Ortiz et al v. Noem et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Rene Ortiz, et al.,
Plaintiffs,
v.
Kristi Noem, et al.,
Defendants.
No. CV-26-00084-PHX-JZB
REPORT AND RECOMMENDATION
TO THE HONORABLE STEPHEN M. MCNAMEE, UNITED STATES DISTRICT
JUDGE:
Pending before the Court is Plaintiffs’ “Motion to Proceed In Forma Pauperis” (“IFP
Motion”) (doc. 2).1 Because Plaintiffs’ IFP Motion is in narrative form without including
necessary financial information, the Court recommends Plaintiffs’ IFP Motion be
dismissed. Considering Plaintiffs’ Writ of Mandamus and Administrative Procedures Act
(“APA”) claims are impermissible because the adjudication of an I-601 form is a
1 This Report and Recommendation is filed pursuant to General Order 21-25, which
notes that:
When a United States Magistrate Judge to whom a civil action has been
assigned pursuant to Local Rule 3.7(a)(1) considers dismissal to be
appropriate but lacks the jurisdiction to do so under 28 U.S.C. § 636(c)(1)
due to incomplete status of election by the parties to consent or not consent
to the full authority of the Magistrate Judge,
IT IS ORDERED that the Magistrate Judge will prepare a Report and
Recommendation for the Chief United States District Judge or designee.
IT IS FURTHER ORDERED designating [Senior United States District
Judge Stephen M. McNamee] to review and, if deemed suitable, to sign the
order of dismissal . . . .
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discretionary process where judicial review is barred, see 8 U.S.C. § 1182(i)(2), the Court
recommends these claims be dismissed with prejudice. Furthermore, because Plaintiffs’
Freedom of Information Act (“FOIA”) claim fails to state a claim upon which relief may
be granted, the Court recommends it be dismissed without prejudice.
I. Background.
On January 7, 2026, Plaintiffs, appearing pro se, initiated the instant action by filing
their three-count “Complaint for Writ of Mandamus and Relief Under the APA-
Administrative Procedure[s] Act” (“Complaint”) (doc. 1). Plaintiffs assert the following
counts in their Complaint: (1) a 28 U.S.C. § 1361 mandamus claim; (2) a 5 U.S.C. § 706(1)
APA unreasonable delay claim; and (3) a 5 U.S.C. § 552 FOIA Claim. (Id. at 4–5.)
Plaintiffs action seeks to compel Defendants to adjudicate Plaintiff Maria Dolores Ochoa
Castro’s I-601 Application for Waiver of Grounds of Indamissibility which was filed in
February of 2019. (Id. at 2.)
Plaintiffs allege that Plaintiff Maria Dolores Ochoa Castro had appeared for an
immigrant visa processing at the U.S. Consulate in Ciudad Juárez, Mexico, but her vias
was denied “after a Consular Officer alleged inadmissibility under INA §
212(a)(6)(C)(i)”—which has been codified as 8 U.S.C. § 1182(a)(6)(C)(i). (Id.) In
February 2019, Plaintiffs filed a I-601 application. (Id.) To date, Defendants have not
adjudicated Plaintiff Maria Dolores Ochoa Castro’s I-601 application for a waiver of
inadmissibility. (Doc. 1.)
II. IFP Motion.
Generally, all parties instituting a civil action in this Court must pay a filing fee. See
28 U.S.C. § 1914(a). The Court may authorize the filing of a suit without payment of fees
if the plaintiff submits an affidavit, including a statement of all his or her assets, showing
that he or she is unable to pay the filing fees or costs. 28 U.S.C. § 1915(a) (emphasis added).
“The privilege of proceeding In Forma Pauperis (“IFP”) is a matter within the
discretion of the trial court.” Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963) (cleaned
up). The Court “has inherent power to restrict a litigant’s ability to commence abusive
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litigation in forma pauperis.” Visser v. Sup. Ct. of State of Cal., 919 F.2d 113, 114 (9th Cir.
1990). “When the IFP privilege is misused, permission to proceed IFP can be denied.”
Carrillo v. Go Fund Me, No. CV-24-1183-PHX-DGC, 2024 WL 3299793, at *1 (D. Ariz.
June 3, 2024) (citing Demos v. U.S. Dist. Ct. for E.D. of Wash., 925 F.2d 1160, 1160–61
(9th Cir. 1991)).
This action is not Plaintiff Rene Ortiz’ first encounter with the federal courts. Within
the past two years, Plaintiff Rene Ortiz has filed over a half-dozen cases in the District of
Arizona that have all been dismissed. See Ortiz v. U.S. Dep’t of Veterans Affs., No. CV-
25-02506-PHX-JAT, 2025 WL 2173508 (D. Ariz. July 31, 2025); see also Ortiz v. Fontes,
2:25-cv-02505-SHD (D. Ariz. Sept. 16, 2025); Ortiz v. United States, 2:24-cv-03302-DWL
(D. Ariz. Jan. 15, 2025); Ortiz v. United States, 2:24-cv-03304-KML (D. Ariz. Dec. 19,
2025); Ortiz v. Harris, 2:24-cv-02416-DWL (D. Ariz. Oct. 25, 2024); Ortiz v. United
States, 2:24-cv-02417-JAT (D. Ariz. Oct. 25, 2025); Ortiz v. Unknown Parties, 2:24-cv-
02418-SPL (D. Ariz. Oct. 16, 2024). In Plaintiff Rene Ortiz’ two most recent actions, his
applications to proceed in forma pauperis have been denied for failure to use the correct
forms and failure to include necessary financial information. See Ortiz v. U.S. Dep’t of
Veterans Affs., 2025 WL 2173508, at *3; see also Ortiz v. Fontes, 2:25-cv-02505-SHD, at
*2. Because Plaintiffs’ current IFP Motion befalls the same errors as Plaintiff Ortiz’ prior
in forma pauperis applications, the Court recommends the IFP Motion be dismissed.2 See
Ortiz v. Fontes, 2:25-cv-02505-SHD, at *2 (“Because Ortiz’s financial status cannot be
determined without the required information about his assets, the IFP application is
denied.”).
III. Screening Complaint.
Because Plaintiffs are attempting to proceed in forma pauperis, the Court will,
pursuant to 28 U.S.C. § 1915, screen Plaintiffs’ Complaint.3 28 U.S.C. § 1915(e)(2)(B).
2 As a final note on Plaintiffs’ IFP Motion, the Court is concerned that Plaintiff Ortiz
is attempting to abuse the in forma pauperis privilege with his ever-growing list of actions
within the District of Arizona.
3 This statutory screening is not limited to prisoners. Rather, 28 U.S.C. §
1915(e)(2)(B) applies to any in forma pauperis application. See Calhoun v. Stahl, 254 F.3d
845, 845 (9th Cir. 2001).
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The Court must dismiss an in forma pauperis complaint if it is: “(i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)–
(iii). If the Court finds that dismissal is required, it may dismiss the complaint with leave
to amend “unless it determines that the pleading could not possibly be cured by the
allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc)
(quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). In analyzing pro se filings,
the United States Court of Appeals for the Ninth Circuit has instructed that courts must
“construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
A pleading must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). While Rule 8 does not demand
detailed factual allegations, “it demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a
plausible claim for relief [is] . . . a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Id. at 679. All three counts contained
within Plaintiffs’ Complaint fail to state a claim upon which relief may be granted.
A. Administrative Procedures Act.
Starting with Plaintiffs’ APA count, Congress has stripped the Court of jurisdiction
to review timing, decision, or action regarding waiver for an immigrant found
“inadmissible for fraud or willful misrepresentation of a material fact.” See 8 U.S.C. §
1182(i)(2). The APA requires an agency to, “within a reasonable time, . . . conclude a
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matter presented to it.” 5 U.S.C. § 555(b). Where an action is illegally or unreasonably
delayed, the Court may compel that action which was “unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1). However, the Court may not review an agency
action or decision if Congress—in crafting the statute at issue—has “precluded judicial
review.” 5 U.S.C. § 701(a)(1).
As noted in the Complaint, Plaintiff Maria Dolores Ochoa Castro was denied an
immigrant visa under 8 U.S.C. § 1182(a)(6)(C)(i). (Doc. 1 at 3.) This provision of the
Immigration and Naturalization Act (“INA”) bars the admission of intending immigrants
“who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought
to procure or has procured) a visa, other documentation, or admission into the United
States[.]” 8 U.S.C. § 1182(a)(6)(C)(i).
An agency determination of inadmissibility under § 1182(a)(6)(C)(i) does not
completely bar an intending immigrant to the United States. Rather, the Attorney General,
in their “discretion,” may waive a § 1182(a)(6)(C)(i) finding under 8 U.S.C. § 1182(i)(1).
However, Congress has included a jurisdiction-stripping provision under § 1182(i), which
states that “[n]o court shall have jurisdiction to review a decision or action of the Attorney
General regarding a waiver under paragraph (1).” 8 U.S.C. § 1182(i)(2) (emphasis added).
Our sister districts in the Ninth Circuit have held that § 1182’s “decision or action”
language includes the pace at which the Attorney General makes a determination regarding
a waiver under § 1182. See Mejia de Reyes v. Miller, No. 4:23-CV-5121-EFS, 2024 WL
2947716, at *6 (E.D. Wash. June 11, 2024) (“The “action” “regarding a waiver”
encapsulates the length of time it takes the Attorney General to adjudicate the application
for an unlawful-presence waiver. Thus, the decision on—and the pace at which the
Attorney General makes that decision—is a matter that Congress precluded judicial review
and committed to agency discretion.”); see also Mohsenzadeh v. Kelly, 276 F. Supp. 3d
1007, 1013 (S.D. Cal. 2017) (noting the court lacked jurisdiction to review the pace of the
Attorney General’s adjudication of a waiver); Ortega v. Miller, No. 1:25-CV-03066-MKD,
2025 WL 3006746, at *2 (E.D. Wash. Oct. 27, 2025) (“This reading is consistent with the
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ordinary meaning of ‘action,’ which encompasses both affirmative decisions and the
conduct of agency processes, and Congressional intent to ‘protect agencies from undue
judicial interference with their lawful discretion, and to avoid judicial entanglement in
abstract policy disagreements which courts lack both expertise and information to
resolve.’”) (quoting Norton v. S. Utah Wilderness All., 542 U.S. 55, 66 (2004)).
Because the plain language of § 1182(i)(2) resolves the question at issue, and
considering our sister district’s holdings in Mejia de Reyes, Mohsenzadeh, and Ortega, the
Court finds that Plaintiffs’ APA claim fails to state a claim upon which relief may be
granted. Accordingly, the Court recommends Plaintiffs’ APA claim be dismissed with
prejudice.
B. Mandamus Act.
Next, Plaintiffs 28 U.S.C. § 1361 Mandamus Act claim likewise fails to state a claim
upon which relief may be granted. “Although the common-law writ of mandamus has been
abolished in the district courts, . . . the Mandamus Act grants district courts ‘original
jurisdiction of any action in the nature of mandamus’ against a federal officer or agency.”
Plaskett v. Wormuth, 18 F.4th 1072, 1081 (9th Cir. 2021) (quoting 28 U.S.C. § 1361).
Although § 1361 differs from the common-law writ of mandamus, it “does not expand the
generally recognized scope of mandamus[.]” Nova Stylings, Inc. v. Ladd, 695 F.2d 1179,
1180 (9th Cir. 1983). Instead, Ҥ 1361[] is intended to provide a remedy for a plaintiff only
if he has exhausted all other avenues of relief and only if the defendant owes him a clear
nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984) (emphasis added).
Here, the statutory language of § 1182(i)(1) is clear. The “Attorney General may, in
the discretion of the Attorney General,” waive a finding under § 1182(a)(6)(C)(i). 8 U.S.C.
§ 1182(i)(1) (emphasis added). Because the plain language of the INA clearly denotes that
adjudication of a § 1182(i)(1) is discretionary, the Court recommends Plaintiffs’
mandamus act count be dismissed with prejudice. See United States v. Ron Par Enters.,
Inc., 489 U.S. 235, 242 (1989) (“The plain meaning of legislation should be conclusive,
except in the rare cases in which the literal application of a statute will produce a result
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demonstrably at odds with the intentions of its drafters.”) (cleaned up).
C. Freedom of Information Act.
Plaintiffs’ final count is based on § 552 of FOIA. (Doc. 1 at 5.) FOIA’s “basic
purpose . . . is to ensure an informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the governors accountable to the
governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Generally, an
agency must respond to a FOIA request within twenty days or provide a “written notice
setting forth any ‘unusual circumstances’ for an extension of time beyond the statutory
limit.” Hajro v. U.S. Citizenship & Immigr. Servs., 811 F.3d 1086, 1093 (9th Cir. 2016)
(quoting 5 U.S.C. § 552(a)(6)(B)(i)). If an adverse decision is reached, a party may appeal
that decision with the agency, which has twenty days to reach a determination of the appeal.
5 U.S.C. § 552(a)(6)(A)(ii).
“[A] requestor can challenge the adequacy of a response in court if she is
dissatisfied, but she must first exhaust available administrative remedies, including an
appeal within the agency.” Corbett v. Transp. Sec. Admin., 116 F.4th 1024, 1026 (9th Cir.
2024) (cleaned up). If the agency does not timely respond, the requester’s exhaustion
requirements are constructively satisfied. Id. However, if the agency responds late, but
before the requester sues, exhaustion is still required. Aguirre v. U.S. Nuclear Regul.
Comm’n, 11 F.4th 719, 725 (9th Cir. 2021). Conversely, where the agency responds after
a requester has filed suit based on constructive exhaustion, “an agency’s post-lawsuit
response does not require dismissal for failure to exhaust.” Corbett, 116 F.4th at 1031.
Plaintiffs’ Complaint is silent on when they filed their FOIA request, whether they
received any response from the USCIS, and whether they appealed a decision—if a
decision was rendered. All that Plaintiffs allege is that they “submitted FOIA requests,”
that “Defendants failed to produce records or issue final determinations in response to those
FOIA requests,” and that “Defendants violated FOIA by failing to issue determinations and
produce responsive records.” (Doc. 1 at 3–4, 5.) Such conclusory statements are
insufficient to state a plausible FOIA complaint.
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While Fed. R. Civ. P. 8 does not create an insurmountable burden, “it demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft, 556 U.S.
at 678. Because Plaintiffs’ FOIA count, based on the facts—or lack thereof—contained in
the Complaint does not sufficiently state a plausible claim for relief, the Court
recommends Plaintiffs’ FOIA count be dismissed without prejudice.
IV. Dismissal with Leave to Amend.
“Leave to amend, although normally granted liberally, ‘need not be given if a
complaint, as amended, is subject to dismissal.’” Shreeve v. Ducey, No. CV-19-05864-
PHX-DGC, 2020 WL 2064318, at *2 (D. Ariz. Apr. 29, 2020) (quoting Moore v. Kayport
Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989)). While Plaintiffs’ first two
claims—mandamus and APA—are impermissible and accordingly could not be cured,
there is a chance Plaintiffs could amend their FOIA claim. Accordingly, the Court
recommends leave to amend be granted as to Plaintiffs’ FOIA claim.
Accordingly,
IT IS RECOMMENDED that Plaintiffs’ IFP Motion (doc. 2) be DISMISSED.
IT IS FURTHER RECOMMENDED that, if this Report and Recommendation is
adopted, Plaintiffs be given 14 DAYS to re-submit an application to proceed in forma
pauperis on the Court approved forms or pay the statutorily mandated filing fee. Plaintiffs
are warned that failure to do so may result in their action being dismissed.
IT IS FURTHER RECOMMENDED that Plaintiffs’ Complaint be DISMISSED
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may
be granted.
IT IS FURTHER RECOMMENDED that if Plaintiffs’ Mandamus claim should
be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that Plaintiffs’ APA claim should be
DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that Plaintiffs’ FOIA claim be
DISIMISSED WITHOUT PREJUDICE.
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IT IS FURTHER RECOMMENDED that Plaintiffs be given 30 DAYS to file an
amended complaint as to their FOIA claim.
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should
not be filed until entry of the District Court’s judgment. The Parties shall have 14 days
from the date of service of a copy of this recommendation within which to file specific
written objections with the Court. See 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 6,
72. Thereafter, the Parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the
Magistrate Judge may be considered a waiver of a party’s right to appellate review of the
findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s
recommendation. See Fed. R. Civ. P. 72.
Dated this 9th day of March, 2026.
Honorable John Z. Boyle
United States Magistrate Judge
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