RAQUEL HINOJOSA, also known as Raquel Flores Venegas, Plaintiff - Appellant v. PETRA HORN, Port Director, United States Customs and Border Protection; MIKE POMPEO, SECRETARY, U.S. DEPARTMENT OF STATE; KIRSTJEN M. NIELSEN, SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY; UNITED STATES OF AMERICA, Defendants - Appellees and DENISSE VILLAFRANCA, Plaintiff - Appellant v. MIKE POMPEO, SECRETARY, U.S. DEPARTMENT OF STATE; UNITED STATES OF AMERICA; PETRA HORN, Customs and Border Protection Port Director, Brownsville, Texas; JONATHAN M. ROLBIN, Director, Legal Affairs and Law Enforcement Liaison, of the United States Department of State, Defendants - Appellees
Nos. 17-40077 & 17-40134
United States Court of Appeals, Fifth Circuit
May 8, 2018
Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.
Appeals from the United States District Court for the Southern District of Texas. USDC No. 1:16-CV-10. USDC No. 1:16-CV-155. Filed May 8, 2018. Lyle W. Cayce, Clerk.
Due to the similarity in the factual background and legal issues in these two cases, we resolve both in a single opinion.
Raquel Hinojosa and Denisse Villafranca (collectively, the “Plaintiffs“) were denied passports by the Department of State (“DOS“) because they were deemed not to be United States citizens. They separately challenged this determination by filing complaints in the United States District Court for the Southern District of Texas, raising similar claims under the habeas corpus statute,
I.
Both Hinojosa and Villafranca claim they were born in Brownsville, Texas, and they have United States birth certificates supporting their claims. Both also have birth certificates issued by the Mexican government, which indicate they were born in Mexico—though Villafranca modified her Mexican birth certificate in 2010 to list Brownsville as her birthplace. Both were raised and spent much of their lives in Mexico, but are now seeking entry into the United States.
Hinojosa applied for a U.S. passport in July 2015. Her application included documents tending to prove that the Mexican birth certificate was false. DOS was unpersuaded and denied her application in November 2015, finding that she had presented insufficient evidence to establish that she was born in the United States.
Hinojosa sought immediate judicial review of this determination before the district court. In 2016, she traveled to a port of entry in Brownsville and filed a petition for a writ of habeas corpus, as well as a complaint for declaratory and injunctive relief under the APA. The district court, adopting the report and recommendations of the magistrate judge, ultimately granted
Unlike Hinojosa, Villafranca applied for and was issued a U.S. passport in August 2005. But in November 2014, DOS revoked Villafranca‘s passport, finding that, based on the information contained in her Mexican birth certificate before she had modified it, she had misrepresented her U.S. citizenship in her 2005 application. In its letter notifying Villafranca of the revocation, DOS stated that she was not entitled to a hearing under
Before receiving notification that her passport had been revoked, Villafranca had traveled to Mexico. When she attempted to reenter the United States at the port of entry in Brownsville, Texas, she was denied entry and her passport was seized. Villafranca filed a petition in the district court in June 2016. She asserted similar claims for habeas relief under
II.
The first issue is whether the Plaintiffs may seek relief under the APA. This court reviews a district court‘s dismissal for lack of subject matter jurisdiction de novo. Ctr. for Biological Diversity v. BP Am. Prod. Co., 704 F.3d 413, 421 (5th Cir. 2013); Musslewhite v. State Bar of Tex., 32 F.3d 942, 945 (5th Cir. 1994).
The Plaintiffs sought similar relief under the APA: Hinojosa challenged the denial of her application for a U.S. passport because she was a non-citizen. Villafranca challenged the revocation of her passport because its issuance was based on the misrepresentation that she was a U.S. citizen. The district court rejected Villafranca‘s petition because it concluded she was not appealing a final agency action. By contrast, it rejected Hinojosa‘s petition because it concluded there was an adequate alternative means of receiving judicial review under
A. The Adequate Alternative Remedy Requirement
The APA provides judicial review for “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.”
At a minimum, the alternative remedy must provide the petitioner “specific procedures” by which the agency action can receive judicial review or some equivalent.
This requirement entails a case-specific evaluation. For example, the Supreme Court in Bowen v. Massachusetts analyzed whether review by the Claims Court was an adequate alternative remedy, when the petitioner, the Commonwealth of Massachusetts, sought review of an agency determination denying Medicaid expense reimbursement.
Moreover, judicial review must come via the petitioner‘s direct appeal. In Sackett v. EPA, 566 U.S. 120, 127 (2012), for example, the Supreme Court rejected the government‘s argument that the plaintiffs, who challenged the EPA‘s determination that their property violated the Clean Water Act, had adequate alternative remedies. The Court concluded that the first proposed alternative, challenging an EPA enforcement action, was inadequate because petitioners “cannot initiate that process” and risked onerous liability.
