United States District Court, M.D. Florida, Orlando Division
LUIS MANUEL GONZALEZ-GARCIA; ANGEL ALPIZAR-SANCHES; and ESMERALDA GONZALEZ-CANO, Plaintiffs,
U.S. ATTORNEY GENERAL; and SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, Defendants.
DALTON JR. UNITED STATES DISTRICT JUDGE
the Court's is Defendants' Motion to Dismiss
Plaintiffs' Complaint. (Doc. 29
(“Motion”). Plaintiffs oppose.
(Doc. 32.) On review, the Motion is due to be granted.
initiated this action on February 9, 2018 against Defendants
alleging violations of their constitutional rights to due
process and equal protection. (Doc. 1.) Plaintiffs are minor
U.S. citizen-children whose parents are aliens with final
orders of removal whose applications to cancel removal under
section 240A(b) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. §
1229b(b) (“Applications”) were
denied. (Doc. 1, p. 2.)
Plaintiffs are minors, their parents are representing them
here. (Id. at 5-7.) Luis Manuel Gonzalez-Garcia is a
national and citizen of Mexico. (Id. at 5.) He
entered the U.S. around April 1995, without inspection,
through Arizona and has three children: co-Plaintiffs M.G.
born in 2010, L.F.G.R. born in 2006, and J.M.G. born in 2002.
(Id.) Angel Alpizar-Sanches is also a national and
citizen of Mexico who entered the U.S. through Phoenix,
Arizona around March 1998 without inspection. (Id.
at 6.) He has four children: co-Plaintiffs A.A. born in 2004,
R.A. born in 2008, A.J.A. born in 2010, and C.A. born in
2014. (Id.) Last, Esmeralda Gonzalez-Cano is a
national and citizen of Mexico who entered the U.S. through
Hidalgo, Texas around August 1994 without inspection.
(Id. at 6.) She has four children: co-Plaintiffs
R.A.G. born in 1998, E.D.G. born in 2000, J.A.G. born in
2002, and B.G. born in 2005. (Id.)
take issue with the INA's administrative process for
evaluating the Applications, claiming: (1) it violates both
procedural and substantive due process because Plaintiffs are
not given notice or the opportunity to present evidence at
their parents' hearings (id. ¶ VI.
(“Due Process Claim”)); (2) its
“exceptional and extremely unusual” hardship
standard violates equal protection (id. ¶ VII.
(“Equal Protection Claim”)); and
(3) the standard is unconstitutionally vague as-applied to
Plaintiffs (id. ¶ VIII
(“Vagueness Claim”)). They seek
declaratory and injunctive relief that “requir[es]
[Defendants] . . . to refrain from applying the current
regulatory scheme implementing Section 240A(b) of the INA
against [Plaintiffs] until its constitutional deficiencies
have been corrected, [Plaintiffs] have been provided a
meaningful opportunity to be heard, and this action has
reached its final adjudication and conclusion, ” and
that “preserve[s] the status quo and preclude[s] the
removal of [Plaintiffs'] parents from the United States
and requir[es] [Defendants] . . . to refrain from any action
to initiate or continue the removal [of] [Plaintiffs']
parents . . . .” (Id. ¶¶ X.5-6.)
the Complaint, Plaintiffs moved for a temporary restraining
order and preliminary injunction (Doc. 2), which the Court
denied without prejudice (Doc. 5). Plaintiffs renewed these
motions (Docs. 6, 7); the Court again denied the motion for a
temporary restraining order but took under advisement the
preliminary injunction motion (Doc. 9 (“PI
Motion”)). Both parties submitted briefing and
evidence (Docs. 7, 8, 14, 15, 16), and the Court held a
hearing on March 13, 2018 where the PI Motion was orally
denied (Doc. 17.) The Court then summarized its findings in a
short, written order: Plaintiffs had not met their burden of
showing a substantial likelihood of success on the merits.
(Doc. 18, p. 3.)
then filed the instant Motion, seeking dismissal of this
action with prejudice under Federal Rule of Civil Procedure
12(b)(6). (Doc. 29.) With Plaintiffs' Response (Doc. 32),
the matter is ripe.
the minimum pleading requirements of the Federal Rules of
Civil Procedure, plaintiffs must provide short and plain
statements of their claims with simple and direct allegations
set out in numbered paragraphs and distinct counts.
See Fed. R. Civ. P. 8(a), 8(d), & 10(b). If a
complaint does not comport with these minimum pleading
requirements, if it is plainly barred, or if it otherwise
fails to set forth a plausible claim, then it is subject to
dismissal under Rule 12(b)(6). See Ashcroft v.
Iqbal, 556 U.S. 662, 672, 678-79 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
claims must be founded on sufficient “factual
content” to allow “the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” See Iqbal, 556 U.S. at
679. In assessing the sufficiency of factual content and the
plausibility of a claim, courts draw on their “judicial
experience and common sense” in considering: (1) the
exhibits attached to the complaint; (2) matters that are
subject to judicial notice; and (3) documents that are
undisputed and central to a plaintiff's claim. See
id.; Reese v. Ellis, Painter, Ratterree & Adams,
LLP, 678 F.3d 1211, 1215-16 (11th Cir. 2012); Parham
v. Seattle Serv. Bureau, Inc., 224 F.Supp.3d 1268, 1271
(M.D. Fla. 2016). Courts do not consider other matters
outside the four corners of the complaint, and they must: (1)
disregard conclusory allegations, bald legal assertions, and
formulaic recitation of the elements of a claim; (2) accept
the truth of well-pled factual allegations; and (3) view
well-pled facts in the light most favorable to the plaintiff.
See Hayes v. U.S. Bank Nat'l Ass'n, 648
Fed.Appx. 883, 887 (11th Cir. 2016); Horsley v. Feldt,
304 F.3d 1125, 1134 (11th Cir. 2002).
well-settled that lawfully removing a parent does not deprive
a U.S. citizen child of a constitutional right. See
Perdido v. I.N.S., 420 F.2d 1179 (5th Cir. 1969);
Gonzalez-Cuevas v. I.N.S., 515 F.2d 1222, 1224 (5th
Cir. 1975) (“Legal orders of deportation do not violate
any constitutional right of citizen children . . .
.”). (See also Doc. 15, pp. 4-5
(Government's response citing cases from other
circuits).) Furthermore, “each court that has addressed
the issue at the heart of this case-whether a removal order
against an alien parent violates the constitutional rights of
a citizen child-has held that removal is not constitutionally
infirm, even if that removal constitutes the
‘constructive' or ‘de facto'
deportation of a citizen child.” See Coleman v.
United States, 454 F.Supp.2d 757, 767, 767 n.11 (N.D.
Ill. 2006) (comprehensively surveying case law which does not
recognize a constitutional violation when U.S. citizens'
parents are removed).
it is well-established that removal itself does not establish
a constitutional violation. But Plaintiffs do not sweepingly
make this claim. Rather, they seek to challenge the
constitutionality of how the Government arrives at
the decision to not suspend deportation proceedings against
individuals with children who are U.S. citizens. (Doc. 32, p.
2.) Specifically, they challenge the ...