United States District Court, S.D. Florida, Miami Division
ORDER DISMISSING COMPLAINT
FEDERICO A. MORENO UNITED STATES DISTRICT JUDGE
Christian De Vera is a native of the Philippines who has
lived in the United States for over thirteen years, some of
that time was purportedly spent with a valid H-1B visa. The
H-1B program is designed to grant a visa to a non-citizen who
intends to temporarily perform services in a specialty
occupation. To obtain such visa, a non-citizen's employer
or prospective employer must file a petition with supporting
documents on the non-citizen's behalf. De Vera allegedly
worked under an H-1B visa as the Director of Financial Aid
for the International School of Health Beauty and Technology.
On or about July 12, 2013, Department of Homeland Security
agents allegedly interviewed De Vera regarding an
investigation into the school's purportedly fraudulent
practice of manipulating its employees in exchange for legal
immigration status. De Vera notified the agents that his
immigration status would expire on September 30, 2013, but
the school had promised to re-sponsor him.
hearing this, Department of Homeland Security Agent Long
purportedly instructed De Vera "not to worry" and
promised him that he would remain in lawful immigration
status as long as De Vera cooperated with the Agents and
allowed his immigration status to expire. D.E. 1 ¶ 55.
Later that month, the Agents allegedly promised the De Vera
family that they would obtain S-visas and Green Cards with De
Vera's cooperation in a criminal case against his
employer. Id. at ¶ 57. To comply with the
Agents' request, De Vera allegedly participated in six
phone-tapped conversations with his employer from August 2013
to January 2014. On January 30, 2014, De Vera allegedly wore
a wire at work "all day" at the Agents'
request. Id. at ¶ 63.
next day, Agent Hessberger purportedly threatened De Vera
that if he did not wear a wire again, he would not receive a
Green Card. Id. at ¶ 64. At the end of the day,
De Vera submits that Agent Hessberger praised De Vera for a
job well done and told him that they would "take
care" of his Green Card. Id. at ¶ 65. In
February 2016, Agent Long allegedly served De Vera with a
legal document that falsely stated that the U.S. government
considered De Vera to be a lawful permanent resident. On
November 3, 2016, the Department of Homeland Security
allegedly served De Vera with a Notice to Appear that stated
De Vera's "status was not adjusted to that of a
lawful permanent resident." Id. at ¶ 83.
De Vera is currently in removal proceedings before an
Immigration Judge in Miami, Florida.
seven-count Complaint seeks relief for: (I) estoppel; (II)
promissory estoppel; (III) violations of the whistleblower
protections contained in the Immigration and Nationality Act;
(IV) violations of the S-visa provisions contained in the
Immigration and Nationality Act; (V) violations of the Due
Process and Equal Protection Clauses of the Fifth and
Fourteenth Amendments to the United States Constitution; (VI)
violations of the Administrative Procedure Act, 5 U.S.C.
§ 706; and (VII) a Declaratory Judgment that
Defendants' actions violate the Constitution, Immigration
Nationality Act, and are arbitrary and capricious in
violation of the Administrative Procedure Act.
move to dismiss because De Vera's claims are, in essence,
challenges to the ongoing removal proceedings against him,
which is allegedly foreclosed by 8 U.S.C. § 1252(g).
following reasons, the Court agrees.
submit that the relief sought by Plaintiffs-namely
challenging the removal proceedings against De Vera-is barred
by federal law. De Vera attempts to cast the relief sought,
not as a challenge to Defendants' decision to place De
Vera in removal proceedings, but as a request to enforce
Defendants' alleged unfulfilled promises to grant De Vera
and his immediate family legal immigration status.
Specifically, De Vera argues that the claims arise from
Defendants' acts and omissions separate from the decision
to commence removal proceedings against him. Thus, in De
Vera's view, because said acts and omissions-the promises
allegedly not kept by the Agents-occurred
before De Vera was placed in
removal proceedings, 8 U.S.C. § 1252(g) does not apply.
manner in which De Vera frames the relief sought is a
distinction without a difference. The Complaint is clear,
"Plaintiffs  respectfully request that this Court
estop Defendants from removing Mr. De Vera from the United
States unless and until Defendants comply with their legal
and regulatory obligations." D.E. 1 ¶ 2. Plaintiffs
also request that the Court grant them, inter alia,
S-visas, lawful permanent resident status, H-1B nonimmigrant
status. D.E. 1 at 26(a), (b), (c).
eliminated judicial review over "any cause or claim by
or on behalf of any alien arising from the decision or action
... to commence proceedings, adjudicate cases, or execute
removal orders against any alien under this chapter." 8
U.S.C. § 1252(g). See also 8 U.S.C. §
1252(b)(9) ("Judicial review of all questions of law and
fact. . . arising from any action taken or proceeding brought
to remove an alien . . . shall be available only injudicial
review of a final order"). The Eleventh Circuit has held
that, regardless of how an alien characterizes his or her
claims, district courts lack jurisdiction over challenges to
the commencement of removal proceedings. See, e.g.,
Alvarez v. U.S. Immigration and Customs Enforcement, 818
F.3d 1194, 1203 (11th Cir. 2016) (holding that 8 U.S.C.
§ 1252(g) bars courts from questioning Immigration and
Customs Enforcement's "discretionary decision to
commence removal . . ."); Mata v. Sec'y of
Dep't of Homeland Sec, No. 10-14401, 426 Fed.Appx.
698, 700 (11th Cir. 2011) (rejecting plaintiffs
"attempts to evade the bars in 8 U.S.C. § 1252 by
characterizing his claim as a challenge not to his removal,
but rather to Immigration and Nationalization Services'
rescission decision") (per curiam).
circuits have held the same. See, e.g., Martinez v.
Napolitano,704 F.3d 620, 623 (9th Cir. 2012)
("When a claim by an alien, however it is framed,
challenges the procedure and substance of an agency
determination that is 'inextricably linked' to the
ultimate order of removal, district courts lack jurisdiction
. . ."); Delgado v. Quarantillo,643 F.3d 52,
55-56 (2nd Cir. 2011) (explaining that a plaintiff may not
evade the scope of 8 U.S.C. § 1252(a) by styling her
challenge as a mandamus action rather than an explicit
challenge to an immigration judge's ruling); Estrada
v. Holder,604 F.3d 402, 408 (7th Cir. 2010) (explaining
that alien could not evade the scope of 8 U.S.C. §
1252(a) through characterizing claim as an Administrative
Procedure Act challenge). The Court is wary to disregard
Congress's clear directive and wade into the province of