Liqin Xu v. Matthew Chan ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LIQIN XU, Case No. 2:19-cv-06950-JLS-JC 12 Plaintiff, 13 v. ORDER DISMISSING COMPLAINT 14 AND ACTION MATTHEW CHAN, et al., 15 16 Defendants. 17 18 On August 9, 2019, plaintiff Liqin Xu, who is on an immigration bond, is 19 proceeding pro se, and has paid the full filing fee, filed a “Civil Rights Complaint 20 Pursuant to 42 U.S.C. § 1983” (“Complaint”) against three federal government 21 attorneys who apparently have represented the United States in plaintiff’s 22 immigration and removal proceedings and a related appeal. (Docket No. 1; 23 Complaint at 1, 3).1 Plaintiff appears to sue all three defendants in their official 24 capacities only, pursuant to 42 U.S.C. § 1983 (“Section 1983”), and alleges that 25 /// 26 27 1Plaintiff concurrently filed an Ex Parte Application for Emergency Stay of Removal 28 (“Ex Parte App.”), which this Court denied on August 13, 2019. (Docket Nos. 5-7, 12). 1 they all acted under color of federal law. (Complaint at 3).2 Plaintiff claims that in 2 her removal proceedings, defendants improperly utilized an unreliable Interpol Red 3 Notice that did not comport with federal policy and a Chinese warrant that did not 4 comport with the Fourth Amendment as evidence that she committed an offense in 5 China, thereby causing the immigration court to initially deny her bond and to 6 issue a removal order, and the United States Court of Appeals for the Ninth Circuit 7 (“Ninth Circuit”) to deny her request for an emergency stay of removal. 8 (Complaint at 5).3 9 The Complaint seeks solely “equitable” relief, namely (1) an injunction 10 prohibiting the Department of Homeland Security from presenting the Interpol Red 11 Notice and Chinese Warrant to the Ninth Circuit; (2) an order requiring the 12 Department of Justice to withdraw their opposition to plaintiff’s Application for 13 Relief under “208 of the INA” which is pending in the Ninth Circuit; (3) an order 14 requiring the Department of Homeland Security and the Department of Justice to 15 16 2The Complaint expressly reflects that plaintiff sues the first two defendants in their official capacities only, but, in an apparent oversight, fails expressly to state the capacity in 17 which the third defendant is sued. (Complaint at 3). As plaintiff makes similar allegations against all three defendants, the Court presumes that plaintiff likewise sues the third defendant in 18 her official capacity only, but the disposition herein also addresses the potential viability of an 19 individual capacity claim against the defendants. 20 3Plaintiff states that she was detained on May 22, 2018 by Immigration and Customs Enforcement (“ICE”) and charged under Section 237(a)(1)(B) of the Immigration and 21 Nationality Act (“INA”) (8 U.S.C. § 1227(a)(1)(B)) for overstaying her visa. (Ex Parte App. at 22 6). Following her detention, she applied for asylum and withholding of removal before the United States Immigration Court in Los Angeles, California. (Complaint at 54-66 [U.S.I.C. 23 Decision, No. A205 771 559]). The immigration judge denied such application on October 24, 24 2018. (Id.). Plaintiff, with the assistance of counsel, then filed a petition for review and a motion for an emergency stay of removal in the Ninth Circuit, the latter of which was denied on 25 August 1, 2019 in Case No. 19-70869 (“Ninth Circuit Action”). Ninth Circuit Action Docket at 1-3, 14. On August 2, 2019, plaintiff – again with the assistance of counsel – filed a second 26 emergency motion to stay removal in the Ninth Circuit Action which was construed by the Ninth 27 Circuit to be a motion for reconsideration and denied on August 6, 2019. Ninth Circuit Action Docket at 15, 17. As noted above, plaintiff filed the instant action a few days later on August 9, 28 2019. 2 1 agree to dismiss their Ninth Circuit appeal and to grant plaintiff immediate asylum; 2 and (4) an order dismissing any motion to stay or appeal the July 24, 2019 bond 3 order that resulted in her release from ICE detention. (Complaint at 6). 4 For the reasons explained below, the Complaint is dismissed without leave 5 to amend and this action is dismissed without prejudice. 6 The court may dismiss a paid complaint sua sponte and without notice to the 7 plaintiff if the complaint fails to state a claim and the plaintiff cannot possibly win 8 relief. See Omar v. Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987). A 9 pro se litigant must be given notice of the deficiencies of the complaint and an 10 opportunity to amend the complaint to state a claim unless it is absolutely clear the 11 deficiencies of the complaint cannot be cured by amendment. Karim-Panahi v. Los 12 Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988) (citations, quotations and 13 internal quotations omitted). Here, dismissal is appropriate at least because the 14 Complaint fails to state a claim over which this Court has jurisdiction, plaintiff 15 cannot possibly win the relief plaintiff seeks from this Court, and granting leave to 16 amend would be futile because it is absolutely clear the deficiencies of the 17 Complaint cannot be cured by amendment. 