Isaac SEFA, Plaintiff-Appellant, v. Commonwealth of KENTUCKY, Cabinet for Health & Family Services, Defendant-Appellee.
No. 12-5455.
United States Court of Appeals, Sixth Circuit.
Jan. 7, 2013.
508 Fed. Appx. 436
The Board‘s decision is supported by reports from the United States Department of State showing that the policy regarding the forced sterilization in China has changed over the last five years. The Lius admit that these more recent reports do not mention any specific cases of sterilization in Fujian Province, but argue, nevertheless, that this coercive policy still exists throughout the country. We have considered similar claims and concluded that, considering all the information on family planning in Fujian, including the 2007 and 2008 country reports, a rational adjudicator could find that the province is lax in enforcing its formal family-planning policies, and that “the probability of forced sterilization for any Chinese national returning to Fujian is low.” Xue Ying Lin v. Gonzales, 203 Fed.Appx. 704, 708 (6th Cir.2006). The fact that all but one of the Lius’ four children were born in the United States “further decreases the likelihood of forced sterilization upon return.” Id.; see also Fang Huang v. Mukasey, 523 F.3d 640, 652-53 (6th Cir.2008).
The Board properly determined, based on the Lius’ description of their financial circumstances, and the lack of any evidence to the contrary, any fines and fees imposed after registering their children would not equate to economic persecution. See Daneshvar v. Ashcroft, 355 F.3d 615, 624 n. 9 (6th Cir.2004). Further, the Lius have never received any personal threats or information directing them to undergo forced sterilization if they were to return with their children, and they cannot rely on mere speculation or assertions of possible persecution to support their claim.
The Board properly upheld the IJ‘s denial of withholding of removal because the Lius failed to meet their burden of showing a clear probability that they would be subjected to persecution if removed to China with their children. Moreover, based on this same evidence, they have failed to meet their burden for relief under the Convention Against Torture. See Khozhaynova, 641 F.3d at 197.
The petition for review is denied.
David Brent Irvin, Kentucky Justice & Public Safety Cabinet, office of Legal Services, Frankfort, KY, for Defendant-Appellee.
PER CURIAM.
Isaac Sefa, a pro se Kentucky resident, appeals a district court judgment granting the defendant‘s motion to dismiss. We AFFIRM.
Seeking monetary, declaratory, and injunctive relief, Sefa sued the Kentucky Cabinet for Health and Family Services (the Cabinet). Sefa alleged that the Cabinet kidnapped his niece and nephew in connection with a state-court action for neglect instituted against two of Sefa‘s sisters. Sefa claimed that the Cabinet violated his rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution, suing under
The district court dismissed Sefa‘s complaint for failure to state a claim. Sefa appeals, reasserting his claims for monetary and declaratory relief, as well as “seek[ing] [an] injunctive order” directing the Cabinet to release his niece and nephew from state custody and to halt all “spiritual attacks” against his family.
We review de novo a district court‘s dismissal of a complaint for failure to state a claim. Guzman v. U.S. Dep‘t of Homeland Sec., 679 F.3d 425, 429 (6th Cir.2012). Sefa‘s claims against the Cabinet are barred by the Eleventh Amendment to the United States Constitution. The Eleventh Amendment “bars all suits, whether for injunctive, declaratory or monetary relief, against the state and its departments.” Thiokol Corp. v. Dep‘t of Treasury, State of Mich., Revenue Div., 987 F.2d 376, 381 (6th Cir.1993). Because Kentucky has not waived its Eleventh Amendment immunity and Congress has not abrogated state sovereign immunity under sections 1981 and 1983 or any other federal statute cited by Sefa, his claims against the Cabinet cannot proceed. See Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir.1999) (recognizing that section 1981 claims against a state agency are barred by the Eleventh Amendment); Whittington v. Milby, 928 F.2d 188, 193-94 (6th Cir.1991) (recognizing that section 1983 claims against a state agency are barred by the Eleventh Amendment). Moreover, the Cabinet is not a “person” subject to suit under section 1983. See Will v. Mich. Dep‘t of State Police, 491 U.S. 58, 71 (1989).
We generally would not affirm the dismissal of a pro se plaintiff‘s civil-rights complaint based solely on a pleading deficiency (here, Sefa‘s naming of a state agency as the defendant instead of an appropriate state official who can be sued under the civil-rights statutes) that is curable by amendment. See Brown v. Matauszak, 415 Fed.Appx. 608, 615-16 (6th Cir.2011) (remanding case for district court to provide pro se plaintiff, alleging a civil-rights claim under section 1983, with opportunity for leave to amend to cure pleading deficiencies where plaintiff stated “non-frivolous” and “perhaps even meritorious” claim). The district court, however, did not dismiss Sefa‘s complaint on the sole basis of Eleventh Amendment immunity but addressed whether Sefa‘s claims were plausible. We conclude that Sefa‘s complaint would be subject to dismissal even if he substituted a proper defendant for the Cabinet. First, to the extent Sefa seeks a declaration that the state‘s child-
Second, Sefa lacks standing to assert claims on behalf of the minor children, as he does not establish that he has parental rights over them, see Stephens, 374 Fed.Appx. at 622 (citing Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 17-18 (2004)), or on behalf of his sisters, since a plaintiff generally cannot rest his claims on the legal rights or interests of third parties and Sefa does not establish that his sisters cannot vindicate their own interests, see Norton v. Ashcroft, 298 F.3d 547, 555 (6th Cir.2002). Third, to the extent Sefa seeks an order directing the Cabinet (or any properly substituted state official) to halt spiritual attacks against his family, he fails to allege any plausible facts to suggest that the state agency or any state official is responsible for such attacks. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Nor has Sefa established how a federal court has the capacity to redress such alleged harms.
Fourth, Sefa cannot assert a private right of action under any of the federal criminal statutes on which he bases claims for relief. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.“). Lastly, he cannot assert a claim under
The district court‘s judgment is affirmed.