Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

LAURA NANCY CASTRO,

)

YULIANA TRINIDAD CASTRO, and

)

TRINIDAD MURAIRA DE CASTRO,

)

PETITIONERS/PLAINTIFFS, In Their Own

)

Name and On Behalf of All Others

)

Similarly Situated,

)

)

v.

) CIVIL ACTION

)

MICHAEL T. FREEMAN, PORT DIRECTOR, U.S.

)

CUSTOMS AND BORDER PROTECTION,

)

BROWNSVILLE, TEXAS PORT OF ENTRY;

)

HILLARY CLINTON, U.S. SECRETARY OF STATE, )

JANET NAPOLITANO, SECRETARY, DEPARTMENT

)

OF HOMELAND SECURITY, and

)

THE UNITED STATES OF AMERICA.

)

)

PETITION FOR WRIT OF HABEAS CORPUS CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION

Laura Nancy Castro (“Laura”), Yuliana Trinidad Castro (“Yuliana”), and Trinidad Muraira de Castro (“Trinidad”), by and through counsel, file the instant Petition for Writ of Habeas Corpus, and Class Action Complaint for Declaratory and Injunctive relief. Simultaneously, Laura and Yuliana seek a Temporary Restraining Order and Preliminary Injunction restraining and enjoining Respondents/Defendants (“Defendants”), from refusing them entry to the United States and from not returning the documents confiscated from them on August 24, 2009.

I. INTRODUCTION The instant action challenges the procedures utilized by Customs and Border Protection, (“CBP”), in determining whether applicants for entry as United States citizens who claim to have been born with the aid of midwives in the State of Texas are entitled to enter, and, on reaching a negative conclusion, in confiscating

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 2 of 21
their documents, such as U.S. passports, Texas IDs, birth certificates, and receipts for U.S. passport applications, without providing for a hearing, either before or after said actions. Plaintiffs Laura and Yuliana Castro, in their own name and on behalf of all others similarly situated, seek both injunctive and declaratory relief, addressing the Due Process issues in the current procedures, or lack thereof. See, Hernandez v. Cremer, 913 F.2d 230 (5th Cir. 1990) (holding that applicant for admission with facially valid documents showing birth in the U.S. is entitled to “fair procedures” in determining whether he will be admitted, or placed in proceedings, and affirming, with minor modifications, injunction issued by the district court).
All three Plaintiffs, in their own names and on behalf of all others similarly situated, seek a declaratory judgment and corresponding injunctive relief, declaring unconstitutional and providing a remedy for the procedures by which Trinidad, and others similarly situated, are interrogated, intimidated, and threatened, without access to counsel, while on U.S. soil or at U.S. Consulates or Embassies, in order to obtain “confessions” that they falsely registered their children as born in Texas, on the basis of which “confessions” they are deemed inadmissible under 8 U.S.C. §1182(a)(6)(C)(i), and their children born in the United States are consequently deprived of their rights as U.S. citizenship.
Individually, Yuliana Castro also seeks APA review of Defendant Clinton’s unreasonable delay in processing her application for a U.S. passport, which delay resulted in her not having said passport and was the precipitating factor for the events in question.
Plaintiffs Laura and Yuliana also seek declarations that they are United States citizens, and that Defendants acted illegally in confiscating their documents, including Yuliana’s Texas birth certificate and ID, and Laura’s valid U.S. passport. All three Plaintiffs seek a declaration that Trinidad did not commit fraud in
2

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 3 of 21
registering her daughters Laura and Yuliana as born in the State of Texas, when she obtained her laser visa, or in any other transaction relating to the subject matter of this action.
II. JURISDICTION AND VENUE
1. The jurisdiction of this Court is invoked under 28 U.S.C. §2241 (habeas corpus); 28 U.S.C. §§1331 (federal question), and 2201 et seq, (Declaratory Judgment Act), together with the Administrative Procedure Act, 5 U.S.C. §§702 et seq, (“APA”); and 8 U.S.C. §1503 (denial of rights and privileges as a U.S. citizen).
2. Jurisdiction and venue are proper in that, at the time the instant action is filed, all three Petitioners/Plaintiffs are at the B&M (Old) bridge in Brownsville, Texas, on U.S. soil, but Laura and Yuliana Castro are not allowed to enter the United States, and Trinidad Muraira de Castro is not being allowed to retract the “confession” she signed under extreme duress on August 24, 2009.
II. THE PARTIES 3. Petitioners Laura and Yuliana Castro are natives and citizens of the United States, who were born in Brownsville, Texas, in 1980 and 1984, respectively. See, Exhibit A, and sealed Exhibit B, incorporated herein by reference.
4. Michael T. Freeman is the Port Director of the Gateway Bridge, Brownsville, Texas. Hillary Clinton is the duly appointed and confirmed Secretary of State of the United States. Janet Napolitano is the duly appointed and confirmed Secretary of the Department of Homeland Security, (“DHS”). All are sued in their official capacities only. The United States is also a named Defendant.
III. THE FACTS
5. Laura Nancy Castro and Yuliana Trinidad Castro are natives and citizens of the United States, born in Brownsville, Texas in 1980 and 1984. Their births were attended by midwife Trinidad Saldivar,
3

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 4 of 21
who timely registered their births in Brownsville, Texas, within days of their births. 1 Their mother, Trinidad Muraira de Castro, is a Mexican citizen, who at all relevant times had documents with which to lawfully enter the United States. Exhs. A and B.
6. Shortly after the births of Laura and Yuliana, their mother, Trinidad, returned with them to her home in Matamoros, Mexico, where she has resided at all pertinent times. Id.
7. When Laura was about four years old, Trinidad registered her birth in Mexico, as born in Matamoros, so that she could attend school there. The same day, and for the same reasons, Trinidad also registered the birth of Yuliana, (who was then four and a half months old), in Matamoros, Mexico, showing birth in Matamoros. Id.
8. Although improper under Mexican law, it was at that time common for Mexican nationals residing in Mexico who had children born in the United States to register their births in Mexico, particularly if they intended to raise the child in Mexico.
9. In the past, such dual registration rarely if ever caused problems, if the child was first registered in the United States, and/or had a baptismal certificate that showed birth in the United States, and predated the Mexican birth certificate.
10. In determining citizenship, it has long been the practice of the Department of Justice, (INS and Executive Office for Immigration Review), to seek out and rely upon the oldest “public” document, be it a birth or a baptismal certificate, as the most reliable evidence of the place and date of birth. This practice was so ingrained that it was reflected in pre-printed language in
1 The midwife who delivered Petitioners Laura and Yuliana, Trinidad Saldivar, is on the list of suspicious midwives maintained by Defendants. The CBP Officer, Eliseo Cabrera, represented to Trinidad Muraira de Castro that Ms. Saldivar had spent five years in prison for filing false birth certificates. However, a PACER search of her name turns up no entries.
4

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 5 of 21
INS requests for evidence where birth facts were at issue. 2
11. In fact, baptismal certificates were previously considered by
the Board of Immigration Appeals (“BIA”) to carry almost the same degree of evidentiary weight as birth certificates. 3
2 See, e.g., In re Pagan, 22 I&N Dec. 547,548 (BIA 1999):
On September 14, 1996, the Service notified the petitioner that because his name was added to the beneficiary's birth certificate 17 years after her birth, the birth certificate would not be given much evidentiary weight in establishing the claimed relationship. The Service informed the petitioner that, in order to establish the claimed relationship, he should submit "the oldest available evidence," which could include, but was not limited to, a baptismal certificate or other religious documents, early school records, and medical records, such as hospital birth records, all of which had to contain the names of the petitioner and the beneficiary. The petitioner was advised to submit affidavits as well.
See also, In re Bueno-Almonte, 21 I&N 1099, 1030 (BIA 1997):
On July 29, 1996, the RSC director sent a notice to the petitioner requesting additional evidence. The RSC director noted that the beneficiary's birth was registered 7 years after the fact and asked the petitioner to submit "the oldest available evidence" which establishes that he is the father of the beneficiary. According to the notice, such evidence could include, but was not limited to a baptismal certificate or other religious document showing the date and place of birth or baptism, affidavits sworn to by two or more persons who have personal knowledge of the beneficiary's birth, early school records showing the beneficiary's date and place of birth and the names of his parents, or medical records which name the parents and the child.
3 See In re Matter of S.S. Florida, 3 I&N Dec. 111, 116 (BIA 1948) (emphasis added):
Obviously, prospective passengers making unsupported claims to citizenship in the United States to carriers should place the carrier upon notice that reasonable diligence requires such carrier or their agents to obtain proof of citizenship in the United States either in the form of a birth certificate, baptismal certificate, or secondary evidence if claim is made of nativity in the
5

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 6 of 21
12. Petitioner Laura Castro recently applied for, and received, a U.S. passport. Petitioner Yuliana Castro also applied for a U.S. passport in January, 2009. Defendant Clinton requested additional evidence of her birth in Texas, to which Yuliana last responded on July 30, 2009. Said application is still pending. Exhs. A and B.
13. On August 24, 2009, at about 9:40 a.m., the three Plaintiffs, with Yuliana’s four week old daughter, Camila Abigail XXXXXXXX, applied for admission at the Old Bridge in Brownsville, Texas. Laura presented her U.S. passport. Yuliana presented her birth certificate, Texas ID, and the receipt for her U.S. passport, along with the Texas birth certificate of her infant daughter. Trinidad presented her laser visa. The agent on duty, CBP Officer Eliseo Cabrera, noted that Yuliana’s birth certificate reflected a midwife birth, and for no other reason, took them to secondary inspection, where for approximately eleven hours he detained, interrogated, threatened, and otherwise abused the three Plaintiffs, and Yuliana’s infant daughter. See, id.
14. At the time of the events in question, all four were in a delicate medical state. Trinidad suffers from high blood pressure. Laura is in the early months of pregnancy. Yuliana is recovering from complications of childbirth, and her daughter, Camila Abigail XXXXXXXX, at only four weeks of age, needed the type of care, and environmental conditions, which any newborn requires. Id.
15. All four were treated inhumanely. Eventually, based on threats, fear, and sheer exhaustion, complicated by the delicate medical condition of each, Officer Cabrera extracted a false “confession” from Trinidad Muraira de Castro, stating that Yuliana and Laura had in fact been born in Mexico. Officer Cabrera also extracted some form of statements from Laura and Yuliana, although
United States or certificate of naturalization if claimed by the person to have been so naturalized.
6

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 7 of 21
the content of these statements is unknown. Id.
16. Plaintiffs’ family was so concerned that they sent an attorney to the port of entry, who was not allowed to communicate with the Plaintiffs. The family also called the police, who came to the bridge, to make a report. Id.
17. After extracting false confessions from some or all of the Plaintiffs, Respondents confiscated their documents, and returned them to Mexico, without giving any of them a chance to contest said actions, either before or after they occurred. Laura and Yuliana were treated as having “withdrawn” their applications for admission, and Trinidad was found to be inadmissible under 8 U.S.C. §1182(a)(6)(C)(i), and subjected to “expedited removal.” Id. 4
18. This is a systemic problem. On information and belief, it is alleged that, rather than confront suspected cases of midwife fraud in the U.S., where the person would have access to an attorney, and other due process rights, Defendants concentrate on apprehending and detaining them at the ports of entry, where, according to Defendants, even the purported U.S. citizen has no Constitutional rights, unless criminal charges are to be placed. 5 Further, Officer Cabrera was overheard by Yuliana bragging to co-workers that the Castro family was his third such case of the day.
4 By forcing them to “withdraw” their applications for admission, rather than issuing orders of expedited removal, Defendants deprived Laura and Yuliana Castro of the statutory means of asserting U.S. citizenship by contesting the removal order. See, 8 U.S.C. §1252(e)(2). Similarly, by forcing Trinidad Muraira de Castro to “confess” to fraud , Defendants deprived her of the ability to contest the cancellation of her laser visa. 8 U.S.C. §1252(e)(1). Therefore, Trinidad Castro challenges the means by which the false confession was extracted, rather than the removal order itself, and seeks a declaration that it is, indeed, false.
5 See, e.g., Martinez v. Jimenez et al, CA M-08-087 (S.D.Tx pending); and L.A.E. v. Freeman, CA B-09-191, member case in Trevino v. Clinton et al, CA B-07-218 (S.D.Tx pending).
7

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 8 of 21
19. Other than by requesting additional documentation in support of Laura’s passport application, at no time prior to August 24, 2009, did any Respondent make any attempt to inform any of the Plaintiffs herein that there were questions as to whether Laura and Yuliana had in fact been born in Texas. Prior to that date, all three Plaintiffs crossed into the United States frequently, without problems or complications.
20. At the moment the instant action is being filed, all three Plaintiffs are in the waiting room of the Old Brownsville Bridge. At the time of filing, Plaintiffs are therefore within the United States, in Brownsville, Texas, within the jurisdiction of this Court. They are in custody within the meaning of 28 U.S.C. §2241.
21. Petitioners Laura and Yuliana Castro are in custody because they have been and are still being prevented from returning to the country of their birth with the full rights of U.S. citizens, and have been deprived of all evidence of their U.S. citizenship. This places significant restrictions on their liberty not shared by the populace at large.
22. Plaintiff Trinidad Muraira de Castro is in custody because the finding that she had committed fraud, derived from the false “confession” that Laura and Yuliana were actually born in Mexico, permanently bars her from the United States. Since she is not the spouse, son, or daughter or a U.S. citizen or lawful permanent resident, she is ineligible for a waiver under 8 U.S.C. §1182(i). She has close relatives born on both sides of the border, and will be deprived of the opportunity to participate fully in the lives of her U.S. citizen children and grandchildren.
23. Petitioners Laura and Yuliana also have ties on both sides of the Rio Grande, and need to be able to travel back and forth. Laura Castro’s husband is in the U.S., and she is pregnant with their second child. Similarly, Yuliana needs to be able to take her infant U.S. citizen daughter for regular medical treatment in the
8

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 9 of 21
U.S. Without U.S. passports, they will be unable to do so. Even if they receive their passports, absent an injunction from this Court, there is no assurance that Defendants would not again detain them, confiscate their passports and other documents, and return them to Mexico, with no hearing or other legal procedure to challenge said actions. See, e.g., Martinez v. Jimenez et al, CA M-08-087 (S.D.Tx pending).
IV. CLASS ALLEGATIONS
24. The instant case is not an isolated instance, but a window into the cases of dozens, if not hundreds, of similarly situated persons. Plaintiffs’ experience reflects and is the product of a policy, pattern and practice adopted and overseen by Defendants.
25. Plaintiffs seek to represent two related national classes: I. Laura and Yuliana Castro seek to represent all persons: (a) who are Mexican-American and/or have Latino surnames, (b) who have Texas birth certificates indicating that their births were attended not by licensed physicians, but by midwives or other non-physicians in the State of Texas, (c) who have traveled or will in the future travel abroad, and who will seek re-entry to the United States at a port of entry within the Southern District of Texas, or whose applications for re-entry to the United States at a port of entry within the Southern District of Texas were denied on or after September 7, 2004, and who were not afforded a hearing or other opportunity to contest said denial, and (d) whose claims of U.S. citizenship have not been adjudicated by a federal court, and II. All three Plaintiffs seek to represent all persons: 6 (a) (1)
6 In the event the Court determines that Trinidad Castro cannot assert her own rights, and therefore, the rights of others similarly situated, Laura and Yuliana seek to do so on her behalf, and on behalf of all others similarly situated. See, Miller v. Albright, 523 U.S. 420, 422 (1998) (emphasis added):
9

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 10 of 21
who have a son or daughter who is Mexican-American and/or has Latino surnames, and (2) which son or daughter has a Texas birth certificate indicating that his/her birth was attended not by a licensed physician, but by a midwife or other non-physician in the State of Texas , and (3) whose claim of U.S. citizenship has not been adjudicated by a federal court, and (b) (1) who, on or after September 7, 2004, have signed or will sign a “confession” allegedly admitting that they falsely registered a child as having been born in the State of Texas, which “confession” they claim or will claim was false, and was the product of coercion, threats, duress, or similar harsh interrogation tactics by agents of the United States Departments of State or Homeland Security, or (2) who have or will apply for laser or other non-immigrant documents allowing them to visit the United States.
26. On information and belief, Plaintiffs allege that the classes as so defined number at least in the hundreds, if not the thousands, not counting future members.
27. The classes are so numerous that joinder of all members would be impracticable. Joinder is particularly impracticable since the
Justice O'CONNOR, joined by Justice KENNEDY, concluded that petitioner should not be accorded standing to raise her father's gender discrimination claim. This Court applies a presumption against third-party standing as a prudential limitation on the exercise of federal jurisdiction, see, e.g., Singleton v. Wulff, 428 U.S. 106, 113, 96 S.Ct. 2868, 2873-2874, 49 L.Ed.2d 826, and that presumption may only be rebutted in particular circumstances: where a litigant has suffered injury in fact and has a close relation to a third party, and where some hindrance to the third party's ability to protect his or her own interests exists, see Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 1370-1371, 113 L.Ed.2d 411. Petitioner has not demonstrated a genuine obstacle to her father's ability to assert his own rights that rises to the level of a hindrance. Accordingly, she is precluded from raising his equal protection claims in this case.
10

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 11 of 21
classes include future members.
28. The claims of the representative parties are typical of the claims of the classes.
29. The representative parties, and their counsel, can and will fairly and adequately protect the interests of the classes. Class counsel are experienced in class action litigation and in litigation of the type of claims raised here.
30. There are questions of law and fact that are common to the classes which predominate over any individual questions. Further, Defendants have acted, or refused to act, on grounds generally applicable to the class, making appropriate final injunctive and declaratory relief, with respect to the class as a whole.
V. THE CAUSES OF ACTION A. HABEAS CORPUS
1. LAURA AND YULIANA CASTRO 31. Plaintiffs incorporate by reference the allegations of paragraphs 1 through 30.
32. Plaintiffs Laura and Yuliana Castro seek APA review in habeas corpus of the actions of Customs and Border Protection of August 24, 2009, in refusing them entry, and in confiscating their documents indicating U.S. citizenship, without affording them an opportunity for a hearing or other legal process to determine their entitlement to enter, or to possess said documents, either before or after the challenged actions. Plaintiffs have both liberty and property interests in being able to enter the United States, and in the possession of said documents, which were lawfully issued to them by the State of Texas, and United States Department of State.
33. Yuliana Castro seeks APA review of the actions of the Department of State in unreasonably delaying the adjudication of her application for, and the issuance of, a United States Passport.
11

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 12 of 21
34. Both Plaintiffs have suffered legal wrong because of said agency actions, and have been adversely affected and aggrieved thereby. See, 8 U.S.C. §706:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall —— (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be —— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
35. The action of CBP in refusing Plaintiffs entry to the United States, and in confiscating their documents, without providing for a hearing, may be challenged in habeas corpus. 5 U.S.C. §703.
2. TRINIDAD CASTRO, OR ALTERNATIVELY LAURA AND YULIANA CASTRO
36. Plaintiffs incorporate by reference the allegations of paragraphs 1 through 35 above.
37. Plaintiff Trinidad Castro seeks APA review of Defendants’ actions in cancelling her laser visa, (“DSP-150"), on the grounds that she allegedly obtained said visa “by fraud or by misrepresenting a material fact,” to wit, that she misrepresented that her daughters Laura and Yuliana had been born in Texas, and of their refusal to allow her to retract the false “confession” extracted by Officer Eliseo Cabrera on August 24, 2009. (Exh. B at pp. ).
38. The cancellation of Plaintiff’s laser visa was based on an involuntary and untrue “confession” extracted from Plaintiff in a
12

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 13 of 21
manner contrary to her constitutional and statutory rights to be free from interrogation based, inter alia, on isolation, threats, and mistreatment of close relatives, in a manner designed to obtain a “confession,” without regard to its veracity or voluntariness, let alone treatment by federal officials that was arguably cruel, inhuman and degrading within the meaning of 42 U.S.C. §2000dd-0:
(1) No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment. (2) Cruel, inhuman, or degrading treatment or punishment defined: In this subsection, the term “cruel, inhuman, or degrading treatment or punishment” means cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.
39. Even in the context of suspected terrorists, it is becoming increasingly clear that information gained from “enhanced” interrogation techniques is unreliable. See, e.g., New York Times, September 6, 2009, “What Torture Never Told Us,” Op-Ed by Ali H. Soufan, an F.B.I. special agent from 1997 to 2005. Plaintiffs’ Exhibit C, incorporated herein. Harsh interrogation tactics of the type used on Trinidad Castro, when applied to ordinary civilians, are even less likely to produce reliable information.
40. The cancellation of Plaintiff’s laser visa was therefore arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. It was also in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, and was accomplished without observance of the procedures required by law.
41. Once the facts of the incident had been brought to their
13

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 14 of 21
attention, Defendants’ refusal to allow Plaintiff to retract said involuntary and false “confession” is also arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.
42. Plaintiff has been injured by said actions, in that they render her ineligible to enter the United States in the future, thus limiting her the ability to participate in the family life of her daughters and grandchildren in the United States.
43. Alternatively, her daughters Laura and Yuliana seek to raise these claims on her behalf, since they are also injured thereby, in that they were denied entry to the United States, had their documents confiscated, and, once they are successful in rectifying these wrongs, they will nonetheless be deprived of their mother’s companionship, guidance, and assistance, for their own comfort and benefit, and in the rearing and education of their own children.
B. DECLARATORY AND INJUNCTIVE RELIEF 1. LAURA AND YULIANA CASTRO, ON THEIR OWN BEHALF AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED a. PROCEDURES FOR PURPORTED U.S. CITIZENS SEEKING ENTRY 44. Plaintiffs incorporate by reference the allegations of paragraphs 1 through 43.
45. On their own behalf, and on behalf of all those similarly situated, Plaintiffs Laura and Yuliana Castro seek declaratory, and corresponding injunctive relief, with respect to the procedures utilized on August 24, 2009, leading up to Defendants’ refusal to allow them entry as U.S. citizens, the confiscation of their lawfully issued documents, and expulsion from the United States, with no opportunity for a hearing, either before or after said actions were taken.
46. They urge the Court to declare that said procedures violated their Constitutional rights, and Hernandez v. Cremer, 913 F.2d 230 (5th Cir. 1990) (holding that an applicant for admission with
14

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 15 of 21
facially valid documents showing birth in the U.S. is entitled to “fair procedures” in determining whether he will be admitted, or placed in proceedings, and affirming, with minor modifications, injunction issued by the district court).
47. Plaintiffs also urge the Court to issue an injunction, similar to that approved by the Court in Hernandez v. Cremer, supra, enjoining Defendants from not implementing procedures ensuring that applicants for entry as U.S. citizens with facially valid documents showing U.S. citizenship receive due process in determining whether they will be allowed to enter, or placed in proceedings, and in determining whether any facially valid documents they possess will be confiscated, or returned to them.
b. TREATMENT OF PARENTS OF PURPORTED U.S. CITIZENS CLAIMING BIRTH BY MIDWIVES
48. Plaintiffs incorporate herein the allegations of paragraphs 1 through 47 above.
49. An alleged “confession” of midwife fraud by the parent or parents of a purported U.S. citizen affects the rights of the purported U.S. citizen, and may make it difficult, if not impossible, for the U.S. citizen to carry his or her burden of proving U.S. citizenship for purposes of, inter alia, obtaining United States passports, and immigrating close relatives.
50. The August 24, 2009 treatment by CBP officials of Trinidad Castro, her daughters Laura and Yuliana, and infant granddaughter, Camila Abigail XXXXXXXX, as described in Exhibit A, was designed to break their will or ability to resist, and was therefore likely to, and in fact did, produce false “confessions.”
51. Any person on U.S. soil or under U.S. jurisdiction at a Consulate abroad is entitled to be free from being treated by U.S. officials in a cruel, inhuman or degrading manner. See, Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
15

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 16 of 21
Punishment, Art. 3, S. Treaty Doc. No. 100-20, p.20, 1465 U.N.T.S. 85; 42 U.S.C. §2000dd-0.
52. The August 24, 2009 treatment by CBP officials of Trinidad Castro, her daughters Laura and Yuliana, and infant granddaughter, Camila Abigail XXXXXXXX, constituted cruel, inhuman or degrading treatment, in violation of 42 U.S.C. §2000dd-0.
53. When applied to ordinary civilians, who are suspected of nothing more serious than having falsely registered a Mexican born child as having been born in the U.S., even harsh interrogation tactics by agents of the U.S. Government which fall short of the definition of 42 U.S.C. §2000dd-0, but which are designed to break the person’s will or ability to resist, and therefore are likely to produce false “confessions,” violate Due Process.
54. On information and belief, Plaintiffs allege that it is common for agents of the United States Government to use the type of harsh interrogation tactics employed herein, at ports of entry, during interviews with Citizenship and Immigration Services, (“CIS”), and at U.S. Consulates abroad, in order to obtain “confessions” (false or otherwise) that children born in Mexico were falsely registered as having been born in Texas.
55. Therefore, Plaintiffs also urge that the Court issue a declaration that it violates the rights of a purported U.S. citizen for Defendants to question his/her parent on U.S. soil or while under U.S. jurisdiction at a Consulate abroad about his/her birth in a cruel, inhumane or degrading manner, or by use of other techniques designed to break the parent’s will or ability to resist, and without affording the parent the right to counsel prior to giving any statement which would call into question the citizenship of the said purported U.S. citizen.
56. Plaintiffs also seek an injunction, enjoining Defendants from questioning the parent of a purported U.S. citizen on U.S. soil or
16

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 17 of 21
while under U.S. jurisdiction at a Consulate abroad about his/her birth in a cruel, inhumane or degrading manner, or by use of other techniques designed to break the parent’s will or ability to resist, and without affording the parent the right to counsel prior to giving any statement which would call into question the citizenship of the said purported U.S. citizen.
2. TRINIDAD MURAIRA DE CASTRO, ON HER OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED:
CANCELLATION OF VISA PRIOR TO JUDICIAL DETERMINATION OF CHILD’S CITIZENSHIP IN DISPUTED MIDWIFE CASES
57. Plaintiffs incorporate by reference the allegations of paragraphs 1 through 56 above.
58. For a parent of a child born in the United States who is neither a U.S. citizen or a lawful permanent resident, having or being able to obtain a laser or other non-immigrant visa can be important to their ability to participate fully in the lives of their children (and grandchildren).
59. Once someone who is neither a U.S. citizen or a lawful permanent resident has “confessed” to having registered a child born in Mexico as having been born in Texas, (whether of not the confession is true), Defendants cancel any non-immigrant visa possessed by that person, and, unless a waiver has been granted under 8 U.S.C. §1182(i), deny any future visa applications (immigrant or non-immigrant) by him or her.
60. In circumstances such as described in Paragraph 59, the person is not entitled to any form of hearing or other process to challenge either the manner in which the alleged “confession” was obtained, or its veracity.
61. Therefore, Plaintiffs urge the Court to issue a declaration that where a person has “confessed” while on U.S. soil or at a U.S. Consulate abroad, to having registered a child born in Mexico as having been born in Texas, it violates the rights of that person to
17

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 18 of 21
cancel a non-immigrant visa possessed by him or her, or to deny a visa application, (immigrant or non-immigrant), by him or her, without providing a hearing or other process by which said person, with the aid of counsel, may challenge the veracity of the “confession,” and the process by which it was obtained.
62. Plaintiffs further urge the Court to issue an injunction, enjoining Defendants from canceling the non-immigrant visa, or denying the visa application, based on that person having “confessed,” while on U.S. soil or under U.S. jurisdiction at a Consulate abroad, to having registered a child born in Mexico as having been born in Texas, by any person, without providing a hearing or other process by which said person, with the aid of counsel, may challenge the veracity of the “confession,” and the process by which it was obtained.
C. DECLARATORY RELIEF UNDER 8 U.S.C. §1503(a)
63. Plaintiffs incorporate by reference the allegations of paragraphs 1 through 62.
64. Plaintiffs Laura and Yuliana Castro further request that this Court declare that they are United States citizens, under 8 U.S.C. §1503(a). They were denied the right of entry to the U.S., and the right to possess their documents demonstrating U.S. citizenship, on the grounds that they are allegedly not United States citizens.
D. TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION WHEREFORE, it is respectfully urged that this Court issue a Temporary Restraining Order and Preliminary Injunction, restraining and enjoining Defendants from 1) not admitting Petitioners Laura Nancy Castro and Yuliana Trinidad Castro to the United States in a status which does not require that Defendants acknowledge their U.S. citizenship, or that Laura or Yuliana state that they are not U.S. citizens, with documents which are valid for multiple entries,
18

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 19 of 21
and can be renewed until such time as the instant litigation is finally concluded, and from not returning to them any and all documents confiscated from them on August 24, 2009, other than the United States passport of Laura Castro, which passport Defendants shall surrender to the Court for safekeeping until such time has her citizenship has been finally adjudicated, and 2) not returning to Trinidad Muraira de Castro her laser visa, or, alternatively, providing her with other documents allowing her admission to the United States under the same terms and conditions as a laser visa, which document can be renewed for so long as she complies with those conditions, and until such time as the instant litigation is finally concluded.
VI. CONCLUSION It is therefore urged that this Court find that: 1) This Court has jurisdiction over the instant action; 2) Plaintiffs Laura and Yuliana Castro are United States citizens; 3) When Plaintiffs Laura and Yuliana Castro, and Laura’s daughter Camila Abigail XXXXXXXX sought entry as United States citizens, and Trinidad Muraira de Castro sought admission as a visitor for pleasure at the Brownsville B&M Old Bridge on August 24, 2009, all four were treated in a cruel, inhumane or degrading manner, and in a manner designed to break the will to resist of Plaintiff Trinidad Muraira de Castro, and to extract from her a “confession” that she had falsely registered Laura and Yuliana as having been born in Texas, without regard to the veracity of that “confession,” 4) The procedures utilized by Defendants in extracting a “confession” from Muraira de Castro, and cancelling her laser visa; in forcing Laura and Yuliana Castro to “withdraw” their applications for entry, and in confiscating the documents of all three, violate Due Process, as determined, inter alia, by the Fifth Circuit in Hernandez v. Cremer, supra; and 5) Absent injunctive relief by this Court Plaintiffs, and the classes they represent, run the risk of having similar problems in
19

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 20 of 21

the future. See also, Martinez v. Jimenez, supra.

And on the basis of these findings, it is urged that the Court: 1) Assume jurisdiction over the instant case; 2) Issue a declaratory judgments, as requested above; 3) Issue preliminary and permanent injunctions, as requested above, 5) Issue a declaratory judgment, declaring and adjudging Petitioners Laura Nancy Castro and Yuliana Trinidad Castro to be United States citizens, and 6) Issue an award of attorneys fees, and such other and further relief as the Court may deem just and appropriate.

Respectfully Submitted, s/ Lisa S. Brodyaga, Attorney REFUGIO DEL RIO GRANDE 17891 Landrum Park Road San Benito, TX 78586 (956) 421-3226 Federal ID: 1178 Texas Bar 03052800

Jaime M. Diez, Attorney JONES & CRANE P.O. Box 3070 Brownsville, TX 78523 (956) 544-3565 Federal ID: 23118 Texas Bar: 00783966

CERTIFICATE OF CONSULTATION
Counsel has spoken with Victor Rodriguez, AUSA, who stated that he was tied up on September 9 and 10, but would be avai lable for a hearing on Petitioners’ application for a temporary restraining order on September 8 and 11, 2009.

