Owens v. US Department of Homeland Security, Secretary

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Bobby Mataara Owens
v. Case No. 17-cv-180-SM
U.S. Department of Homeland
Security, Secretary
REPORT AND RECOMMENDATION
Bobby Owens, a citizen of New Zealand who is in the United
States on an expired visa, has been charged with transporting
child pornography in the District of Maine. In an action
initiated by a pleading captioned “Writ of Mandamus,” Owens asks
the court to order the U.S. Department of Homeland Security
(“DHS”) to immediately deport him to New Zealand. Before this
magistrate judge for a report and recommendation is defendant’s
motion to dismiss for lack of subject-matter jurisdiction. See
Fed. R. Civ. P. 12(b)(1). Plaintiff objects. For the reasons
that follow, defendant’s motion to dismiss should be granted.
Discussion
Seizing upon language drawn from an Executive Order issued
by President Donald Trump, Owens claims that when he was charged
with transporting child pornography, he became subject to
Case 1:17-cv-00180-SM Document 11 Filed 10/05/17 Page 1 of 7

2
immediate deportation. On several occasions, he asked DHS to
deport him. So far, DHS has not done so. In this action, and
in reliance upon both the Administrative Procedure Act (“APA”),
7 U.S.C. § 702, and this court’s mandamus jurisdiction, see 28
U.S.C. § 1361, Owens asks the court to order DHS to deport him.
Defendant moves to dismiss, arguing that the court lacks
subject-matter jurisdiction over plaintiff’s claim(s). The
court agrees.
Plaintiff bears the burden of demonstrating that this court
has subject-matter jurisdiction over his claim(s). See
Calderón-Serra v. Wilmington Trust Co., 715 F.3d 14, 17 (1st
Cir. 2013) (citing Murphy v. United States, 45 F.3d 520, 522
(1st Cir. 1995)). However, because neither 7 U.S.C. § 702 nor
28 U.S.C. § 1361 gives this court jurisdiction over plaintiff’s
claim(s), he has necessarily failed to carry his burden. In
this section, the court considers each of the two statutes upon
which plaintiff relies, but begins by describing the Executive
Order on which plaintiff bases his request for relief.
1. The Executive Order
In January of 2017, President Trump issued an Executive
Order titled “Enhancing Public Safety in the Interior of the
United States.” Exec. Order No. 137768, 82 Fed. Reg. 8799, 2017
Case 1:17-cv-00180-SM Document 11 Filed 10/05/17 Page 2 of 7

3
WL 388889 (Jan. 25, 2017). The order explains that “those who
overstay or otherwise violate the terms of their visas present a
significant threat to national security and public safety,” 82
Fed. Reg. at 8799, and that “[t]his is particularly so for
aliens who engage in criminal conduct in the United States,” id.
For that reason, the order provides that “the Secretary of
Homeland Security . . . shall prioritize for removal . . .
aliens who: . . . (b) have been charged with any criminal
offense, where such charge has not been resolved.” Id. at 8800.
The order concludes with the following caveat:
This order is not intended to, and does not, create
any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against
the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any
other person.
Id. at 8803.
2. The APA
The APA provision on which plaintiff relies provides, in
pertinent part:
A person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is
entitled to judicial review thereof. . . . Nothing
herein (1) affects other limitations on judicial
review or the power or duty of the court to dismiss
any action or deny relief on any other appropriate
legal or equitable ground . . . .
Case 1:17-cv-00180-SM Document 11 Filed 10/05/17 Page 3 of 7

4
5 U.S.C. § 702.
Plaintiff claims that he has been aggrieved by DHS’s
decision not to pursue his deportation after he asked to be
deported. The problem with plaintiff’s claim is that his
request for relief in this forum is barred by a statutory
limitation on judicial review. Specifically, the U.S. Code
provides that “no court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien arising from the
decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against
any alien under this chapter.” 8 U.S.C. § 1252(g). In Reno v.
American-Arab Anti-Discrimination Committee, 525 U.S. 471
(1999), the Supreme Court held that § 1252(g) deprived the
federal courts of jurisdiction over a claim by several aliens
seeking to prevent the initiation of deportation proceedings
against them. Plaintiff argues that Reno and its progeny are
inapposite because the plaintiffs in Reno were trying to avoid
deportation while he is seeking to be deported. That is a
distinction without a difference.
In Kit Yee Kitty Li v. Sessions, the plaintiff was an alien
with an expired visa who had been convicted of conspiracy to
commit money laundering, see 685 F. App’x 593, 594 (9th Cir.
Case 1:17-cv-00180-SM Document 11 Filed 10/05/17 Page 4 of 7

5
2017). DHS “charge[d] her as removable under 8 U.S.C. §
1182(a)(2)(I), rather than under § 1182(a)(2)(A)(i)(I).” Id.
That charging decision mattered to the plaintiff because
inadmissibility under the latter statute is subject to a
statutory waiver while inadmissibility under the former is not.
See id. The plaintiff in Kit Yee Kitty Li claimed that the
decision to charge her as removable under one statute rather
than the other “was ‘arbitrary and capricious’ in violation of 5
U.S.C. § 706,” id., which is the “[s]cope of review” provision
of the APA. In reliance upon both 8 U.S.C. 1252(g) and Reno,
the Ninth Circuit held that it “lack[ed] jurisdiction to review
the Attorney General’s decision not to charge Li as removable
under § 1182(a)(2)(A)(i)(I),” 685 F. App’x at 594, explaining
that “[t]he decision about whether to seek an immigrant’s
removal or initiate proceedings is not subject to judicial
review,” id. Here, plaintiff challenges DHS’s decision not to
pursue his removal at this time. That decision is not subject
to judicial review. Thus, the court lacks subject-matter
jurisdiction over plaintiff’s APA claim.
3. Mandamus
Plaintiff also relies upon the court’s mandamus
jurisdiction, which is created by statute and defined in the
Case 1:17-cv-00180-SM Document 11 Filed 10/05/17 Page 5 of 7

6
following way:
The district courts shall have original jurisdiction
of any action in the nature of mandamus to compel an
officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.
28 U.S.C. § 1361. The court’s lack of subject-matter
jurisdiction over plaintiff’s request for mandamus relief is
plainly demonstrated by the Executive Order on which plaintiff
relies. That order expressly provides that it “create[s] [no]
right or benefit . . . enforceable at law or in equity . . .
against the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any other
person.” 82 Fed. Reg. at 8803. Because the Executive Order on
which plaintiff relies expressly disclaims the creation of any
right enforceable by plaintiff against defendant, then,
necessarily, defendant owed plaintiff no duty. Absent such a
duty, the court lacks subject-matter jurisdiction over
plaintiff’s request for mandamus relief.
Conclusion
For the reasons described above, this court lacks subject-
matter jurisdiction over plaintiff’s request for relief,
regardless of whether it arises under the APA or is framed as a
request for mandamus relief under 28 U.S.C. § 1361. Because the
Case 1:17-cv-00180-SM Document 11 Filed 10/05/17 Page 6 of 7

7
court lacks subject-matter jurisdiction over plaintiff’s
claim(s), defendant’s motion to dismiss, document no. 6, should
be granted. See Fed. R. Civ. P. 12(b)(1).
Any objection to this report and recommendation must be
filed within 14 days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). Failure to file an objection within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by
objections to magistrate judge’s report are subject to review by
district court; issues not preserved by such objection are
precluded on appeal).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
October 5, 2017
cc: Bobby Mataara Owens, pro se
Terry Ollila, Esq.
Case 1:17-cv-00180-SM Document 11 Filed 10/05/17 Page 7 of 7