18 First, plaintiff cannot state a claim against any of the defendants under 19 Section 1983, and granting leave to amend to afford plaintiff an opportunity to do 20 so would be futile, as all of the defendants are alleged to be federal officials acting 21 under color of federal law and Section 1983 does not provide a cause of action 22 against federal officials acting under color of federal law. See Ziglar v. Abbasi, 23 137 S. Ct. 1843, 1854 (2017); Billings v. United States, 57 F.3d 797, 801 (9th Cir. 24 1995). 25 Second, plaintiff cannot state a claim against the defendants in their 26 individual capacities for equitable relief, and granting leave to afford plaintiff an 27 opportunity to do so would be futile because Bivens v. Six Unknown Named 28 Agents, 403 U.S. 388 (1971) – which affords a cause of action for damages arising 3 1 out of certain constitutional violations by federal officials acting in their individual 2 capacities – does not afford a cause of action against federal officials acting in their 3 official capacities – the only capacity in which plaintiff sues the defendants – and 4 does not authorize equitable relief which requires official government action, such 5 as the relief sought by plaintiff in the Complaint. See Solida v. McKelvey, 820 6 F.3d 1090, 1093-94 (9th Cir. 2016) (“Relief under Bivens does not encompass 7 injunctive and declaratory relief where, as here, the equitable relief sought requires 8 official government action . . . By definition, Bivens suits are individual capacity 9 suits and thus cannot enjoin official government action.”). An action against an 10 officer, operating in his or her official capacity as a United States agent, operates as 11 a claim against the United States, not the individual officer and cannot be brought 12 under Bivens. See id. at 1095. 13 Third, and notwithstanding the foregoing, plaintiff cannot state a claim 14 against the United States for equitable relief, and granting leave to afford plaintiff 15 an opportunity to do so would be futile because the Administrative Procedure Act 16 (“APA”), 5 U.S.C. §§ 702, et seq. – which can afford a basis for seeking equitable 17 relief against the United States in certain circumstances where a federal agency’s 18 officer acts in an official capacity or under color of legal authority – does not do so 19 here since plaintiff effectively challenges the procedure and substance of agency 20 determinations that are inextricably linked to the order of removal – a claim as to 21 which this Court lacks jurisdiction under Title 8, United States Code, section 22 1252(a)(5). See Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012) 23 (affirming dismissal of case for lack of subject matter jurisdiction).4 As noted 24 25 4Plaintiff also seeks an order dismissing any motion to stay or appeal the July 24, 2019 bond order that resulted in plaintiff’s release from ICE detention. While there are circumstances 26 under which this Court has jurisdiction over the refusal of immigration authorities to release an 27 individual on a reasonable bond after a final removal order is entered – see Zadvydas v. Davis, 533 U.S. 678 (2001) (discussing same) – plaintiff points to no legal basis, and this Court is aware 28 of no legal basis to afford it jurisdiction over plaintiff’s speculative and at best premature claim (continued...) 1 || earlier (see supra note 3), plaintiff's challenge to the removal order is currently 2 || pending before the Ninth Circuit where plaintiff has twice sought an emergency 3 || stay of removal — presumably raising the same arguments asserted herein — and the 4 || Ninth Circuit has denied such requests. Plaintiff effectively asks this Court to 5 || countermand the Ninth Circuit’s orders — something it clearly cannot do. 6 Finally, plaintiff cannot state a claim against the United States for monetary 7 || relief arising from the allegedly unconstitutional actions of federal officials, and 8 || granting leave to afford plaintiff an opportunity to do so would be futile because 9 || such a claim would be barred by sovereign immunity. See United States v. 10 || Mitchell, 445 U.S. 535, 538 (1980) (United States, as sovereign is immune from 11 || suit save as it consents to be sued; waiver must be unequivocally expressed); 12 || Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991) (courts lack subject 13 || matter jurisdiction to hear constitutional damage claims against the United States 14 || because it has not waived sovereign immunity with respect to such claims). 15 IT IS THEREFORE ORDERED that the Complaint is dismissed without 16 || leave to amend, that this action is dismissed without prejudice to any relief to 17 || which plaintiff may be entitled in the pending Ninth Circuit Action, and that 18 || Judgment be entered accordingly. 19 IT IS SO ORDERED. 20 || DATED: September 23, 2019 . 21 22 23 HONORABLE JOSEPHINE L. STATON 54 UNITED STATES DISTRICT JUDGE 25 26 tO™OC™OCOO 28 “(continued) ae to prohibit immigration authorities from potentially seeking to detain plaintiff in the future.