S/ Lisa S. Brodyaga

VERIFICATION OF PETITIONER LAURA NANCY CASTRO
I, LAURA NANCY CASTRO, certify that I am a Petitioner herein, and that the facts as stated above, including the fact that I am presently at the Port of Entry at the Old Bridge in Brownsville, Texas, and intend to wait here until my attorney informs me that the petition has been filed, are true and correct to the best of my knowledge and belief. I further certify that I understand my obligations as a named plaintiff in a class action, and that I undertake to represent all others similarly situated to the best of my ability.

20

Case 1:09-cv-00208 Document 1 Filed in TXSD on 09/07/09 Page 21 of 21

 
 Case 1:09-cv-00208 Document 156 Filed in TXSD on 04/18/11 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

Laura Nancy CASTRO,

)

Yuliana Trinidad CASTRO,

)

In her own name, and on behalf of her

)

Infant daughter, “C.A.G.”,

)

Trinidad Muraira de CASTRO,

)

Rodrigo SAMPAYO,

)

Jessica GARCIA,

)

Ana ALANIS,

)

Alicia RUIZ,

)

Maria REYES,

)

Jenifer Itzel GONZALEZ,

)

)

PETITIONERS/PLAINTIFFS, In Their Own

)

Name and On Behalf of All Others Similarly Situated, )

)

v.

)

)

Michael T. FREEMAN, Port Director,

)

U.S. Customs and Border Protection,

)

Eliseo CABRERA,

)

Hillary CLINTON, U.S. Secretary of State,

)

Janet NAPOLITANO, Secretary, Department of

)

Homeland Security,

)

Eric HOLDER, Jr., United States Attorney General,

)

and the UNITED STATES OF AMERICA,

)

)

RESPONDENTS/DEFENDANTS.

)

_______________________________________________ )

Civil Action No. B-09-208 Honarable Hilda G. Tagle

PLAINTIFFS’ (OPPOSED) FIRST MOTION FOR CLASS CERTIFICATION

Plaintiffs, Laura Nancy Castro (“Laura”), Yuliana Trinidad Castro (“Yuliana”), in her own name and

on behalf of her infant daughter, C.A.G. (“C.A.G.”), Trinidad Muraira de Castro (“Trinidad”),

Rodrigo Sampayo (“Sampayo”), Jessica Garcia, (“Garcia”), her mother, Ana Alanis (“Alanis), Alicia

Ruiz (“Ruiz”), Maria Reyes (“Reyes”), and Jenifer Itzel Gonzalez, (“Gonzalez”), through counsel,

hereby move this Court pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure

for an order that this action may be maintained as a class action, and in support, state as follows:

Case 1:09-cv-00208 Document 156 Filed in TXSD on 04/18/11 Page 2 of 8
1. On September 13, 2010, Plaintiffs filed and served a Third Amended Petition for Writ of
Habeas Corpus, Federal Tort Claims (“F.T.C.A.”) and Bivens Action for Damages and Class Action
Complaint for Declaratory and Injunctive Relief.
2. Plaintiffs Laura Castro, Yuliana Castro, Sampayo, Ruiz, Reyes and Gonzales challenge the
procedures employed by the Departments of Homeland Security and State in the revocation of U.S. passports and the adjudication of U.S. passport applications. 1
3. Specifically, Plaintiffs challenge as inappropriate the standards employed, the failure to
provide a prompt, due process hearing, and inadequate training, with respect to the revocation of
passports and denial of passport applications.
4. On behalf of themselves and all persons similarly situated, Plaintiffs move this Court for an
order certifying nationwide classes of persons defined as follows:
First Proposed Class: Passports Revoked Based on Allegations Related to NonNationality 1
1 Plaintiffs contend that 8 C.F.R. §51.62(b), authorizing the Department of State to revoke a passport for non-nationality, without a Due Process hearing, is ultra vires. Other than for convicted sex tourists (22 U.S.C. §212a(b)(1)(B)), the only statutory authority for revocation limits the grounds for such action, and mandates a prompt post-revocation hearing. See, 8 U.S.C. §1504(a):
The Secretary of State is authorized to cancel any United States passport or Consular Report of Birth, or certified copy thereof, if it appears that such document was illegally, fraudulently, or erroneously obtained from, or was created through illegality or fraud practiced upon, the Secretary. The person for or to whom such document has been issued or made shall be given, at such person's last known address, written notice of the cancellation of such document, together with the procedures for seeking a prompt post-cancellation hearing. The cancellation under this section of any document purporting to show the citizenship status of the person to whom it was issued shall affect only the document and not the citizenship status of the person in whose name the document was issued. These grounds are mirrored in 22 C.F.R. §51.62(a)(2). There is no corresponding statutory authority for §51.62(b) (revocation where DOS determines that the bearer is not a U.S. national).
2

Case 1:09-cv-00208 Document 156 Filed in TXSD on 04/18/11 Page 3 of 8
Individuals who: (a) have received or will receive U.S. passports; (b) whose passports, on or after September 7, 2003, have been or will be revoked by Defendants, based, in whole or in part, on 22 C.F.R.§ 51.62(b) (non-nationality) or 22 C.F.R. § 51.62(a)(2) (obtained illegally, or by fraud or error), where the underlying assertion is that the bearer claims to have been, but was not, born in the United States; and (c) whose claims of U.S. citizenship have not been finally adjudicated by a federal court.
Second Proposed Class: Passport Applications Denied Based on Failure to Prove U.S. Nationality Individuals who: (a) on or after September 7, 2003, applied for, or who will in the future apply for, a United
States passport; (b) whose passport applications have been or will be denied, based in whole or in part on the
applicants’ alleged failure to prove their claims of birth in the United States, (including, but not limited to, allegations of fraud relating to their place of birth, such as that an applicant was fraudulently registered as born in Texas), and (c) whose claims of U.S. citizenship have not been finally adjudicated by a federal court.
As used in these class definitions, September 7, 2003, represents six years prior to the date of the
initial filing of the instant action (September 7, 2009), as contemplated by the applicable statute of
limitations, 28 U.S.C. § 2401.
5. From its inception, Plaintiffs filed this suit as a class action, and now seek certification of two
of the putative classes, Classes D and E of their Third Amended Petition and Complaint, [102:26].
They seek class certification pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), on behalf of all persons
who have had or will have their U.S. passports revoked or who have had their passport applications
denied, based on Defendants’ determination that the evidence presented -- including, inter alia,
facially valid Texas birth certificates -- is insufficient to entitle them to the constitutional rights
which attend U.S. citizenship.
6. This matter satisfies the four requirements for class certification under Fed. R. Civ. P. 23(a).
First, the classes are so numerous that joinder of all members would be impracticable. The number
3

Case 1:09-cv-00208 Document 156 Filed in TXSD on 04/18/11 Page 4 of 8
of class members is not known with precision, but it can reasonably be inferred that: the proposed class of persons with Passports Revoked numbers well over 20 (if not 200) persons; and the proposed class of persons with Passport Applications Denied numbers well over 50 (if not 5,000) persons. Moreover, the numbers will steadily increase as Defendants revoke additional passports and deny additional passport applications in the future. Class members may presently live in Texas any state of the United States, or abroad. The difficulties in contacting and communicating with the members of a national class, and the inclusion of future members, make joinder of all class members impracticable, if not impossible. Finally, all class members seek the same relief. The proposed class of persons whose passports were revoked asks the Court to order Defendants to provide a prompt administrative hearing with full due process protections that will afford them a meaningful opportunity to challenge the basis for the revocation. The proposed class of persons whose passport applications were denied similarly seek prompt administrative hearings with full due process protections that will afford them a meaningful opportunity to challenge the basis for the denial of their passport applications. In addition, Plaintiffs ask the Court to order Defendants to work with Plaintiffs to develop guidelines governing the burden of proof and evidentiary standards for passport revocations and adjudication of passport applications involving claims of birth in the United States, and, following development of such guidelines, Plaintiffs ask the Court to approve them. Finally, Plaintiffs ask the Court to order Defendants to provide training to Department of State adjudicatory personnel, and U.S. Customs and Border Patrol officers, based on the court-approved guidelines. 7. Second, there are significant questions of law common to the Plaintiffs and class members. For the proposed class of persons whose passports have been or will be revoked, such questions include:
(1a) Whether Defendants may lawfully revoke a passport pursuant to 22 C.F.R. § 51.62(b)
4

Case 1:09-cv-00208 Document 156 Filed in TXSD on 04/18/11 Page 5 of 8
(non-nationality), where the statute, 8 U.S.C. §1504, does not authorize such action; (1b) Alternatively, whether by revoking a passport because DOS has “determined” that the bearer is not a U.S. citizen, without a prompt Due Process hearing, whether such action is based on 22 C.F.R. §51.62(b) with §51.70(b)(1), or any other law, policy, regulation, or simple institutional neglect, Defendants violate the Citizenship Clause of the Fourteenth Amendment and the Fifth Amendment’s Due Process Clause, the right to equal protection of law under the Fifth Amendment, and/or the liberty interest in the right to international travel, 2 the Sixth Amendment’s right to counsel and/or the Thirteenth Amendment’s prohibition against involuntary servitude, and (2) Whether such hearings as are provided, e.g., in cases where revocation is based on 22 C.F.R. §51.62(a)(2) with §51.70(a), are sufficient to protect the constitutional rights of the passport holder, where such hearings are conducted only in Washington, D.C., (unless the person is outside of the United States), at the expense of the passport holder, are officiated only by a Department of State employee, (rather than an administrative law judge), are not governed by written procedures, where pre-hearing procedures are not conducted on the record, there is no body of decisional law and no procedure for resolving questions of law, no guarantee that one’s witnesses will be allowed to attend in person, and no clarity as to the evidentiary standards or burden of proof. 3
2 See, Regan v. Wald, 468 U.S. 222,240-42 (1984) (right to international travel is liberty right protected by the Fifth Amendemnt); Atem v. Ashcroft, 312 F.Supp.2d 792 (E.D.Va. 2004) (finding due process applicable since cancellation of passport implicates a specific liberty interest, to wit, the right to international travel)
3 See, (sealed) Exh. AA, emails regarding the revocation hearing for Laura Castro [151]. 5

Case 1:09-cv-00208 Document 156 Filed in TXSD on 04/18/11 Page 6 of 8
With respect to the proposed class of persons whose passport applications have been or will be denied, such questions include:
(1) Whether denial of a passport application for failure to establish U.S. citizenship, pursuant to 22 C.F.R. §51.23(a) and/or §51.40, without a prompt hearing or other procedure affording due process protections, violates the Citizenship Clause of the Fourteenth Amendment, the Fifth Amendment’s Due Process Clause, and/or liberty interest in the right to international travel, the Sixth Amendment’s right to counsel and the Thirteenth Amendment’s prohibition against involuntary servitude. (2) Whether 22 C.F.R. §51.70(b)(1) violates the rights of putative class members to equal protection of law under the Fifth Amendment, where passport applicants whose applications are denied for alleged failure to establish U.S. nationality are not entitled to any hearing at all, but those whose applications are denied for reasons encompassed by 22 C.F.R. §51.70(a) are afforded to a hearing to “review the basis for the denial.” 8. Third, the claims of the Plaintiffs are typical of the claims of the proposed classes. The Plaintiffs’ legal claims -- that Defendants’ actions in revoking passports and denying passport applications based on allegations related to non-citizenship, without providing any opportunity to challenge the allegations -- are typical of the legal claims of the class. In addition, the declaratory and injunctive relief Plaintiffs seek is identical to the equitable relief that would be sought by the proposed class members were they to bring suit individually. See para. 6, above. 9. Fourth, Plaintiffs and their counsel will fairly and adequately represent and protect the interests of the proposed classes. Plaintiffs are not subject to any unique defenses that may be asserted against them individually and that might render them atypical of the other class members.
6

Case 1:09-cv-00208 Document 156 Filed in TXSD on 04/18/11 Page 7 of 8

Nor are Plaintiffs aware of any existing conflict between their own interests and the interests of the

proposed classes they seek to represent. Additionally, Plaintiffs’ counsel, Lisa Brodyaga, Jaime

Diez, Javier Maldonado, and Trina Realmuto, are experienced in class action suits and in civil rights

cases and are competent to represent the class and to prosecute this litigation.

10. Class certification also is appropriate under Fed. R. Civ. P. 23(b)(2) because the Defendants

have acted or will act on grounds generally applicable to the class, i.e., they revoke passports based

on allegations related to lack of U.S. citizenship (based on 22 C.F.R. § 51.70(b)(1)), and they deny

passport applications for failure to prove U.S. citizenship, without providing any opportunity to

contest the revocations or denials, thereby making appropriate final injunctive relief and/or

corresponding declaratory relief with respect to the class as a whole.

11. In support of this motion, the Petitioners submit the accompanying Brief in Support of

Plaintiffs’ First Motion for Class Certification.

12. Pursuant to Local Rule 7.1(D), Plaintiffs’ counsel has conferred with Julie Saltman, counsel

for Defendants, regarding the filing of this motion and understand that the Defendants oppose class

certification in this matter.

WHEREFORE, Plaintiffs’ respectfully request that they be certified as representatives of the two

classes defined herein, and that this action proceed as a class action pursuant to Fed. R. Civ. P. 23(a)

and 23(b)(2).

Respectfully Submitted,

s/ Lisa S. Brodyaga
________________________
Lisa S. Brodyaga, Attorney in Charge REFUGIO DEL RIO GRANDE 17891 Landrum Park Road

Jaime M. Diez, Attorney JONES & CRANE P.O. Box 3070 Brownsville, TX 78523

7

Case 1:09-cv-00208 Document 156 Filed in TXSD on 04/18/11 Page 8 of 8

San Benito, TX 78586 (956) 421-3226 (956) 421-3423 (fax) Federal ID: 1178 Texas Bar No. 03052800
Trina Realmuto NATIONAL IMMIGRATION PROJECT of the NATIONAL LAWYERS GUILD 14 Beacon Street, Suit 602 Boston, MA 02108 (617) 227-9727 ext. 8 (617) 227-5495 (fax) California State Bar No. 201088

(956) 544-3565 (956) 550-0006 (fax) Federal ID: 23118 Texas Bar No. 00783966
Javier Maldonado LAW OFFICE OF JAVIER N. MALDONADO, PC 110 Broadway St., Ste. 510 San Antonio, TX 78205 (210) 277-1603 (210) 587-4001 (fax) Federal ID: 20113 Texas Bar No. 00794216

Attorneys for Plaintiffs/Petitioners

CERTIFICATE OF SERVICE

I certify that the above was electronically served on all counsel of record on April 18, 2011.

S/ Lisa Brodyaga, Attorney for Plaintiffs

8

 
 Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS

United States District Court Southern District of Texas
ENTERED
rAPR 2 6 2011

BROWNSVILLE DIVISION

David J. Bradley. Clerk of Court

LAURA NANCY CASTRO, et al.

§

§

Plaintiffs,

§

§

v.

§

CIVIL ACTION NO. B-09-208

§

MICHAELT. FREEMAN, et al.

§

§

Defendants.

§

ORDER

~, BE IT REMEMBERED, that on April

2011, the Court considered Defendants'

Amended Motion to Dismiss Causes of Action Seeking Declaratory and Injunctive Relief Relating

to Delay in Adjudication of Passport Applications and Motion to Dismiss Claims of Laura and

Yuliana Castro for Relief under 8 U.S.C. § 1503(a), Dkt. No. 141, Defendants' Partial Motion to

Dismiss Habeas Corpus Causes of Action, Dkt. No. 142, Defendants' Amended Partially Opposed

Motion to Sever Parties and Claims, Dkt. No. 120, Plaintiffs' Amended Motion to Determine the

Sufficiency of Defendants' Responses to Plaintiffs' First Set of Requests for Admission, Dkt. No.

135, and Plaintiffs' First Motion for Class Certification and Brief in Support, Dkt. Nos. 156, 157.

On September 13,2010, Plaintiffs filed their Third Amended Petition for Writ of Habeas

Corpus, Dkt. No. 102. The petition, by ten individuals, includes a number of distinct complaints

including habeas claims, requests for declaratory and injunctive relief, requests for declaration of

citizenship, and claims ofviolations ofthe Federal Torts Claims Act ("FTCA") and causes ofaction

under Bivens v. Six Unknown Named Agents ofFederal Bureau ofNarcotics, 403 U.S. 388 (1971).

Id. Plaintiffs make allegations of a class action but have not yet filed their Motion for Class

Certification as discovery regarding numerosity is ongoing. See Dkt. No. 114.

On January 14, 2011, Defendants filed their Amended Motion to Sever the actions raised in

the complaint into (1) separate causes of action for each request for declaration of citizenship under

8 U.S.c. § 1503; (2) a separate cause ofaction for the FTCA and Bivens claims; (3) a separate cause

1

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 2 of 22
of action for class action claims against the Department of State ("DOS"); and (4) a separate cause of action for class action claims against the Department of Homeland Security ("DHS").
On February 12, 2011, Plaintiffs filed their Amended Motion to Determine the Sufficiency ofDefendants, Responses to Plaintiffs' First Set ofRequests for Admission, Dkt. No. 135. Plaintiffs assert that Defendants' responses are insufficient, that their own requests do not call for purely legal conclusions and that Defendants have not made reasonable inquiries in order to admit or deny, or have failed to either admit or deny, the requests. Id.
On March 7, 2011, Defendants filed their Amended Motion to Dismiss Causes of Action Seeking Declaratory and Injunctive Relief Relating to Delay in Adjudication of Passport Applications and Motion to Dismiss Claims of Laura Castro ("Laura") and Yuliana Castro ("Yuliana") for Relief under 8 U.S.C. § 1503(a), Dkt. No. 141. Defendants assert that Laura's Yuliana's, Rodrigo Sampayo's ("Sampayo") and Jessica Garcia's ("Garcia") claims seeking declaratory and injunctive relief relating to the delay in adjudication of their passport applications are moot because the Government has since adjudicated those applications. Id. Defendants further argue that Laura and Yuliana's claims for declaration of citizenship under 8 U.S.c. § 1503(a) are moot because they have received United States passports. Id. Laura, Yuliana, Sampayo, and Garcia agree that their claims relating to the delay in the adjudication oftheir passport applications are moot and therefore agree to those claims being dismissed. Dkt. No. 145. However, Laura and Yuliana contest the motion to dismiss their claims for declaration of citizenship under 8 U.S.C. § 1503(a). Id.
On March 7, 2011, Defendants also filed their Partial Motion to Dismiss Habeas Corpus Causes of Action, Dkt. No. 142. Defendants allege that the Court does not have jurisdiction to consider the habeas claims brought by Trinidad Muraira de Castro ("Castro") and Sampayo. Id. I. Background
A. Laura Castro, Yuliana Castro, Trinidad Muraira de Castro, and CA. G. Laura, Yuliana, Castro, and c.A.G. 's ("C.A.G.") claims stem from their attempt to enter the United States on August 24, 2009. Castro, a Mexican citizen, is the mother of Laura and Yuliana, who were born in Brownsville, Texas, in 1980 and 1984, respectively, with the assistance of a midwife, Trinidad Saldivar. C.A.G. is the daughter ofYuliana and has a Texas birth certificate.
2

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 3 of 22
Laura applied for a U.S. passport and received it on January 30,2008. Yuliana applied for a U.S. passport in January 2009 and DOS requested additional evidence ofher birth on July 30,2009. On August 24, 2009, Laura, Yuliana, Castro, and C.A.G. applied for admission at a port of entry in Brownsville, Texas. Laura presented her U.S. passport, Yuliana presented her Texas birth certificate, Texas ID, receipt for her U.S. Passport, and C.A.G. 's Texas birth certificate, and Castro presented her laser visa. All four were detained and questioned by Officer Eliseo Cabrera ("Cabrera") "for about ten hours" eventually resulting in Castro signing a document stating she had falsely filed Laura's and Yuliana's births in Texas and that they were in fact born in Mexico. Dkt. No. 102 at 8-9. Laura and Yuliana were determined to have withdrawn their applications for entry and Castro was found to be inadmissible for fraud and all their documents were confiscated. Id. At the time this action was originally filed, Laura, Yuliana and Castro were at a port of entry in Brownsville, Texas, and unable to enter the United States.
Since that time, however, Laura's U.S. passport has been returned to her and Yuliana has received a U.S. passport. Laura and Yuliana both assert that they continue to be hesitant to cross the border for fear that they will be detained and their documents confiscated. Furthermore, Laura and Yuliana assert that their claim for declaration of United States citizenship is not moot because Defendants refuse to admit in Plaintiffs' requests for admission that Laura and Yuliana are United States citizens. 1 Castro argues she is still in custody for habeas purposes because she is permanently barred from the United States based on DRS's determination that she had committed fraud in procuring immigration benefits.
In the Third Amended Complaint, Laura and Yuliana seek declaratory and injunctive relief on the basis of violations of due process and equal protection (1) regarding the procedures used by
1 In their amended responses to Plaintiffs' First Requests for Admission, Dkt. No. 115 at 4, Defendants state:
Request for Admission No.1: Admit that Laura Castro was born in the State of Texas. Response to Request for Admission No.1: Defendants admit that Laura Castro provided enough evidence showing that she was born in Texas to meet her burden ofproving that she is a United States citizen in support of her U.S. passport application. Request for Admission No.2: Admit that Yuliana Castro was born in the State of Texas. Response to Request for Admission No.2: Defendants admit that Yuliana Castro provided enough evidence showing that she was born in Texas to meet her burden ofproving that she is a United States citizen in support of her U.S. passport application.
3

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 4 of 22
DRS in denying their entry with facially valid documents; (2) regarding procedures used by DRS to obtain "confessions" from parents of individuals with facially valid documents; (3) regarding procedures, and the lack of a hearing, used by DRS and DOS in denying, revoking and/or confiscating documents; and (4) regarding the lack of guidelines of DRS and DOS in adjudicating claims ofcitizenship by people with facially valid documents. Laura and Yuliana seek declarations of United States citizenship under 8 U.S.C. § IS03(a). Laura, Yuliana, and Castro assert claims against DHS and Cabrera under the FTCA and Bivens. Castro requests review of the cancellation of her laser visa and the finding that she committed fraud under habeas corpus jurisdiction.
B. Rodrigo Sampayo Sampayo has a Texas birth certificate issued about eight months after he was born, stating that he was born in Brownsville, Texas, in 1949 to a midwife, Belen Lopez. The midwife and both ofSampayo's parents are deceased. Sampayo was raised in Mexico City and had a Mexican birth certificate issued when he was about five years old. Sampayo claims he learned of his Texas birth certificate after his parents had passed away. In 2009, Sampayo applied for a United States passport. On June 24, 2009, DOS requested further documentation of his birth. On September 17, 2009, Sampayo applied for entry at a port of entry in Brownsville, Texas, and presented his Texas birth certificate, Texas driver's license, and the receipt for his U.S. passport. Sampayo was detained and questioned by Cabrera for approximately six hours and his attorney was denied access to see him. Dkt. 102 at 13. Sampayo eventually signed a document stating he was born in Mexico, his documents were confiscated and it was determined that he had withdrawn his application for admission. Id. On March 1,2010, DOS denied Sampayo's passport application asserting that he had "admitted freely" to being born in Mexico. Id. On May 7,2010, DOS refused to reconsider the denial. At the time this action was originally filed, Sampayo was at the Gateway Bridge in Brownsville, Texas, but unable to enter the United States. Sampayo asserts that he is in custody for habeas corpus purposes because he cannot travel between Mexico and the United States and this inhibits his ability to work. In the Third Amended Complaint, Sampayo seeks declaratory and injunctive relief on the basis of violations of due process and equal protection (1) regarding the procedures used by DRS in denying his entry with facially valid documents; (2) regarding
4

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 5 of 22
procedures, and the lack of a hearing, used by DRS and DOS in denying, revoking and/or confiscating documents; and (3) regarding the lack of guidelines of DRS and DOS in adjudicating claims ofcitizenship by people with facially valid documents. Sampayo also seeks a declaration of United States citizenship under 8 U.S.C. § lS03(a). Sampayo has claims against DRS and Cabrera under the FTCA and Bivens. Sampayo requests review of the actions of DRS "in rejecting his application to enter the U.S., and confiscating his documents" without a due process hearing under habeas corpus jurisdiction. Id. at 27. Defendants urge that Sampayo has not "attempted to enter the United States and been denied entry." Dkt. No. 142 at 2.
C. Jessica Garcia and Ana Alanis
Ana Alanis ("Alanis") is the mother of Garcia. Garcia has a Texas birth certificate issued two weeks after her birth and signed by a midwife, Trinidad Saldivar. Garcia also has a Mexican birth certificate issued seven weeks after her birth and stating she was born in Mexico. In May 2009 Garcia applied for a U.S. passport. DOS requested further evidence of her birth. On October 31, 2009, Garcia applied for entry at a port of entry in Brownsville, Texas, and presented her Texas ID, her Texas birth certificate, and the receipt for her passport application. Garcia was detained and questioned by Cabrera. Alanis came to the port ofentry to attempt to explain the reason her daughter had two birth certificates. Neither Garcia nor Alanis ever stated Garcia was born in Mexico. A Notice to Appear ("NTA") was issued to Garcia and she and Alanis returned to Mexico. The NTA was never filed and therefore Garcia was not provided with a hearing to contest her citizenship status. On June 24, 2010, DOS denied Garcia's application for a U.S. passport.
Garcia asserts she lost her employment, health benefits, and defaulted on financial obligations because DRS refused to admit her into the United States. In the third amended petition, Garcia seeks declaratory and injunctive relief on the basis of violations of due process and equal protection (1) regarding the procedures used by DRS in denying her entry with facially valid documents; (2) regarding procedures used by DRS to obtain "confessions" from parents ofindividuals with facially valid documents; (3) regarding procedures, and the lack of a hearing, used by DRS and DOS in denying, revoking and/or confiscating documents; and (4) regarding the lack of guidelines of DRS and DOS ofadjudicating claims ofcitizenship bypeople with facially valid documents. Alanis seeks declaratory and injunctive relief regarding procedures used by DRS to obtain "confessions" from
5

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 6 of 22
parents ofindividuals with facially valid documents and that she did not commit fraud in registering her child as being born in the United States. Garcia also seeks a declaration of United States citizenship under 8 U.S.C. § lS03(a). Garcia and Alanis assert claims against DRS and Cabrera under the FTCA and Bivens.
D. Alicia Ruiz Alicia Ruiz ("Ruiz") alleges she was born in Mercedes, Texas, in 1933. Ruiz's birth was not immediately registered, but she was baptized in Mercedes when she was nine months old and her baptismal certificate states she was born in Texas. When she was ten, Ruiz's parents, who at some time after her baptismal had moved to Mexcio, registered her as having been born in Mexico. Ruiz has applied for a U.S. Passport three times but her application has been rejected each time. Ruiz alleges she has been denied due process by DOS in rejecting her application despite evidence that she was born in Texas. In the Third Amended Complaint, Ruiz seeks declaratory and injunctive relief on the basis of violations of due process and equal protection (1) regarding procedures, and the lack ofa hearing, used by DOS in denying documents; and (2) regarding the lack of guidelines ofDOS in adjudicating claims ofcitizenship by people with facially valid documents. Ruiz further seeks a declaration of United States citizenship under 8 U.S.C. § lS03(a). E. Maria Reyes Maria Reyes ("Reyes") alleges she was born in Creedmore, Texas, in 1931, but her family repatriated to Mexico when she was five months old. Reyes was baptized in Lampazos, Mexico, and her baptismal certificate states she was born in the United States. The next day, her parents registered her birth in Mexico stating she was born in Anahuac, Mexico. In 1975, Reyes obtained a delayed Texas birth certificate. In 2006, Reyes applied for a U.S. passport but the application was denied. In 2007, her application for a copy of her Texas birth certificate was denied but she requested a hearing where an Administrative Law Judge ("ALJ") found that she had been born in Texas. In 2008, Reyes again applied for a U.S. passport but her application was again denied. In the Third Amended Complaint, Reyes seeks declaratory and injunctive reliefon the basis ofviolations of due process and equal protection (1) regarding procedures, and the lack of a hearing, used by DOS in denying documents; and (2) regarding the lack ofguidelines ofDOS in adjudicating
6

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 7 of 22
claims ofcitizenship by people with facially valid documents. Reyes further seeks a declaration of United States citizenship under 8 U.S.C. § 1503(a).
F. Jenifer Itzel Gonzalez lenifer Itzel Gonzalez ("Gonzalez") has a Texas birth certificate filed two days after her birth and showing birth in Port Isabel, Texas, with the aid of a midwife, Maria Martinez. Gonzalez also has a Mexican birth certificate filed two weeks after her birth and showing birth in Mexico. On June 8,2007, Gonzalez applied for a U.S. passport and DOS requested additional documentation on two occasions before denying her application on March 25, 2010. In the Third Amended Complaint, Gonzalez seeks declaratory and injunctive relief on the basis of violations of due process and equal protection (1) regarding procedures, and the lack of a hearing, used by DOS in denying documents; and (2) regarding the lack of guidelines of DOS in adjudicating claims of citizenship by people with facially valid documents. Gonzalez further seeks a declaration of United States citizenship under 8 U.S.C. § 1503(a). II. Defendants' Motion to Dismiss Declaratory and Injunctive Relief In Defendants' Amended Motion to Dismiss Causes of Action Seeking Declaratory and Injunctive ReliefRelating to Delay in Adjudication ofPassport Applications and Motion to Dismiss Claims ofLaura and Yuliana Castro for ReliefUnder 8 U.S.C. § 1503(a), Defendants assert that the Court lacks jurisdiction to hear these causes of action because they are moot. Dkt. No. 14l. Plaintiffs agree that their claims relating to the delay in the adjudication oftheir respective passport applications are moot since those applications have been adjudicated. Dkt. No. 145. Defendants allege that the Court lacks subject matter jurisdiction as to Laura and Yuliana's claims for relief under 8 U.S.C. § 1503(a) because Laura's passport has been returned to her and Yuliana has been issued a passport. Defendants argue that neither Laura nor Yuliana have been denied a right or privilege as a United States national by DOS or DHS because DOS has issued their passports and DHS has not denied their entry. Defendants further assert that Laura and Yuliana's counsel represented to the Court that they would dismiss these claims in exchange for the Government placing Laura and Yuliana into removal proceedings to allow them to adjudicate their citizenship claims. Removal proceedings were not initiated, or were terminated, because Laura and Yuliana were issued passports.
7

