plaintiffs no later than thirty (30) days from the date of this order. Failure to do so will result in the dismissal of the complaint and the action.
D. Impermissible Joinder
Federal Rule of Civil Procedure 20 allows permissive joinder of parties in an action "if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise out of the action." Fed.R. Civ, P. 20(a).
Plaintiffs have asserted a class-action challenging defendants' policies and procedures in arresting and removing SRPCN registrants. The claims assert entitlement to class relief and challenge the same transactions or occurrences and series of transactions and occurrences. While defendants allege that they make individual determinations of the application of their policies and procedures, the arrest and detention of the individual and class plaintiffs are allegedly pursuant to one policy or procedure and are part of a series of transaction implementing that policy during SRPCN registrations.
Defendants' motion to dismiss for improper joinder is denied.
E. Exhaustion of Administrative Remedies
Habeas petitioners are required to exhaust judicial and administrative remedies before seeking relief under 28 U.S.C. § 2241. Castro-Cortez v. Immigration and Naturalization Service, 239 F.3d 1037, 1047 (9th Cir. 2001).
Title 8 U.S.C. § 1229a provides that an immigration judge shall conduct proceedings to determine deportability in the first instance. Section 1229a(a)(3) provides that this process is the sole procedure for determining removal. Furthermore, the Board of Immigration appeals is charged with reviewing the orders on bond ( 8 C.F.R. § 1003.19), custody ( 8 C.F.R. § 236.1(d), deportability and removal ( 8 C.F.R. § 1003.1(b)), and general appellate authority over the administrative adjudication of immigration matters ( 8 C.F.R. § 1003.1(d)).
Defendants argue that plaintiffs must exhaust administrative remedies before pursuing their claims in federal court.
First, defendants have not identified an administrative remedy to address the warrantless arrests. Second, plaintiffs have asserted that VWP entrants are not entitled to an administrative or judicial remedy except for application for asylum; asylum relief is inapplicable to plaintiffs claims. Defendants have failed to identify an administrative remedy for any claim brought by VWP entrants.
Finally, however, there are administrative remedies for non-Visa Waiver Program entrants who are subject to removal. Whether directly challenging removal or seeking habeas relief, plaintiffs have other remedies available prior to challenging removal before this Court. As stated above, the equitable remedies for plaintiffs' challenge to defendants' policy and practices of removal are available only to individual plaintiffs. Consequently, the Court does not address the administrative remedies available to class plaintiffs. However, the individual plaintiffs would appear to have administrative remedies available to challenge their removal.
Plaintiffs subject to removal are subject to an administrative process with its own appellate procedure to adjudicate their individual removal. Insofar as plaintiffs challenge the removal of individual plaintiffs (other than VWP entrants), an administrative proceeding does exist. Plaintiffs have not alleged or shown that this administrative process is exhausted.
However, plaintiffs appear to challenge both the individual removals and the policy and procedure by which applications for adjustment of status and removal are handled. The direct challenge to the policies and procedure are not subject to an administrative review. However, such a challenge is not within this Court's jurisdiction, as addressed above.
Defendants' motion to dismiss for failure to exhaust administrative remedies is granted as to the individual plaintiffs insofar as they seek review and determination of the removal under claim two. Defendants' motion is denied as to claim one and as to VWP entrants. F. Dismissal under Fed.R.Civ.P. 12(b)(6)
Defendants fail to demonstrate that plaintiffs fail to state a cause of action upon which relief can be granted. Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is denied.
IV. CONCLUSION
Defendants' motion to dismiss is granted in part and denied in part. Defendants' motion to dismiss plaintiffs' second claim is granted for lack of jurisdiction and for failure of non-Visa Waiver entrants to plead exhaustion of their administrative remedies. Defendants' motion to dismiss plaintiffs' first claim is denied. Plaintiffs are directed to file a First Amended Complaint consistent with the foregoing within thirty (30) days. Plaintiffs are directed to correct the fictitiously named plaintiffs through amendment of the complaint.
IT IS SO ORDERED.
IT IS FURTHER ORDERED that the Clerk shall serve a copy of this Order on counsel for all parties in this action.