Opinion
23-cv-02693-LJC
06-23-2023
DORU GABRIEL TRIFU, Plaintiff, v. EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al., Defendants.
ORDER GRANTING IFP APPLICATION; REPORT AND RECOMMENDATION TO DISMISS WITH PREJUDICE; ORDER REASSIGNING CASE TO DISTRICT JUDGE
RE: ECF NOS. 1, 2
LISA J. CISNEROS, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Doru Gabriel Trifu filed his Complaint and an application for leave to proceed in forma pauperis (IFP). ECF Nos. 1, 2. The action was transferred from the Eastern District of California on May 30, 2023. ECF No. 4. Having considered Plaintiff's papers, the Court GRANTS the IFP application and determines that the Complaint fails to state a claim on which relief may be granted pursuant to 28 U.S.C. § 1915(e). Because not all parties have consented to magistrate jurisdiction, the Court issues this Report and Recommendation and orders reassignment of the case to a district judge, with the recommendation that Plaintiff's Complaint be dismissed without leave to file an amended complaint.
I. BACKGROUND
Plaintiff brings this lawsuit against the Executive Office for Immigration Review (EOIR) and the Immigration Court. ECF No. 1 (Compl.) at 1. Plaintiff is in removal proceedings in the San Francisco Immigration Court, although on December 13, 2013, the presiding Immigration Judge issued an order administratively closing Plaintiff's case. Id. at 12. The order provided that “[p]roceedings may be recalendared at any time upon either party's motion, and this order does not constitute a final judgment rendered on the merits of these proceedings.” Id. According to Plaintiff, his immigration attorney at the time, Alex Gortinsky, is since deceased. Id. at 2.
Unless specified otherwise, the Court refers to the PDF page number generated by the Court's efiling system when the document is electronically filed on the court docket.
Plaintiff alleges that on May 15, 2023, he mailed a package of documents to the Office of the Clerk of the San Francisco Immigration Court containing a Motion to Reopen-Cancellation of Removal Proceedings (Motion to Reopen). Id. at 1. The next day, Plaintiff received from EOIR the exact package of documents he mailed with an additional note that read “Your Attorney must file this for you.” Id. at 1, 7. Plaintiff then inquired with the Office of the Clerk/Receptionist at the San Francisco Immigration Court, at which point he learned that no motion was docketed in his case. Id. at 2.
Plaintiff's Complaint attaches a copy of the Motion to Reopen, which provides that Plaintiff was arrested on November 15, 2012, on a warrant issued in the Southern District of Texas, and subsequently convicted and sentenced to 96 months imprisonment. Id. at 8. The case was transferred to the Eastern District of California, and Plaintiff was imprisoned in Taft Correctional Institution at Taft, California. Id. at 9. While there, in 2015, Plaintiff claims that he filed for and obtained United States Citizenship “on a status recognized by the Center of Immigration Alliance based on a United States Supreme Court case that was ruled on in the early 1990s.” Id. Plaintiff claims that he was issued a Certificate of Citizenship by the Immigration and Naturalization Service (INS), but now United States Citizenship and Immigration Services (USICS) has told him there is no record of a Certificate of Citizenship on file, and the Office of the Clerk of the Immigration Court also informed him that there is no record that he submitted the Certificate of Citizenship to the Immigration Court. Id.
Plaintiff requests that the Court “investigate the reason of obstruction to Justice by the Immigration Court to resume proceedings” in his case, “the decision to not have the filed motion docketed at the court where the same case was heard initially and the last order issued,” and the refusal to “recognize my legal status in the United States.” Id.
Plaintiff also filed a “Declaration,” which states that he went in person to the San Francisco Immigration Court on May 23, 2023 to attempt to file his Motion to Reopen. ECF No. 13 at 1. The Clerk informed Plaintiff about “several concerns” they had regarding the Motion to Reopen, including whether he was an attorney, that the case number was wrongly written on the motion, and that the motion must be titled “Motion to Recalendar.” Id. The Clerk eventually accepted Plaintiff's paperwork after he renamed it a “Motion to Recalendar.” Id. at 2. However, according to Plaintiff, as of June 5, 2023, EOIR's Automated Case Information website does not show a recently docketed motion to resume proceedings. Id.