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 8 of 22
Laura and Yuliana respond that because they were never able to adjudicate their citizenship, they continue to have fears of crossing the border and being detained. In support of their assertion that their need for a declaration of citizenship is not moot, Laura and Yuliana point to Defendants' responses to their first set ofrequests for admission because Defendants do not admit that Laura and Yuliana were born in Texas. Laura and Yuliana further assert that they have been denied a right or privilege as United States nationals because they are unable to immigrate their mother as an immediate relative because she was found to have committed fraud based on the Government's assertion that Laura and Yuliana's Texas birth certificates were fraudulently filed.
Defendants reply that neither DOS nor DRS has denied a "right or privilege" to Laura or Yuliana. Dkt. No. 152. Defendants argue that they have not denied Laura or Yuliana' s right to apply for immediate relative status on behalf of their mother, Castro, on the basis that Laura and Yuliana are not US. citizens or on any other basis because no application has been made. Defendants reiterate that since DOS has issued passports to Laura and Yuliana, there is no jurisdictional basis for their claims under 8 US.C. § 1503(a). Lastly, Defendants point out that any individual in possession of a US. passport may have their passport revoked. Defendants argue that an unsubstantiated fear of that revocation does not establish jurisdiction.
Rule 12(b)(I) allows a court to dismiss a lawsuit where the pleader proves that the court "lacks jurisdiction over the subj ect matter." FED. R. Crv. P. 12(b)(1). Essentially, Plaintiffs bear the burden of establishing that this Court has subject matter jurisdiction over the various claims they raised. See Ramming v. Us., 281 F.3d 158, 161 (5th Cir. 2001). "Ultimately, a motion to dismiss for lack of subj ect matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set offacts in support ofhis claim that would entitle plaintiffto relief." Id. (citing Home Builders Ass 'n a/Miss., Inc. v. City a/Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998». "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass 'n ofMiss., Inc., 143 F.3d at 1010 (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996».
The Court finds that Laura and Yuliana have not met their burden of proving this Court's subject matter jurisdiction. The Court finds that Laura and Yuliana have not been denied a right or
8

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 9 of 22
privilege by DOS or DHS on the ground that they are not nationals of the United States. See 8 U.S.C. § 1503(a). To the contrary, both have been issued passports, which is evidence ofcitizenship and shows that they have proven to DOS by a preponderance of the evidence that they are United States citizens. Dkt. No. 152 at 2. As to Laura and Yuliana's concerns that they may face difficulties in the future, the Court follows the reasoning of the another district court in Manning v. Rice, No. 4:06-CV-464, 2008 WL 2008712, at *3 (E.D.Tex. 2008):
The Court cannot and will not issue such speculative and advisory relief. IfPlaintiffs passport is not renewed, and if she has exhausted her administrative remedies as to the denial of that renewal, then she - at that time - will have been denied a right or privilege to which she believes she is entitled and a district court should - at that time - have jurisdiction over her claims. Now is simply not that time.
Furthermore, the Court rejects Laura and Yuliana's arguments that they have been denied a right or privilege because they are unable to immigrate their mother as an immediate relative. Under 8 U.S.c. § 1154, "any citizen of the United States claiming that an alien is entitled ... to an immediate relative status under section 1151(b)(2)(A)(i) of this title may file a petition with the Attorney General for such classification." Laura and Yuliana have not presented evidence that they have filed any petition on behalfof their mother or that any petition has been rej ected because Laura and Yuliana are not United States citizens.
Therefore, the Court finds that it lacks subject matter jurisdiction under 8 U.S.C. § 1503(a) to determine Laura and Yuliana's citizenship claims. The Court GRANTS Defendants' Amended Motion to Dismiss Causes of Action Seeking Declaratory and Injunctive Relief Relating to Delay in Adjudication ofPassport Applications and Motion to Dismiss Claims ofLaura and Yuliana Castro for Relief Under 8 U.S.c. § 1503(a), Dkt. No. 141, in its entirety. III. Defendants' Partial Motion to Dismiss Habeas Corpus Causes of Action
In Defendants' Partial Motion to Dismiss Habeas Corpus Causes ofAction, Defendants assert that the Court lacks jurisdiction over the two habeas corpus causes of action brought by Sampayo and Castro. Defendants argue that neither Sampayo nor Castro are "in custody" within the meaning of28 U.S.C. § 2241 and therefore the Court lacks jurisdiction over their habeas claims. Defendants argue that neither Sampayo nor Castro have shown restraint on their liberty that is not shared by the public generally.
9

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 10 of 22
Sampayo and Castro respond that they are "in custody" because they are unable to enter the United States and because their liberty interests in their family relationships and right to employment were restricted by Defendants' actions. They assert they were at a port of entry in Brownsville, Texas, and unable to enter the United States when this action was originally filed and therefore they were in custody at the time the action was filed, the point at time in which custody is determined for purposes of habeas corpus. Furthermore, Sampayo argues that, as a United States citizen, he has a liberty interest in not having his documents confiscated and in having a hearing to adjudicate his citizenship. Sampayo argues that by refusing to admit him or to provide him a hearing without mandatory detention, Defendants have restricted his liberty in a manner not shared by the public generally. Sampayo further argues that Defendants' refusal to provide him with a hearing to adjudicate his citizenship claim has interfered with his ability to conduct cross-border transactions, a restriction not shared by the public generally. Castro argues that she is in custody because her liberty interest in entering the United States and being with her family has been restricted by Defendants. She argues that this is a restraint not shared by the public generally because parents of other U.S. citizens with laser visas who have not falsely registered their children as born in Mexico, who have not signed false "confessions," and who have not been subjected to a finding of fraud are not barred from obtaining "immediate relative" status as the parent of an adult U.S. citizen.
Defendants reply that Sampayo and Castro were not in custody for habeas purposes when the Amended Petition was filed and they are not currently in custody. Dkt. No. 153. Defendants argue that the issue ofSampayo's citizenship is a legal issue and, unlike his other allegations of fact, are not required to be accepted as true by the Court under a Rule l2(b)(1) analysis. Defendants also argue that Sampayo has not alleged sufficient restraint because he has not alleged specific injury to his business and therefore his claims of suffering are "purely speculative." Dkt. No. 153 at 6. Defendants argue that Castro has also asserted only speculative restrictions since a petition for immediate relative status has not yet been filed on her behalf.
"The writ ofhabeas corpus functions to grant relieffrom unlawful custody or imprisonment. Absent custody by the authority against whom relief is sought, jurisdiction usually will not lie to grant the requested writ." Prieto v. Gluch, 913 F.2d 1159, 1162-63 (6th Cir. 1990) (quoting Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir. 1988)). "[H]abeas is not available to review
10

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 11 of 22
questions unrelated to the cause of detention." Pierre v. United States, 525 F.2d 933, 935-36 (5th Cir. 1976). Section 2241 requires that a petitioner be "in custody" at the time he files his habeas petition for "the habeas court to have jurisdiction." Pack v. YusufJ, 218 F.3d 448,454 n. 5 (5th Cir. 2000).
The "in custody" language of the habeas statute does not require a litigant to be in physical custody. However, it requires that a litigant establish some additional restriction on his liberty. See Hensley v. Municipal Court, San Jose Milpitas Judicial Dist., 411 US. 345,351 (1973) (holding that a petitioner released on his own recognizance pending execution of sentence was in custody within the meaning of 28 US.C. §§ 2241(c)(3) and 2254(a»; Jones v. Cunningham, 371 US. 236, 240 (1963) (the custody requirement for habeas purposes is satisfied when the petitioner is still subject to severe and immediate restraints on his liberty that are not shared by the public in general). The kind of custody that will suffice is judged by a very liberal standard, and any restraint on a petitioner's liberty because of his conviction that is over and above what the state imposes on the public generally will suffice. Jones v. Cunningham, 371 US. 236,240 (1963). Whethertherestraint of liberty is total, as in solitary confinement; partial, as in case of commitment to honor camp; or minimal, as in case of probation is only a matter of degree, and habeas corpus is available to test legality ofsuch restraint. Petition ofEngle, 218 F. Supp. 251, 252 (S.D. Ohio 1963), aff'd332 F.2d 88 (6th Cir. 1964), cert. denied, 379 US. 903 (1964). Although the concept of custody has been considerably attenuated by the recent decisions, it has not lost all meaning. Some form of at least potential physical restraint must be present. Neither economic duress nor psychological restraint is enough. Fureyv. Hyland, 395 F.Supp. l356, l360-61 (D.N.J. 1975), aff'd 532 F.2d 746 (3dCirc. 1976) (holding the potential loss of a medical license, damage to reputation, and the inability to resume public office are not custody in the absence if recognized restraints on liberty); Us. ex reI. Pitts v. Rundle, 325 F.Supp. 480,482 (E.D. Pa. 1971).
The Court does not interpret Jones to say that all aliens seeking entry into the United States are in United States custody. Rather, the Court follows the Seventh Circuit's interpretation in Samirah v. 0 'Connell, 335 F.3d 545, 550 (7th Cir. 2003) and concludes that "an alien abroad who seeks entry into the United States must, at the very least, suffer some unique restraint that would, in
11

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 12 of 22
light ofhistorical precedent, constitute custody for the purposes ofhabeas jurisdiction." The Seventh
Circuit further explained:
We further note that Jones himself was a United States citizen, and that not one of the four cases the Jones Court cited for the proposition that it had "repeatedly held that habeas corpus is available to an alien seeking entry into the United States, although in those cases each alien was free to go anywhere else in the world" proves analogous to [petitioner's] situation or supports the proposition that there may be habeas jurisdiction over an alien abroad merely because he was refused entry. See Jones, 371 U.S. at 239,83 S.Ct. 373 (citing Brownell v. Shung, 352 U.S. 180, 183, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956); Shaughnessy v. United States ex rei. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953); United States ex reI. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950); United States v. Jung Ah Lung, 124 U.S. 621, 626, 8 S.Ct. 663, 31 L.Ed. 591 (1888)). In Brownell, the alien brought a declaratory action under the Administrative Procedure Act in order to challenge an order of deportation; he did not bring a habeas action. Brownell, 352 U.S. at 182-86, 77 S.Ct. 252. In Mezei, the alien was detained by the government, and effectively imprisoned on Ellis Island, because the United States had pennanently excluded him on security grounds and no other country was willing to accept him. Mezei, 345 U.S. at 207, 73 S.Ct. 625. In Knauff, a case in which the Court did not discuss jurisdiction, the alien was likewise "detained at Ellis Island." Id. at 539, 70 S.Ct. 309. In Jung Ah Lung, the alien was detained by the master of a steamship under color offederal law (the Chinese Restriction Act), and was therefore considered to be in federal custody for purposes of habeas jurisdiction. Jung Ah Lung, 124 U.S. at 626,8 S.Ct. 663. None ofthese cases even remotely supports the idea that an alien abroad who is denied entry is, for that reason alone, in United States custody.
Castro's claim for habeas reliefmust be denied. She has no right to be granted entry into the
United States. See United States v. Lopez-Vasquez, 227 F.3d 476,484 (5th Cir. 2000) ("An alien
'seeking admission to this country may not do so under any claim ofright. "'). Castro argues that she
is pennanently barred from immigrating to the United States and will be unable to be admitted as
an immediate relative because Defendants have asserted that she committed fraud in registering her
daughters as U.S. citizens despite the fact that Defendants have since detennined that her daughters
have proven by a preponderance of the evidence that they are U.S. citizens. However, there is no
evidence that anyone has filed a petition on Castro's behalffor immediate relative status or that such
a petition has been denied. Therefore, the Court cannot conclude that Castro is unable to enter this
country. Even if someone did file a petition for immediate relative status and that petition was
12

- - --------------
Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 13 of 22
denied, it is not clear this Court would have jurisdiction to review the denial. See Shaughnessy v. United States, 345 US. 206 (1953) ("'Our cases have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control. ''').
Furthermore, Castro has failed to present evidence that she is "in custody in violation ofthe Constitution or laws or treaties ofthe United States." 18 US.C. 2241(c). She argues that the right to participate in family relationships is a sufficient liberty interest the restraint ofwhich qualifies as "custody" for habeas purposes. While an inability to interact with one's family may rise to the level of custody for habeas purposes, her family may visit her in Mexico. Castro argues that in determining whether her liberty is sufficiently restrained, the Court must compare her situation with other parents ofUS. citizens who have not committed fraud. However, she cites no legal authority for this specific comparison. Supreme Court precedent holds that custody may exist where an individual's liberty is restrained in a manner "not shared by the public generally." Jones, 371 US. at 240. Her inability to enter the United States to visit her family, while certainly a hardship, is one most definitely shared by many aliens. Samirah, 335 F.3d at 549-550, n. 4; see also, e.g., El-Hadad v. United States, 377 F.Supp.2d 42 (D.D.C. 2005).
Sampayo's claim for habeas relief must also be denied. To the extent Sampayo asserts that he is "in custody" for habeas purposes based on his inability to enter the United States to conduct his business, the Court finds that his claim does not rise to the level of "custody" for habeas purposes. Sampayo 's inability to enter the United States to conduct business is certainly a hardship, but it is also certainly one shared by many people who would like to enter the United States for business purposes but for one reason or another are denied entry.
Sampayo's claim differs from Castro's claim in that the Third Amended Petition alleges facts sufficient to support a claim that Sampayo is a United States citizen. On that basis, Sampayo argues that denying his entry into the United States places him "in custody" for habeas purposes since US. citizens have a liberty interest in entering the US. and other U.S. citizens are not so restrained. In determining a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the Court "is required merely to look to the sufficiency of the allegations in the complaint because they are presumed to be true." Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). Assuming
13

--

---

--

-~~~~~~-

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 14 of 22

Plaintiffs allegations ofjurisdictional fact to be true, including that he is a United States citizen, the Court concludes that the denial of his entry qualifies as "custody" for habeas purposes.
However, the reliefsought by Sampayo is available through another adequate remedy at law. '" [E]ven where a habeas court has the power to issue the writ,' the question remains 'whether ... that power ought to be exercised.'" Timms v. Johns, 627 F.3d 525,530 (4 Cir. 2010) (citing Munaf v. Geren, 553 U.S. 674,693 (2008)); see Fuller v. Rich, 11 F.3d 61,62 (5th Cir. 1994); Rourke v. Thompson, 11 F.3d 47,49 (5th Cir.1993). Sampayo is seeking a declaration of U.S. citizenship. Title 8, United States Code, Section 1503 provides avenues for individuals inside and outside the United States to seek declarations by federal courts regarding their citizenship. There is no need for these avenues to be bypassed through the use of habeas corpus proceedings. Therefore, the Court GRANTS Defendants'Partial Motion to Dismiss Habeas Corpus Causes of Action, Dkt. No. 142, in its entirety. IV. Defendants' Amended Partially Opposed Motion to Sever Parties and Claims
In Defendants' Amended Partially Opposed Motion to Sever Parties and Claims, Dkt. No. 120, Defendants argue that Plaintiffs have failed to meet the test for permissive joinder under Rule 20(a). Defendants argue that the individual claims under 8 U.S.C. § 1503(a) ofSampayo, Garcia, Ruiz, Reyes, and Gonzalez should be severed into individual actions because each will be based on completely different evidence and require individualized hearings with different witnesses. Defendants assert that Laura, Yuliana, Castro, Garcia, Alanis, and Sampayo's claims for money damages under the FTCA and Bivens should be severed. Plaintiffs agree that these claims should be severed because they seek to have those claims tried to a jury. Defendants argue that the Court should sever Plaintiffs claims against DHS and DOS into separate actions because DHS and DOS are distinct agencies governed by different statutes and regulations and different witnesses will be required. Furthermore, Defendants argue that hearing all these claims together would be prejudicial to both sides.
Plaintiffs respond that, while they agree the claims under the FTCA and Bivens should be severed, the remaining claims, all claims under 8 U.S.C. § 1503 and the claims for declaratory and injunctive relief against DOS and DHS, should remain joined. Plaintiffs assert that the 8 U.S.c. § 1503 claims are interrelated because the Government does not consider the issuance ofpassports to
14

-- - - - - - - - - - - - - - - -
Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 15 of 22
settle the question of an individual's citizenship. Plaintiffs assert that the claims against DOS and DRS are intertwined, arise out ofthe same series oftransactions, and involve common questions of law regarding sufficiency for due process purposes.
Defendants reply that since Defendants' conduct is not at issue under 8 U.S.C. § 1503, due process does not tie those claims to the class action claims asserted against DOS and DHS. Dkt. No. 138. Defendants reiterate that DOS adjudicates passports and DHS processes applicants for entry into the United States under different statutory and regulatory frameworks. Because there is no overlapping regulation or policy, Defendants argue that there is no common transaction or occurrence. Furthermore, Defendants argue that there is no joint relief sought from both DOS and DRS and therefore severing the two class actions would not limit Plaintiffs' potential relief.
"Under Rules 20 and 21, the district court has the discretion to sever an action if it is misjoined or might otherwise cause delay or prejudice." Applewhite v. Reichhold Chemicals, Inc., 67 F.3d 571, 574 (5th Cir. 1995). Federal Rule of Civil Procedure 20(a) provides for permissive joinder if two requirements are met: (1) the claims arise out ofthe same transaction, occurrence, or series oftransactions or occurrences; and (2) questions oflaw or fact common to all plaintiffs will arise. Fed. R Civ. P. 20(a). To determine whether the factual situation constitutes a "transaction, occurrence or series oftransactions or occurrences," the district courts in the Fifth Circuit have used the "logical relationship" analysis. Hanley v. First Investors Corp., 151 F.RD. 76, 79 (B.D. Tex. 1993). A "logical relationship" exists if there is some nucleas of operative facts or law. Id.
"Under the Rules, the impulse is towards entertaining the broadest possible scope of action consistent with fairness of the parties; joinder of claims, parties and remedies is strongly encouraged." United Mine Workers ofAm. v. Gibbs, 383 U.S. 715, 724 (1966). However, Rule 21 provides that "[o]n motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party." Fed. R Civ. P. 21. Furthermore, even ifthe permissive joinder test is satisfied, "district courts have the discretion to refuse joinder in the interest of avoiding prejudice and delay, ensuring judicial economy, or safeguarding principles of fundamental fairness." Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010); US. v. O'Neil, 709F.2d361,369(5thCir.1983)(findingthatseveranceunderRule21 is not limited to only curing misjoinder of parties).
15

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 16 of 22
First, the Court notes that the parties are in agreement as to the severance ofPlaintiffs Bivens and FTCA claims into one separate cause of action. Second, the Court finds that the claims for declaration of citizenship under 8 U.S.C. § 1503 of Sampayo, Garcia, Ruiz, Reyes, and Gonzalez should be severed into five individual causes of action. Plaintiffs' individual § 1503 claims do not meet the permissive joinder requirements ofRule 21. Sampayo, Garcia, Ruiz, Reyes, and Gonzalez were each denied U.S. passports by DOS. However, these claims did not "arise out of the same transaction, occurrence, or series of transactions or occurrences." FED. R. Crv. P. 21(a). Plaintiffs applied for their respective passports on different dates and based on different evidence. DOS denied their respective applications based on the unique circumstances of their births and the evidence surrounding their births. There are no common questions oflaw or fact other than the "mere fact that all Plaintiffs' claims arise under the same general law" and this is insufficient for Rule 21 purposes. Coughlin v. Rogers, 130 F.3d 1348, 1349 (9th Cir. 1997).
Furthermore, concerns ofprejudice and fundamental fairness compel the Court to sever the § 1503 claims from all other claims. First, the § 1503 claims are only against DOS. Second, in order to determine the individual's citizenship, the Court must hold separate hearings with different evidence and witnesses. The Court understands that its ruling on Plaintiffs' class action claims against DOS and DHS for violating their due process rights could potentially require DOS to reexamine the application for U.S. passports of Sampayo, Garcia, Ruiz, Reyes, and Gonzalez. However, it could take several years for a ruling on their class action claims and even ifthe ruling were in their favor, there is no guarantee DOS will find these individuals to be U.S. citizens eligible for U.S. passports. Meanwhile, Sampayo, Garcia, Ruiz, Reyes, and Gonzalez will continue in limbo unable to leave and return to the United States.
The Court finds that Plaintiffs' claims against DOS and DHS for violation of due process rights should not be severed from one another. Plaintiffs allege that DOS and DHS violated Plaintiffs' due process rights in similar ways and, at times, in conjunction with one another. While DOS and DHS may have different statutes and regulations governing their conduct, the Court finds that "a nucleus of operative facts ... exist[ ] as to each [Plaintiffs] claim against each Defendant to satisfy the' logical relationship' test ... for proper joinder." Call v. Abaca Operating LLC, 2009 WL 2857821, at *3 (E.D. Tex. 2009) (citing Hanley, 151 F.R.D. at 79). In addition, the Court notes
16

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 17 of 22
that joinder is encouraged, United Mine Workers ofAm., 383 U.S. at 724, and the remedies sought by Plaintiffs overlap. These claims differ from the § 1503 claims in that they involve a series of transactions and occurrences with similar facts and similar legal inquiries. In addition, there is a "common right to relief' arising out ofthe series of occurrences in Plaintiffs' complaint. Given the allegations in the Third Amended Complaint, the factual and legal bases of Plaintiffs class action claims overlap, although there may be some separate evidence and witnesses for or against one Defendant. Furthermore, the Court finds that the principles of "avoiding prejudice and delay, ensuring judicial economy, or safeguarding principles of fundamental fairness" weigh in favor of proceeding with these claims as joined. See Acevedo, 600 F.3d at 521.
v. Plaintiffs' Amended Motion to Determine the Sufficiency of Defendants' Responses
Plaintiffs served Requests for Admission with fifty-two (52) separate requests on Defendants. Defendants provided responses to those requests which Plaintiffs deemed insufficient. Plaintiffs filed their first Motion to Determine the Sufficiency of Defendants' Responses to Plaintiffs' First Set of Requests for Admission on December 31, 2010. However, after communication among counsel, Defendants provided amended responses. Plaintiffs found those to be insufficient and filed their Amended Motion to Determine the Sufficiency of Defendants' Responses to Plaintiffs' First Set of Requests for Admission, Dkt. No. 135. At issue in this motion are: (1) requests numbers 1 and 2 regarding the citizenship ofLaura and Yuliana; (2) requests numbers 17-23 ("Group 1") which generally seek admissions regarding the number of cases in which Cabrera was involved where applicants for entry with facially valid U.S. Passports or Texas birth certificates showing birth with the aid of a midwife were detained, interrogated, and signed documents withdrawing their applications for admission; (3) requests numbers 24-28 ("Group II") seeking the same information regarding cases in which Cabrera was not involved; (4) requests numbers 29-35 ("Group ill") seeking the number ofcases in which Cabrera was involved where applicants for entry with facially valid U.S. passports, or Texas birth certificates showing birth with the aid of a midwife had their documents, such as passports and drivers' licenses, confiscated and were not offered a due process hearing; 4) requests numbers 36-40 ("Group IV") seeking the same information regarding cases in which Cabrera was not involved; (5) requests numbers 16 and 44-49 seeking information on the legal position ofDefendants; and (6) requests numbers 50-52 ("Group V") seeking to establish a floor to
17

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 18 of 22
the number of passport applications which have been denied since 2004 where the applicant provided a Texas birth certificate signed by a midwife.
On February 12, 2011, Plaintiffs filed their Amended Motion to Determine the Sufficiency of Defendants' Responses to Plaintiffs' First Set of Requests for Admission pursuant to Rule 36(a)(6) of the Federal Rules of Civil Procedure. Dkt. No. 135. Plaintiffs argue that Defendants' responses to requests numbers 1 and 2 are insufficient because Defendants do not clearly admit or deny the requests. Plaintiffs assert that Defendants' objections to requests numbers 16 and 44-49 are unjustified because Plaintiffs' requests do not call for purely legal conclusions but instead request an application oflaw to fact. Id. at 5-7. Plaintiffs assert that Defendants have not produced evidence that they made a reasonable inquiry in their attempt to respond to requests in Groups I, II, III, IV, and V. Id. at 7-10. Plaintiffs claim that their requests for admission are not vague or overbroad and that Defendants cannot rely on blanket generalizations to avoid providing admissions or denials. Id. at 10-12. Last, Plaintiffs assert that their requests are within the permissible scope ofdiscovery set out in Federal Rule of Civil Procedure 26(b)(1).
Defendants respond that Plaintiffs have not provided any evidence that Defendants failed to sufficiently respond to their requests for admission. Dkt. No. 114 at 2. Defendants state that they specifically denied each of Plaintiffs' requests, including those within groups I, II, ill, N, and V, except for requests numbers 44-49, which Defendants claim call for legal conclusions. Id. at 3-4. Defendants assert that Plaintiffs requests generally seek to elicit facts and information rather than narrow the material facts at issue. Id. at 4-5. Defendants claim that they are unable to provide more specific information regarding many of Plaintiffs' requests because the respective Defendants' departments do not keep the sought statistical information in the regular course ofbusiness. Finally, Defendants request the Court sustain Defendants' obj ections to requests numbers 44-49 because they· seek admissions to pure legal conclusions.
Plaintiffs reply that Defendants have failed to either admit or deny many ofthe requests for admission, including requests numbers 1 and 2. Dkt. No. 148 at 2. Plaintiffs further argue that Defendants' claims that they are unable to provide the information sought are baseless. Id. at 5-6. Plaintiffs argue that the requests for admission are properly used to gather information about issues that can or cannot be eliminated from the case, specifically numerosity for purposes of class
18

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 19 of 22
certification. Id. at 6-7. Last, Plaintiffs argue that requests 44-49 seek for Defendants to provide their opinion on the application oflaw to certain facts, not to provide pure legal conclusions. Id. at 8-10.
Federal Rule of Civil Procedure 36 allows parties to request admissions regarding the truth of any matters within the scope ofRule 26(b)(1), including ultimate facts, as well as applications of law to fact, or opinions about either. Fed. R. Civ. P. 36; see also In re Carney, 258 F.3d 415,419 (5th Cir. 2001). The scope ofRule 36 "allows litigants to winnow down issues prior to trial and thus focus their energy and resources on disputed matters." In re Carney, 258 F.3d at 419. However, Rule 36 does not provide for requests for admission regarding pure legal conclusions. Id. (citing Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050, 1057 (S.D.Cai. 1999) ("Requests for admissions cannot be used to compel an admission of a conclusion oflaw.").
In responding to requests for admission, a party must "specifically deny [them] or state in detail why the answering party cannot truthfully admit or deny." Fed. R. Civ. P. 36(a)(4). A party challenging a discovery request as being overly broad and unduly burdensome bears the burden of showing why discovery should be denied. Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812,818 (5th Cir. 2004). "Where the party served with an admission does not have, and could not obtain by reasonable inquiry, the information on whether the matter contained in the request was true or not, there exist 'other good reasons for the failure to admit.'" Martin v. Mabus, 734 F.Supp. 1216, 1224 (S.D.Miss. 1990). "Such reasonable inquiry includes an investigation and inquiry of employees, agents, and others 'who conceivably, but in realistic terms, may have information which may lead to or furnish the necessary and appropriate response." Concerned Citizens ofBelle Haven v. Belle Haven Club, 223 F.R.D. 39, 44 (D. Conn. 2004).
First, the Court DENIES AS MOOT Plaintiffs' Motion as to Defendants' objections to Requests for Admissions Nos. 1 and 2 based on the above rulings. Second, the Court DENIES Plaintiffs' Motion as to Defendants' objections to Requests for Admission Nos. 16 and 44 - 49 and finds that those requests call for legal conclusions. Therefore, the Court finds Defendants provided a specific admission or denial of each request to which they were required to respond.
Plaintiffs argue Defendants failed to provide evidence ofa "reasonable inquiry" into Requests for Admission Nos. 17 - 40, each addressing questions of numerosity. Defendants responded that
19

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 20 of 22
they do not keep statistics on the specific issues raised by Plaintiffs - for instance, when DOS or DRS denies a passport or entry to a person with a Texas birth certificate that shows birth with a midwife - and therefore are unable to admit the requests. Defendants argue that the only way they could be sure they could admit these requests would be to check every passport denial or entry denial since September 7, 2004, and look for a Texas birth certificate signed by a midwife and further determine if that was the sole or principal reason for the denial. Defendants argue this is unduly burdensome. Plaintiffs reply that Defendants would only need to check as many passport denials and entry denial records as needed to get to the requested numbers. Further, Plaintiffs argue that Defendants could ask Cabrera as they allege he keeps a notebook with this information.
The purpose of Requests for Admission Nos. 17 - 40 are to establish numerosity for class certification. Class certification is governed byFederal Rule ofCivil Procedure 23(a) which requires Plaintiffs to show (1) the class is so numerous that joinder of all members is impracticable ("numerosity"); (2) there are questions oflaw or fact common to the class ("commonality"); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class ("typicality"); and (4) the representative parties will fairly and adequately protect the interests ofthe class ("adequacy"). The Court notes that for purposes of numerosity, there is no "magic number" that Plaintiffs must reach in order to meet the requirements for class certification. See Henry v. Cash Today, Inc., 199 F.R.D. 566, 569 (S.D. Tex. 2000) (citing Watson v. Shell Oil Co., 979 F.2d 1014, 1022 (5th Cir. 1992)). Courts should consider all the circumstances of the suit; the plaintiffs need only show that the class is so large that joinder of all plaintiffs is impracticable. Id. Plaintiffs are permitted to reasonably approximate the size ofthe class to satisfy their burden. Id. (citing Zeidman v. J Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. 1981)). The Fifth Circuit has held that "a number of factors other than the actual or estimated number ofpurported class members may be relevant to the 'numerosity' question" including "the geographcial dispersion ofthe class, the ease with which class members may be identified, the nature ofthe action, and the size ofeach plaintiffs claim." Zeidman v. J Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981).
The Court finds that while Plaintiffs' Requests for Admission Nos. 17 - 40 were proper and Defendants must answer them to the extent that they can, the actual number is not paramount to a finding of numerosity for class certification purposes. The Court finds that Defendants have
20

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 21 of 22
presented evidence to support their claim that they made a "reasonable inquiry" into the requests sought by Plaintiffs and are unable to provide the information without undue burden and therefore DENIES Plaintiffs Motion as to Requests for Admissions Nos. 17 - 40. On the other hand, the Court cautions Defendants that if Cabrera's notebook exists or any other information comes to light that allows them to conduct reasonable searches into this question, they must supplement the discovery as required. FED. R. Crv. P. 26. VI. Plaintiffs' First Motion for Class Certification
On April 18, 2011, Plaintiffs filed their First Motion for Class Certification requesting the Court certify two class actions: (1) a class action for persons whose passports were revoked based on allegations related to non-nationality; and (2) a class action for persons whose passport applications were denied based on failure to prove U.S. nationality. Based on the holdings of the Court in this Order, the Court finds Plaintiffs' First Motion for Class Certification is MOOT. The Court GRANTS Plaintiffs leave to re-file the portions ofthis motion that are not in conflict with this Order in the appropriate case number. VII. Conclusion
Based on the foregoing, the Court ORDERS the following: 1. Defendants' Amended Motion to Dismiss Causes ofAction Seeking Declaratory and
Injunctive Relief Relating to Delay in Adjudication of Passport Applications and Motion to Dismiss Claims of Laura and Yuliana Castro for ReliefUnder 8 U.S.c. § 1503(a), Dkt. No. 141, is GRANTED in its entirety. Plaintiffs Laura Castro's, Yuliana Castro's, Rodrigo Sampayo's and Jessica Garcia's claims for unreasonable delay in the adjudication of their passports are DISMISSED. Plaintiffs Laura Castro's and Yuliana Castro's claims fordeclaratoryreliefunder 8 U.S.C. § 1503 are DISMISSED. 2. Defendants' Partial Motion to Dismiss Habeas Corpus Causes of Action, Dkt. No. 142, is GRANTED and Plaintiffs Trinidad Muraira de Castro's and Rodrigo Sampayo's claims under 28 U.S.c. § 2241 are DISMISSED. 3. Defendants' Amended Partially Opposed Motion to Sever Parties and Claims, Dkt. No. 120, is GRANTED IN PART and DENIED IN PART. The Court ORDERS
21

· ..