Last, the existence of an adequate alternative remedy also requires the discernment of a legislative intent to create such a remedy. Garcia, 563 F.3d at 523. The D.C. Circuit has articulated a helpful rule of thumb for this task—namely, that strong evidence of such intention exists when Congress provides for “[t]he creation of both agency obligations and a mechanism for judicial enforcement in the same legislation.” Citizens for Responsibility, 846 F.3d at 1245.
B. Section 1503 Procedures
With these principles in mind, we now turn to the procedures set forth in the statute in question.
When the individuals are already within the United States, judicial review is immediately available: They are authorized to “institute an action under [the Declaratory Judgment Act] against the head of such department or independent agency for a judgment declaring him to be a national of the United States.”
When they are not already within the United States, however, the path to judicial review is longer because such individuals must first gain admission into the country by the procedures set forth in
If the certificate of identity is issued—either by the diplomatic or consular officer or by the Secretary of State—the individual may apply for admission to the United States at a port of entry, subject “to all the provisions . . . relating to the conduct of proceedings involving aliens seeking admission to the United States.”
C. The Plaintiffs’ Remedy Under § 1503 is an Adequate Alternative to APA Relief.
We now apply this procedural framework to the present cases, looking specifically to the wrong the Plaintiffs assert as well as the procedures currently available to remedy that wrong. First, the wrong to be remedied is the deprivation of U.S. passports on the allegedly erroneous conclusion that they are not citizens. They have, in other words, been denied “a right or privilege . . . upon the ground that [they are] not . . . national[s] of the United States.” As noted,
Second, we look to the procedures currently available to these Plaintiffs, who have not taken any of the procedural steps required by
The only instance in which the Plaintiffs might not receive judicial review under the statute is if their petitions for certificates of identity are denied by the Secretary State. At that moment, they would be entitled to relief under the APA—a point which the Government concedes. But the mere chance that the Plaintiffs might be left without a remedy in court does not mean that the
In light of the foregoing, we are satisfied that
The Plaintiffs rely on Rusk v. Cort, 369 U.S. 367 (1962), abrogated in part by Califano v. Sanders, 430 U.S. 99 (1977), to contest the adequacy of
Two preliminary points are worth noting at the outset. First, it is unclear to what degree that Rusk remains good law in light of Califano. Rusk construed the APA as a jurisdiction-conferring statute,
Second, the Rusk Court never explicitly discusses the adequacy requirement of the APA, and Rusk has rarely been relied on by either the Supreme Court or this Court when discussing it. When Rusk has been cited, it is usually for the basic proposition that Congress must clearly express an intent to “preclude the citizen‘s right to seek judicial redress for violations of his rights” by agency action under the APA. E.g., Heckler v. Ringer, 466 U.S. 602, 644–45 (1984) (Stevens, J., concurring); see also Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63–64 (1993). As noted, the Supreme Court significantly developed and expanded the adequacy requirement since Bowen. It is thus unclear whether and to what extent Rusk is or remains an instructive account of the adequacy requirement.
We need not resolve these issues, however, because Rusk‘s holding is inapplicable to the present cases. Both the Rusk plaintiff and his claim for relief differ substantially from the Plaintiffs and their claims here. Accordingly, the Court‘s case-specific application of the adequacy requirement to
Unlike the Plaintiffs here, the plaintiff in Rusk, who lived in Prague at the time, was denied an application for a new passport on grounds that his citizenship had been revoked.
When considering whether the plaintiff‘s sole remedy was through the procedures set forth in
Here, as outlined above, the path to judicial review for the Plaintiffs is far less
III.
We next consider Plaintiffs’ claims that they should have been allowed to pursue their habeas petitions. “In an appeal from the denial of habeas relief, this court reviews a district court‘s findings of fact for clear error and issues of law de novo.” Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) (per curiam). A district court‘s dismissal of a habeas corpus claim for failure to exhaust administrative remedies is reviewed for abuse of discretion. Gallegos-Hernandez v. United States, 688 F.3d 190, 194 (5th Cir. 2012).
A person seeking habeas relief must first exhaust available administrative remedies. United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992) (per curiam). Exhaustion has long been a prerequisite for habeas relief, even where petitioners claim to be United States citizens. See United States v. Low Hong, 261 F. 73, 74 (5th Cir. 1919) (“A mere claim of citizenship, made in a petition for the writ of habeas corpus by one held under such process, cannot be given the effect of arresting the progress of the administrative proceeding provided for.“). “The exhaustion of administrative remedies doctrine requires not that only administrative remedies selected by the complainant be first exhausted, but instead that all those prescribed administrative remedies which might provide appropriate relief be pursued prior to seeking relief in the federal courts.” Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir. 1985), abrogated on other grounds by McCarthy v. Madigan, 503 U.S. 140 (1992), superseded by statute on other grounds, Woodford v. Ngo, 548 U.S. 81 (2006); see also Lee v. Gonzales, 410 F.3d 778, 786 (5th Cir. 2005) (“[A] petitioner must exhaust available avenues of relief and turn to habeas only when no other means of judicial review exists.“).
Conversely, “[e]xceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action.” Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (per curiam) (quoting Hessbrook, 777 F.2d at 1003). The petitioner bears the burden to demonstrate an exception is warranted. Id. (citing DCP Farms v. Yeutter, 957 F.2d 1183, 1189 (5th Cir. 1992); Gardner v. Sch. Bd. Caddo Par., 958 F.2d 108, 112 (5th Cir. 1992)).
This court has already applied these principles to
[w]here, as here, Congress has provided a method, administrative or judicial, by which appellant may challenge the legality of his detention, or exclusion, and such method or procedure is not tantamount to a suspension of the writ of habeas corpus, this remedy must be exhausted
before resort may be had to the extraordinary writ.
Like the petitioner in Samaniego, Villafranca and Hinojosa have not pursued the remedies available to them under
We also reject the Plaintiffs’ assertions that the position of a
IV.
Last, we consider two arguments raised by Hinojosa and Villafranca individually, both of which we reject.
A. Whether Villafranca may file a claim under 8 U.S.C. § 1503(a)
We first address Villafranca‘s claim that she could file a declaratory judgment action under
As already noted, the procedures set forth at
B. Hinojosa‘s As-Applied Constitutional Challenge
Hinojosa brings an as-applied constitutional challenge to
To argue that a statute is unconstitutional as applied, one must demonstrate that the statute actually does apply to him or her. McCullen v. Coakley, 134 S. Ct. 2518, 2534 n.4 (2014) (“[A] plaintiff generally cannot prevail on an as-applied challenge without showing that the law has in fact been (or is sufficiently likely to be) unconstitutionally applied to him.“). Hinojosa never asserts that
V.
The district court‘s orders in both cases are AFFIRMED.
JAMES L. DENNIS, Circuit Judge, concurring in part and dissenting in part:
I respectfully dissent from the majority opinion‘s decision to affirm the district court‘s dismissal of Hinojosa and Villafranca‘s APA claims. In my view,
Individuals seeking APA review must establish that there is “no other adequate remedy in a court.”1
In Hawkes, three companies sought APA review to challenge a determination by the Army Corps of Engineers that their land contained “waters of the United States,” such that the Clean Water Act prohibited discharging pollutants onto the land without a permit.
Analogous to the proposed alternatives in Hawkes,
These additional burdens would be imposed on all persons located outside of the United States,4 regardless of whether they wished to enter the United States prior to seeking a determination of citizenship, or at all.5 Worse still, it is not apparent that this process ultimately aids in a determination of citizenship. If persons are approved at each step, seeking relief through
I also write separately to note that, in my view, Rusk v. Cort, 369 U.S. 367 (1962), remains good law with respect to its interpretation of
Hinojosa and Villafranca do not argue that the APA independently confers subject matter jurisdiction. Instead, they assert jurisdiction under
Hinojosa and Villafranca have demonstrated that
Notes
369 U.S. at 381–82 (Brennan, J., concurring).If [§ 1503(b)–(c)] provided the sole avenue to judicial review for one who while abroad is denied a right of citizenship, the following consequences would result: He would have to apply for a certificate of identity, which would be granted only if an administrative official was satisfied that the application was made in good faith and had a substantial basis. If the certificate were initially denied, an administrative appeal would have to be taken. If that failed, an attempt might be made to secure judicial review. A holding that no such review is available would mean that one who admittedly had been a citizen would have been conclusively converted into an alien without ever having gained access to any court. On the other hand, if review were forthcoming at this stage, and if issuance of a certificate were ordered, the individual would have gained only the right to travel to a United States port of entry—if he could afford the passage—there to be “subject to all the provisions of this chapter relating to the conduct of proceedings involving aliens seeking admission to the United States.” He would, in other words, have to submit to detention as an alien although it is assumed that he was once a citizen and no court had ever determined that he had been expatriated. Should he still encounter an administrative denial of the right to enter, he would finally get into court, but “in habeas corpus proceedings and not otherwise,” with whatever limitations upon the scope of review such language may imply.
Id. at 105.Three decisions of this Court arguably have assumed, with little discussion, that the APA is an independent grant of subject-matter jurisdiction. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967); Rusk v. Cort, 369 U.S. 367, 372 (1962). . . . The obvious effect of [Congress‘s] modification [of
§ 1331 ], subject only to preclusion-of-review statutes created or retained by Congress, is to confer jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional predicate. We conclude that this amendment now largely undercuts the rationale for interpreting the APA as an independent jurisdictional provision.