II. LEGAL STANDARD
A court may allow a plaintiff to prosecute an action in federal court without prepayment of fees or security if the plaintiff submits an affidavit showing that he or she is unable to pay such fees or provide such security. See 28 U.S.C. § 1915(a)(1). But a court is also under a continuing duty to dismiss a case filed without the payment of the filing fee whenever it determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). If the Court dismisses a case pursuant to Section 1915(e)(2)(B), the plaintiff may still file the same complaint by paying the filing fee. This is because the Court's Section 1915(e)(2)(B) dismissal is not on the merits, but rather an exercise of the court's discretion under the IFP statute. Denton v. Hernandez, 504 U.S. 25, 34 (1992).
To make the determination under 28 U.S.C. § 1915(e)(2)(B), courts assess whether the complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Courts have the authority to dismiss complaints founded on “wholly fanciful” factual allegations for lack of subject matter jurisdiction. Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). A court can also dismiss a complaint where it is based solely on conclusory statements, naked assertions without any factual basis, or allegations that are not plausible on their face. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); see also Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). “Pro se plaintiffs proceeding IFP must also be given an opportunity to amend their complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Franklin, 745 F.2d at 1228, n.9 (internal quotation marks and citation omitted).
III. DISCUSSION
Having evaluated Plaintiff's financial affidavit, the Court finds that Plaintiff has satisfied the economic eligibility requirement of 28 U.S.C. § 1915(a) and GRANTS the application to proceed IFP.
As courts of limited jurisdiction, “federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011); Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004) (noting that district courts are “obligated to consider sua sponte whether [they] have subject matter jurisdiction”). Here, Plaintiff simply cites Faretta v. California, 422 U.S. 806 (1975) for the proposition that “implied in the Sixth Amendment is an independent constitutional right to selfrepresentation.” Compl. at 2. But Faretta applies to defendants in criminal cases, whereas Plaintiff's Complaint concerns proceedings in Immigration Court. “The complaint's failure to refer to federal law or its erroneous reference to federal law does not, however, determine whether federal question jurisdiction is established.” McKinney v. L. Off, of James Duncan, No. CV 092605 NJV, 2010 WL 668027, at *6 (N.D. Cal. Feb. 19, 2010).
Plaintiff's action ultimately boils down to allegations that EOIR and the Immigration Court are engaging in an improper and illegal “obstruction to Justice,” because of the decision not to docket Plaintiff's Motion to Reopen/Recalendar and the refusal “to recognize [Plaintiff's] legal status in the United States.” Compl. at 2. Thus, Plaintiff is challenging “actions” taken by a federal administrative agency, which means that the Administrative Procedure Act's (APA) jurisdictional requirements apply.
“Under the APA, agency action is subject to judicial review only when it is either: (1) made reviewable by statute; or (2) a ‘final' action ‘for which there is no other adequate remedy in a court.'” Cabaccang v. U.S. Citizenship & Immigr. Servs., 627 F.3d 1313, 1315 (9th Cir. 2010) (quoting 5 U.S.C. § 704). Here, the Court is not aware of any statute that makes the “actions” taken by EOIR and the Immigration Court and challenged by Plaintiff reviewable under § 704. Therefore, the sole question is whether their purported refusal to docket Plaintiff's Motion to Reopen/Recalendar and recognize Plaintiff's claim to U.S. Citizenship are “final” agency actions for which there is no adequate remedy in a court.