Case 1:09-cv-00208 Document 158 Filed in TXSD on 04/26/11 Page 22 of 22

Plaintiffs Rodrigo Sampayo's, Jessica Garcia's, Alicia Ruiz's, Maria Reyes's, and Jenifer Gonzalez's individual claims under 8 U.S.c. § 1503 SEVERED from the above-captioned case and ORDERS the District Clerk to assign each Plaintiff their own cause number. The Court ORDERS Plaintiffs Laura Castro, Yuliana Castro, Trinidad Muraira de Castro, c.A.G., Rodrigo Sampayo, Jessica Garcia, and Ana Alanis's claims under Bivens and the Federal Torts Claims Act SEVERED into one separate cause and ORDERS the District Clerk to assign it a new cause number. The Court ORDERS the remaining claims, class action claims for violations of due process against Defendants, to proceed in the above-captioned cause number. 4. Plaintiffs' Amended Motion to Determine the Sufficiency ofDefendants' Responses to Plaintiffs' First Set of Requests for Admission pursuant to Rule 36(a)(6) of the Federal Rules of Civil Procedure, Dkt. No. 135, is DENIED. 5. Plaintiffs' First Motion for Class Certification, Dkt. Nos. 156, 157, is DENIED AS MOOT. The Court GRANTS Plaintiffs leave to re-file the appropriate portions of the motion in the appropriate cause number.
DONE at Brownsville, Texas, on APril;{ (P, 2011.
JJ.LWA~
Hilda G. Tagle United States District Judge

22

 
 Castro v. Freeman, Slip Copy (2011)

2011 WL 11535494 Only the Westlaw citation is currently available.
United States District Court, S.D. Texas,
Brownsville Division.
Laura Nancy CASTRO, et al., Plaintiffs, v.
Michael T. FREEMAN, et al., Defendants.
Civil Action No. B–09–208. | Nov. 22, 2011.
Attorneys and Law Firms
Cathy Jean Potter, Law Firm of Cathy J. Potter PLLC, Harlingen, TX, Elisabeth Lisa S. Brodyaga, Attorney at Law, San Benito, TX, Jaime M. Diez, Jones Crane, Brownsville, TX, Javier N. Maldonado, Attorney at Law, San Antonio, TX, Trina Realmuto, Boston, MA, for Plaintiffs.
Elizabeth J. Stevens, U.S. Department of Justice, Civil Division, Sarah B. Fabian, U.S. Deaprtment of Justice, Office of Immigration Litigation, Washington, DC, Victor Rodriguez, Jr., Colvin, Chaney, Saenz & Rodriguez, LLP, Brownsville, TX, for Defendants.
Opinion
ORDER
HILDA G. TAGLE, District Judge.
*1 BE IT REMEMBERED, that on November 22, 2011, the Court considered Defendants’ Motion to Dismiss, Dkt. No. 178, and Plaintiffs’ Second Motion for Class Certification, Dkt. No. 171, and the respective responses and replies.
On April 26, 2011, this Court ordered the causes of action initially raised by Plaintiffs severed into separate cases. On June 1, 2011, Plaintiffs filed their Fourth Amended Class Action Complaint in order to clarify the claims remaining in the above-captioned case. Plaintiffs assert the following causes of action: (1) violations of the Fifth and Fourteenth Amendments and the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 702, 706, in conjunction with jurisdiction under the Mandamus Act, 28 U.S.C. § 1361, for improperly applying the preponderance of the evidence standard in adjudicating

passport applications; (2) violations of the Fifth and Fourteenth Amendments in failing to provide due process in adjudicating passport applications; (3) violations of the Fifth and Fourteenth Amendments in failing to provide due process in revoking passports based on non-nationality; (4) violations of the Fifth Amendment in failing to provide for an adequate due process hearing for passports denied or revoked where the underlying basis for such denial or revocation is non-nationality; (5) violations of the Equal Protection Clause of persons whose passports have been denied based on non-nationality; (6) violations of the Equal Protection Clause of persons whose passports have been revoked based on non-nationality; (7) violations of the Fifth and Fourteenth Amendments and the United Nations’ Convention Against Torture (“UNCAT”) and the Federal Detainee Treatment Act of 2005 (“DTA”), 42 U.S.C. § 2000dd–0, due to mistreatment at the U.S. border of persons claiming to be U.S. citizens; and (8) violations of the Fifth and Fourteenth Amendments and the UNCAT and the DTA, due to mistreatment at the U.S. border of parents of persons claiming to be U.S. citizens.
On June 27, 2011, Plaintiffs filed their Second Motion for Class Certification requesting the Court certify two of their proposed classes: (1) a class of individuals whose passports have been or will be revoked on allegations related to non-nationality; and (2) a class of individuals whose passport applications were or will be denied on the basis of failure to prove U.S. nationality. Dkt. Nos. 171, 172.
On July 15, 2011, Defendants filed their Motion to Dismiss arguing that the Court should dismiss Plaintiffs’ eight causes of action on the grounds that the Court lacks subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), or that Plaintiffs have failed to state a claim on which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 178. On July 22, 2011, Defendants responded to Plaintiffs’ Motion for Class Certification arguing that the proposed classes should not be certified.
On August 18, 2011, Plaintiffs responded to Defendants’ Motion to Dismiss arguing that they adequately stated a claim as to each of their causes of action and that the Court has jurisdiction over each of their causes of action. Dkt. No. 184. On August 25, 2011, Plaintiffs replied to Defendants’ response to Plaintiffs’ Second Motion for Class Certification arguing that, because of the pattern and practice nature of the claims, there are common legal questions among all Plaintiffs. Dkt. No. 185. On September 9, 2011, Defendants replied to Plaintiffs’
1

Castro v. Freeman, Slip Copy (2011) Response to Defendants’ Motion to Dismiss.

I. Background
A. Laura Castro, Yuliana Castro, and Trinidad Muraira de Castro *2 Laura Nancy Castro (“Laura”), Yuliana Trinidad Castro (“Yuliana”), and Trinidad Muraira de Castro (“Castro”) assert claims stemming from their attempt to enter the United States on August 24, 2009. Castro, a Mexican citizen, is the mother of Laura and Yuliana, who were born in Brownsville, Texas, in 1980 and 1984, respectively, with the assistance of a midwife, Trinidad Saldivar. Castro alleges that when Laura was about four years old, Castro registered Laura’s and Yuliana’s births in Mexico stating that they were born in Matamoros, Mexico, so that they could attend school there. Dkt. No. 167 at 12.
Laura applied for a U.S. passport and received it on January 30, 2008. Yuliana applied for a U.S. passport in January 2009 and DOS requested additional evidence of her birth on July 30, 2009. On August 24, 2009, Laura, Yuliana, and Castro applied for admission at a port of entry in Brownsville, Texas. Laura presented her U.S. passport; Yuliana presented her Texas birth certificate, Texas ID, and receipt for her U.S. Passport; and Castro presented her laser visa.1 After being detained and questioned by Officer Eliseo Cabrera (“Cabrera”) “for about ten hours,” Castro signed a document stating she had falsely registered the births of Laura and Yuliana in Texas when they were in fact born in Mexico. Dkt. No. 167 at 13. Laura and Yuliana were determined to have withdrawn their applications for entry and Castro was found to be inadmissible for fraud and all of their documents were confiscated. Id.

1

A “laser visa” is the common term for a “border

crossing identification card” (“BCC”), which is a form

of a B1/B2 visitor’s visa. Boswell, Richard A.,

Essentials of Immigration Law, 2nd Ed., at 197. A BCC

is “a document of identity bearing that designation

issued to ... an alien who is a resident in foreign

contiguous territory, by a consular officer or an

immigration officer for the purpose of crossing over the

borders between the United States and foreign

contiguous territory....” 8 U.S.C. § 1101(a)(6). A laser

visa is a “non-immigrant” visa. Boswell, at 127. A “non

immigrant visa” is a document that is issued by a

consular officer showing that the officer believes that

the alien is eligible to apply for admission in a

particular non-immigrant category. 8 U.S.C. §

1201(a)(1); Boswell, at 203.

On April 5, 2010, Laura’s passport was revoked under 22 C.F.R. § 51.62(a)(2).2 Dkt. No. 167 at 15. Laura requested a hearing which was scheduled in Washington, D.C., but the hearing was canceled and her passport was returned to her. Id. Yuliana also received her passport. Laura and Yuliana assert that they continue to be hesitant to cross the border for fear that they will be detained and their documents confiscated. Castro argues that because of the document she signed stating she had falsely filed Laura’s and Yuliana’s births in the United States, she is permanently barred from admission to the United States under 8 U.S.C. § 1182(a)(6)(C)(i).3

2

Title 22, Code of Federal Regulations, Section

51.62(a)(2) provides: “(a) The Department may revoke

or limit a passport when ... (2) The passport has been

obtained illegally, fraudulently or erroneously; was

created through illegality or fraud practiced upon the

Department; or has been fraudulently altered or

misused....”

Title 22, Code of Federal Regulations, Section

51.70(a) provides that a person whose passport is

denied or revoked under § 51.62(a) (2) may request a

hearing within sixty days of notice of the denial or

revocation.

3

Title 8, United States Code, Section 1182(a)(6)(C)(i)

provides:

“(a) Classes of aliens ineligible

for visas or admission. Except

as otherwise provided in this

chapter, aliens who are

inadmissible under the

following paragraphs are

ineligible to receive visas and

ineligible to be admitted to the

United States: ... (C)

Misrepresentation (i) In

general Any alien 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 or other

benefit provided under this

chapter is inadmissible.”

In the Fourth Amended Complaint, Laura and Yuliana seek to represent the proposed class of U.S. citizen claimants they allege have been or will be subjected to mistreatment by Defendants and, with Castro, seek a
2

Castro v. Freeman, Slip Copy (2011)
declaration that Castro did not commit fraud in registering Laura and Yuliana as born in Texas. Castro also seeks to represent the proposed class of parents of U.S. citizen claimants which she alleges have been or will be subjected to mistreatment by Defendants. Dkt. No. 167 at 16.
B. Rodrigo Sampayo Rodrigo Sampayo (“Sampayo”) has a Texas birth certificate issued about eight months after he was born, stating that he was born in Brownsville, Texas, in 1949 with the assistance of a midwife, Belen Lopez. The midwife and both of Sampayo’s parents are deceased. Sampayo was raised in Mexico City and had a Mexican birth certificate issued when he was about five years old. Sampayo claims he learned of his Texas birth certificate after his parents had passed away. In 2009, Sampayo applied for a United States passport. On June 24, 2009, DOS requested further documentation of his birth. On September 17, 2009, Sampayo applied for entry at a port of entry in Brownsville, Texas, and presented his Texas birth certificate, Texas driver’s license, and the receipt for his U.S. passport. Sampayo was detained and questioned by Cabrera for approximately six hours and his attorney was denied access to see him. Dkt. 167 at 18. After Sampayo eventually signed a document stating he was born in Mexico, his documents were confiscated and it was determined that he had withdrawn his application for admission. Id. On March 1, 2010, DOS denied Sampayo’s passport application asserting that he had “admitted freely” to being born in Mexico. Id. On May 7, 2010, DOS refused to reconsider the denial.
*3 In the Fourth Amended Complaint, Sampayo seeks to represent (1) the proposed class of individuals who have had their passport applications erroneously denied without a due process hearing; and (2) the proposed class of U.S. citizen claimants who have been subjected to mistreatment by Defendants. Dkt. No. 167 at 19.
C. Jessica Garcia and Ana Alanis Ana Alanis (“Alanis”) is the mother of Jessica Garcia (“Garcia”). Garcia has a Texas birth certificate issued two weeks after her birth and signed by a midwife, Trinidad Saldivar. Garcia also has a Mexican birth certificate issued seven weeks after her birth and stating she was born in Mexico. In May 2009, Garcia applied for a U.S. passport. DOS requested further evidence of her birth. On October 31, 2009, Garcia applied for entry at a port of entry in Brownsville, Texas, and presented her Texas ID, her Texas birth certificate, and the receipt for her passport

application. Garcia was detained and questioned by Cabrera. Alanis came to the port of entry to attempt to explain the reason her daughter had two birth certificates. Neither Garcia nor Alanis ever stated Garcia was born in Mexico. A Notice to Appear (“NTA”) was issued to Garcia and she and Alanis returned to Mexico. The NTA was never filed and therefore Garcia was not provided with a hearing at which she could provide evidence of her citizenship status. On June 24, 2010, DOS denied Garcia’s application for a U.S. passport on the grounds that she had not proven by a preponderance of the evidence that she is a United States citizen.4

4

Title 22, Code of Federal Regulations, Section 51.70(b)

states that the Department of State is not required to

provide a hearing in cases where DOS has denied,

revoked or invalidated a passport on the basis of

non-nationality.

Garcia seeks to represent (1) the proposed class of individuals who have had their passport applications erroneously denied without a due process hearing; and (2) the proposed class of U.S. citizen claimants who have allegedly been subjected to mistreatment by Defendants. Alanis seeks to represent the proposed class of parents of U.S. citizen claimants who allegedly were subjected to mistreatment by Defendants.

D. Luis Montemayor Luis Montemayor (“Montemayor”) claims he was born in Mercy Hospital in Brownsville, Texas, in 1967. His birth certificate was signed and dated the day of his birth but was not filed for over ten years. About one month after his birth, he was registered in Mexico as having been born in Mexico. In 2007, Montemayor obtained a United States passport and, in 2009, a passport card, which he used on numerous occasions. In January 2011, he received a letter from the Department of State revoking his passport and passport card and alleging that he had failed to provide additional evidence of his birth in Texas as requested. Montemayor alleges that he did not receive any such request from the Department of State and therefore has not has an opportunity to provide additional evidence of his birth. Montemayor seeks to represent individuals whose passports have been revoked without due process.

E. Ana Luisa Guerrero Ana Luisa Guerrero (“Guerrero”) alleges she was born in Brownsville, Texas, in July 1977, with the assistance of a midwife, Victoria Grimaldo. Two days after her birth, her
3

Castro v. Freeman, Slip Copy (2011)
mother registered her in Mexico as having been born in Mexico one month earlier, in June 1977. In or around August 1977, she was registered in Texas as having been born in Brownsville, Texas. In December 1977, Guerrero was baptized in Mexico and the baptismal certificate reflects the information found in her Mexican birth certificate. In 2006, Guerrero petitioned a Mexican court to correct her Mexican birth certificate to reflect her U.S. date and place of birth and the petition was granted in January 2007. A few days later, Guerrero applied for and later received a United States passport. In 2008, Guerrero filed an I–130 petition, seeking to obtain immigration documents for her Mexican-national husband. As part of the petition process, Guerrero and her husband interviewed with DHS. In January 2009, DHS requested further documentation of Guerrero’s birth in the United States which she provided. In December 2009, Guerrero and her parents were interviewed by DHS. A few days later, DHS informed Guerrero that her passport had been revoked on the grounds that she had not proven by a preponderance of the evidence that she is a United States citizen. Guerrero seeks to represent individuals whose passports have been revoked without due process.
F. Alicia Ruiz *4 Alicia Ruiz (“Ruiz”) alleges she was born in Mercedes, Texas, in 1933. Ruiz’s birth was not immediately registered, but she was baptized in Mercedes when she was nine months old and her baptismal certificate states she was born in Texas. When she was ten, Ruiz’s parents, who at some time after her baptismal had moved to Mexico, registered her as having been born in Mexico. At some point thereafter, Ruiz had a delayed Texas birth certificate filed. Ruiz’s marriage certificate shows she was born in Mexico but two of her three children’s birth certificates show Ruiz was born in the United States. Ruiz has applied for a U.S. passport three times but her application has been rejected each time on the grounds that she has not proven by a preponderance of the evidence that she is a United States citizen. Ruiz seeks to represent the proposed class of individuals who have had their passport applications erroneously denied without a due process hearing.
E. Maria Reyes Maria Reyes (“Reyes”) alleges she was born in Creedmore, Texas, in 1931, but her family repatriated to Mexico when she was five months old. Reyes was baptized in Lampazos, Mexico, and her baptismal certificate states she was born in the United States. The next day, her parents registered her birth in Mexico

stating she was born in Anahuac, Mexico. In 1975, Reyes obtained a delayed Texas birth certificate. In 2006, Reyes applied for a U.S. passport but the application was denied. In 2007, her application for a copy of her Texas birth certificate was denied but she requested a hearing where an Administrative Law Judge (“ALJ”) found that she had been born in Texas. Thereafter, in 2008, Reyes applied for a U.S. passport but her application was again denied on the grounds that she had not proven by a preponderance of the evidence that she is a United States citizen. Reyes seeks to represent the proposed class of individuals who have had their passport applications erroneously denied without a due process hearing.
F. Jenifer Itzel Gonzalez Jenifer Itzel Gonzalez (“Gonzalez”) has a Texas birth certificate filed two days after her birth and showing birth in Port Isabel, Texas, with the aid of a midwife, Maria Martinez. Gonzalez has a Mexican birth certificate filed two weeks after her birth and showing birth in Mexico. About six months after her birth, Gonzalez was baptized in Mexico and the baptismal certificate states she was born in Texas. On June 8, 2007, Gonzalez applied for a U.S. passport. DOS requested additional documentation on two occasions before denying her application on March 25, 2010, on the grounds that she had not proven by a preponderance of the evidence that she is a United States citizen. Gonzalez seeks to represent the proposed class of individuals who have had their passport applications erroneously denied without due process.
G. Ervey Lorenzo Santos Ervey Lorenzo Santos (“Santos”) alleges he was born in Brownsville, Texas, in August 1974, with the assistance of a midwife, Vicenta A. Vitte. Santos’ birth was registered in Texas six days later. Approximately three months later, he was baptized in Mexico and his baptismal certificate reflects birth in Texas. When Santos was six years old, he was registered in Mexico showing that he was born in Mexico in July 1974. On March 20, 2001, Santos applied for a U.S. passport, but never received one. On November 30, 2007, Santos and his parents went to the U.S. consulate in Mexico for an interview regarding pending immigration applications. At the interview, his parents were questioned regarding the place of Santos’ birth and Santos alleges that Santos’ father falsely stated that his son was not born in the United States. After Santos’ father signed a document to that effect, the consular officer confiscated Santos’ social security card and Texas driver’s license. On December 7, 2007, Santos again applied for a passport and DOS
4

Castro v. Freeman, Slip Copy (2011)
contacted him inquiring why he needed another passport. Santos informed DOS that he had never received a passport. On May 1, 2008, DOS issued Santos a passport. On March 10, 2011, Santos received a letter from DOS revoking his passport pursuant to 22 CFR § 51.62(a)(2) and informing him of his right to a hearing. Because the hearing would take place only in Washington, D.C., Santos did not request a hearing. Santos seeks to represent the proposed class of individuals whose passports were revoked without due process.
II. Defendants’ Motion to Dismiss Plaintiffs’ Fourth Amended Complaint for Lack of Subject Matter Jurisdiction under 12(b)(1) *5 Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge whether a court has subject matter jurisdiction to hear a case. Fed.R.Civ.P. 12(b)(1). “Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims.” Stockman v. Federal Election Comm’n, 138 F.3d 144, 151 (5th Cir.1998). “In examining a Rule 12(b)(1) motion, the district court is empowered to consider matters of fact which may be in dispute,” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981)), and should “grant[ ] [the motion] only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.” Id. (citing Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998)). “In circumstances where ‘the defendant’s challenge to the court’s jurisdiction is also a challenge to the existence of a federal cause of action, the proper course of action for the district court ... is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff’s case’ under either Rule 12(b)(6) or Rule 56.” Montez v. Dep’t of Navy, 392 F.3d 147, 150 (5 Cir.2004) (quoting Williamson, 645 F.2d at 415) (ellipses in original). The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. McDaniel v. United States, 899 F.Supp. 305, 307 (E.D.Tex.1995). Accordingly, Plaintiffs bear the burden of proof that jurisdiction does in fact exist. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980).
A. Plaintiffs’ First Cause of Action for Improperly Applying the Preponderance of the Evidence Standard Sampayo, Garcia, Montemayor, Ruiz, Reyes, and Gonzalez seek to represent the proposed class in this cause of action. Plaintiffs seek declaratory and injunctive

relief regarding their claim that DOS is improperly applying the preponderance of the evidence standard. Specifically, Plaintiffs request the Court “declare that applicants for United States passports are entitled to fair and transparent application of the preponderance of the evidence standard, in accordance with Fifth Circuit precedent, including, if a passport application is denied, or a previously issued passport is revoked, a discussion of the evidence presented, and the reasons it does not meet the preponderance test.” Dkt. No. 167 at 41.
Defendants argue that the Court should dismiss Plaintiffs’ claim of violations of the Fifth and Fourteenth Amendments and the APA for improperly applying the preponderance of the evidence standard in adjudicating passport applications because the Court lacks jurisdiction over this claim. Dkt. No. 178. Defendants argue that due process does not extend to non-citizens and thus until Plaintiffs prove they are citizens their claims are not ripe.
*6 Plaintiffs respond that (1) the Court must accept their well-pleaded factual allegations that each Plaintiff is a United States citizen as true; (2) whether or not an individual Plaintiff is a United States citizen does not impact their claim that DOS misapplies the preponderance of the evidence standard; (3) Supreme Court and Fifth Circuit precedent recognize that a due process liberty interest attaches to a person who claims U.S. citizenship; and (4) an individual Plaintiff does not need to be a U.S. citizen to bring a claim of a pattern and practice of procedural due process violations. Dkt. No. 184.
Defendants reply that (1) to the extent Plaintiffs are alleging jurisdiction under the APA, the Court does not have jurisdiction because the APA does not provide for generalized review of agency procedures and Plaintiffs have an adequate remedy under Section 1503 as to the denial or revocation of their passports; and (2) Plaintiffs must first prove that they are U.S. citizens before their claims for constitutional violations will be ripe. Dkt. No. 189.
As a threshold matter, this Court does not have jurisdiction over Plaintiffs’ claims under the APA. The APA provides that a person suffering a legal wrong because of an agency action, or adversely affected or aggrieved by an agency action, is entitled to judicial review. 5 U.S.C. § 702. However, APA review is limited to situations where the agency action is reviewable by statute or is a “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. The Supreme Court has explained that in determining whether something is a final agency action the courts should apply
5

Castro v. Freeman, Slip Copy (2011)
the following two-part test:
As a general matter, two conditions must be satisfied for agency action to be “final”: First, the action must mark the “consummation” of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.”
Bennett v. Spear, 520 U.S. 154, 177–78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal citations omitted). “The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.” Franklin v. Massachusetts, 505 U.S. 788, 797, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992).
Plaintiffs argue that APA review should be available for the procedures used by the Department of State in reaching their final decisions regarding Plaintiffs’ passports. However, those procedures are not a final agency action. The procedures are not the “consummation” of the DOS’s decisionmaking process but are in fact the process itself and the procedures used are not themselves the action from which the legal consequences flow. To the extent Plaintiffs seek review of the final decision of DOS as to their passports, courts in this Circuit have found that 8 U.S.C. § 1503(a) is a legitimate vehicle by which to seek judicial declaration of citizenship and entitlement to a passport. See Patel v. Rice, 403 F.Supp.2d 560 (N.D.Tex.2005) aff’d 224 Fed. App’x 414 (5th Cir.2007); Tavera v. Harley–Bell, Civil Action No. 4:09–0299, 2010 WL 1308800, *3 (S.D.Tex. Mar.31, 2010). Plaintiffs do not state facts that show that the remedy under the APA is better or more effective than that under § 1503(a). See Council of and or the Blind of Delaware County Valley, Inc. v. Regan, 709 F.2d 1521, 1532–33 (D.C.Cir.1983). Therefore, the Court finds that, since the relief Plaintiffs seek is available under 8 U.S.C. § 1503(a), review of agency action under the APA is precluded and this Court lacks jurisdiction over Plaintiffs’ first cause of action under the APA.
*7 Plaintiffs also seek review of DOS procedures under the Fifth and Fourteenth Amendments and the Mandamus Act, arguing that Defendants have failed to provide adequate due process in improperly applying the preponderance of the evidence standard. Article III of the Constitution imposes limits on this Court’s jurisdiction requiring that there exist a “case or controversy.” See U.S. Const. art. III, § 2, cl. Flast v. Co hen, 392 U.S. 83, 94–101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The justiciability doctrine requires the case or controversy be

“ripe.” To be ripe, a case “must not be premature or speculative.” Shields v. Norton, 289 F.3d 832, 835 (5th Cir.2002). A declaratory action is ripe where an “actual controversy” exists-that is, where “a substantial controversy of sufficient immediacy and reality exists between parties having adverse legal interests.” Id. (quoting Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d 891, 896 (5th Cir.2000)). First, the Court should grant Defendants’ motion to dismiss for lack of subject matter jurisdiction only if it appears certain that Plaintiffs cannot prove any set of facts in support of their claim. Plaintiffs have adequately pled facts to support the allegations that they are United States citizens. Second, Montemayor, one of the named Plaintiffs, has received or will shortly receive his passport based on representations made by DOS in his individual Section 1503 action. See Montemayor v. Clinton, No. 1:11–CV–109, Dkt. No. 9. Therefore, following Defendants’ own reasoning, Montemayor’s claim is ripe for adjudication. Given that at least one of the named Plaintiffs has a U.S. passport, the Court finds that Plaintiffs can prove facts to support their claims of citizenship and thus Defendants’ argument is without merit. United States citizens, even when seeking entry into the United States, are “owed due process of law under the Fifth Amendment.” Hernandez v. Cremer, 913 F.2d 230, 237 (5th Cir.1990). Plaintiffs have presented an actual controversy that is ripe for determination. Therefore, the Court DENIES Defendants’ Motion to Dismiss as to Plaintiffs’ first cause of action for lack of subject matter jurisdiction under the ripeness doctrine.
B. Plaintiffs’ Seventh and Eighth Causes of Action for Mistreatment at the Border by CBP Laura, Yuliana, Sampayo and Garcia seek to represent the proposed class regarding Plaintiffs’ seventh cause of action—that Defendants have violated the Fifth and Fourteenth Amendments and the UNCAT and the DTA by mistreating U.S. citizen claimants at the border. Laura, Yuliana, Castro, Garcia and Alanis seek to represent the proposed class regarding Laura and Yuliana’s eighth cause of action—that Defendants have violated the Due Process Clause of the Fifth Amendment and the UNCAT and the DTA by mistreating the parents of U.S. citizen claimants at the border.
Defendants argue that the Court should dismiss these causes of action because Plaintiffs lack standing to bring these claims. Dkt. No. 178. Defendants argue that Plaintiffs have not demonstrated an injury in fact required to have standing to bring these claims because (1) Plaintiffs do not have a legally protected interest under the UNCAT or the DTA; (2) aliens do not have constitutional due process rights regarding their
6

Castro v. Freeman, Slip Copy (2011)
applications for admission into the United States; (3) Castro has not demonstrated a concrete injury relating to her allegedly false confession; and (4) none of Plaintiffs’ alleged injuries are imminent or likely to reoccur.
*8 Plaintiffs respond that they have due process interest in being humanely treated while seeking entry at a port of entry and further that Laura and Yuliana have standing to bring these claims and they seek to exercise their constitutional right to travel. Dkt. No. 184. Plaintiffs further respond that Castro has suffered a concrete injury when her laser visa was revoked and she was ordered removed and Defendants have not provided her with an avenue to challenge the conclusion that she committed fraud. Furthermore, Plaintiffs argue that requests for entry would be futile.
Defendants reply that Plaintiffs do not have a constitutional due process right regarding their applications for admission to the United States because they did not present facially valid documents given the Western Hemisphere Travel Initiative (“WHTI”) requirements. Dkt. No. 189; see Intelligence Reform and Terrorism Prevention Act of 2004 (“IRTPA”), Pub. L 108–458, Title VII § 7209, 118 Stat. 3823. Only Laura had the required U.S. passport when seeking entry to the United States and therefore had due process protections in her application for entry. Defendants argue that Plaintiffs, including Laura, lack standing to bring this cause of action because they will not be subject to the same set of circumstances in the future. Specifically, Defendants argue that if Plaintiffs comply with the WHTI, they will not be seeking entry without U.S. passports or other approved documentation. In the event Plaintiffs do seek entry without passports, Defendants argue that they will be in violation of United States law and therefore will not be engaging in constitutionally protected activity. Defendants reiterate that Castro has not alleged a concrete injury because she is not a U.S. citizen or lawful permanent resident but merely an alien visitor seeking entry and therefore is not entitled to due process protections. Furthermore, Castro has not yet sought and been denied entry on the basis of her allegedly false confession.
As part of the justiciability doctrine, the courts have also developed the requirement that the plaintiff have “standing” to invoke the power of a federal court. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). “The core component of the standing requirement, derived directly from the Constitution, is that the plaintiff allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Hernandez, 913

F.2d at 233 (citing Allen, 468 U.S. at 751). To show an “injury in fact,” Plaintiffs must show that they have suffered “an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and internal quotations omitted). The plaintiff must also show that the relief sought will redress the plaintiff’s injury. In the case of injunctive relief, like that sought here, the plaintiff must show that he or she will benefit from the issuance of the injunction, otherwise the case is considered moot. Hernandez, 913 F.3d at 233. However, “[a] case may circumvent the mootness doctrine if the conduct about which the plaintiff originally complained is ‘capable of repetition, yet evading review.’ ” Id. (citing Honig v. Doe, 484 U.S. 305, 318, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). “Conduct is capable of repetition if there is a reasonable expectation or a demonstrated probability that the same controversy will recur.” Id. (citing Honig, 484 U.S. at 318 & n. 6).

*9 To the extent Plaintiffs are invoking the UNCAT and the DTA, the Court finds that the Court does not have jurisdiction over these claims because these laws do not provide for private causes of action.5

5

The Court notes that Plaintiffs, in response to

Defendants’ Motion to Dismiss, acknowledge that these

laws do not provide for private causes of action but

argue that these laws support their claims for violation

of the Due Process Clause for the treatment of

individuals at the border.

Plaintiffs also assert jurisdiction under the Fifth and Fourteenth Amendments claiming that the treatment they received at the border is a violation of their due process rights. Laura is a United States citizen and seeks to represent the proposed classes in both of these causes of action. Where one plaintiff is found to have Article III standing, the Court “need not consider the standing issue” as to the other plaintiffs. Brohwer v. Sinhart, 478 U.S. 714, 721, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). Therefore, if the Court finds Laura has standing, it must deny Defendants’ motion to dismiss as it pertains to Defendants’ argument that Plaintiffs lack standing to bring their seventh and eighth causes of action.
As a United States citizen, Laura has a due process interest in her admission into the United States. Hernandez, 913 F.2d at 237. The Fifth Circuit’s decision in Hernandez is instructive in this case. In Hernandez, the plaintiff was a United States citizen born in Puerto Rico
7

Castro v. Freeman, Slip Copy (2011)
who was detained when seeking entry into the United States at a port of entry in Del Rio, Texas. 913 F.2d at 231. Hernandez presented his Puerto Rican birth certificate and a union card with his social security number but the Immigration and Naturalization Services (“INS”) officer was not satisfied that Hernandez had proven he was a United States citizen and processed him for an exclusion hearing. Id. Hernandez spent 46 days in Mexico and frequently returned to the port of entry to see if an immigration judge was available. Id. at 232–33. On one of these occasions, a different INS officer granted Hernandez entry after viewing his same documents and finding nothing that indicated fraud. Id. Hernandez sued the INS officer in charge of the Del Rio port of entry, the INS officer who denied his entry initially, the INS, and the Department of Justice under the Federal Torts Claims Act. Id. at 233. The district court dismissed all his claims but “issued an injunction against the INS San Antonio District, requiring that the INS follow certain minimal procedures when an applicant to the United States presents documentary evidence which, if accepted as authentic, would conclusively establish the applicant’s United States citizenship.” Id. In affirming the district court’s injunction with one substantive change, the Fifth Circuit held that Hernandez had standing to bring the action and thus the court had jurisdiction to issue the injunction because there was a “reasonable expectation that Hernandez [would] exercise his right to travel” and therefore face the same deprivation of due process rights. 913 F.2d at 234.
Defendants argue that because of the changes brought on by the WHTI, Plaintiffs will not face the same deprivations because if they attempt to enter the United States without a U.S. passport, they will be in violation of the laws and therefore will not be engaged in conduct protected by the Constitution. However, in this case, Laura was denied entry into the United States even with her facially valid, and later determined to be valid, United States passport. Like Hernandez, Laura was engaged in an activity protected by the Constitution and has expressed that she not only would like to travel to Mexico but also that she fears doing so because of her experiences at the border. The Court finds that there is a reasonable expectation that Laura will exercise her right to travel thereby invoking the same circumstances that led to her alleged detention and mistreatment and therefore has standing to bring this cause of action.
*10 However, as to Plaintiffs’ eighth cause of action, “an alien and a citizen seeking entry into the United States are not owed the same process.” Hernandez, 913 F.2d at 237 (citing Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977); Mathews v. Diaz, 426 U.S. 67, 80, 96

S.Ct. 1883, 48 L.Ed.2d 478 (1976)). Parents of individuals claiming to be United States citizens, who are not themselves claiming to be United States citizens, are aliens seeking admission into the United States and whatever procedure authorized by Congress is due process. Knauff v. Shaughnessy, 338 U.S. 537, 543, 70 S.Ct. 309, 94 L.Ed. 317 (1950). For Castro and Alanis to assert a due process violation, they must first assert an injury in fact consisting of the invasion of a legally protected interest. Castro and Alanis admit that they are non-immigrant aliens,6 not United States citizens or permanent residents. Castro asserts that she possessed a laser visa which Was revoked by Defendants without due process. However, possession of a visa does not guarantee admission into the United States7 and at the time of the incident giving rise to these claims, Castro was an alien outside the United States seeking entry to the United States. Therefore, she was not entitled to constitutional protections. Shaughnessy v. United States, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953). Furthermore, “[a]fter the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion revoke such visa or other documentation.” 8 U.S.C. § 1201(i). The statute governing revocation of visas plainly states that “[t]here shall be no means of judicial review (including review pursuant to section 2241 of Title 28 or any other habeas corpus provision and sections 1361 and 1651 of such title) of a revocation under this subsection....” 8 U.S.C § 1201(i). Because as an alien seeking admission to the United States Castro has no constitutional right to admission and because her laser visa could be revoked at any time at the discretion of DOS, Castro does not have a legally protected interest at stake. Therefore, Castro lacks standing to bring this claim. Alanis has not asserted a specific deprivation of a legally protected interest that would give her standing to bring this claim.

6

A “non-immigrant” is defined at 8 U.S.C. §

1101(a)(15) and includes “an alien ... having a

residence in a foreign country which he has no

intention of abandoning and who is visiting the United

States temporarily for business or temporarily for

pleasure.” 8 U.S.C. § 1101(a)(15)(B).

7

The issuance of a visa does not guarantee admission

and “nothing in this chapter shall be construed to entitle

any alien, to whom a visa or other documentation has

been issued, to be admitted the [sic] United States, if,

upon arrival at a port of entry in the United States, he is

found to be inadmissible under this chapter” 8 U.S.C. §

1201(h).

8

Castro v. Freeman, Slip Copy (2011)
For Laura or Garcia to assert a due process violation on behalf of Castro or Alanis, respectively, they must assert a liberty or property interest. Plaintiffs argue that because Laura is a U.S. citizen, she has a liberty interest in an application on behalf of Castro for an immediate relative petition. Plaintiffs have not asserted that Laura has filed an immediate relative petition on behalf of Castro and that such a petition has been denied. Therefore, the Court finds that Laura and Garcia cannot demonstrate an injury in fact that is concrete and not hypothetical or conjectural. Laura and Garcia lack standing to bring this claim and thus the Court lacks jurisdiction over Plaintiffs’ eighth cause of action. Therefore, the Court DENIES Defendants’ Motion to Dismiss as to Plaintiffs’ seventh cause of action and GRANTS Defendants’ Motion to Dismiss as to Plaintiffs’ eighth cause of action.
III. Defendants’ Motion to Dismiss Plaintiffs’ Fourth Amended Complaint for Failure to State a Claim under 12(b)(6) *11 When reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), Fifth Circuit law dictates that a district court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996). “Factual allegations must be enough to raise a right to relief above a speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). In order for a complaint to be sufficient, it “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action....” Id. “A complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Essentially, “the complaint must contain either direct allegations on every material point necessary to sustain a recovery ... or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.” Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir.1995).
A. Plaintiffs’ Second, Third, and Fourth Causes of

Action for Due Process Violations for the Denial or Revocation of their Passports Sampayo, Garcia, Ruiz, Reyez, and Gonzalez seek to represent the proposed class of individuals asserting Plaintiffs’ second cause of action—denial of due process in adjudicating passport applications. Montemayor and Guerrero seek to represent the proposed class of individuals asserting Plaintiffs’ third cause of action—denial of due process in revoking U.S. passports on the basis of non-nationality. Santos seeks to represent the proposed class of individuals asserting Plaintiffs’ fourth cause of action—denial of due process for passports denied or revoked under 22 CFR 51.62(a) (2).
Defendants argue that Plaintiffs failed to state a claim on which relief can be granted in these causes of action. Dkt. No. 178. Defendants argue that Plaintiffs do not have a constitutionally protected interest as U.S. citizens until they have proven they are, in fact, U.S. citizens. Alternatively, Defendants argue that even if Plaintiffs do have a constitutionally protected liberty or property interest, they have not shown that such interest was deprived without constitutionally sufficient procedures.
Plaintiffs respond that Defendants’ denial and revocation of Plaintiffs’ passports deprives them of liberty rights that accompany U.S. citizenship, including the right to vote, the right to engage in international travel, and the right to live and work in the United States. Dkt. No. 184. Plaintiffs argue that their due process rights are violated because they are not provided with an administrative hearing prior to having their passports revoked or after having their passport applications denied. Plaintiffs further argue that their fourth cause of action for denial of due process when determining non-nationality based on fraud or error states a claim because (1) Santos and Montemayor have liberty and property interests in the adjudication of their passports; and (2) the procedures provided for the administrative hearing are inadequate because the hearing is conducted only in Washington, D.C., before a Department of State employee rather than an impartial Administrative Law Judge, and that there is no discovery, body of law, or subpoena power.
*12 Defendants reply that Plaintiffs’ arguments are unavailing because they were provided with notice and an opportunity to be heard regarding the denial of the passport applications or the revocation of the passport applications. Dkt. No. 189. Furthermore, Defendants argue that Section 1503 provides for de novo judicial review of their claims and therefore they have received, or are receiving, all the due process to which they are entitled.
9

Castro v. Freeman, Slip Copy (2011)
Assuming Plaintiffs are in fact United States citizens as they have pled, the Court finds that they have due process interests in their passports and the proper adjudication of those passports. However, the Court finds that Plaintiffs have failed to state a claim on which relief can be granted in their second, third, and fourth causes of action because they have received or are receiving all the process to which they are entitled.
There is no due process right that “inheres naturally” in a claim to United States citizenship alone. Rios–Valenzuela v. Department of Homeland Security, 506 F.3d 393, 401 (5th Cir.2007). The Court first finds that Plaintiffs have not established that they are deprived of all rights accompanying U.S. citizenship, such as the right to vote, by the denial or revocation of their U.S. passports. Plaintiffs merely make the blanket allegations that they are deprived of their rights without asserting any facts to support these allegations. See Twombly, 550 U.S. at 555. Second, as to the right of international travel, it is “no more than an aspect of the ‘liberty’ protected by the Due Process Clause of the Fifth Amendment ... [that] can be regulated within the bounds of due process.” Califano v. Aznavorian, 439 U.S. 170, 176, 99 S.Ct. 471, 58 L.Ed.2d 435(1978). The Due Process Clause does not demand that the government provide the same procedural protections for every deprivation of a property or liberty interest. See Matthews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (finding “due process is flexible and calls for such procedural protections as the particular situation demands”). At a minimum, due process requires that the government provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).
Title 8, United States Code, Section 1503 provides district courts with jurisdiction to hear cases where an individual claims to have been denied a right or privilege as a United States citizen. 8 U.S.C. § 1503(a). Individuals who have had their passports denied, such as Sampayo, Garcia, Ruiz, Reyes, and Gonzalez, or revoked, such as Montemayor, Guerrero and Santos, are eligible to seek federal judicial review under 8 U.S.C. § 1503. See Tavera v. Harley–Bell, No. 4:09–CV–299, 2010 WL 1308800, at *4 (S.D.Tex. Mar.31, 2010) (finding the individual’s due process rights were not violated where the Government denied a U.S. passport because the individual could seek judicial review under 8 U.S.C. § 1503). Therefore, Plaintiffs are being afforded all the due process to which they are entitled.

B. Plaintiffs’ Fifth arid Sixth Causes of Action for Equal Protection Violations for the Denial or Revocation of their Passports *13 Sampayo, Garcia, Ruiz, Reyes, and Gonzalez seek to represent the proposed class of individuals asserting Plaintiffs’ fifth cause of action—denial of equal protection of persons whose passport applications have been denied based on non-nationality. Montemayor and Guerrero seek to represent the class of individuals asserting Plaintiffs’ sixth cause of action—denial of equal protection of persons whose passports have been revoked based on non-nationality.
Defendants argue that Plaintiffs have not alleged that they were treated differently by DOS than similarly situated individuals or that any such treatment arose from Defendants’ intent to discriminate against them based on a protected class and that the treatment had a discriminatory impact. Dkt. No. 178. Plaintiffs respond that their equal protection violation claims are not based on a suspect class and therefore Defendants’ regulations must meet the rational basis standard rather than a higher level of scrutiny. Dkt. No. 184. Plaintiffs argue that they have sufficiently stated a claim for an equal protection violation and that Defendants’ procedures are not rationally related to a legitimate government interest. Defendants reply that Plaintiffs have not pointed to any recognized constitutional right that has been violated and therefore have not stated a claim for an equal protection violation. Dkt. No. 189.
To state a claim for discrimination under the equal protection clause, Plaintiffs must allege that (1) they were treated differently by Defendants than similarly situated individuals; and (2) the unequal treatment stemmed from Defendants’ discriminatory purpose or intent and had a discriminatory impact. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (“The Equal Protection Clause ... is essentially a direction that all persons similarly situated should be treated alike.”); Washington v. Davis, 426 U.S. 229, 244–45, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (holding that both discriminatory purpose and discriminatory impact must be present in finding an equal protection violation). To prevail, “a plaintiff must plead and prove that the defendant acted with discriminatory purpose ... on account of race, religion, or national origin.” Iqbal, 129 S.Ct. at 1948.
Plaintiffs have not pled sufficient facts to support a claim that they were treated differently by Defendants than similarly situated individuals or that this unequal treatment was due to a discriminatory purpose or intent.
10

Castro v. Freeman, Slip Copy (2011)
Plaintiffs do not allege that other individuals (1) with United States birth certificates signed by midwives; (2) with foreign birth certificates attesting to birth in a foreign country; (3) who have lived for significant periods of time in that foreign country; and/or (4) who have outwardly represented that they were born in that foreign country have been treated differently. Furthermore, Plaintiffs have not pled facts to support a finding that Defendants’ actions in denying or revoking passports was due to a discriminatory purpose or intent. Plaintiffs have not pled facts to support a contention that Defendants were aware of Plaintiffs’ racial and ethnic backgrounds or that these factors played a role in the outcome of Defendants’ decisions to deny or revoke the individual Plaintiffs’ passports. See Tavern, 2010 WL 1308800, at *4. Therefore, the Court finds that Plaintiffs have failed to state a claim on which relief can be granted as to their second, third, fourth, fifth, and sixth causes of action.
IV. Plaintiffs’ Second Motion for Class Certification *14 In their Second Motion for Class Certification, Plaintiffs request the Court certify two of their proposed classes: (1) a class of individuals whose passports have been or will be revoked on allegations related to non-nationality; and (2) a class of individuals whose passport applications were or will be denied on the basis of failure to prove U.S. nationality. Dkt. Nos. 171, 172. Based on the holdings of the Court in this Order, the Court finds Plaintiffs’ Second Motion for Class Certification is MOOT. The Court has dismissed Plaintiffs’ second, third, fourth, fifth, sixth and eighth causes of action thereby eliminating the causes of action which these proposed classes would assert.

V. Conclusion Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion to Dismiss, Dkt. No. 178, and ORDERS the following:
1. Defendants’ Motion to Dismiss is GRANTED as to Plaintiffs’ first cause of action regarding Plaintiffs’ assertion of jurisdiction under the APA. However, Defendants’ Motion to Dismiss is DENIED as to Plaintiffs’ first cause of action regarding Plaintiffs’ claims under the Fifth and Fourteenth Amendments and Mandamus Act on the finding that Plaintiffs’ claims are ripe.
2. Defendants’ Motion to Dismiss is GRANTED as to Plaintiffs’ assertion of jurisdiction under the United Nations Convention Against Torture and the Federal Detainee Treatment Act of 2005. Defendants’ Motion to Dismiss is DENIED as to Plaintiffs’ seventh cause of action on the finding that Laura has standing to assert a claim for violations of the Fifth and Fourteenth Amendments relating to her request for entry as a United States citizen. Defendants’ Motion to Dismiss is GRANTED as to Plaintiffs’ eighth cause of action for due process violations of the parents of individuals who claim to be U.S. citizens.
3. Defendants’ Motion to Dismiss is GRANTED as to Plaintiffs’ second, third, fourth, fifth, and sixth causes of action for failure to state a claim on which relief can be granted.
The Court further DENIES AS MOOT Plaintiffs’ Second Motion for Class Certification, Dkt. NO. 171.
	  

11

 
 Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

UnIted Statu Dlltrlqt Court Southern District Of Texas
ENTERED
DEC - 7 2012

LAURA NANCY CASTRO, ET AL., Plaintiffs,
v.
MICHAEL T. FREEMAN, ET AL., Defendants

David_~~~adley. Clerk of Court
§ § § § § CIVIL ACTION NO. 1:09-cv-00208 § § § § §

ORDER

BE IT REMEMBERED, that on that on DecemberL, 2012, the Court considered Defendants' Motion to Dismiss Cause of Action One in Plaintiffs' Fourth Amended Complaint, Dkt. No. 194, Plaintiffs['] Unopposed Motion to [sic] an Extension of Time, to and Including June 4, 2012, in which to File Their Opposition to Defendants' Motion to Dismiss Cause of Action One in Plaintiffs' Fourth Amended Complaint. Dkt. No. U)G, Plaintiffs' Opposition to Defendants' Motion to Dismiss Cause ofAction One in Plaintiffs' Fourth Amended Complaint, Dkt. No. 197, Reply in Support of Defendants' Motion to Dismiss Cause of Action One in Plaintiffs' Fourth Amended Complaint. Dkt. No. 201, Defendants' Motion to Dismiss Seventh Cause of Action in Plaintiffs' Fourth Amended Complaint, Dkt. No. 20G, Plaintiffs' Opposition to Defendants' Motion to Dismiss Seventh Cause ofAction in Plaintiffs' Fourth Amended Complaint (Docket#20G), Dkt. No. 207, Plaintiffs' Amended Opposition to Defendants' Motion to Dismiss Seventh Cause of Action in Plaintiffs' Fourth Amended Complaint (Docket #20G), Dkt. No. 208, [Sealed] Exhibit "G" in Support of Plaintiffs' Amended Opposition to Defendants' Motion to Dismiss Seventh Cause of Action in Plaintiffs' Fourth Amended Complaint (Docket #20G), Dkt. No. 209, Reply in Support of Defendants' Motion to Dismiss Seventh Cause ofAction in Plaintiffs' Fourth Amended Complaint, Dkt. No. 210, Department of State's Opposed Motion to Quash Depositions

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 2 of 40
and for Entry of a Protective Order, Dkt. No. 1~j5, Plaintiffs' Response to Defendant State Department's Opposed :Motion to Quash Depositions and for Entry ofa Protective Order, Dkt. No. 198. and Defendant's Reply in Support of Department of State's Opposed Motion to Quash Depositions and for Entry of a Protective Order. Dkt. No. 200. For the reasons discussed below. Defendants' Motion to Dismiss Cause of Action One in Plaintiffs' Fourth Amended Complaint. Dkt. No. 194, is GRANTED IN PART AND DENIED IN PART, Plaintiffs[,] Unopposed Motion to [sic] an Extension ofTime. to and Including June 4, 2012, in which to File Theil' Opposition to Defendants' Motion to Dismiss Cause of Action One in Plaintiffs' Fourth Amended Complaint, Dkt. No. 196, is GRANTED, Defendants' Motion to Dismiss Seventh Cause of Action in Plaintiffs' Fourth Amended Complaint, Dkt. No. 206, is GRANTED IN PART AND DENIED IN PART, and Department ofState's Opposed Motion to Quash Depositions and for Entry of a Protective Order, Dkt. No. 195. is DENIED.
As a matter of housekeeping, the Court TERMINATES Plaintiffs Trinidad Muraira de Castro, Ana Alanis, and Ervey Lorenzo Santos as named plaintiffs, and Jenifer Itzel Gonzalez as both a named plaintiff and potential class member, for the sake of clarification of this Court's previous Orders and for the convenience of the parties.
Having considered the unopposed Stipulation of Dismissal of all Claims by Jenifer Itzel Gonzalez With Prejudice Pursuant to 41(a)(1)(ii). Dkt. No. 193, the Court TERMINATES Plaintiff Jenifer Itzel Gonzalez. Although an order by this Court terminating Jenifer Itzel Gonzalez is unnecessary under Federal Rule of Civil Procedure 41(a)(1)(ii), the Court so ORDERS for the purpose of clarification and convenience of the parties.
Additionally, the Court TERMINATES Plaintiffs Trinidad Muraira de Castro. Ana Alanis, and Ervey Lorenzo Santos. In its Order of November 22,2011, the Court dismissed Plaintiffs' second, third. fourth, fifth, sixth, and eighth causes of action. Dkt No. 190. Only Plaintiffs' first and seventh causes of action remain. ld. Plaintiffs Trinidad Muraira de Castro, Ana Alanis, and Ervey Lorenzo Santos are not asserting
2

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 3 of 40
either or both of the first or seventh causes of action, and are therefore TERMINATED.l Thus, Plaintiffs Jessica Garcia, Luis Montemayor, Ana Luisa Guerrero, Alicia Ruiz, and Maria Reyes remain in this case asserting Plaintiffs' first cause of action individually and on behalf of a proposed class, and Plaintiffs Laura Castro, Yuliana Castro, and Jessica Garcia remain in this case asserting Plaintiffs' seventh cause of action individually and on behalf of a proposed class.
I. Background A. Laura Nancy Castro and Yuliana Trinidad Castro Laura Nancy Castro ("Laura") and Yuliana Trinidad Castro ("Yuliana"), assert claims stemming from their attempt to enter the United States on August 24,2009. Their mother ("Castro") is a Mexican citizen. La ura and Yuliana were born in Brownsville, Texas in 1980 and 1984, respectively, with the assistance of a midwife, Trinidad Saldivar. Dkt. No. 167 at 12; Dkt. No. 191 at 4. Shortly after each of their births, Plaintiffs were registered in Brownsville, Texas as having been born there. Id. Plaintiffs allege that when Laura was about four years old, Castro registered Laura's and Yuliana's births in 'Mexico, stating that they were born in Matamoros, Mexico, so
that they could attend school there. Dkt. No. 167 at 12; Dkt. No. un at 4.
Laura applied for a U.S. passport and received it on January 30,2008. Dkt. No. 167 at 13; Dkt. No. 191 at 5. Yuliana applied for a U.S. passport in January 2009 and DOS requested additional evidence of her birth. Id. On August 24, 2009, Laura, Yuliana, Castro, and Yuliana's infant C.A.G. applied for admission at a port of entry in Brownsville, Texas. Id. Laura presented her United States passport; Yuliana presented her Texas birth certificate, Texas rD, and receipt for her United States
This termination is only as to Trinidad Muraira de Castro, Ana Alanis, and Ervey Lorenzo Santos as named Plaintiffs. Should a class later be certified and should they fall within it, this Order should not be construed as precluding their participation as unnamed class members.
3

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 4 of 40
Passport; Yuliana as Next Friend ofC.A.G. presented C.A.G.'s Texas birth certificate: and Castro presented her laser visa. Id. After being detained and questioned by Officer Eliseo Cabrera ("Cabrera") "for about ten hours," Plaintiffs allege that Castro signed a document stating she had falsely registered the births of Laura and Yuliana in Texas, when they were in fact born in Mexico. Dkt. No. 167 at 13. Laura and Yuliana were determined to have withdrawn their applications for entry, Castro was found to be inadmissible for fraud, and all of their documents were confiscated. Id: Dkt. No. 191 at 5.
On April 5, 2010, Laura's passport was revoked under 22 C.F.R. § 51.62(a)(2).
Dkt. No. 167 at 14-15; Dkt. No. un at G. Laura requested a hearing, which was
scheduled in Washington, D.C., but the hearing was canceled and her passport was returned to her. Dkt. No. IG7 at 15; Dkt. No. 191 at G. Yuliana also received her passport and removal proceedings against her were terminated. Id. Laura and Yuliana assert that they continue to be hesitant to cross the border for fear that they will be detained and their documents confiscated. Dkt. No. 167 at 15.
B. Jessica Garcia Jessica Garcia ("Garcia") alleges that she was born in Brownsville, Texas in 1987, with the assistance of midwife Trinidad Saldivar. Id., at 19. Garcia alleges that Trinidad Saldivar registered her birth in Brownsville as having occurred there two and a half weeks after her birth. Id. Garcia also has a Mexican birth certificate issued seven weeks after her birth and stating she was born in Matamoros, Mexico. Dkt. No. IG7 at 19; Dkt. No. 191 at 9. In May 20m), Garcia applied for a U.S. passport. Dkt. No. IG7 at 20; Dkt. No. 191 at 9. On October 31. 2009, Garcia applied for entry at a port of entry in Brownsville, Texas, and presented her Texas ID, her Texas birth certificate, and the receipt for her passport application. Dkt. No. 167 at 20; Dkt. No. 191 at 10. Garcia was detained and questioned by Officer Cabrera. Id. Garcia's mother came to the port of entry, and Plaintiffs allege she attempted to explain the
4

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 5 of 40
reason her daughter had two birth certificates. Id. Plaintiffs allege that neither Garcia nor her mother ever stated Garcia was born in Mexico. Dkt. No. H)7 at 21. A Notice to Appear eNTA") was issued to Garcia and she and her mother returned to Mexico. Id.; Dkt. No. 191 at 10. The NTA was never filed, and therefore Garcia was not provided with a hearing. Id. On June 24,2010, DOS denied Garcia's application for a U.S. passport on the grounds that she had not proven by a preponderance of the evidence that she is a United States citizen. Id. Garcia received her United States passport on July 25, 2012. See Garcia v. Clinton, No. 1:II-cv-83 (S.D. Tex.) Dkt. No. 188 at 8.
C. Maria Reyes Maria Reyes ("Reyes") alleges she was born in Creedmore, Texas, in IH31, but she alleges that her family repatriated to Mexico when she was five months old. Dkt. No. 167 at 26. On April 21. IH32, Reyes alleges she was baptized in Lampazos, N.L., Mexico. Id. Her baptismal certificate states she was born in "Cremord, Tex." Id.; Dkt.
No. un at 14. The next day, her parents registered her birth in Mexico stating she
was born in Anahuac, Mexico. Id. In 1975, Reyes obtained a delayed Texas birth certificate. Id. In 2006, Reyes applied for a United States passport, and the
application was denied. Dkt. No. 167 at 26-27; Dkt. No. un at 14. In 2007, her
application for a copy of her Texas birth certificate was denied. Dkt. No. 167 at 27; Dkt. No. 1Hl at 14. Following this denial, Reyes alleges she requested a hearing where an Administrative Law Judge ("ALJ") found that she had been born in Texas. Dkt. No. 167 at 27. Thereafter, in 2008, Reyes applied for a United States passport but her application was again denied on the grounds that she had not proven by a preponderance of the evidence that she is a United States citizen. Dkt. No. 167 at 27; Dkt. No. 191 at 15. Reyes filed a now separate cause of action under 8 U.S.C. § 1503(a). Reyes v. Clinton, No. 1:11-cv-85 (S.D. Tex.). On or about April 20, 2012, DOS determined that Reyes was able to prove by a preponderance of the evidence that she
5

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 6 of 40
is a United States citizen. Dkt. No. 1H4 at 5. On May 8, 2012, DOS issued Reyes a United States passport. Dkt. No. 2U), Att. 1 at 1; Dkt. No. 220, at 1, 3. The parties stipulated to the dismissal of her individual action and the case was closed. Reyes, No. 1:II-cv-85 Dkt. Nos. 166 and 167.
D. Alicia Ruiz Alicia Ruiz ("Ruiz") alleges she was born in Mercedes, Texas, in 1933. Dkt. No. 167 at 25. Ruiz's birth was not immediately registered, but she was baptized in Mercedes, Texas when she was nine months old and her baptismal certificate states she was born in Relampago Ranch, Texas. Id.; Dkt. No. 191 at 13. When she was ten, Ruiz's parents, who at some time after her baptismal had moved to JVlexico, registered her birth in Mexico as having been born in Mexico. Id. Ruiz's marriage certificate shows she was born in Mexico. but at least one of her children's birth certificates show Ruiz was born in the United States. Id. Ruiz has applied for a United States passport three times but her application has been denied each time. Id. Ruiz filed a now separate cause of action under 8 U.S.C. § 1503(a). Rlli.z v. Clinton, No. 1:II-cv-84 (S.D. Tex.). On October 1, 2012, this Court heard that case and found by a preponderance of the evidence that Ruiz is a United States citizen. Rlliz, No. 1:11-cv-84 Dkt. Nos. 188 and 189.
E. Ana Luisa Guerrero Ana Luisa Guerrero ("Guerrero") alleges she was born in Brownsville, Texas, in July 1977, with the assistance of a midwife, Victoria Grimaldo. Dkt. No. 167 at 23. Her birth was registered in Brownsville, Texas one month later. Id., at 23-24: Dkt. No. 191 at 12. Guerrero's mother registered her birth in Mexico as having been born in Mexico one month earlier, in June 1977. Id., at 24; Dkt. No. IHI at 12. In December 1977, Guerrero was baptized in Mexico and the baptismal certificate reflects the information found in her Mexican birth certificate. Dkt. No. 167 at 24. In 2006,
6

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 7 of 40
Guerrero petitioned a Mexican court to correct her Mexican birth certificate to reflect her United States date and place of birth. and the petition was granted in January 2007. Id. Thereafter, Guerrero applied for and later received a United States passport. Id.: Dkt. No. 191 at 12.
In 2008, Guerrero filed an 1-130 petition, seeking to obtain immigration documents for her Mexican-national husband. Id. As part of the petition process, Guerrero and her husband interviewed with the Department of Homeland Security ("DHS"). Id. In January 2009, DHS requested further documentation of Guerrero's birth in the United States which she provided. Id. In December 2009, Guerrero and her parents interviewed with DHS. Id. A few days later, DOS notified Guerrero that her passport had been revoked. Id., at 24-25; Dkt. No. 191 at 13-14.
Guerrero filed a separate, individual cause of action under 8 U.S.C. § 1503(a). Guerrero v. Clinton, No. B-11-cv-16 (S.D. Tex.). On March 15, 2012 the parties agreed to settle the case and DOS agreed to issue a United States passport to Guerrero. Dkt. No. 194 at 6. On March 5,2012, DOS issued Guerrerro a United States passport. Dkt. No. 219, Att. 1 at 1.; Dkt. No. 220 at 1, 2. The parties stipulated to the dismissal of Guerrero's individual action and the case was closed. Guerrero, No. 1:11-cv-16 Dkt. Nos. 43, 45.
F. Luiz Montemayor Luis Montemayor ("Montemayor") claims he was born in Mercy Hospital in Brownsville, Texas, in 1967. Dkt. No. 167 at 22; Dkt. No. 191 at 11. He alleges that his birth certificate was signed and dated the day ofhis birth during Hurricane Beulah but was not filed for over ten years, allegedly as a result of the hurricane. Dkt. No. 167 at 22. About one month after his birth, he was registered in Mexico as having been
born in Mexico. Id.; Dkt. No. un at 11. In 2007, lVIontemayor obtained a United
States passport and, in 2009, a passport card. Id. In January 2011, he received a letter from the Department of State ("DOS") revoking his passport and passport card.
7

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 8 of 40
Id. Montemayor alleges that this letter stated that he had failed to provide additional evidence of his birth in Texas as requested and threatened criminal prosecution if he continued to use these documents. Dkt. No. 167 at 22-23. Montemayor alleges that he did not receive any such request from DOS and therefore had no opportunity to provide additional evidence of his birth. Dkt. No. 167 at 23.
Montemayor filed a separate, individual action under 8 U.S.C. § 1503(a) challenging the revocation of his passport. Montemayor v. Clinton, No. 1:II-cv-lm) (S.D. Tex.). In September 2011, DOS issued a United States passport to Montemayor. Dkt. No. U)4 at 5, see also Montemayor, No 1:II-cv-l0~), Dkt. No. 12 at 2. The parties then stipulated to the dismissal of Montemayor's individual action and the case was closed. Montemayor, No 1:II-cv-l09, Dkt. Nos. 12 and 13.
II. Defendants' Motion to Dismiss Cause of Action One in Plaintiffs' Fourth Amended Complaint
Plaintiffs' first cause of action alleges that Defendant Secretary of State improperly applies the 'preponderance of the evidence' standard, both in adjudicating U.S. passport applications and in determining whether to revoke previously issued U.S. passports. Such action deprives Plaintiffs of the full enjoyment of the rights and privileges of U.S. citizenship to which they are entitled by virtue of birth within the United States.
Dkt. No. 167 at 35. Plaintiffs continue, stating that "Defendant Clinton's actions violate Plaintiffs' rights under the Fifth and Fourteenth Amendments, the Administrative Procedures [sic] Act, the Mandamus Act, and entitle Plaintiffs to relief under the Declaratory Judgment Act." Id. This Court's Order of November 22, 2011 found that the Administrative Procedure Act ("APA") does not provide the Court with jurisdiction over Plaintiffs' first cause of action. Dkt. No. IBO at 10.
As remedy for their first cause of action, Plaintiffs request,2 that the Court
2
Plaintiffs request twenty-one separate forms of relief in their Fourth Amended Class
8

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 9 of 40
3) Declare that the actions, practices and determinations challenged herein violate federal law, including but not limited to the Constitution, Immigration and Nationality Act, and the Administrative Procedures [sic] Act, and issue an appropriate order for injunctive and declaratory relief to remedy these violations and prevent future violations;
8) Declare that applicants for United States passports are entitled to fail' and transparent application of the preponderance of the evidence standard, in accordance with Fifth Circuit precedent, including, if a passport application is denied, or a previously issued passport is revoked, a discussion of the evidence presented, and the reasons it does not meet the preponderance test;
18) Enjoin Defendant Department of State from denying a passport application, or revoking a previously issued passport, without issuing a written decision which includes a discussion of the evidence presented, and how application of the preponderance of the evidence test results in the action taken;
Dkt. No. 197 at 7 (quoting Dkt. No 167 at 40, 41. and 43).
A. Parties' Arguments On May 8,2012, Defendants filed Defendants' Motion to Dismiss Cause ofAction One in Plaintiffs' Fourth Amended Complaint, Dkt. No. 194. In their motion, Defendants argue that the Court lacks subject matter jurisdiction. Id. Specifically, Defendants argue that Plaintiffs' first cause of action is moot with regard to those Plaintiffs who have received United States passports, and that no Plaintiff has
Action Complaint for Declaratory and Injunctive Relief, but do not specify the exact reliefthat corresponds to each cause of action. Dkt. No. 167 at 40-45. Having reviewed the causes of action remaining in the case as to the named Plaintiffs and the requested relief, the Court finds that the relief requested in Plaintiffs' Complaint to be more expansive than excerpted in Plaintiffs' response to Defendants' motion to dismiss the first cause ofaction. For the ease ofanalysis the Court generalizes the reliefrequested as to this cause of action to be declaratory and injunctive relief speaking to DOS's application of the preponderance of the evidence test. However, the Court makes no finding and issues no opinion as to the availability or propriety of each specific form of relief sought.
9

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 10 of 40
standing to seek injunctive relief against DOS, because they have not demonstrated that they have suffered an "injury in fact," or met the redressability requirement ofthe standing doctrine. Id., at 7-13.
On May 26, 2012, Plaintiffs filed Plaintiffs['] Unopposed Motion to [sic] an Extension of Time, to and Including June 4, 2012, in Which to File Their Opposition to Defendants' l\lotion to Dismiss Cause of Action One in Plaintiffs' Fourth Amended Complaint, Dkt. No. 196. The Court GRANTS this motion, and deems Plaintiffs' response to Defendants' motion to dismiss Plaintiffs' first cause of action to be timely filed.
On June 4,2012, Plaintiffs filed Plaintiffs' Opposition to Defendants' Motion to Dismiss Cause of Action One in Plaintiffs' Fourth Amended Complaint, Dkt. No. 197. In their response, Plaintiffs challenge Defendants' assertions that the Court lacks subject matter jurisdiction. Id. Specifically, Plaintiffs argue that the "voluntary act" exception to the mootness doctrine applies, saving the claims of those Plaintiffs who have received United States passports, that Plaintiffs' first cause of action is not moot as to any Plaintiff, and that all Plaintiffs have standing because they can meet each of the three elements of standing. Id., at 2-20.
OnJune 25, 2012, Defendants filed their Reply in Support of Defendants' Motion to Dismiss Cause of Action One in Plaintiffs' Fourth Amended Complaint, Dkt. No. 201. In their reply, Defendants argue that the "voluntary act" exception to the mootness doctrine does not apply, that the "capable of repetition yet evading review" exception to the mootness doctrine does not apply, that Plaintiffs who have been issued United States passports have received all relief to which they are entitled rendering their claims moot, and challenge Plaintiffs' arguments that they meet all elements required to have standing. Id., at 2-9.
10

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 11 of 40
B. Standard of Review Federal Rule of Civil Procedure 12(b)(I) allows a court to dismiss a lawsuit where the pleader proves that the Court lacks subject matter jurisdiction. FED. R. CIV. P. 12(b)(I). Plaintiffs bear the burden of establishing that this Court has subject matter jurisdiction over the claims they raise. Ramm£ng v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980». "Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only ifit appears certain that the plaintiffcannot prove any set of facts in support of his claim that would entitle plaintiff to relief." Id. (citing Home Builders Ass'n ofMiss., Inc. v. City ofMadison, Miss., 143 F.3d 1006,1010 (5th Cir. 1998». "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory 01' constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc., 143 F.3d at 1010 (quoting Nowal-l v. Ironworhers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996». In determining whether a federal court has subject matter jurisdiction, a court may consider "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Ram ming, 281 F.3d at 161 (citing Barrera-Montenegro v. United States, 74 F.3d 657,659 (5th Cir. 1996». Defendants' challenges to the Court's subject matter jurisdiction are factual in that the Defendants "challengeD the facts on which jurisdiction depends," and thus the Court may consider "matters outside of the pleadings, such as affidavits and testimony." Oaxaca v. Roscoe, 641 F.2d 386,391 (5th Cir. 1981) (citing Menchaca, 613 F.2d at 511). Just as in reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), when reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(I), "a court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff." CZlshenberry v. United States Auto. Ass'n, No. 12-1HO-BAJ-SCR, 2012 U.S. Dist. LEXIS 81438, at *3 (M.D. La.
11

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 12 of 40
June 8, 2012) (citing Sonnier v. State Farm Mutual Auto Ins. Co., 5m) F.3d 673, 675 (5th Cir. 2007); Baher v. Putnal, 75 F.3d 190, 19(; (5th Cir. 19~)6».
C. Legal Analysis The jurisdiction of federal courts is limited by the Constitution's "case 01' controversy" requirement. U.S. CONST. ART. III, § 2. The doctrines of mootness, ripeness, standing, and political question reflect this requirement. See DaimlerChrysler Corp. v. Cllno, 547 U.S. 332, 352 (2006). Some have described the doctrine of mootness as "the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." United States Parole Comm 'n v. Geraghty, 445 U.S. 388, 397 (1980) (citing :Monaghan, ConstitutionalAdJudication: The Who and When, 82 Yale L. J. 1363, 1384 (1973». To have standing, a plaintiff must have suffered an injury in fact, the injury must be fairly traceable to the defendant's conduct and it must be likely that the injury will be redressed by a favorable court decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). Thus, should an event transpire during the course of the case that prevents a plaintiff from having standing, the case is rendered moot, and the federal court must dismiss the case for want of jurisdiction. The Court notes that ofthe five Plaintiffs asserting this cause of action on behalf of a proposed class, all have either been issued a United States passport, or have been successful in their individual actions under 8 U.S.C. § 1503. Having reviewed Defendants' motion, Plaintiffs' response, and Defendants' reply, the Court finds it helpful to separate the five named Plaintiffs into the following groups: those Plaintiffs who have been issued a United States passport following the denial of their earlier application (Garcia and Reyes), Ruiz who has been successful in her individual action under 8 U.S.C. § 1503(a), and those Plaintiffs whose previously issued United States passports were revoked and reissued (Guerrero and Montemayor).
12

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 13 of 40
1. Plaintiffs' First Cause of Action is Moot as to Those Plaintiffs Who Have Received United States Passports Following the Earlier Denial of Theil' Passport Applications
DOS's actions in issuing United States passports to Garcia and Reyes have ended the controversy between the parties, and therefore mooted these Plaintiffs' claims under the first cause of action in the Fourth Amended Complaint. Garcia and Reyes have received United States passports, and are no longer deprived ofthat benefit ofUnited States citizenship; they have received a beneficial result from the application of the preponderance of the evidence test and therefore the injunctive relief they seek cannot provide them any relief. The possibility that DOS might revoke their passports, or that they will obtain an unfavorable result of the application of the preponderance of the evidence test to future passport applications or renewals, is too speculative to support subject matter jurisdiction. Further. neither the "capable of repetition, yet evading review," exception, nor the exception preventing a defendant's voluntary act from mooting a case applies.
The exception for acts that are "capable ofrepetition. yet evading review" applies where "(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration. and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Federal Election Cornrn 'n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 462 (2007) (quoting Spencer v. Kernna, 523 U.S. 1, 17 (1998)). In the instant case, neither of the prongs is satisfied. First, the challenged action, here the improper application of the preponderance of the evidence standard to applications for United States passports, is not "in its duration too short to be fully litigated prior to cessation or expiration." The first prong is not satisfied because Congress has provided individuals dissatisfied with DOS's application of the preponderance of the evidence test in adjudicating their passport applications with recourse through the judicial system. See 8 U.S.C. § 1503. Plaintiffs correctly note that this is not the sort of direct agency review afforded by the APA. and continue, urging "this Court, or the Fifth Circuit on appeal" to find that the availability of an
13

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 14 of 40
action under 8 U.S.C. § 1503 does not preclude APA review under 5 U.S.C. § 704. This Court refuses to so find, and agrees with other courts in this district that 8 U.S.C. § 1503 is an adequate remedy to challenge DOS's actions when it denies an application for a United States passport. See e.g., Sanchez v. Clinton, Civil Action No. H-11-2084, 2012 U.S. Dist. LEXIS 8074, at * 12 (S.D. Tex. Jan. 24, 2012), Garza v. Clinton, Civil Action No. H-I0-0049, 2010 U.S. Dist. LEXIS 137093, at *~) (S.D. Tex. Dec. 29,2(10), Tavera v. Harley-Bell, Civil Action No. 09-cv-0299. 2010 U.S. Dist. LEXIS 32980, at * 9-10 (S.D. Tex. March 31,2(10); Nelson v. Clinton, Civil Action No. H-I0-0058, 2010 U.S. Dist. LEXIS 134862, at * 27-28 (S.D. Tex. Dec. 21, 2010).
Second, the Court finds that there is not a "reasonable expectation" that Plaintiffs Garcia and Reyes "will be subject to the same action," an improper application ofthe preponderance ofthe evidence test, again. Plaintiffs have not argued that they will ever seek to renew 01' reapply for a United States passport in the future, and only express concern that their passports may be revoked in the future. Dkt. No. 197 at 7-11. In fact, Plaintiffs do not address Defendants' arguments that the "capable of repetition, yet evading review" exception does not apply, except to note in a footnote that they do not invoke the exception "which theory Defendants attempt to preemptively rebut." Dkt. No. U)7 at 11, n.11. The Court finds any suggestion that Garcia and Reyes may in the future face an improper application ofthe preponderance ofthe evidence test to be insufficient to establish a reasonable expectation ofsuch. The Court adopts the reasoning of another district court in Manning v. Rice:
The Court cannot and will not issue such speculative and advisory relief. If Plaintiffs passport is not renewed, and if she has exhausted her administrative remedies as to the denial of that renewaL then she - at that time - will have been denied a right or privilege to which she believes she is entitled and a district court should - at that time - have jurisdiction over her claims. Now is simply not that time.
4:06-CV-464, 2008 WL 2008712, at *3 (E.D. Tex. 2008). Accordingly, the "capable of repetition, yet evading review" exception does not save Garcia's and Reyes's claims under the first cause of action from mootness.
14

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 15 of 40
Similarly, the Court finds the exception to the mootness doctrine preventing a defendant's voluntary act from mooting a case inapplicable to the instant case. The test "for determining whether a case has been mooted by a defendant's voluntary conduct is stringent: 'A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.''' Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968». The "'heavy burden of persuading' the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." Id. When a defendant is a governmental entity, "courts are justified in treating a voluntary governmental cessation of possibly wrongful conduct with some solicitude, mooting cases that might have been allowed to proceed had the defendant not been a public entity." Sossamon v. Lone Star State of Texas, 560 F.3d 316,325 (5th Cir. 2009) affd by _ U.S. _ , 131 S. Ct. 1651 (2011) (citations omitted). "[G]overnment actors in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties. Without evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing." Id .. at 325. Plaintiffs do not address the application of the "voluntary acf' exception to those Plaintiffs whose passports have been issued following an earlier denial of their passport applications, but instead, focus on the application of the exception in situations involving revocations ofpreviously existing passports. Dkt. No. 197 at 2-3. The Court begins its analysis of this exception as applied to Garcia and Reyes by noting that because DOS is a governmental entity, it is afforded the presumption of good faith that its change in the results of the application of the preponderance of the evidence test to Garcia and Reyes was not mere litigation posturing. As Defendants stated in their motion to dismiss and as the Declaration of Jonathan M. Rolbin, Dkt. No. 217, Att. 1 echoes, but for a finding of new evidence that controverts Garcia's 01' Reyes's United States citizenship, "DOS's determination that
15

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 16 of 40
the individuals who are already in possession of a U.S. passport have met their burden of demonstrating U.S. citizenship by a preponderance of the evidence remains unchanged." Dkt. No. 194 at 8; Declaration of Jonathan M. Rolbin, Dkt. No. 217, Au. 1 at 2-3. The Court finds that decisions to issue Garcia's and Reyes's passports were the result of the application of the preponderance of the evidence test to the evidence oftheir citizenship at each instance; although their applications were initially denied, the evidence used in DOS's second application of the test changed, and Garcia and Reyes have received a favorable result.
Considering Defendants' motion and Rolbin's affidavit testimony, as permitted in factual jurisdictional attacks, and affording the Government the presumption of good faith, the Court finds that it is clear that the allegedly wrongful conduct of an improper application of the preponderance of the evidence test, to the extent it ever occurred, is not reasonably expected to recur as to Garcia and Reyes. Other than direct the Court's attention to pending cases or anecdotal accounts of encounters with DOS, Plaintiffs are unable to do more than speculate that their passports will be revoked in the future. As noted above, should Garcia's or Reyes's concerns as to future applications or renewals materialize, they may at that time proceed with actions under 8 U.S.C. § 1503. Accordingly, the "voluntary act" exception does not save Garcia's or Reyes's claims. Therefore, the Court finds Garcia's and Reyes's claims under Plaintiffs' first cause of action are MOOT, and their claims under the first cause of action are DISMISSED for want of subject matter jurisdiction.
2. Plaintiffs' First Cause of Action is Moot as to Plaintiff Ruiz, Who "Vas Successful in Her Individual Action Under 8 U.S.C. § 1503(a)
Ruiz successfully completed her individual action under 8 U.S.C. § 1503(a) on October 1, 2012, when she appeared before this Court at a bench trial and the Court found that she had established by a preponderance ofthe evidence that she is a United States citizen. Ruiz, Dkt. No. 188. Accordingly, she no longer suffers any deprivation
16

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 17 of 40
of the rights and privileges of United Stat()s citizenship, as alleged in the first cause of action and will not benefit from the relief Plaintiffs seek. As Ruiz initiated the action under 8 U.S.C. § 1503, there is no act by Defendants to trigger the "voluntary act" exception to the mootness doctrine. Additionally. the "capable of repetition, yet evading review" exception does not apply because her individual action under 8 U.S.C. § 1503 demonstrates the impossibility of establishing the first prong of the test. \Vith regard to the second prong, it cannot reasonably be expected that DOS will improperly apply the preponderance of the evidence test in evaluating the evidence of her citizenship given that there is a court order finding her to have met her burden of so proving. To that effect, the declaratory relief that flowed from that trial remedies any past injury, and should prevent any future injury. Therefore, the Court finds that Ruiz's claims under the Plaintiffs' first cause of action in their fourth amended Complaint are MOOT, and her claims under the first cause of action are DISMISSED for want of subject matter jurisdiction.
3. Plaintiffs' First Cause of Action is Not Moot as to Those Plaintiffs 'Whose Passports Were Revoked and Later Reissued
DOS's most recent actions in issuing United States passports to Guerrero and Montemayor fail to end the controversy between the parties. Accordingly, the Court finds that Guerrero and Montemayor have standing to seek an injunction, and that their claims under the first cause of action in the fourth amended complaint are not moot.
Defendants move to dismiss Plaintiffs' first cause of action on the grounds that none of the Plaintiffs has standing to assert this cause of action. Dkt. No. 1~)4 at 9-13. Specifically, Defendants argue that Plaintiffs' alleged injuries "are 'conjectural' or 'hypothetical,' not 'actual or imminent.' [sic] and therefore do not satisfy the standing requirement under Lujan." Id., at 10. Defendants base their argument on the injury in fact analysis in City of Los Angeles v. Lyons, 4(H U.S. 95, 109 (1983), in which the United States Supreme Court held that a plaintiff did not have standing to seek an
17

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 18 of 40
injunction against the use of choke holds by police officers because he could not demonstrate a likelihood that he would suffer the same injury in the future. Id. Plaintiffs argue that each individual Plaintiff meets each of the three elements of standing. Id., at 12-16. However, much of their analysis rests on the misperception that standing, including its element ofredressability, is to be determined at the advent of the lawsuit only. Id. Therefore, much of Plaintiffs' argument speaks more to Defendants' mootness allegations. In their reply, Defendants largely reiterate their arguments challenging the ability of Plaintiffs to demonstrate injury in fact and redressability. Dkt. No. 201 at 6-9.
The Court focuses its standing analysis on the injury in fact analysis of Guerrero's and Montemayor's claims and finds Defendants' arguments that Plaintiffs lack standing to seek an injunction unconvincing in light of this Circuit's binding precedent. In Hernandez, the Fifth Circuit considered the application of Lyons to a case in which the INS challenged a plaintiffs standing with regard to injunctive relief after he was admitted to the United States following exclusion. Hernandez, ~n3 F.2d 230. Hernandez, a United States citizen, was not permitted to reenter the United States for 46 days, despite having presented facially valid documentation of his United States citizenship at the port of entry. Id., at 232-233. Although he was eventually permitted entry, he sued INS and several INS officers individually. Id., at 233. All of his claims were eventually dismissed, but the district court issued an injunction "requiring that the INS follow certain minimal procedures when an applicant for entry into the United States presents documentary evidence which, if accepted as authentic, would conclusively establish the applicant's United States citizenship." Id., at 233. On appeal, INS challenged the plaintiffs standing as to this injunction in light of Lyons. Id., at 233. Specifically, INS argued that "Hernandez lacks standing because he has not shown that there is a reasonable likelihood that he will again suffer the alleged deprivation of Fifth Amendment due process that gave rise to this suit." Id. INS continued, arguing that any m)ury he suffered was not redressable by the
18

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 19 of 40
requested relief. and the "capable of repetition yet evading review" exception did not
save his case from being moot. Id., at 233-234 (internal citations omitted).
After discussing Lyons, the Fifth Circuit distinguished Hernandez, and found
that the plaintiff had standing. Id.. at 234. The court stated:
We find a critical factual distinction between Lyons and the instant case which dictate a different result. Hernandez (unlike Lyons) was engaged in an activity protected by the Constitution. Kent u. Dulles, 357 U.S. 116, 126-27.78 S. Ct. 1113, 1118,2 L. Ed. 2d 1204 (1958): Worthy u. United States, 328 F.2d 386,392 (5th Cir.1964). Although at present Hernandez is safely inside the United States, he is a United States citizen and is entitled to travel to and from Mexico without deprivation of his Fifth Amendment due process rights. We think there is at the very least a reasonable expectation that Hernandez will exercise his right to travel. See Honig [v. Doe], 484 U.s. [305] at 318 & n. G, 108 S. Ct. [592] at 601-02 & n. 6. Indeed. Hernandez testified that he would like to return to Mageaxm.ic.o,, but did not 'want to run the risk of something like this happening
The Honig Court observed that for purposes of assessing the likelihood that a defendant will re-inflict a given injury, courts
have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury. See Los Angeles v. Lyons. 461 U.S. 95,105-106,103 S. Ct. 16GO, 166G-16()7. 75 L. Ed. 2d 675 (1983) (no threat that party seeking injunction barring police use of choke-holds would be stopped again for traffic violation or other offense, or would resist arrest if stopped): Murphy v. Hunt. supra, 455 U.S., at 484, 102 S. Ct., at 1184 (no reason to believe that party challenging denial of pre-trial bail "will once again be in a position to demand bail"); O'Shea v. Littleton, 414 U.S. 488, 497, 94 S. Ct. 669, 676, 38 L. Ed. 2d 674 (1974) (unlikely that parties challenging discriminatory bond-setting, sentencing, and jury-fee practices would again violate valid criminal laws).
484 U.S. at 320, 108 S. Ct. at 602 (emphasis supplied). No such reluctance, however, is warranted here. The injury alleged to have been inflicted did not result from an individual's disobedience of official instructions and Hernandez was not engaged in any form of misconduct;
19

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 20 of 40
on the contrary, he was exercising a fundamental Constitutional right.
Id., at 234-235 (footnote omitted). Similarly, Guerrero and Montemayor were not engaging in unlawful conduct
when they suffered their alleged injury, but instead were merely holding a United States passport issued by DOS. Because DOS has reissued their passports, Guerrero and Montemayor have been restored to the same position they were in when their injury first occurred. \Vithout reaching the merits of Plaintiffs' contentions that the DOS in fact improperly applies the preponderance ofthe evidence test, or reaching any decision about the nature ofthe right, privilege, or condition ofholding a United States passport, the Court finds that Plaintiffs have demonstrated that they are likely to suffer the same injury again, especially given the nature of DOS's unilateral decisions to review evidence of a passport holder's citizenship, discussed in detail below. See Declaration of Jonathan Rolbin, Dkt. No. 217, Att. 1 at 3.
Accordingly, the Court finds that Guerrero and Montemayor have pled injury that is sufficiently personal and actual to meet the injury requirement of standing. Taking Plaintiffs' allegations of improper application of the preponderance of the evidence standard as true for purposes of the instant motion, Plaintiffs suffered the revocation of their United States passport as a result of Defendants' actions. The Court finds this injury sufficient, and also finds that this injury is sufficiently traceable to the Defendants.
The Court now turns to Defendants' arguments that Guerrero's and Montemayor's claims under the Plaintiffs' first cause of action have become moot, and finds that the "voluntary act" exception prevents these claims from becoming moot. As noted above, the test for the "voluntary act" exception provides that "[a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. 528 U.S. at 189 (quoting Concentrated Phosphate Export Assn., Inc., 393 U.S. at 203). Even with the presumption of good faith afforded to government defendants, DOS has not met its
20

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 21 of 40
"heavy burden of persuading" the Court that the allegedly improper application ofthe
preponderance of the evidence test in DOS's decision to revoke existing passports
"cannot reasonably be expected to start up again."
Defendants retain nearly plenary review of a passport holder's citizenship once
a passport has been issued.;! Guerrero and Montemayor have once suffered the
3In a similar case in which this Court considered a substantially identical declaration by Jonathan M. Rolbin, this Court noted:
The distinction between a revocation and a denial and subsequent issuance should not be overlooked. The critical difference rests on the Court's finding that in cases involving revocations of passports, there appears to be ongoing review of the evidence of a holder's status.
In the Court's order of September 12, 2012, the Court ordered Defendants to answer three questions. Dkt. No. 174 at 2-3. The first of these questions asked "[w]hat are the criteria for determining whether DOS will reevaluate a decision to issue a passport made on the grounds that the individual has met his burden of proof of United States citizenship under 22 C.F.R. § 51.40?" Id., at 2. In response, Rolbin stated, "DOS reevaluates the decision to issue a passport when it subsequently learns of new evidence that was not before it at the time of passport issuance and sufficiently contradicts the individual's claim to U.S. citizenship, or that presents another ground to reevaluate the decision to issue a passport." Dkt. No. 178, Declaration of Jonathan M. Rolbin at 2, p. 2. The Court reads this statement to say that, once DOS issues a passport. the decision to so issue the passport is left semi-open, subject to DOS revoking the passport in the future on the basis of new evidence controverting the holder's citizenship. However, in cases in which an individual's passport application is denied, such decision is final unless the applicant re-engages DOS and provides new evidence in support of her citizenship. Id., at 2, p. 4 ("In addition to reevaluations that occur in the context of litigation, DOS also reevaluates an individual's application in other situations. For example, at any time following a denial, an applicant may always submit a new application, and may include any evidence not previously provided. Any application, even one previously denied, is always re-adjudicated in full based on the evidence presented and available at the time ofthat application."). Thus, the distinction between a revocation of an existing passport and an issuance on a previously denied passport application is the scope ofDOS's ability to continue to evaluate evidence of an applicant's or holder's citizenship; in the former DOS retains plenary authority to conduct
21

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 22 of 40
revocation of their passports following DOS's finding that they had established by a preponderance of the evidence that they were United States citizens upon first issuance of their passports. Defendants fail to carry their burden of establishing that they will not again revoke Guerrero's or Montemayor's passports on the basis of an allegedly improper application of the preponderance of the evidence test. 'Where the possibility of a wrongful revocation was purely speculative as to Garcia and Reyes, Guerrero and Montemayor have pled sufficient facts and allegations, taken as true for the purposes of the instant motion, that render their concerns more than mere conjecture. Since DOS has allegedly improperly revoked Guerrero's and Montemayor's passports on the basis of an allegedly improper application of the preponderance ofthe evidence standard, Defendants bear the burden to demonstrate that its issuance of their passports makes it clear that such improper application ofthe test and revocation cannot reasonably be expected to recur. Accordingly, the Court reiterates its finding above that Plaintiffs have demonstrated that they are likely to suffer the same injury again, especially given the nature of DOS's unilateral decisions to review evidence of
almost rolling review ofthe evidence ofa holder's citizenship (as appeared in Gnerrero), whereas in the latter, DOS engages in episodic review of evidence of an applicant's citizenship. This distinction is crucial to the voluntary act exception analysis in that episodic review does not permit DOS to return to previous conduct; there is no ongoing evaluation. However, in the cases involving revocation, once a revocation has occurred, as in Guerrero, the issuance of passport following revocation is a return to the semi-open status in which a holder's status is constantly under review. At that point, DOS's conduct in its evaluation is being "returned to" and, unless the Defendant can demonstrate with absolute clarity that a return to any allegedly wrongful analysis ofthe evidence of a holder's citizenship cannot reasonably be expected to recur, such voluntary act of issuing a passport to an individual whose passport was previously revoked does not moot a case.
Garcia, Dkt. No. 188 at 12-14. The Court adopts its earlier reasoning and finds the difference between a
revocation and an issuance after earlier denial dispositive of the "voluntary act" analysis.
22

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 23 of 40
a passport holder's citizenship. Accordingly, the Court finds that should Guerrero and Montemayor prevail on the merits, their injury is redressable by an injunction that speaks to DOS's application of the preponderance of the evidence standard. Finding that Guerrero and Montemayor each have standing to assert their claims under the first cause of action and that their claims have not become moot, the Court DENIES Defendants' motion to dismiss as to them.
III. Defendants' Motion to Dismiss Seventh Cause of Action In Plaintiffs' Fourth Amended Complaint
In Plaintiffs' seventh cause of action, Plaintiffs complain of a pattern or practice of employing unlawful tactics at ports of entry when questioning U.S. citizen claimants about their citizenship claim. Defendants' interrogation tactics are cruel, inhumane and degrading because, among other things, persons are denied access to counseL and subjected to lengthy periods of detention and interrogation, and deprivation of food, water and access to bathroom facilities.
Dkt. No. 167 at 38-3B. Plaintiffs continue, stating that "[s]uch actions violate the Citizenship Clause ofthe Fourteenth Amendment, the Due Process Clause ofthe Fifth Amendment, the Convention Against Torture and Other CrueL Inhuman, or Degrading Treatment or Punishment, Art. 3, S. Treaty Doc. No. 100-20, P.20, 1465 U.N.T.S 85 at 42 U.S.C. § 2000dd-0." Id., at 39.
As remedy for their cause of action, Plaintiffs request" that the Court 11) Declare that in adjudicating an application for a U.S. passport, the fact that a birth certificate was not promptly filed in the U.S., or reflects
4
The Court again notes that Plaintiffs request twenty-one separate forms of relief in their Fourth Amended Class Action Complaint for Declaratory and Injunctive Relief, but do not specify the exact relief that corresponds to each cause of action. Dkt. No. 167 at 40-45. For the ease of analysis the Court generalizes the relief requested as to this cause of action to be declaratory and injunctive relief speaking to the treatment of individuals claiming United States citizenship when seeking to enter the United States at a port of entry. However, the Court makes no finding and issues no opinion as to the availability or propriety of each specific form of relief sought.
23

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 24 of 40
delivery by a midwife 01' under other non-traditional circumstances, can be considered in deciding whether to request additional evidence of the person's birth in the U.S., but that such facts do not constitute evidence that the individual was not born in the U.S. for purposes of applying the preponderance of the evidence test. 12) Declare that applicants for entry into the United States who hold facially valid documents reflecting United States citizenship are entitled to fair procedures in determining whether they will be allowt'd to enter, 01' placed in proceedings under 8 U.S.C. § 122D, including but not limited to the right to be represented by counsel, and to be free from interrogation tactics which violate the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Art. 3, S. Treaty Doc. No. 100-20, p.20, 1465 U.N.T.S. 85 and 42 U.S.C. § 2000dd-0.
1D) Issue an injunction limiting the interrogation tactics DRS and DOS officers at ports of entry may utilize in cases of where the officer questions the U.S. citizen claimant, or their parents, about birth within the United States. Specifically, Plaintiffs request an injunction which:
• establishes their right to counsel in such encounters; • sets a limit of no more than two hours that they may be detained and interrogated; • prohibits using threats, including but not limited to threatened detention, 01' criminal prosecution, as a means of obtaining a "confession" of alienage or fraudulent registration, or withdrawal of an application for entry as a United States citizen; • prohibits the use of lies as a means of obtaining such a "confession" or withdrawal of an application for entry as a United States citizen; • guarantees humane conditions during such encounters; and • mandates that persons with facially valid documents showing United States citizenship not be subjected to expedited removal and, ifput in removal proceedings under 8 U.S.C. § 122D, and if hearings as to their right to enter or to possess any documents which were seized cannot be conducted within 72 hours, and absent clear indications that the person is a flight risk, andlor a threat to the community 01' national security, slhe will be given a multiple entry document, as "nationality unknown," and have all confiscated documents returned; · mandates that the parents of applicants for entry with facially valid documents showing birth in the United States not be subjected to expedited removal or other sanctions on the grounds that they allegedly committed fraud in registering their children
24

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 25 of 40
as born in the U.S., and that any evidence developed during or as a result of such an encounter not be used against them for any purpose, unless and until such time as the citizenship of the applicant has been finally determined; and • requires DRS and DOS to provide adequate training and supervision with respect to the treatment of U.S. citizenship claimants, and their parents, at the ports of entry.
Id., at 41-42, 43-44. In this Court's order of November 22,2011, the Court noted that "[t]o the extent
Plaintiffs are invoking the UNCAT and the DTA, the Court finds that the Court does not have jurisdiction over these claims because these laws do not provide for private causes of action." Dkt. No. 190 at 14. Further, the Court found that Laura had standing to assert the seventh cause of action. Id., at 15.
A. Parties' Arguments On July 5, 2012, Defendant United States Customs and Border Protection ("CBP") filed Defendants' Motion to Dismiss Seventh Cause of Action in Plaintiffs's Fourth Amended Complaint. Dkt. No. 206. In its motion, CBP argues that the Court lacks jurisdiction over the seventh cause of action because neither Garcia, Yuliana, or Laura have standing to assert it. Dkt. No. 206 at 6-~). Specifically, CBP argues that neither Garcia nor Yuliana have standing because when they attempted to enter the United States they did not present United States passports, were therefore processed as aliens seeking entry to the United States, and as such, were not entitled to any due process rights that they claim were violated. Id. With regard to Laura, CBP takes issue with this Court's earlier ruling that Laura has standing to assert the seventh cause of action, see Dkt. No. H)O at 14-15, resting largely on City of Los Angeles v. Lyons for the conclusion that her concerns of future harm are speculative and she is therefore without standing to seek an injunction. Dkt. No. 20(i at 7, n. 3. Defendant additionally moves for judgment on the pleadings with regard to the Plaintiffs' seventh cause of action. Id., at 9-13. Specifically, CBP argues that Yuliana
25

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 26 of 40
and Garcia have failed to state a claim upon which relief can be granted because they were not entitled to due process protections when they sought entry into the United States allegedly as aliens. Id., at 9. As to Laura, CBP argues that her claims do not state a claim for relief, because CBP has the authority to stop and question individuals as to their right to enter the country, even when claiming United States citizenship and showing a United States passport, because the amount of time she claims to have been detained is insufficient to establish a violation of due process, because the use of compulsive questioning is not in itself a constitutional violation, because her claims that she and her family were treated inhumanely are conclusory, and because her claims that she was denied access to counsel fail because there is no due process right to counsel in civil questioning. Id., at 10-13.
On July 24,2012, Plaintiffs filed Plaintiffs' Opposition to Defendants' Motion to Dismiss Seventh Cause of Action in Plaintiffs' Fourth Amended Complaint (Docket #206), Dkt. No. 207. In their response, Plaintiffs argue that each of the three Plaintiffs asserting the seventh cause of action has standing to do so. Dkt. No. 207 at 1-(). Specifically, Plaintiffs note the Court's previous ruling that Laura has standing to assert this cause of action and argue that there is "no material difference between her situation and the situations of Plaintiffs Yuliana Castro and Jessica Garcia." Dkt. No. 207 at 3. Further, Plaintiffs argue that the Constitution and its protections do apply at the border, extending to United States citizens and non-citizens alike to protect against mistreatment by United States officials. Id., at 3-5.
Plaintiffs additionally argue that they have stated a claim upon which reliefmay be granted. Specifically, they argue that the Constitution's due process protections applied to each ofthe three ofthem at the border, notwithstanding whether 01' not they had a United States passport at the time they sought entry. Dkt. No. 207 at 6. Further, they argue that Defendants' behavior toward them during their detentions states a claim upon which relief may be granted for a violation of due process. Id" at
6-~).
On July 25,2012, Plaintiffs filed Plaintiffs' Amended Opposition to Defendants'
26

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 27 of 40
Motion to Dismiss Seventh Cause of Action in Plaintiffs' Fourth Amended Complaint (Docket #206). Dkt. No. 208. The only change in this document from Plaintiffs' Opposition to Defendants' Motion to Dismiss Seventh Cause of Action in Plaintiffs' Fourth Amended Complaint (Docket #206), Dkt. No. 207. was in the first full paragraph on page numbered ~), in which Plaintiffs articulate the specifics about the injunction they seek. Additionally, on July 26,2012, Plaintiffs filed sealed Exhibit "G" in Support ofPlaintiffs' Amended Opposition to Defendants' Motion to Dismiss Seventh Cause ofAction in Plaintiffs' Fourth Amended Complaint (Docket #2(6). Dkt. No. 2m).
On August 1. 2012, Defendant filed its Reply in Support of Defendants' Motion to Dismiss Seventh Cause ofAction in Plaintiffs' Fourth Amended Complaint. Dkt. No. 210. In its reply, CBP again argues that Yuliana and Garcia were attempting to enter the United States as aliens due to their failure to comply with the Western Hemisphere Travel Initiative's ("vVHTI") requirement that United States citizens present United States passports for entry into the United States, even from Mexico. Dkt. No. 210 at 2-4. Accordingly, CBP argues, Plaintiffs' seventh cause of action should be dismissed with regard to them. Id., at 4. Additionally, CBP again argues that Laura has failed to state a due process violation in the Fourth Amended Complaint, and that the attachment to Plaintiffs' Response of Plaintiffs' earlier statements, previously Docket No.2, are not properly before the Court. Id., at 4-6.
B. Standards of Review 1. Motions Filed Under Federal Rule of Civil Procedure 12(b)(I) The recitation of the applicable standard of review in evaluating a motion filed under Federal Rule of Civil Procedure 12(b)(1) provided infra at 10-11 is incorporated by reference.
27

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 28 of 40
2. Motions Filed Under Federal Rule of Civil Procedure 12(c) Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." FED. R. CIV. P. 12(c). The applicable standard of review in evaluating a motion filed under Federal Rule of Civil Procedure 12(c) is the same as that applicable to a motion filed under 12(b)(6). Chazwin u. State Farm Fire & Cas. Co.. 495 F.3d 232, 237 (5th Cir. 2007). "A motion to dismiss under Rule 12(b)«() is not appropriate unless the plaintiffs pleadings on their face show, beyond a doubt, that the plaintiff cannot prove any set of facts sufficient to entitle him to relief." Motient Corp. u. Dondero, 52~) F.3d 532,535 (5th Cir. 2008). When reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), Fifth Circuit law dictates that a district court must accept all wellpleaded facts as true and view them in the light most favorable to the plaintiff. See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000); Bal?er u. Putnal, 75 F.3d 190, 1~)() (5th Cir. U)D(). For a complaint to be sufficient, "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action ...." Bell Atlantic Corp. u. Twombly, 550 U.S. 544, 555 (2007). "A complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). A court, in evaluating a plaintiffs complaint in light of a defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)«() may "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth:' Id., at 679. Then the court may determine whether the plaintiffs well-pleaded facts allow the court to infer the plausibility of misconduct." See Id. "Factual allegations must be enough to raise a right to relief above a speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (internal citations omitted). "A claim has facial plausibility
28

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 29 of 40
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.
Although the Court must construe the factual allegations in favor of the Plaintiff, the Court must not "look beyond the face of the pleadings to determine whether relief should be granted based on the alleged facts." Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). "In considering a motion to dismiss for failure to state a claim, a district court must limit itself to the contents of the pleadings, including attachments thereto." Collins, 224 F.3d at 498; See FED. R. ClV. P. 12(b)(6).
C. Legal Analysis The WHTI, the Department of Homeland Security's implementation of the Intelligence Reform and Terrorism Prevention Act of2004, Pub.L. No. 108-458, § 7209, 118 Stat. 3638, 3823-24 (2004), provides that all citizens must present a United States passport. United States passport card, Enhanced Driver's License, or Trusted Traveler Program Card as of June 1. 2009 to gain entry into the United States. Further, it is unlawful "for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport." 8 U.S.C. § 1185(b). The Court finds that Laura, Yuliana, and Garcia have adequately pled facts that support their assertions that they are United States citizens. These facts are taken as true for the purposes of the instant motion. However, when Garcia and Yuliana applied for entry to the United States, each presented a Texas birth certificate, Texas ID, and receipt for a United States passport application." Dkt. No. 208 at 2.
Although Garcia and Yuliana may have presented facially valid documents evidencing United States citizenship, these documents did not comply with the vVHTI and were therefore insufficient for entry into the United States as a citizen. In light of the implementation of the \VHTI, Hernandez can no longer stand for the proposition that the presentation of facially valid documents evidencing United States citizenship is
29

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 30 of 40
Regardless of their intEmt as to th(~ir status in applying for entry into the United States, their failure to comply with the WHTI, as well as other applicable statutes and regulations, caused them to be classified and inspected as aliens seeking admission into the United States.
The Court reads Plaintiffs' seventh cause of action in their Fourth Amended Complaint in the light most favorable to them as asserting violations of the Fifth Amendment's Due Process Clause and the Fourteenth Amendment's Citizenship Clause for denial of access to counsel, for failure to consider Yuliana and Garcia for application of waivers to the passport requirement, for the length of the detentions of Yuliana, Laura, and Garcia through secondary inspection, and for the use ofinhumane interrogation tactics. For the ease of analysis the Court separatE~s its discussion of each ofthese alleged violations, first addressing Defendant's standing arguments and then, if necessary, addressing Defendant's arguments that Plaintiffs have failed to state a claim upon which relief may be granted.
1. Plaintiffs Allege They \Vere Denied Access to Counsel in Violation of the Constitution
The Court finds that all three Plaintiffs have standing to assert a claim that they were unconstitutionally denied access to counsel during their detentions through secondary inspection. As stated above, standing requires that a plaintiffhave suffered an injury in fact, that the injury must be fairly traceable to the defendant's conduct and it must be likely that the injury will be redressed by a favorable court decision. Lujan, 504 U.S. at 560-561. To demonstrate "injury in fact," Plaintiffs must establish "an invasion of a legally protected interest which is (a) concrete and particularized .. . and (b) actual or imminent. not conjectural 01' hypothetical." Id., at 5()O.
Plaintiffs allege they were denied access to counsel during their detentions.
sufficient for entry into the United States. However, the Court sees no reason to question the continued validity of the remainder of the holding in Hernandez.
30

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 31 of 40
·Without addressing the merits, the Court finds that if there is truth to this assertion, they have suffered an actual and personal injury. Further, this injury is traceable to the Defendant in that Defendant is the entity that caused the allegedly unlawful deprivation of access to counsel.. Finally, the requested injunction would redress this injury, and each of these three Plaintiffs could benefit from it. Accordingly, Laura, Yuliana, and Garcia each have standing to assert this claim under the first cause of action.
The Court turns to Defendant's arguments that Plaintiffs have failed to state a claim upon which relief may he granted. The Court finds that Plaintiffs were at no point entitled to counsel during the events at issue. Defendant argues that the questioning at issue "related to [their] admissibility into the United States, and was therefore civil in nature, and no due process right to counsel attached during [their] questioning." Dkt. No. 13, n5. More to the point, 8 C.F.R. 292.5(b) expressly provides that "nothing in this paragraph shall be construed to provide any applicant for admission in either primary or secondary inspection the right to representation, unless the applicant for admission has become the focus of a criminal investigation and has been taken into custody." Although at least Yuliana and Garcia were inspected as aliens despite claiming United States citizenship, and notwithstanding the criminal nature of 8 U.S.C. § 1185(b), at no time does any party allege that they were the subject of any criminal investigation. Further, they do not fall under any of the exceptions to the classification of an "applicant for admission" under 8 U.S.C. § 1101(a)(13)(C)(iii). Thus, they were not entitled to counsel during their respective detentions through secondary inspection. Accordingly. Plaintiffs have not stated a claim upon which relief may be granted, and thus Defendant's motion is GRANTED and this claim is DISMISSED WITH PREJUDICE.
31

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 32 of 40
2. Yuliana and Garcia \Ven~ Not Considered for vVaivers to the Passport Requirement
As to the claims that Plaintiffs were entitled to be considered for waivers to the passport requirement, the Court finds that Laura does not have standing to assert this claim because she presented a passport when she applied for entry, and thus she did not suffer an injury or denial of consideration for a waiver.
Yuliana and Garcia have been issued passports. Thus, notwithstanding any injury that they may have suffered when they were not considered for application of the waiver provisions, Yuliana and Garcia cannot benefit from an injunction from this Court addressing these provisions. Even if the Court were to grant the requested injunction including the application of the waiver provision, there is no reason to believe that Yuliana or Garcia will ever find themselves in this situation again. Even ifthey exercise their right to travel in the future, there is no reason to believe they will seek to do so without presenting their passport. in violation offederal law. Accordingly, their claims regarding the application of the waiver provisions are moot. thereby defeating their standing as to this claim.
Because none of the three Plaintiffs asserting the seventh cause of action have standing to assert the claim that they should have been considered for the waiver provision, Defendant's motion to dismiss is GRANTED and this claim is DISMISSED for want of subject matter jurisdiction. This ruling shall have no bearing on any potential class members should the Plaintiffs seek class certification
3. Length of Detentions through Secondary Inspection Plaintiffs have alleged that they suffered due process violations the ten hour detention through secondary inspection of Laura and Yuliana, and the unstated duration ofGarcia's detention through secondary inspection. Dkt. No. 167 at 13,19-22. Taking the Plaintiffs' pleaded facts as true, they suffered actual. personal injuries in being detained through secondary inspection. This injury is unquestionably traceable to Defendant. Finally, Lyons and Hernandez taken together demonstrate that the
32

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 33 of 40
Plaintiffs can benefit from the injunction they seek because they note that they have continued to travel to Ivlexico and are thus likely to attempt to exercise their right to travel in the future. Accordingly, each Plaintiff has standing to assert a violation arising from the length of her respective detention through secondary inspection.
However, the Court finds that Plaintiffs have failed to state a claim upon which relief may be granted as to the lengths of time Plaintiffs allege to have been detained in secondary inspection. Citizens and non-citizens alike may be detained for inspection at the border when seeking entry without violating the Constitution. See U.S. v. Garcia, 616 F.2d 210, 211 (5th Cir. 1980). Further, the Fifth Circuit has upheld an injunction applicable to a different port of entry in which it held that detentions of up to 24 hours for the purposes of determining an individual's citizenship was acceptable. Hernandez, 913 F.2d at 23~). Accordingly, Plaintiffs' detentions for ten hours and an unspecified duration are insufficient to state a claim for a due process violation. Thus the Defendant's motion to dismiss is GRANTED, and the claim that the lengths of Plaintiffs detentions violated thL~ Constitution is DISMISSED WITH PREJUDICE.
4. Inhumane Intel'l'ogation Tactics Defendants have challenged Plaintiffs assertions regarding inhumane treatment, arguing that Plaintiffs complaint states no more than conclusory allegations, unsupported by facts. Dkt. No. 206 at 11. Plaintiffs' seventh cause of action states, in relevant part, "Defendants' interrogation tactics are crueL inhumane and degrading because, among other things, persons are denied access to counseL and subjected to lengthy periods of detention and intel'l'ogation, and deprivation of food, water and access to bathroom facilities." Dkt. No. 167 at 3~). The Court finds that this allegation is not an unsupported legal conelusion; instead, Plaintiffs state the legal conclusion that Defendant's practices at the border are inhumane, and support that conclusion by alleging the facts that Defendants deny individuals access to counsel, subject individuals to long detentions and interrogations, and deprive individuals of food, water, and bathroom facilities. ld. As noted above,
33

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 34 of 40
Plaintiffs were not entitled to counsel during their secondary inspection. Additionally, the lengths of Plaintiffs detentions and interrogations do not state a claim upon which relief can be granted for a violation of due process. Although Plaintiffs fail to give any specifics as to the occurrences of the denial offood, water, and bathroom facilities with regard to Laura, Yuliana, or Garcia, the Court finds that Plaintiffs have just barely pushed their allegations ofinhumane interrogation tactics over the "facial plausibility" threshold, and that the Court may draw a reasonable inference that the Defendant is liable for the alleged misconduct.6 See Iqbal, 556 U.S. at ()77-678.
The Court finds that Laura, Yuliana, and Garcia each have standing to assert the claim that they were unconstitutionally subjected to inhumane interrogation tactics. \Vithout looking to the merits, if their allegations that they were denied food, water, and access to bathroom facilities are true, they have actually and personally suffered an injury which is fairly traceable to the Defendant, and is capable of redress by the injunction they seek.
The Fifth Circuit has held that "whatever due process rights excludable aliens may be denied by virtue oftheir status, they are entitled under the due process clauses of the fifth and fourteenth amendments to be free of gross physical abuse at the hands of state or federal officials." Lynch v. Cannatella, 810 F.2d 13G3, 1374 (5th Cir. 1987). Because Plaintiffs claim that the mistreatment they allegedly suffered was at the hands of federal officers, the Fifth Amendment provides the protection. Thus,
6
The Court notes that it is limited to consideration of the contents of the pleadings and attachments or incorporations by reference in the complaint. See Collins v. Morgan Stanley Dean Witter., 244 F.3d 4~)G, 4~)8-4~)9 (5th Cir. 2000). The Court does not consider the attachments to Plaintiffs' response to Defendant's motion to dismiss. Although these attachments were included earlier in the record as attachments to the Plaintiffs' first complaint, they were not attached to the live complaint, nor were they incorporated by reference or cited in the live complaint. Further, the Court declines to convert the instant motion to dismiss under Rule 12(c) into a motion for summary judgment under Rule 5G, given the lack of notice.
34

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 35 of 40
notwithstanding the fact that at least two of th(~ Plaintiffs were inspected as aliens, they were all still entitled to these constitutional protections.
As the Supreme Court has explained, when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself. and at the same time fails to provide for his basic human needs -- e. g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.
Deshaney v. Winnebago County Dept. of Social Services, 489 U.S. 18~), 200 (1~)89) (citations omitted). Other courts have found that the right to urinate and/or defecate is a fundamental right protected by the due process clause. Glaspy v. Malicoat, 134 F.Supp.2d 890,895 ("V. MI. 2(01) (citing West v. Dallas Police Dept., No. Civ. A. 3-~)5 CV-1347P, 1997 U.S. Dist. LEXIS 23900, at *20, U)97 \VL 452727 (N.D. Tex. July 31, 1997) (finding that "an individual's ability to urinate 01' defecate in reasonable privacy is clearly established as a right which affords Fourteenth Amendment protection."». The Court adopts this reasoning and these findings, and finds that because Plaintiffs' liberty was restricted during secondary inspection, Defendant had a responsibility to provide for 01' facilitate Plaintiffs' providing for their basic human needs. Accordingly, their statements that they were denied food, water, and access to bathroom facilities state a claim upon which relief may be granted, and Defendant's motion to dismiss is DENIED as to this claim.
IV. Department of State's Opposed Motion to Quash Depositions and For Entry of a Protective Order
A. Parties' Arguments On May 14, 2012, DOS filed Department of State's Opposed Motion to Quash Depositions and For Entry of a Protective Order, Dkt. No. 195. In this motion, Defendant argues that Plaintiffs have served three deposition notices on DOS seeking to depose Jonathan Rolbin, Director of Legal Affairs and Law Enforcement Liaison,
35

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 36 of 40
Bureau of Consular Affairs/Passport Services, Department of State, as well as, pursuant to Federal Rule of Civil Procedure 30(b)(G), officers from the Houston Passport Agency and the Charleston Passport Center. Dkt. No. 19;"5 at 1. Defendant argues that the information Plaintiffs seek through these depositions is overly broad. Id., at 1-2. Specifically, Defendants argue that Plaintiffs should not be permitted to seek information unrelated to those Plaintiffs who have standing to assert the remaining causes of action. Id., at G-7. Further, Defendants argue that Plaintiffs should not be allowed to seek information regarding any potential classes "unless and until a class is certified." Id., at 8-D. As a remedy, Defendant requests that the three depositions be quashed and the Court enter a protective order limiting the scope of permissible discovery. Id., at 9-10.
On June 4, 2012, Plaintiffs filed Plaintiffs' Response to Defendant State Department's Opposed Motion to Quash Depositions and for Entry of a Protective Order, Dkt. No. 198. In their response, Plaintiffs argue that the scope of discovery is broad, and that all of their requested discovery relates to the remaining claims and those of potential future classes. Dkt. No. 198 at 2-7. Specifically, Plaintiffs argue that a degree of discovery into the merits ofthe case must be permitted so as to afford Plaintiffs the opportunity to define the scope of any proposed class. Id., at 5-7.
On June 25,2012, Defendant filed its Reply in Support of Department of State's Opposed Motion to Quash Depositions and for Entry of a Protective Order, Dkt. No. 200. In its reply, Defendant reiterates its arguments that the discovery sought is overly broad and burdensome. Dkt. No. 200 at 2-(). Defendant argues that Plaintiffs' requested depositions will seek information unrelated to the claims of any Plaintiff with standing, and that Plaintiffs have failed to demonstrate how any of the information sought will help establish any of the requirements for class certification under Federal Rule of Civil Procedure 23. Id.
36

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 37 of 40
B. Standard of Review Federal Rule of Civil Procedure 2G(b)(1) states that the scope of discovery provides that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." FED. R. ClV. P. 26(b)(I). Further, "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." The "trial court enjoys wide discretion in determining the scope and effect of discovery." Sanders v. Shell Oil Co., 678 F.2d 614, 618 (5th Cir. 1982) (citation omitted). The scope of discovery has been construed broadly, however, it is not without limits. Oppenheimer Fund u. Sanders, 437 U.S. 340, 350-352 (1978). "[I]t is proper to deny discovery of matter that is relevant only to claims or defenses that have been stricken, or to events that occurred before an applicable limitations period, unless the information sought is otherwise relevant to issues in the case." Id., at 352. The Court must limit discovery when it finds that 1) "the discovery sought is unreasonably cumulative or duplicative, 01' can be obtained from some other source that is more convenient, less burdensome, or less expensive:" 2) "the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or" 3) "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance ofthe issues at stake in the action, and the importance ofthe discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C)(i),(ii),(iii).
C. Legal Analysis Defendant DOS argues that "allowing the broad discovery sought by Plaintiffs will result in undue burden or expense to DOS, while providing minimal value to those Plaintiffs with ripe claims." Dkt. No. 195 at 7. However, Defendant does not elaborate on this burden. In fact, all of the information sought by Plaintiffs relates directly to the first cause of action, specifically the evidence considered, the weight afforded particular types of evidence, and the source of evidence, in Defendant's application of
37

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 38 of 40
the preponderance of the evidence test to the evidence of an applicant's 01' passport holder's citizenship. See Dkt. No. 1D5, Ex. 1. at 3, 7-D, 12-14.
Plaintiffs, as masters of their complaint, are entitled to fashion the scope of any proposed class. Plaintiffs have filed two motions for class certification, Dkt. Nos. 156 and 171, however, the Court has not reached the merits of Plaintiffs' arguments because each motion was denied as moot. Dkt. Nos. 158, 190. No motion for class certification is currently pending. Federal Rule of Civil Procedure 23 does not provide a specific time limit as to when a party must moVE:~ and the Court must rule on certification of a class. See FED. R. CIV. P. 23(c)(1)(A). Notwithstanding the fact that the case was initially filed more than three years ago, Plaintiffs may still seek to certify a class based on the remaining claims and causes of action in the instant case. Thus, Plaintiffs are entitled to the discovery they seek. See P£ttman v. E. 1. Du Pont de Nemours & Co., 552 F.2d 14~), 150 (5th Cir. 1977) ("[A] certain amount of discovery is essential in order to determine the class action issue and the proper scope of a class action. The plaintiff is entitled to some leeway in attempting to define the proper parameters of his proposed class."). Further, the Court finds none of the situations under Federal Rule of Civil Procedure 26(b)(2)(C) applicable. Accordingly, Department of State's Opposed Motion to Quash Depositions and For Entry of a Protective Order, Dkt. No. 1D5, is DENIED.
v. Conclusion
1. Plaintiffs Trinidad Muraira de Castro, Ana Alanis, Ervey Lorenzo Santos are TERMINATED as named plaintiffs, and Jenifer Itzel Gonzalez IS TERMINATED as both a named plaintiff and potential class member.
2. Plaintiffs['] Unopposed Motion to [sic] an Extension of Time, to and Including June 4, 2012, in Which to File Their Opposition to Defendants' Motion to Dismiss Cause ofAction One in Plaintiffs' Fourth Amended Complaint, Dkt. No. 1D(), is GRANTED, and the Court GRANTS deems Plaintiffs' Opposition to
38

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 39 of 40
Defendants' Motion to Dismiss Cause of Action One In Plaintiffs' Fourth Amended Complaint, Dkt. No. 1D7, to be timely filed. 3. Defendants' Motion to Dismiss Cause of Action One In Plaintiffs' Fourth Amended Complaint, Dkt. No. U)4, is GRANTED IN PART AND DENIED IN PART. This motion is GRANTED as to Plaintiffs Garcia and Reyes, because DOS's actions in issuing United States passports to Garcia and Reyes have ended the controversy between the parties, and therefore mooted these Plaintiffs' claims under the first cause of action in the fourth amended complaint. This motion is GRANTED as to Plaintiff Ruiz, because her individual action under 8 U.S.C. § 1503(a) resulted in a determination that she has proved by a preponderanct~ of the evidence that she is a United States citizen, thus her claims have become moot. This motion is DENIED as to Plaintiffs Guerrero and Montemayor, because they each have standing to assert the first cause of action and DOS's reissuance of their passports following its earlier revocation does not moot their claims. 4. Defendants' Motion to Dismiss Seventh Cause of Action in Plaintiffs's Fourth Amended Complaint, Dkt. No. 206: is GRANTED IN PART AND DENIED IN PART. This motion is GRANTED as to Laura's, Yuliana's, and Garcia's claim that they were denied access to counsel because they have failed to state a claim upon which relief may be granted. This motion is GRANTED as to Garcia's and Yuliana's claim that they were denied due process when they were not considered for a waiver to the passport requirement because they have been issued passports and this claim is now moot. This motion is GRANTED as to Laura's, Yuliana's, and Garcia's claims that the lengths of their detentions violated due process because they have failed to state a claim upon which relief may be granted, and this motion is DENIED as to Laura's, Yuliana's, and Garcia's claim that they were subjected to inhumane interrogation tactics in violation of due process.
39

Case 1:09-cv-00208 Document 221 Filed in TXSD on 12/07/12 Page 40 of 40
5. Department of State's Opposed Motion to Quash Depositions and For Entry of a Protective Order. Dkt. No. 195, is DENIED.
6. The Court RESETS the deadlines in this case as follows: Discovery as to class certification must be completed by February 5. 2013. Plaintiffs must submit a motion for class c(:'ltificationi , if at all, by March 7. 2013. Discovery must be completed by March 7,2013. Dispositive motions must be filed by April 8, 2013. Joint Pretrial Order is due by June 1L 2013. Docket Call and Final Pretrial Conference will be June 25. 2013 at 1:30 p.m.
1 DONE at Brownsville, Texas, on December ,2012.
Hilda G. Tagle United States District Ju
Should Plaintiffs seek to file a motion in which they seek class certification. the Court will employ the relation-back doctrine. See Sosna v. Iowa, 419 U.S. 3~)3, 402 n.11 (1975). Accordingly, the rulings of this Court as to any and all of the eight causes of action in the live Complaint are limited as to those named individuals who advanced those causes of action. See Cruz v. Hauch. 627 F.2d 710,717-719 (5th Cir. 1980).
40

 
 Case 1:09-cv-00208 Document 227 Filed in TXSD on 03/15/13 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

Laura Nancy CASTRO,

)

Yuliana Trinidad CASTRO,

)

Jessica GARCIA,

)

Luis MONTEMAYOR,

)

Ana Luisa GUERRERO,

)

Alicia RUIZ,

)

Maria REYES,

)

)

PLAINTIFFS, In Their Own

)

Names and On Behalf of All Others Similarly Situated, )

)

v.

)

)

Michael T. FREEMAN, Port Director,

)

U.S. Customs and Border Protection, and

)

John KERRY, U.S. Secretary of State,1

)

Janet NAPOLITANO, Secretary, Department of

)

Homeland Security,

)

)

DEFENDANTS.

)

________________________________________________)

Civil Action No. B-09-208 Honorable Hilda G. Tagle

PLAINTIFFS’ OPPOSED THIRD MOTION FOR CLASS CERTIFICATION Plaintiffs, through undersigned counsel, hereby move this Court pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure for an order that this action may be maintained as a class action, and in support state: 1. On December 7, 2012, the Court granted in part and denied in part Defendants’ motion to dismiss the First Cause of Action and its motion to dismiss the Seventh Cause of Action, [221]. The Court found Plaintiffs’ First Cause of Action moot as to plaintiffs who had received

1

Pursuant to Federal Rule of Civil Procedure 25(d), Secretary of State John Kerry is

automatically substituted for his predecessor, Hillary Clinton.

1

Case 1:09-cv-00208 Document 227 Filed in TXSD on 03/15/13 Page 2 of 5
passports following the earlier denial of their passport applications, [221, 13-16]. The Court further ordered Plaintiffs to file a motion for class certification by March 7, 2013, and noted that the Court would employ the relation-back doctrine, [221: 40 n.7]. Following a stipulation by the parties, the Court extended the motion deadline to March 15, 2013, [226].
2. Plaintiffs challenge the State Department’s application of the preponderance of the evidence standard in revoking U.S. passports based, in whole or in part, under 22 C.F.R. § 51.62(a)(2) (fraud) and (b) (non-nationality). Specifically, Plaintiffs contend that the State Department is misapplying the preponderance of evidence standard by: (1) erroneously shifting the burden of proving loss of nationality from the party alleging the loss (usually a government entity) to the U.S. passport holder; and (2) unilaterally manipulating the burden of proof by, inter alia, failing to consider all the evidence, including evidence the passport holder might submit and by denying U.S. passport holders notice and an opportunity to respond before revocation.
3. On behalf of themselves and all persons similarly situated, Plaintiffs move this Court for an order certifying two nationwide classes of persons defined as follows:
First Proposed Class Passports Revoked Based on Allegations Based on Non-Nationality (Represented by Plaintiffs Luis Montemayor and Ana Luisa Guerrero) Individuals who:  have received or will receive U.S. passports based on birth in the United States, a U.S. territory or outlying possession;  whose passports, on or after September 7, 2003, have been or will be revoked by the Department of State based, in whole or in part, on 22 C.F.R. § 51.62(b) (non-national), where the underlying assertion is that the bearer is not a national of the United States;  DOS has revoked, or will revoke, the passport based solely on evidence provided by the party seeking revocation or gathered by the Department of State; and  whose claims of U.S. citizenship have not been finally adjudicated by a federal court.
2

Case 1:09-cv-00208 Document 227 Filed in TXSD on 03/15/13 Page 3 of 5
Second Proposed Class
Passports Revoked Based on Allegations Based on Fraud Related to Non-Nationality (Represented by Plaintiff Laura Nancy Castro)
Individuals who:  have received or will receive U.S. passports based on birth in the United States, a U.S. territory or outlying possession;  whose passports, on or after September 7, 2003, have been or will be revoked by the Department of State based, in whole or in part, on 22 C.F.R. § 51.62(a)(2) (obtained illegally, or obtained by fraud or error), where the underlying assertion is that the bearer is not a national of the United States;  DOS has revoked, or will revoke, the passport based solely on evidence provided by the party seeking revocation or gathered by the Department of State; and  whose claims of U.S. citizenship have not been finally adjudicated by a federal court.
As used in these class definitions, September 7, 2003, represents six years before the date of the
initial filing of the instant action (September 7, 2009) as contemplated by the applicable statute of
limitations, 28 U.S.C. § 2401.
4. This matter satisfies the four requirements for class certification under Fed. R. Civ.
P. 23(a). First, the inclusion of future members, and dispersion of innumerable proposed class
members in various states and countries renders joinder impracticable. FED. R. CIV. P. 23(a)(1).
Plaintiffs have identified approximately 151 potential class members throughout the United States
in the first proposed class and are requesting further discovery to identify the number of potential
class members in the second proposed class. Second, the relevant causes of action are limited to
facts and pure issues of law that are common to the proposed classes. FED. R. CIV. P. 23(a)(2).
That is, DOS issued passports to all Plaintiffs and class members based on birth within the United
States and later revoked their passports based on some new evidence suggesting birth elsewhere.
And, the legal issues include whether DOS erroneously shifts the burden of proof to either itself or
the U.S. passport holder and whether DOS unilaterally manipulates the burden and standard of
3

Case 1:09-cv-00208 Document 227 Filed in TXSD on 03/15/13 Page 4 of 5
proof by making it entirely one-sided. Third, the claims asserted and the relief sought by the Plaintiffs are the same, and thus typical, of the claims and relief sought on behalf of the proposed classes. FED. R. CIV. P. 23(a)(3). Plaintiffs and proposed class members are all proceeding under the same legal theory -- that the State Department’s revocation of their passports violates the Fifth and Fourteenth Amendments -- and all seek the same injunctive relief. Fourth, the named Plaintiffs and their counsel will adequately represent the interests of the proposed classes. FED. R. CIV. P. 23(a)(4). The State Department revoked the passports of the Plaintiffs raising these claims, and undersigned counsel have significant litigation expertise.
5. This matter also satisfies the requirements for class certification under FED. R. CIV. P. 23(b)(2). Plaintiffs seek only injunctive and declaratory relief, and Defendants have acted on grounds applicable to the class. Specifically, Plaintiffs seek declaratory and injunctive relief to prevent the State Department from misapplying the burden of proof and unilaterally manipulating the evidentiary standard in the future and to redress past, erroneously-issued revocations.
6. In support of this motion, the Petitioners submit the accompanying Brief in Support of Plaintiffs’ Third Motion for Class Certification.
7. Pursuant to Local Rule 7.1(D), Plaintiffs’ counsel has conferred with Sarah Fabian, counsel for Defendants, regarding the filing of this motion and understand that the Defendants oppose class certification in this matter.
WHEREFORE, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), Plaintiffs respectfully request that the Court certify the two classes defined herein, and that this action proceed as a class action. //
4

Case 1:09-cv-00208 Document 227 Filed in TXSD on 03/15/13 Page 5 of 5

Respectfully Submitted,

s/ Javier Maldonado Javier Maldonado LAW OFFICE OF JAVIER N. MALDONADO, PC 8918 Tesoro Dr., Ste. 575, San Antonio, TX 78217 (210) 277-1603 (210) 587-4001 (fax) Federal ID: 20113 Texas Bar No. 00794216

Lisa S. Brodyaga, Attorney REFUGIO DEL RIO GRANDE 17891 Landrum Park Road San Benito, TX 78586 (956) 421-3226 (956) 421-3423 (fax) Federal ID: 1178 Texas Bar No. 03052800

Trina Realmuto NATIONAL IMMIGRATION PROJECT of the NATIONAL LAWYERS GUILD 14 Beacon Street, Suite 602 Boston, MA 02108 (617) 227-9727 ext. 8 (617) 227-5495 (fax) California Bar No. 201088

Jaime M. Diez JONES & CRANE P.O. Box 3070 Brownsville, TX 78523 (956) 544-3565 (956) 550-0006 (fax) Federal ID: 23118 Texas Bar No. 00783966

CERTIFICATE OF SERVICE
I, Javier Maldonado, hereby certify that copies of the foregoing were served electronically on all
counsel of record on March 15, 2013.
/s/ Javier N. Maldonado Javier N. Maldonado LAW OFFICE OF JAVIER N. MALDONADO, PC 8918 Tesoro Dr., Suite 575 San Antonio, TX 78217 (210) 277-1603 (210) 587-4001 (fax) Federal ID: 20113 Texas Bar No. 00794216
5

 
 Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 1 of 33

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

Laura Nancy CASTRO,

)

Yuliana Trinidad CASTRO,

)

Jessica GARCIA,

)

Luis MONTEMAYOR,

)

Ana Luisa GUERRERO,

)

Ervey Lorenzo SANTOS

)

Alicia RUIZ,

)

Maria REYES,

)

)

PLAINTIFFS, In Their Own

)

Name and On Behalf of All Others Similarly Situated, )

)

v.

