Daria Saleh v. William Barr

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0093n.06
No. 19-3240
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Feb 10, 2020
DEBORAH S. HUNT, Clerk
DARIA SALEH; L.A., a minor; E.A., a minor; )
B.A., a minor, )
) ON APPEAL FROM THE
Plaintiffs-Appellants, ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
v. ) DISTRICT OF OHIO
)
WILLIAM P. BARR, Attorney General; )
OPINION
CHRISTOPHER WRAY, Director of Federal )
Bureau of Investigation; KIRSTJEN M. )
NIELSEN, Secretary of the Department of )
Homeland Security, in their individual and )
official capacity, )
)
Defendants-Appellees. )
)
Before: MOORE, CLAY, and SUTTON, Circuit Judges.
CLAY, Circuit Judge. Plaintiffs, citizen children of a lawful permanent resident, appeal
the district court’s order dismissing their Declaratory Judgment Act claims brought pursuant to 28
U.S.C. § 2201 for lack of subject-matter jurisdiction. Plaintiffs sought two declarations from the
district court: (1) that agents of the Federal Bureau of Investigation (“FBI”) and United States
Citizenship and Immigration Services (“USCIS”) conspired and fraudulently misled their father
into withdrawing his application for United States citizenship, thereby exposing him to the threat
of removal and exposing Plaintiffs to the risk of separation from their father due to removal; and
(2) that their father is not required to testify in any trial resulting from his plea agreement in his
criminal case. The district court dismissed Plaintiffs’ claims for declaratory relief, finding that
No. 19-3240, Saleh, et al. v. Barr, et al.
neither claim was ripe for judicial review. For the reasons set forth below, we agree with the district
court that Plaintiffs do not have standing to assert their claims. Therefore, we affirm.
BACKGROUND
A. Factual Background
Plaintiffs, United States citizen children residing in Dayton, Ohio, bring this action for
declaratory relief through their mother. Plaintiffs’ complaint alleges the following facts, which this
Court accepts as true for the purposes of determining subject-matter jurisdiction at the pleading
stage. See, e.g., Kiser v. Reitz, 765 F.3d 601, 606 (6th Cir. 2014).
At some point in 2010, Plaintiffs’ father was under investigation for various federal
crimes.1 Plaintiffs’ father is a legal permanent resident (“LPR”) of the United States. According to
Plaintiffs, his LPR status “expires” in 2019.2 R. 1, Pg. ID 3. As of November 2010, Plaintiffs’
father had fully satisfied the requirements to become a United States citizen. He was scheduled to
attend a naturalization ceremony in November 2010. However, one day before the ceremony, an
officer from the Cincinnati office of USCIS advised Plaintiffs’ father not to attend the ceremony
due to “security reasons.” Id. at Pg. ID 4. Plaintiffs’ father did not attend the ceremony. Plaintiffs
allege that the USCIS officer’s statement “was untrue and intended to mislead Plaintiffs’ father
into losing his status as a citizen.” Id.
1
Plaintiffs have withheld their father’s name to protect his personal safety.
2
Although Plaintiffs allege that their father’s LPR status “expires,” the district court correctly accepted
Defendants’ uncontroverted authority showing that a person does not lose LPR status without adjudication or
intentional abandonment. See R. 29, Pg. ID 108 (citing 8 C.F.R. § 1001.1(p) (LPR status “terminates upon entry of a
final administrative order of exclusion, deportation, removal, or rescission”); Matter of C-J-H, 26 I & N Dec. 284,
287 (BIA 2014) (“The respondent therefore remains a lawful permanent resident until there is a final order of
removal.”); Maintaining Permanent Residence, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/green-
card/after-green-card-granted/maintaining-permanent-residence (last updated Feb. 17, 2016) (“You will lose your
permanent resident status if an immigration judge issues a final removal order against you.”)).
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In June 2011, Plaintiffs’ father was indicted for eleven counts of dealing in firearms without
being a licensed dealer in violation of 18 U.S.C. § 922(a)(1)(A); two counts of the unauthorized
use, transfer, acquisition, alteration, or possession of SNAP benefits in violation of 7 U.S.C.
§ 2024(b); and two counts of wire fraud in violation of 18 U.S.C. § 1343. On October 13, 2011,
Plaintiffs’ father pleaded guilty to one count of each of the offenses charged.
Prior to entering his plea of guilty, Plaintiffs’ father met with FBI agents. FBI Agent Mark
Dowd told Plaintiffs’ father that the FBI could help him if he worked with the Bureau as an
informant. Specifically, Plaintiffs allege that FBI agents told Plaintiffs’ father that “if he helped
the FBI, they would keep him out of jail and ‘work behind the scenes’ so that when he eventually
had to go to immigration court, his case would be dismissed.” R. 1, Pg. ID 4. Plaintiffs’ father
agreed to work with the FBI as an informant “and met with FBI agents weekly, two to three times
a month, before his plea agreement.” Id. Plaintiffs allege that their father “has been involved in
and supplied information in terrorism cases.” Id.
Then, in 2012, Plaintiffs’ father received a letter from USCIS requesting that he come to
USCIS’s Cincinnati office. However, FBI Agent Dowd spoke to a representative at the USCIS
office, and Dowd told Plaintiffs’ father not to go to the USCIS office or he would be taken into
custody. “Dowd advised the Plaintiffs’ father to withdraw his request for citizenship, which
Plaintiffs’ father did.” Id. at Pg. ID 5. “Agent Dowd subsequently got the Immigration and
Customs Enforcement (ICE) warrant withdrawn.”3 Id. “Since [2012], Plaintiffs’ father reports
3
In the complaint, Plaintiffs initially characterize the paper that their father received as “a letter from the
USCIS office in Cincinnati, telling him to come to their office.” R. 1, Pg. ID 5. Three paragraphs later, they
characterize the paperwork as an “Immigration and Customs Enforcement (ICE) warrant.” Id. Plaintiffs did not enter
the alleged “warrant” or letter into the record in the district court or otherwise provide any allegations about what it
said.
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annually to USCIS and, states that he is voluntarily working for the FBI and USCIS takes no action
against him.” Id.
At some point, FBI Agent Michael Newman countered Agent Dowd’s statement that the
FBI would help to get a removal proceeding against Plaintiffs’ father dismissed, telling Plaintiffs’
father that it “does not work that way.” Id. Agent Newman stated that the FBI would argue against
removal if such a proceeding is initiated, but could not promise anything.
At another point, following his plea agreement and cooperation with the FBI, Plaintiffs’
father was told that he may be required to testify at a trial set for June or July 2018.4 Plaintiffs’
father was told that his identity could not be protected if he testifies. Plaintiffs allege that their
“father was never told during th[e] period before his plea agreement, that he would ever have to
testify in court for the FBI.” Id. at Pg. ID 4. Plaintiffs allege that they “fear for the safety of their
father if he is required to testify in the upcoming [2018] trial.” Id. at Pg. ID 5.
Lastly, Plaintiffs allege that “[b]ecause the FBI agents herein misrepresented or did not
fully inform the Plaintiffs’ father of their limited ability or lack of ability to intervene in his
immigration status, and because of his reliance on Agent Dowd’s instruction to request the
withdrawal of his citizenship application, although all that remained was his swearing-in, they
have exposed the Plaintiffs’ father to removal from the United States.” Id. at Pg. ID 6. They allege
that separation from their father will deprive them of their father’s “continued love, affection, care
and financial support.” Id.
4
Plaintiffs have withheld the name and case number of the 2018 trial.
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B. Procedural History
Plaintiffs, represented by counsel, initiated this action for declaratory relief against the
United States Attorney General, agents of the FBI, and officers of the Department of Homeland
Security on May 8, 2018. Plaintiffs allege that “the actions of the Attorney General and the
Department of Justice violate the Due Process Clause of the Fifth and Fourteenth Amendments,
the Equal Protection Clause, the Ninth Amendment, the Tenth Amendment and international
treaties . . . and the customs and conventions of civilized nations.” Id. at Pg. ID 2. Plaintiffs sought
two declarations from the district court:
[T]hat this Court declare [1] that the Plaintiffs’ father not be required
to testify in the trial scheduled for June or July 2018 (name withheld)
or in any trial or other public hearing resulting from the negotiations
and the plea agreement in his criminal case . . . and [2] that
Defendant agents of the FBI and USCIS conspired and affirmatively
and fraudulently misrepresented the reason for the Plaintiffs’ father
not to attend his citizenship swearing-in after he had completed and
was approved for citizenship, thereby depriving him of the rights
and protections of a United States citizen and exposing him to
removal from the United States and physical harm and thus exposing
the Plaintiffs to the loss of their father and his support, love and care
and the violation of their equal protection, due process and Ninth
Amendment rights and in violation of international treaties and the
customs and conventions of civilized nations.
Id. at Pg. ID 7.
Defendants moved to dismiss for lack of subject-matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1) and for failure to state a claim on which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants argued that the district court
lacked jurisdiction because (1) Plaintiffs failed to identify a waiver of sovereign immunity,
(2) Plaintiffs lack standing to bring their claims, and (3) Plaintiffs’ claims are not ripe for review.
Defendants further argued that even if the district court determined that it could exercise
jurisdiction, it should decline to do so in its discretion under the Declaratory Judgment Act, 28
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U.S.C. § 2201. After full briefing, the district court dismissed Plaintiffs’ claims for lack of
jurisdiction, finding that “neither of Plaintiffs’ claims for declaratory judgment is ripe.” R. 29, Pg.
ID 106. The district court did not consider Defendants’ other arguments under Rule 12(b)(1) or
(6), finding that the ripeness issue was dispositive of the case.
Plaintiffs appeal the district court’s judgment granting Defendants’ motion to dismiss.
DISCUSSION
A. Standard of Review
This Court has an independent duty to assess subject-matter jurisdiction. E.g., Wachovia
Bank v. Schmidt, 546 U.S. 303, 316 (2006); United Liberty Life Ins. Co. v. Ryan, 985 F.2d 1320,
1325 (6th Cir. 1993). “We review a district court’s findings as to whether it had subject matter
jurisdiction de novo.” Jomaa v. United States, 940 F.3d 291, 294 (6th Cir. 2019) (quoting Mehanna
v. USCIS, 677 F.3d 312, 314 (6th Cir. 2012)).
Article III of the United States Constitution requires federal courts to limit themselves to
hearing only actual “cases” and “controversies.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408
(2013). “The standing doctrine delineates the boundary between justiciable cases and controversies
and those disputes that are not appropriately resolved through judicial process.” Kiser, 765 F.3d at
606. The elements of standing are: “(1) an allegation of an ‘injury in fact,’ which is a concrete
harm suffered by the plaintiff that is actual or imminent, rather than conjectural or hypothetical;
(2) a demonstration of ‘causation,’ which is a fairly traceable connection between the plaintiff's
injury and the complained-of conduct of the defendant; and (3) a demonstration of ‘redressability,’
which is a likelihood that the requested relief will redress the alleged injury.” Friends of Tims Ford
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v. Tenn. Valley Auth., 585 F.3d 955, 966 (6th Cir. 2009) (quoting Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 102–04 (1998)).
“Although ‘the core component of standing is an essential and unchanging part of the case-
or-controversy requirement of Article III,’ the Supreme Court has recognized that ‘some of [the
standing doctrine’s] elements express merely prudential considerations that are part of judicial
self-government.’” Kiser, 765 F.3d at 606 (alteration in original) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992)). The ripeness doctrine is “drawn both from Article III
limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Id.
(quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)). The doctrine “aims ‘to
prevent the courts, through premature adjudication, from entangling themselves in abstract
disagreements.’” Hill v. Snyder, 878 F.3d 193, 213 (6th Cir. 2017) (quoting Thomas v. Union
Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985)). Ripeness “becomes an issue when a case
is anchored in future events that may not occur as anticipated, or at all,” Cleveland Branch,
N.A.A.C.P. v. City of Parma, 263 F.3d 513, 533 (6th Cir. 2001) (quoting Nat’l Rifle Ass’n of Am.
v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997)), and “separates those matters that are premature
because the injury is speculative and may never occur from those that are appropriate for the
court’s review,” Magaw, 132 F.3d at 280.
This Court recently stated in Kiser v. Reitz that “the Supreme Court has cast into some
doubt ‘the continuing vitality’ of the long-established prudential aspects of the ripeness doctrine,
specifically the aspects that concern hardship to the parties and fitness of the dispute for
resolution.” 765 F.3d at 607 (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167
(2014)). We found that the Supreme Court in Driehaus “addressed the constitutional component
of ripeness in terms of standing,” id. (citing Driehaus, 573 U.S. at 158 n.5), and therefore analyzed
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the plaintiff’s claim, “which was dismissed as unripe by the district court, using the constitutional
standing framework,” id. In line with our reasoning in Kiser, we analyze Plaintiffs’ claims, which
the district court dismissed as unripe, under the constitutional standing framework. For the reasons
that follow, we find that Plaintiffs do not have standing to bring either of their claims for
declaratory relief.
B. Removal of Plaintiffs’ Father
Plaintiffs seek a declaration that agents of the FBI and USCIS conspired to prevent their
father from obtaining citizenship in part by making false representations during his plea
negotiations in his criminal case, thereby exposing him to the threat of removal and exposing
Plaintiffs to the risk of separation from their father if he is removed. The district court found that
Plaintiffs’ claim was not ripe for judicial review because, “[i]n order for Plaintiffs’ father to be
removed from the country, a series of events would have to occur.” R. 29, Pg. ID 107. Specifically,
Plaintiffs’ father would be subject to deportation only if he “does not apply for citizenship; [DHS]
brings removal proceedings against their father in the future; an immigration judge determines that
their father is removable and enters an order of removal; the [BIA] and a federal court of appeals
uphold the immigration judge’s decision; and their father is removed.” Id. at Pg. ID 107–08
(quoting R. 23, Pg. ID 84). Plaintiffs have not demonstrated that any of these possibilities is likely
to occur. Plaintiffs do not allege that any removal proceeding has been initiated against their father.
While Plaintiffs say that their father received an “ICE warrant” in 2012, they also allege that FBI
Agent Dowd subsequently had that warrant withdrawn. Plaintiffs do not allege that their father has
received any Notice to Appear in the last seven years, or that any immigration proceeding has been
initiated against him. Moreover, even if a removal proceeding had been initiated against Plaintiffs’
father, Plaintiffs would not be able “to prove in advance that the judicial system will lead to any
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particular result in [their father’s] case.” Whitmore v. Arkansas, 495 U.S. 149, 159–60 (1990).
Accordingly, we find that the removal of Plaintiffs’ father is highly “speculative and may never
occur.” Magaw, 132 F.3d at 280. To the extent that Plaintiffs’ claim seeks prospective relief to
prevent the removal of their father, we agree with the district court that such a claim is not ripe for
judicial review.
Plaintiffs attempt to navigate around the ripeness issue at the heart of their case by arguing
that the exposure to the risk of their father’s removal is itself injury in fact, rather than his actual
removal. Plaintiffs contend that the FBI’s past alleged conduct—fraudulently misrepresenting the
Bureau’s ability to intervene in an immigration proceeding and encouraging their father to
withdraw his application for citizenship—constitute an injury that occurred in the past, and the
exposure to the risk of being separated from their father by removal is the present effect of that
injury. They claim that, but for Defendants’ actions, they “would have the security of a permanent
father who is a United States citizen” but “[t]hey do not now possess that security.” Appellants’
Br. at 7. However, even framed in this way, Plaintiffs fail to satisfy the constitutional requirements
of the standing doctrine.
Turning first to the injury-in-fact requirement, Plaintiffs fail to allege a concrete injury to
their legal interests resulting from Defendants’ actions. For purposes of Article III, injury in fact
is “an invasion of a legally protected interest which is (a) concrete and particularized, and
(b) ‘actual or imminent, not “conjectural” or “hypothetical.”’” Lujan, 504 U.S. at 560 (citations
and footnote omitted). Regarding a “legally protected interest,” Plaintiffs allege that the FBI’s
actions in this case exposed them to the risk of separation from their father, and that this violates
their due-process and equal-protection rights, among others. It is unclear whether Plaintiffs have a
“legally protected interest” in the security of a father who is permanently in the United States. See,
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e.g., Hernandez-Lara v. Holder, 563 F. App’x 401, 403 (6th Cir. 2014) (“[T]he law on this point
is settled: a United States-citizen child’s constitutional rights are not implicated by the
government’s otherwise valid decision to deport that child’s parents.” (collecting cases)). Still, this
Court must be careful to avoid the “confusion” that results when courts conflate “the question [of]
whether a plaintiff states a claim for relief” with “the justiciability of a dispute.” Bond v. United
States, 564 U.S. 211, 219 (2011). Therefore, in an abundance of caution and only for the purpose
of determining if Plaintiffs’ claim is justiciable, we assume without deciding that Plaintiffs have
alleged a legally protected interest.
Even with the benefit of that assumption in their favor, however, Plaintiffs have not
demonstrated a concrete injury to their interest. “A ‘concrete’ injury must be ‘de facto’; that is, it
must actually exist.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). Thus, the Supreme
Court has “said many times before” that “[a]llegations of possible future injury do not satisfy the
requirements of Art[icle] III.” Whitmore, 495 U.S. at 158; accord, e.g., Kanuszewski v. Mich.
Dep’t of Health & Human Servs., 927 F.3d 396, 405 (6th Cir. 2019). This general rule “does not
mean, however, that the risk of real harm cannot satisfy the requirement of concreteness.” Spokeo,
136 S. Ct. at 1549. Instead, a threat of future harm can satisfy the injury-in-fact requirement of
Article III standing if “there is a ‘substantial risk’ that the harm will occur.” Kanuszewski, 927
F.3d at 405 (quoting Clapper, 568 U.S. at 414 n.5).
There are at least two types of cases in which courts have held that a substantial risk of
future harm alone constitutes a concrete injury in fact. First, the Supreme Court has found that
standing is satisfied when “a reasonable probability of future injury comes accompanied with
present injury that takes the form of reasonable efforts to mitigate the threatened effects of the
future injury or to prevent it from occurring.” Clapper, 568 U.S. at 437 (emphasis preserved).
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Thus, in Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139 (2010), the Court found that certain
alfalfa-farmer plaintiffs had standing “because the plaintiffs would suffer present harm by trying
to combat the threat” of contamination to their conventional alfalfa crops if the Department of
Agriculture decided to deregulate genetically engineered alfalfa. Clapper, 568 U.S. at 438; see
also id. at 437–39 (clarifying the Court’s holding in Monsanto Co., 561 U.S. at 153–55). For
example, the plaintiffs “‘would have to conduct testing to find out whether and to what extent their
crops have been contaminated.’ . . . And they would have to take ‘measures to minimize the
likelihood of potential contamination and to ensure an adequate supply of non-genetically-
engineered alfalfa.’” Id. (quoting Monsanto Co., 561 U.S. at 154). The Supreme Court found that
the present harms that the plaintiffs would suffer, even if the potential future harm did not occur,
were “sufficiently concrete to satisfy the injury-in-fact prong of the constitutional standing
analysis.” Id. (quoting Monsanto Co., 561 U.S. at 155). Similarly, in the data-breach context, this
Court has suggested that a “[p]laintiffs’ allegations of a substantial risk of harm, coupled with
reasonably incurred mitigation costs, are sufficient to establish a cognizable Article III injury at
the pleading stage of the litigation.” Galaria v. Nationwide Mut. Ins. Co., 663 F. App’x 384, 388
(6th Cir. 2016).
Second, the Supreme Court has found that a plaintiff adequately alleges a concrete harm
sufficient to satisfy the injury-in-fact requirement when she alleges “an intention to engage in a
course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and
there exists a credible threat of prosecution thereunder.” Driehaus, 573 U.S. at 159 (quoting
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). In such pre-enforcement
cases, the plaintiff must demonstrate an “intention to engage in a course of conduct arguably
affected with a constitutional interest” and a credible threat of future prosecution, such that she is
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chilled from engaging in her intended course of conduct. Id. So, for example, this Court has found
that a plaintiff has standing to bring a pre-enforcement challenge where he faces a credible threat
that regulations will be enforced against him if he engages in commercial speech protected by the
First Amendment. See Kiser, 765 F.3d at 609–10.
Other types of substantial risk of future harm may satisfy Article III’s concreteness
requirement, but these cases clarify the general rule that mere exposure to a vague risk of possible
harm, without more, is insufficient for Article III standing. E.g., Whitmore, 495 U.S. at 158; accord
Clapper, 568 U.S. at 410 (holding that the plaintiffs lack Article III standing based on “highly
speculative fear” that injury will occur). In the instant case, Plaintiffs have not alleged any facts
that demonstrate an imminent, concrete injury in fact. Plaintiffs do not allege any injury from
reasonable efforts to mitigate a substantial likelihood of future harm, e.g., Monsanto Co., 561 U.S.
at 154–55, and they do not allege any intended conduct in which they are prevented from engaging
for fear of prosecution, e.g., Driehaus, 573 U.S. at 159. Instead, Plaintiffs allege the purely psychic
harm of worry about the possibility of their father’s removal, which Plaintiffs have not shown is
likely to occur. Without more, we find that Plaintiffs have failed to satisfy the injury-in-fact
requirement of Article III standing.
In a final attempt to demonstrate concrete injury, Plaintiffs point to this Court’s prior
decision in Hamdi v. Napolitano, 620 F.3d 615 (6th Cir. 2010). In Hamdi, a plaintiff child sought
“judicial review of his mother’s order of removal and cancellation of that order.” Id. at 626. This
Court agreed with the district court that the citizen child of an alien parent had standing to assert
his own distinct constitutional rights, which were implicated by the final order of removal against
his mother. Id. at 624. Notwithstanding that the child had standing to assert his own constitutional
rights, this Court found that the child had failed to state a claim upon which relief could be granted
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because “under the current interpretation of [8 U.S.C.] § 1252(b)(9), no federal court has the
authority to review the order of removal of [plaintiff’s] mother . . . to determine whether a violation
of the child[’s] constitutional rights renders the imposition of the mother’s removal order
invalid . . . .” Id. at 628. While the Hamdi plaintiff’s complaint was ultimately dismissed for failure
to state a claim, id. at 628–29, there was an order of removal already entered against the plaintiff’s
mother at the time of his suit. Thus, the Hamdi plaintiff was able to allege a concrete, imminent
injury-in-fact and that his injury could, at least theoretically, be redressed by a favorable decision
from the district court canceling his mother’s order of removal. In contrast, as discussed above,
Plaintiffs in the present case do not plausibly allege that their father’s removal is likely and
imminent (or even, as in Hamdi, that an order of removal has already been entered against him).
Next, even assuming that Plaintiffs could demonstrate concrete injury in fact, they have
not alleged any “hindrance” preventing their father from raising his own claims, either to challenge
his plea in his criminal case or to challenge his possible removal in a future removal proceeding.5
Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). If the FBI did, in fact, fraudulently induce
Plaintiffs’ father into entering a guilty plea in his criminal case, then Plaintiffs’ father could seek
to redress that constitutional injury himself. For example, he might file a motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255, challenging his plea as unknowing or
involuntary, or pursue other avenues for relief. Plaintiffs have not alleged any reason why he would
be unable to do so. In addition, Plaintiffs have not provided any reason why their father would not
be able to assert his own rights in a removal proceeding, assuming one is initiated, and then on
appeal to this Court, assuming that both the Immigration Judge and the Board of Immigration
5
In this way, too, the present case is distinguishable from Hamdi, in which the plaintiff’s mother had already
asserted her rights in a removal proceeding. 620 F.3d at 623.
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Appeals find against him. Plaintiffs cannot bootstrap their way into federal court by asserting past
harm to a non-party without alleging any “hindrance preventing the third party from raising his
own claim.” Moody v. Mich. Gaming Control Bd., 847 F.3d 399, 402 (6th Cir. 2017).
Lastly, even if we were to find that Plaintiffs had demonstrated concrete injury in fact and
hindrance to their father’s ability to assert his own rights, it is entirely unclear how a favorable
decision from the district court would redress the alleged injury. In this case, Plaintiffs seek a
declaration from the district court that the FBI and USCIS fraudulently induced their father into
withdrawing his citizenship application and thereby exposed Plaintiffs to the risk of separation
from their father if he is removed. But, Plaintiffs have not shown how the declaration that they
seek would minimize their insecurity about their father’s removal in any way. This is because with
or without the requested declaration, Plaintiffs’ father could still face deportation proceedings at
any time, and Plaintiffs have not provided any reason for this Court to conclude that the declaration
they seek would somehow prevent his removal. Therefore, Plaintiffs have failed to prove that it is
“‘likely’ as opposed to merely ‘speculative’” that their insecurity about their father’s removal will
be redressed by a favorable decision declaring that the FBI’s actions in their father’s criminal case
exposed Plaintiffs to the risk of separation from their father. Lujan, 504 U.S. at 561 (quoting Simon
v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)).
For these reasons, we hold that Plaintiffs’ first claim for declaratory relief fails for lack of
standing.
C. Plaintiffs’ Father’s Trial Testimony
Plaintiffs’ second claim for declaratory relief fares no better. Plaintiffs request a declaration
that their father is not required to testify in a trial scheduled for June or July 2018 (the name and
case number of which were withheld by Plaintiffs) “or in any trial or other public hearing resulting
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from the negotiations and the plea agreement in his criminal case.” R. 1, Pg. ID 7. They allege that
they “fear for the safety of their father if he is required to testify in the upcoming [2018] trial.” Id.
at Pg. ID 5.
Plaintiffs’ claim regarding the 2018 trial is moot. “The test for mootness is whether the
relief sought would, if granted, make a difference to the legal interests of the parties.” Bowman v.
Corr. Corp. of Am., 350 F.3d 537, 550 (6th Cir. 2003) (quoting McPherson v. Mich. High Sch.
Athletic Ass’n, 119 F.3d 453, 458 (6th Cir. 1997) (en banc)). The 2018 criminal trial in which
Plaintiffs’ father testified has already been completed. In the district court, the parties jointly
moved to stay the present case until the completion of the criminal case in which Plaintiffs’ father
was testifying, and the court granted the motion. The stay was lifted following the completion of
the criminal trial. Therefore, the declaration that Plaintiffs seek would have no effect on their
father’s interest against testifying in the already-completed 2018 trial in which he already testified.
The claim is moot.
To the extent that Plaintiffs’ claim requests prospective relief regarding any future trials in
which their father might testify, the district court correctly found that Plaintiffs’ claim is not ripe.
Ripeness requires an injury in fact that is “certainly impending.” Cleveland Branch, N.A.A.C.P.,
263 F.3d at 533 (quoting Magaw, 132 F.3d at 280). Plaintiffs have not alleged any upcoming trials
in which their father has been subpoenaed to testify. Thus, they have failed to allege a “certainly
impending” injury in fact. Moreover, to the extent that Plaintiffs’ claim is premised on the potential
for unknown third parties to harm their father, they do not have standing to bring such a claim.
See, e.g., Crawford v. U.S. Dep’t of Treasury, 868 F.3d 438, 455 (6th Cir. 2017) (“When a
plaintiff’s alleged injury is the result of ‘the independent action of some third party not before the
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court,’ the plaintiff generally lacks standing to seek its redress.” (quoting Simon, 426 U.S. at 42)).
Therefore, Plaintiffs’ second claim for declaratory relief is nonjusticiable.
CONCLUSION
Plaintiffs do not have standing to bring either of their claims for declaratory relief. Plaintiffs
have failed to demonstrate injury in fact and redressability with respect to a declaration regarding
their father’s possible removal, and Plaintiffs’ claim regarding their father’s trial testimony is
nonjusticiable for reasons of mootness and ripeness. Therefore, we affirm the decision of the
district court dismissing Plaintiffs’ claims for want of jurisdiction.
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