The Court finds that the actions challenged by Plaintiff are quite clearly not “final” for purposes of its subject matter jurisdiction under the APA. First and foremost, Plaintiff's removal proceedings are still pending and there has been no final determination as to whether he should be ordered removed from the United States. See Compl. at 12; Sarkar v. Garland, 39 F.4th 611, 618 (9th Cir. 2022) (“Although an administratively closed case is not counted as active, it still exists on the docket and may be reopened upon request of the parties or on the court's own motion. In layman's terms, the case is asleep but not dead.”) Even though Plaintiff purports to challenge EOIR and the Immigration Court's refusal to docket his Motion to Reopen/Recalendar, as opposed to a final order of removal, by Plaintiff's own admission, the Office of the Clerk of the San Francisco Immigration Court received and accepted Plaintiff's Motion on the same day he filed his Complaint in this Court. ECF No. 13 at 1-2. The fact that no hearing shows up on EOIR's Automated Case Information website (ECF No. 13 at 3-5) does not demonstrate that the Immigration Court has refused to take Plaintiff's Motion to Reopen/Recalendar under submission. Therefore, the challenged “refusal” is not “final,” and Plaintiff's case can still be re-docketed on the Immigration Court's calendar, where he will be free to raise any challenges to his removal proceedings before the presiding Immigration Judge in his case.
In addition, the pendency of Plaintiff's removal proceedings means that he has not exhausted his administrative remedies to address his various due process allegations, including his claim that EOIR and the Immigration Court are refusing to “recognize” his legal status in the United States. See Cabaccang, 627 F.3d at 1316 (holding that the district court could not hear plaintiffs' APA claim where the plaintiffs failed to exhaust their administrative remedies, in part because the plaintiffs still had “the opportunity to fully develop their arguments before the immigration judge” as to their pending adjustment of status applications); Jariwala v. Napolitano, No. 10-CV-04383-LHK, 2011 WL 1260228, at *3 (N.D. Cal. Apr. 4, 2011) (finding that the “district court lacks jurisdiction under the APA” where the order for removal is not yet final and “de novo review before an IJ is available”); Nazareno v. Jaddou, No. 21-CV-00326-DMR, 2022 WL 1157487, at *3 (N.D. Cal. Apr. 19, 2022) (noting that an “individual in removal proceedings has not exhausted their administrative remedies, absent ‘exceptional circumstances'”) (quoting Cabaccang, 627 F.3d at 1316).
Finally, as to any “final” agency actions taken by EOIR and the Immigration Court, Plaintiff does in fact have another “adequate remedy in a court.” 5 U.S.C. § 704. Congress has created a statutory scheme whereby “all claims-whether statutory or constitutional-that ‘aris[e] from' immigration removal proceedings can only be brought through the petition for review process in the federal courts of appeals.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1029 (9th Cir. 2016) (quoting 8 U.S.C. §§ 1252(a)(5), 1252(b)(9)). Thus, Plaintiff is free to bring any constitutional due process challenges to the Board of Immigration Appeals (BIA) and the Ninth Circuit Court of Appeals, assuming that the Immigration Court enters a final order of removal which Plaintiff can appeal.
Because the “actions” challenged by Plaintiff are not reviewable by this Court under the APA, and Plaintiff's removal proceedings remain pending with the San Francisco Immigration Court, the undersigned finds that the deficiencies in Plaintiff's Complaint “could not be cured by amendment” at this time (Franklin, 745 F.2d at 1228, n.9), and the Complaint should be dismissed with prejudice and without leave to amend.
IV. CONCLUSION
For the reasons set forth above, the allegations in Plaintiff's Complaint are insufficient under 28 U.S.C. § 1915(e)(2), and the undersigned finds that any amendment would be futile. Accordingly, the undersigned REASSIGNS this case to a district judge with the RECOMMENDATION that it be dismissed with prejudice.
Plaintiff may file an objection to these recommendations within 14 days of being served with a copy. See 28 U.S.C. §§ 636(b)(1); Fed.R.Civ.P. 72(b); Civil L.R. 72-3. Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. IBEW Local 595 Trust Funds v. ACS Controls Corp., No. C-10-5568, 2011 WL 1496056, at *3 (N.D. Cal. Apr. 20, 2011).
IT IS SO ORDERED.