Gomez v. Kelly

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Isaac D. Narvaez Gomez, : : Plaintiff, : v. : Civil Action No. 17-0217 (CKK) : Kirstjen Nielsen 1 et al., : : Defendants. : MEMORANDUM OPINION Plaintiff is a native of Venezuela who is appearing pro se. He seeks a writ of mandamus to compel the federal government to adjudicate his “Form I-589, Application for Asylum and for Withholding of Removal.” Am. Pet. for a Writ of Mandamus and Compl. for Declaratory Judgment (“Am. Compl.”) at 3 [Dkt. # 12]. Plaintiff further states that he is bringing “claims in relation with the claims of asylum,” and he has invoked the Administrative Procedure Act (“APA”), the Immigration and Nationality Act (“INA”), and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Id. Plaintiff alleges also that U.S. Customs and Immigration Services (“USCIS”) has unlawfully withheld records responsive to his Freedom of Information Act (“FOIA”) request submitted in February 2017. Id. at 12. In addition to suing high-level officials of the U.S. government, Plaintiff has sued the Bolivarian Republic of Venezuela under the Alien Tort Claims Act, 28 U.S.C. § 1350, and has filed a Motion for Issuance of Request for Service Abroad, which the Court will deny. 1 Plaintiff sued John F. Kelly in his official capacity as United States Secretary of Homeland Security. Am. Pet. ¶ 5. Secretary Kirstjen Nielsen is substituted pursuant to Fed. R. Civ. P. 25(d). 1 I. PROCEDURAL BACKGROUND On April 5, 2017, the federal defendants moved under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss plaintiff’s claims “seeking equitable or monetary relief related to his asylum application” and “any claims against [President Trump] in his official or individual capacity.” Fed. Defs.’ Partial Mot. to Dismiss at 1-2 [Dkt. # 23]. Defendants noted that the instant motion pertains to “all claims in [the] operative complaint . . . except for Plaintiff’s claim under the [FOIA].” Id. n.1. Plaintiff filed an opposition on April 7, 2017 [Dkt. # 24], and a motion to file a supplemental opposition on September 15, 2017 [Dkt. # 38], which the Court will grant over defendants’ objection [Dkt. # 39]. Meanwhile, on March 28, 2017, plaintiff filed an Emergency Motion for Leave to File Second Amended Complaint and Joinder of Parties and Claims [Dkt. # 21], which prompted the Court to delay consideration of the federal defendants’ motion to dismiss. See Apr. 7, 2017 Order [Dkt. # 25]. Plaintiff has since withdrawn that motion. See Not. of Withdrawal of Pl.’s Emergency Mot. for Leave to File Second Am. Compl. and Joinder of Parties and Claims [Dkt. # 36]. Therefore, the federal defendants’ fully briefed motion to dismiss is ripe for review. For the reasons explained below, the Court will grant the federal defendants’ motion and will dismiss all but plaintiff’s FOIA claim against USCIS. II. LEGAL STANDARDS A. Motions to Dismiss 1. Federal Rule 12(b)(1) A party may move under Rule ...

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals