Maria Villarreal, et al v. Petra Horn, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-40688
Summary Calendar

MARIA GUADALUPE VILLARREAL; ANA MARIA VILLARREAL,

Plaintiffs – Appellants,
v.

PETRA HORN, Port Director, United States Customs and Border Protection;
MIKE POMPEO, SECRETARY, U.S. DEPARTMENT OF STATE; CHAD F.
WOLF, ACTING SECRETARY, U.S. DEPARTMENT OF HOMELAND
SECURITY; UNITED STATES OF AMERICA

Defendants – Appellees,

************************************************************************

ANA MARIA VILLARREAL; MARIA GUADALUPE VILLARREAL,

Plaintiffs – Appellants,
v.

PETRA HORN, Port Director, United States Customs and Border Protection;
MIKE POMPEO, SECRETARY, U.S. DEPARTMENT OF STATE; CHAD F.
WOLF, ACTING SECRETARY, U.S. DEPARTMENT OF HOMELAND
SECURITY; UNITED STATES OF AMERICA

Defendants – Appellees,

Appeals from the United States District Court
for the Southern District of Texas
USDC Nos. 1:15-CV-111 and 1:16-CV-267

United States Court of Appeals
Fifth Circuit
FILED
February 7, 2020

Lyle W. Cayce
Clerk
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No. 18-40688
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Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:
*
Ana Villarreal and Maria Villarreal appeal the dismissal of their lawsuit
against the United States. The Villarreals allege they are U.S. citizens but
were prevented from entering the United States because the government
improperly revoked Ana’s passport and denied Maria’s passport application.
The district court dismissed their claims.
We first must assure ourselves of our jurisdiction. See Hill v. City of
Seven Points, 230 F.3d 167, 169 (5th Cir. 2000). The government argues that
it already issued a passport to Ana Villarreal, making her claims moot. See De
Esparza v. Kerry, 548 F. App’x 216, 217–18 (5th Cir. 2013); Garcia v. Freeman,
542 F. App’x 354 (5th Cir. 2013). But Ana also sought a judicial declaration of
citizenship in her complaint. So, even if there is “no longer any actual
controversy between the parties about” the revocation of her passport, a
controversy could still exist over her request for a judicial declaration of
citizenship. Alvarez v. Smith, 558 U.S. 87, 92 (2009). Thus, her claim for a
declaration of citizenship may not be moot.
Nevertheless, we lack jurisdiction because Ana’s complaint did not
establish that she had standing to seek a judicial declaration of citizenship.
Already, LLC v. Nike, Inc., 568 U.S. 85, 90–91 (2013) (noting a court must make
inquiries into both standing and mootness). Her complaint only alleges that
she requested the judicial declaration because the government could revoke or
deny her a passport in the future. Ana alleges the government has a
“propensity to engage in questionable tactics of revoking” a passport during

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
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litigation. And the government might “refus[e] to renew” her passport once it
expires in the future. But allegations like these of “possible future injur[ies]
are not sufficient” for standing. Clapper v. Amnesty Int’l USA, 568 U.S. 398,
409 (2013) (quotation omitted). Further, there is no allegation that these
“threatened injur[ies]” to Ana Villarreal’s passport are “certainly impending.”
Id. Since Ana “can only speculate as to how the [government] will exercise[e]
their discretion” with a passport she may or may not seek in the future, she
lacks standing to seek a judicial declaration of citizenship that is premised on
future action relating to that passport. Id. at 412. Her claims must be
dismissed. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 84 (1998)
(“[W]ithout proper jurisdiction, a court cannot proceed at all, but can only note
the jurisdictional defect and dismiss the suit.”).
We are left only with Maria Villarreal’s claims under the Administrative
Procedures Act (“APA”). See 5 U.S.C. § 704. The district court dismissed her
claims because the APA requires that plaintiffs exhaust other “adequate
remed[ies]” prior to filing an APA claim. Id.; Hinojosa v. Horn, 896 F.3d 305,
310 (5th Cir. 2018). And Maria did not exhaust.
Congress has provided “specific procedures to appeal the denial of a right
or privilege as a national of the United States” in 8 U.S.C. § 1503. These
procedures apply to passport denials. Hinojosa, 896 F.3d at 312. There are two
options to seek a remedy under § 1503: (1) if an individual is within the United
States, she may seek a judicial declaration of citizenship; or (2) if an individual
is outside the United States, she may apply for a certificate of identity from a
diplomatic or consular officer, which would allow her to “travel[] to a port of
entry in the United States and [then] apply[] for admission.” 8 U.S.C.
§ 1503(a)–(c); Hinojosa, 896 F.3d at 312. This Court has previously held that
if a plaintiff fails to exhaust these procedures, then the plaintiff fails to meet
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the APA’s exhaustion requirement. Hinojosa 896 F.3d at 313. Since Maria has
not exhausted, the district court rightly dismissed her claim.
We disagree that it would be “unconscionable” to make Maria exhaust
the § 1503 procedures. See Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (noting
an exception to APA exhaustion in “extraordinary circumstances”). Maria has
pointed to no allegations that make her circumstances any different than those
faced by the plaintiffs in Hinojosa or make them otherwise extraordinary. Nor
can she rely on Rusk v. Cort, 369 U.S. 367 (1962), abrogated in part by Califano
v. Sanders, 430 U.S. 99 (1977), to excuse her non-exhaustion. We’ve noted that
Rusk has only limited application—principally in cases of “extreme burden.”
Hinojosa, 896 F.3d at 313. A plaintiff cannot demonstrate this “extreme
burden” when she “has not been criminally indicted and . . . does not risk
incarceration upon arrival” at the border. Id. at 314. Since Maria Villarreal has
made no such allegations, Rusk is inapposite.
We also disagree that the district court erred by (1) not conducting the
fact-specific inquiry that Hinojosa requires and (2) by not allowing in
additional evidence. We have carefully reviewed the district court’s opinion,
and the record demonstrates that the court’s thorough treatment of Maria’s
case is fully consistent with Hinojosa and, in all events, does not constitute
reversible error.
Ana Villarreal’s claims are DISMISSED for lack of jurisdiction, and, with
respect to Maria Villarreal’s claims, the district court is AFFIRMED.
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