)

)

Michael T. FREEMAN, Port Director,

)

U.S. Customs and Border Protection, and

)

John KERRY, U.S. Secretary of State,

)

Rand BEERS, Acting Secretary, Department of

)

Homeland Security,

)

)

DEFENDANTS.

)

________________________________________________)

Civil Action No. B-09-208 Honorable Hilda G. Tagle

FIFTH AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Laura Nancy Castro (“Laura”), Yuliana Trinidad Castro (“Yuliana”), Jessica Garcia, (“Garcia”), Luis Montemayor, (“Montemayor”), Ana Luis Guerrero, (“Guerrero”), Ervey Lorenzo Santos, (“Santos”), Alicia Ruiz (“Ruiz”), and Maria Reyes (“Reyes”), through undersigned counsel, file their Fifth Amended Class Action Complaint for Declaratory and Injunctive relief.
I. INTRODUCTION Justice Joseph Story long ago wrote: “Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 2 of 33
the protection of the government and owing a temporary allegiance thereto are subjects by birth.” Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. 99, 164 (1830). Thirty-eight years later, Congress adopted the Fourteenth Amendment to the Constitution, which, pursuant to the Citizenship Clause, automatically confers U.S. citizenship on persons born within the United States. The Citizenship Clause reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
This case is about protecting the right to birthright citizenship, to ensure that no person born within the United States is unlawfully deprived of the privileges, benefits and protections that accompany this sacred Constitutional right. Through the instant class action complaint, Plaintiffs challenge the Department of State’s (“DOS”) inappropriate application of the standard of proof in adjudicating U.S. citizenship claims and the agency’s failure to afford U.S. citizenship claimants any meaningful opportunity to challenge its decisions to deny a U.S. passport application or revoke an existing passport. Plaintiffs further challenge the Department of Homeland Security’s (“DHS”) unlawful tactics at ports of entry in encounters whereby DHS officers deny U.S. citizenship claimants access to counsel.
II. JURISDICTION AND VENUE 1. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 (Federal Question) and 1651 (Writs), as a civil action arising under the Constitution and laws of the United States; 5 U.S.C. § 701 et seq., as an action to compel agency action unlawfully withheld or unreasonably delayed; and 28 U.S.C. § 1361, as an action to compel officers or employees of the United States to perform a duty owed to Plaintiffs. Declaratory judgment is sought pursuant to 28 U.S.C. §§
2

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 3 of 33

2201-02. 2. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b) and (e)(1), (2), (4) because Defendants are head officers of U.S agencies and a Port Director of a subdivision of a U.S. agency; Defendants have a residence in this district; because “a substantial part of the events or omissions giving rise to the claim[s] occurred” in the jurisdiction of this district; because most of the Plaintiffs reside in this district; and because no real property is involved.

III. THE PARTIES

A. PLAINTIFFS

3.

Laura and Yuliana Castro are citizens of the United States. They reside in Cameron

County, Texas.

4. Garcia, Montemayor, Guerrero, Santos, Ruiz, and Reyes have bona fide claims to being

natives and citizens of the United States based on birth within the country, and specifically within

the State of Texas. Garcia, Montemayor, Guerrero, Santos, and Ruiz were born in Cameron

County, Texas. Reyes was born in Creedmore, Texas, and has a residence in Brownsville, Texas.

B. DEFENDANTS

5. Michael T. Freeman is an employee of U.S. Customs and Border Enforcement (“CBP”), a

subdivision of the Department of Homeland Security. His title is Port Director. He is

responsible for CBP operations at the ports of entry in Brownsville, Texas.

6. John Kerry is the duly appointed and confirmed Secretary of State of the United States.

7. Rand Beers is the duly appointed Acting Secretary of the Department of Homeland

Security.

8. All Defendants are sued in their official capacities.

//

3

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 4 of 33
IV. LEGAL BACKGROUND AND GENERAL ALLEGATIONS A. U.S. PASSPORT AUTHORITY
9. Only the Secretary of State or her designee is authorized to grant, issue and verify U.S. passports. 22 U.S.C. § 211a. 10. The regulations governing the granting, issuing and verifying passports are located at 22 § C.F.R. Part 51. 11. The regulations at 22 C.F.R. Part 51, Subparts C, D and E, govern the adjudication of passport applications. 12. The Secretary of State my revoke a passport in accordance with 8 U.S.C. § 1504 (passport illegally, fraudulent or erroneously obtained); 42 U.S.C. § 652(k) (non-payment of child support); 22 U.S.C. § 2714 (certain drug traffickers); 22 U.S.C. § 2671(d)(3) (default on repatriation loan); and 22 U.S.C. § 212a (persons convicted of sex tourism). The regulations at 22 C.F.R. Parts E and F govern the revocation of passports. B. ARBITRARY APPLICATION OF THE PREPONDERANCE OF THE EVIDENCE
TEST FOR ESTABLISHING U.S. CITIZENSHIP 1. The Preponderance of the Evidence Standard
13. A U.S. citizenship claimant bears the burden of establishing that he or she is a national of the United States. 22 C.F.R. § 51.40. 14. The standard of proof under 22 C.F.R. § 51.40 is preponderance of the evidence, i.e., that it is “more likely than not” that the person is a U.S. citizen: (not whether the evidence “sufficiently establishes” U.S. citizenship, or citizenship has been shown to DOS’ “satisfaction” or whether the agency is of the “opinion” that the person is not U.S. citizens). See Patel v. Rice, 403 F. Supp. 2d 560, 562 (N.D. Tex. 2005) (“The plaintiff [in an 8 U.S.C. § 1503 case] bears the burden of
4

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 5 of 33
establishing, by a preponderance of the evidence, that he is a United States national.” (citing Reyes v. Neelly, 264 F. 2d 673, 674-75 (5th Cir. 1959)); 7 Foreign Affairs Manual 1381 (passport applicant must prove citizenship by preponderance of the evidence); and 8 C.F.R. § 341.2(c) (burden of proof for issuance of a certificate of citizenship is preponderance of the evidence).
2. Pre-September 7, 2003: Application of the Preponderance of the Evidence Standard 15. Although previously improper under Mexican law, Mexican nationals who had children born in the United States frequently registered their births in Mexico, particularly if they intended to raise the child in Mexico. More recently, Mexican law changed to now allow the children of Mexican nationals born abroad to have Mexican citizenship. Although less common since the change in law, the practice of dual registration persists. 16. In the past, such dual registration rarely if ever caused problems, provided the child was first registered in the United States, and/or had a baptismal certificate showing birth in the United States that predated the Mexican birth certificate. 17. In determining citizenship, the former Immigration and Nationality Service (“INS”) (now part of the Department of Homeland Security) and the Executive Office for Immigration Review (part of the Department of Justice) previously sought out and relied upon the oldest “public” document, including both birth and baptismal certificates, as the most reliable evidence of the place and date of birth. 18. This practice was reflected in pre-printed language in INS requests for evidence where birth facts were at issue. See, e.g., In re Pagan, 22 I&N Dec. 547, 548 (BIA 1999); In re Bueno-Almonte, 21 I&N Dec. 1099, 1030 (BIA 1997). 19. In fact, baptismal certificates were previously considered by the Board of Immigration
5

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 6 of 33
Appeals (“BIA”) to carry almost the same degree of evidentiary weight as birth certificates. See In re Matter of S.S. Florida, 3 I&N Dec. 111, 116 (BIA 1948).
3. Post-September 7, 2003: Application of the Preponderance of the Evidence Standard 20. The preponderance of the evidence standard is applied arbitrarily. Although the U.S. claimant continues to bear the burden of establishing citizenship by a preponderance of the evidence, the law surrounding this burden has not changed, and, at some point after September 7, 2003, DOS stopped relying on the oldest “public” document in adjudicating citizenship claims, unless the oldest public document shows Mexican nationality. Otherwise, they consider that even a much later filed Mexican birth certificate effectively “cancels” a timely filed U.S. birth certificate, showing midwife birth. DOS also considers that a delayed Texas birth certificate constitutes evidence both of birth in Texas, and evidence that the bearer was not born in Texas. 21. Now, in cases of dual birth registration cases, and regardless of when the Mexican registration occurred, DOS ignores affidavits and other evidence explaining the existence of the Mexican registration. If the Mexican birth registration occurred prior to the U.S. birth registration, DOS generally takes it as conclusive of birth in Mexico, even ignoring evidence created before the Mexican registration, such as baptismal certificates. However, the converse is not true: in most such cases, if the U.S. registration occurred first, DOS still requires more than one corroborating “public” document, in the absence of which, the passport application is almost always denied. 22. Now, in cases where DOS questions a claim of U.S. citizenship, they make arbitrary requests for documents, such as, for example, in the case of an applicant who was born in 1934, where DOS requested evidence of his mother’s prenatal care, and a 1935 census record. They
6

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 7 of 33

also now request personal information which bears no reasonable relationship to the citizenship claim, such as the addresses, both in the U.S. and abroad, of every place where the applicant has resided and every school s/he ever attended, and the names, addresses, and phone numbers of every employer and former employer.
4. DOS “Decisions” 23. In some cases, DOS articulates its finding as an “opinion.”2 24. In others, DOS states that the applicable standard has not been met to their “satisfaction.” 25. In many cases, DOS simply asserts that the burden has not been met, without analyzing the evidence, or explaining why the evidence fails to meet that standard. 26. At times, DOS even denies passport applications where there is no evidence of foreign birth, documentary or testimonial, based apparently on their claim that a delayed birth certificate, or one showing delivery by a “suspicious” midwife, constitutes evidence of foreign birth.
C. LACK OF DUE PROCESS PROTECTIONS IN THE DENIAL AND REVOCATION OF U.S. PASSPORTS
1. Lack of Due Process Hearing When Passport Denied or Revoked Based on Non-nationality
27. Where citizenship is questioned, the procedures by which applications for United States passports are adjudicated, or previously issued passports are revoked, do not afford Due Process. DOS often makes arbitrary and capricious requests for evidence, and personal information. There is no requirement that a denial or revocation reflect meaningful consideration of all the evidence, or fair application of the “preponderance of the evidence” standard, and there are no administrative procedures affording Due Process protections by which the person can contest the denial of an

2

See, e.g., the denial of the passport application on behalf of the minor I.H. by a form letter

stating that it is the “opinion” of DOS that she “[n]ever had claim to U.S. citizenship,” [101:3].

7

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 8 of 33

application for a U.S. passport, or revocation of a previously issued passport.

28. Specifically, the regulations at 22 C.F.R. § 51.70(a) provides:

(a) A person whose passport has been denied or revoked under 22 CFR 51.60(b)(1) through (10), 51.60(c), 51.60(d), 51.61(b), 51.62(a)(1) where the basis for the adverse action would entitle the applicant to a hearing under this section, or § 51.62(a)(2) may request a hearing to the Department to review the basis for the denial or revocation within 60 days of receipt of the notice of the denial or revocation.

(b) The provisions of §§ 51.70 through 51.74 do not apply to any action of the Department taken on an individual basis in denying, restricting, revoking, or invalidating a passport or in any other way adversely affecting the ability of a person to receive or use a passport for reasons excluded from § 51.70(a) including: (1) Non-nationality; (2) Refusal under the provisions of 51.60(a); (3) Refusal to grant a discretionary exception under emergency or humanitarian relief provisions of § 51.61(c); (4) Refusal to grant a discretionary exception from geographical limitations of general applicability.

Emphasis added.

29. Thus, “non-nationality” is one of the few grounds for denial or revocation of a U.S.

passport which does not entitle one to a hearing.

2.

Lack of Adequate Procedures When Passport Denied or Revoked

Based on Fraud Relating to Place of Birth

30. Under 22 C.F.R. § 51.62(b), DOS may revoke a U.S. passport on the grounds that DOS has

“determined” that the holder is not a U.S. national, although neither the standard of proof, nor on

whom the burden rests, is specified therein. In such cases, the prior passport holder is not entitled

to any due process protections. 22 C.F.R. § 51.70(b)(1).

31. Even where the regulations provide for a “hearing,” (e.g., where a passport is revoked for

“fraud,” under 22 C.F.R. § 51.62(a)(2)), current procedures afford no Due Process safeguards.

See, Doc. [151]. 22 C.F.R. § 51.71 through § 51.74.

8

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 9 of 33
32. The hearing officer is not an Administrative Law Judge, but an employee of the Department of State. There are no publicized hearing procedures, and DOS refuses to allow pre-hearing conferences to be recorded. There is no body of applicable law, or redacted decisions from other cases. There is no procedure by which legal questions, (e.g., the standard and burden of proof), can be raised and resolved, or proposed evidence can be challenged, prior to the hearing. If the applicant is within the United States, all hearings are conducted in Washington, D.C., completely at the expense of the citizenship claimant. There is no assurance that witnesses residing abroad can be paroled in to testify, and if they chose to testify by tele-video, they must pay all costs. There is no assurance that adverse witnesses will be required to testify in person, or even be subjected to cross-examination. See, Doc. [151]. If the applicant is outside the United States, the hearing may be conducted at a U.S. embassy or consulate abroad. The lack of any Due Process safeguards reduces such a hearing, where available, to an extremely expensive sham.
D. DEPRIVATION OF THE RIGHT TO COUNSEL BY BORDER OFFICIALS 33. The right of a U.S. citizen to engage in international travel is protected by the Due Process clause. See, Regan v. Wald, 468 U.S. 222, 240-42 (1984); Atem v. Ashcroft, 312 F. Supp. 2d 792 (E.D.Va. 2004). 34. On June 1, 2009, the Western Hemisphere Travel Initiative (“WHTI”), Pub. L. No. 110–53, title VII, § 724 (Aug. 3, 2007) was fully implemented. With only limited exceptions, WHTI made it illegal for U.S. citizens to “depart from or enter the United States” without a valid U.S. passport. 8 U.S.C. § 1185(b); 22 C.F.R. § 53.1(a). ). 35. Under 22 C.F.R. § 53.2(h) and (i), the Department of State may waive the requirement that a U.S. citizen must have a passport in order to enter the U.S., in the case of an “unforeseen
9

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 10 of 33
emergency,” or for “humanitarian or national interest reasons.” 36. Under 22 C.F.R. § 53.3, CBP is required to report any citizen who seeks to enter without a U.S. passport to DOS, “so that the Department of State may apply the waiver provisions of § 53.2(h) and § 53.2(i) to such citizen, if appropriate.” 37. Instead, CBP adopted and publicized a policy that passport applicants could travel to and from Mexico, by presenting to CBP their Texas birth certificates, identification documents, and receipts for passport applications, when they seek re-entry. The policy does not inform such persons that, notwithstanding that they present the required documents, they may be detained on their return, denied access to counsel, subjected to very harsh treatment, and denied re-entry without access to a hearing. 38. When encountered at a port of entry, and notwithstanding Hernandez v, Cremer, 913 F.2d 230 (5th Cir. 1990), CBP considers that even applicants for entry who have facially valid documents showing U.S. citizenship, including a U.S. passport, have no right to counsel unless and until criminal charges are contemplated. 39. If CBP officers are not convinced of a claim to U.S. citizenship, such officers often confiscate the person’s documents, “convince” them to withdraw their applications for entry, by use of threats, prolonged interrogation, and other harsh tactics, and force them to leave the United States, where they are left with no apparent means of asserting their citizenship claims. Throughout this process, CBP officers deny the U.S. citizenship access to counsel, even if the claimant has a pre-existing relationship with counsel and even if counsel is at the port of entry requesting access to his or her client. 40. On information and belief, it is alleged that agents of Defendants have similarly denied
10

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 11 of 33

access to counsel in scores of cases. Plaintiffs’ experiences reflect and are the product of policies, patterns and practices adopted and overseen by Defendants.
V. FACTS A. THE CASTRO FAMILY 41. Laura Nancy Castro and Yuliana Trinidad Castro are natives and citizens of the United States, born in Brownsville, Texas in 1980 and 1984, respectively. Their births were attended by midwife Trinidad Saldivar, who, shortly thereafter, timely registered them in Brownsville, Texas.3 Their mother, Trinidad Muraira de Castro (“Trinidad”), is a Mexican citizen, who at all relevant times had documents with which to lawfully enter the United States. Docs [110,112]. 42. Shortly after the births of Laura and Yuliana, their mother, Trinidad, returned with them to her home in Matamoros, Mexico, where she has resided at all pertinent times. Id. 43. When Laura was about four years old, Trinidad registered her birth in Mexico, as born in Matamoros, so that she could attend school there. The same day, and for the same reason, Trinidad also registered the birth of Yuliana, (who was then four and a half months old), in Matamoros, Mexico, also showing birth in Matamoros. Id. 44. Laura Castro applied for, and on January 30, 2008, received, a U.S. passport. Yuliana Castro applied for a U.S. passport in January, 2009. DOS requested additional evidence of her birth in Texas, to which Yuliana responded on or about July 30, 2009. 45. On August 24, 2009, at about 9:40 a.m., Laura, Yuliana, and Trinidad Castro, with Yuliana’s infant daughter, C.A.G., applied for admission/entry at the Old Bridge in Brownsville,

3

Trinidad Saldivar, the midwife who delivered Laura and Yuliana, is on Defendants’ list of

suspicious midwives. CBP Officer Cabrera represented to Trinidad Castro that Ms. Saldivar had

spent five years in prison for filing false birth certificates, but a PACER search of her name turned

up no entries. Ms. Saldivar has received anonymous threats of unspecified harm if she fails to

“admit” that she falsely registered births in the United States.

11

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 12 of 33
Texas. Laura presented her U.S. passport. Yuliana presented her birth certificate, Texas ID, the receipt for her application for a U.S. passport, and the Texas birth certificate of C.A.G. Trinidad presented her laser visa. The agent on duty, CBP Officer Eliseo Cabrera, noted that Yuliana’s birth certificate reflected a midwife birth, and took them to secondary inspection, where he detained, interrogated, threatened, and otherwise treated all four Plaintiffs inhumanely for about ten hours. Id. 46. At the time of the events in question, all four were in a delicate medical state. Trinidad suffers from high blood pressure. Laura was in the early months of pregnancy, and was experiencing symptoms demonstrating that it was a high-risk pregnancy. Yuliana was recovering from complications of childbirth. C.A.G., who was only a few weeks old, was deprived of the care and environmental conditions any newborn requires, and cried uncontrollably. Id. 47. Based on threats, fear, hunger, exhaustion, and her inability to continue listening to the cries of her infant granddaughter, C.A.G., complicated by her own the delicate medical condition, and awareness of the medical vulnerability of the others, Trinidad succumbed to the efforts of Officer Cabrera to extract a false “confession” from her, to the effect that Yuliana and Laura had in fact been born in Mexico, and signed a document that he had prepared. Id. 48. The Castros’ family was so concerned by their detention that they sent an attorney to the port of entry, but he was not allowed to represent, or even communicate with Plaintiffs. The family also called the police, who came to the bridge, and made a report. Id. 49. After forcing Trinidad Castro to sign a false “confession,” Defendants confiscated the documents of Laura, Yuliana, and Trinidad, and returned them to Mexico, without giving them any opportunity to contest his actions. Laura and Yuliana were treated as having “withdrawn”
12

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 13 of 33

their applications for entry. Trinidad was found to be inadmissible for fraud, under 8 U.S.C. § 1182(a)(6) (C)(i), and subjected to “expedited removal.” Id.4 50. Other than by requesting additional documentation in support of their passport applications, at no time prior to August 24, 2009, did any Defendant attempt to inform anyone in the Castro family that there were questions as to whether Laura and Yuliana had in fact been born in Texas. Prior to that date, all three: Laura, Yuliana, and their mother, Trinidad Castro, had crossed into the U.S. frequently, without problems or complications. 51. When the instant action was filed, Laura, Yuliana and Trinidad Castro were at the Old Brownsville Bridge. At the time of filing, they were therefore within the United States, in Brownsville, Texas, within the jurisdiction of this Court. 52. On April 5, 2010, Laura’s U.S. passport was revoked, for fraud, under 22 C.F.R. § 51.62(a)(2) [125]. She requested a hearing, and expended substantial energy and funds into preparing to go to Washington, D.C., [151], but the hearing was canceled at the last minute, based on the evidence developed before this Court, and her passport was returned to her, [96]. 53. Based on the same evidence, Yuliana also received a U.S. passport. Id. Removal proceedings against Yuliana were terminated, but notwithstanding DOS’ decision to give Yuliana a passport, Defendant DHS reserved the right to re-institute proceedings against her, and the Immigration Judge held that the citizenship of persons such as the Castro sisters can only be determined following an order of expedited removal, which would, in most cases, involve lengthy administrative detention, with no possibility of parole, [99]. 54. For weeks after receiving her passport, Laura continued to have problems when she

4

By treating them as having “withdrawn” applications for admission, rather than putting

them in proceedings, or issuing orders of expedited removal, Defendants Napolitano and Freeman

deprived Laura and Yuliana Castro of all statutory means of asserting U.S. citizenship.

13

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 14 of 33

crossed the border with her passport. This causes her to be fearful and suffer emotional distress each time she crosses. Both Laura and Yuliana fear that they could experience similar problems in the future, and only be able to assert their U.S. citizenship by being physically detained. This adversely affects both of them emotionally and physically.
B. JESSICA GARCIA

55. Jessica Garcia was born in Brownsville, Texas in 1987. Her birth was also attended by midwife Trinidad Saldivar, who registered it in Brownsville two and a half weeks later. Shortly after her birth, her mother took Jessica to her home in Matamoros, Mexico. When Jessica was about seven weeks old, her mother registered her birth in Matamoros, as having been born there, in order to obtain vaccinations for her in Mexico. [48,49]. 56. In May, 2009, Ms. Garcia applied for a U.S. passport. Because she was born with the aid of a midwife, DOS made arbitrary requests for evidence and personal information. Said application was not adjudicated until at least June 24, 2010, [141:3].9 She has never received a denial letter, although she continues to receive mail at the address given on the application. 57. On October 31, 2009, at about 9:30 a.m., Ms. Garcia sought entry at the new bridge, in Brownsville, Texas. Officer Cabrera was working primary. She showed him her Texas ID, Texas birth certificate, and the receipt for her passport application. He asked if she also had a Mexican birth certificate. She was unaware of the existence of such a document, and replied that she did not. Officer Cabrera then sent her in to secondary inspection. [48,49]. 58. Ms. Garcia waited a while, and when nothing happened, asked another CBP officer what was going on, because she was due at work in Brownsville at 10:00 a.m. That officer locked her in a small room, to await Officer Cabrera, who arrived about 30 minutes later. He eventually

9

Defendants incorrectly state therein that the denial letter was attached as an exhibit.

14

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 15 of 33
produced her Mexican birth certificate, which had been filed a month after her Texas birth certificate. He claimed that the Texas birth certificate was fraudulent, and began to hurl threats and insults at her, and make false representations, in a vain attempt to force Ms. Garcia to sign the papers he had prepared apparently to “withdraw” her application for admission. Id. 59. Eventually, Ms. Garcia’s mother, Ana Alanis, also came to the port of entry. She explained why Jessica Garcia had two birth certificates, and insisted that she had been born in Brownsville. Nonetheless, she was also treated with threats, insults, and false statements by Officer Cabrera, in a vain attempt to get her to falsely “confess” that Jessica had been born in Matamoros. Id. 60. When neither woman would “confess” to the untruth sought by Officer Cabrera, he was forced (apparently by his Supervisor), to issue an NTA. He confiscated all the documents Jessica and her mother had with them, and sent them back to Mexico. Id. Among the documents confiscated was the request of the Department of State seeking additional evidence of her birth in the United States, and papers relating to her outstanding student loan. 61. The NTA against Ms. Garcia was never filed with the EOIR, so no hearing was ever scheduled. Nor was she afforded a hearing by which to challenge the confiscation of her documents. This left Ms. Garcia completely in the air. 62. As a result, Jessica Garcia lost her employment, and the income on which she and her family depended. In order to settle her motion for preliminary injunction, Defendants agreed to allow her to enter as a U.S. citizen until her citizenship claim is finally determined. However, she continued to be sent into secondary inspection, interrogated, and often delayed for extended periods when she entered. Among other hardships, she lost her employment, health insurance,
15

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 16 of 33
and defaulted on other financial obligations, including a payment schedule for a traffic ticket in Brownsville, Texas. Her health has suffered, and she gained a lot of weight. Her relationships with her husband and children have also deteriorated. Her old job is no longer available, and she has had difficulty finding new employment. 63. DOS claims that, on June 24, 2010, they denied Ms. Garcia’s passport application. [141:3]. 64. After pursuing a district court action, DOS issued Ms. Garcia a U.S. passport on July 25, 2012. Garcia v. Clinton, No. 1:11-cv-83 (S.D.Tex), Dkt. No. 188 at 8.
C. LUIS MONTEMAYOR 65. Luis Montemayor was born in Mercy Hospital, in Brownsville, Texas, in September, 1967, during the height of Hurricane Beulah, which caused extreme flooding and devastation in the Rio Grande Valley, Texas. His birth certificate was signed the day of his birth, but apparently as a result of the hurricane, the hospital neglected to file it, and the oversight was not discovered and corrected for over ten years, [164]. 66. Mr. Montemayor is the youngest of eight children, all of whom were born in Mercy Hospital in Brownsville. Like his siblings, his birth was also registered in Mexico, about a month after his birth. And like most of his siblings, his Mexican birth certificate asserted birth in Mexico, even though they, too, were actually born in Mercy Hospital, in Brownsville, Texas. 67. In 2007, Mr. Montemayor obtained a United States passport, and in 2009, a U.S. passport card. He departed and entered the U.S. numerous times without incident. 68. However, in January, 2011, he received a letter from the Department of State, stating that his passport and passport card had been revoked. The letter (incorrectly) alleged that he had been contacted, and given an opportunity to provide additional evidence of his birth in Texas. The
16

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 17 of 33
letter further stated that, since revocation was based on “non-citizenship,” he was not entitled to a
hearing.
69. The revocation letter also threatened Mr. Montemayor with criminal prosecution, if he
continued to use his passport or passport card.
70. In relevant part, the letter states:
In support of your application for U.S. passport 433348288, you submitted a birth record showing that you were born on September 21, 1967 in Brownsville, Texas. This birth certificate was registered on March 3, 1978, more than ten years after your birth. Thereafter, U.S. Passport Number 433348288 was issued to you on October 29, 2007. In support of your application for U.S. passport card C02269400 you submitted U.S. passport 433348288. Thereafter, U.S. passport card C02269400 was issued to you on September 23, 2009. An investigation revealed a Mexican birth registration in your name, indicating that you were born on September 21, 1967, in Matamoros, Tamaulipas, Mexico, less than one month after your birth. The Department contacted you and you indicated that you did not have any additional evidence supporting your claim of birth in the U.S. Based on this new evidence and the totality of the circumstances, we have determined that the revocation of your passport is warranted.
71. Mr. Montemayor disputes having ever having received any such communication from the
Department of State, or asserting that he was unable to provide additional evidence of his birth in
Texas. He submits that he only learned that his citizenship was in question when he received the
letter revoking his passport and passport card.
72. After pursuing a district court action, DOS issued Mr. Montemayor a U.S. passport in
September 2011. Montemayor v. Clinton, No. 1:11-cv-109 (S.D.Tex), Dkt. No. 194 at 5.
D. ANA LUISA GUERRERO
73. Ana Luisa Guerrero was born in Brownsville, Texas, in July, 1977. Her birth in Texas
was an accident, since her parents were shopping in Brownsville when her mother’s water broke.
Her birth was assisted by Victoria Grimaldo, who was recommended by the girlfriend, (Mariana),
17

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 18 of 33
of her paternal grandfather. Her birth was registered in Brownsville approximately one month later. Mariana and her daughter were present for the actual birth. [160]. 74. Two days after her birth, Ms. Guerrero’s mother registered her in Mexico, as having been born there. She changed the date of birth to June, 1977, to enable Ms. Guerrero to start school in Mexico a year earlier than she would be able to do if her date of birth were shown as July, 1977. In December, 1977, Ms. Guerrero was baptized in Mexico, also showing birth in Mexico. 75. In 2006, Ms. Guerrero petitioned a Mexican Court to correct her Mexican birth certificate, to reflect her actual date and place of birth. The petition was granted in January, 2007. A few days later, she applied for, and promptly received, a U.S. passport. 76. In 2008, Ms. Guerrero filed an I-130 petition, seeking to immigrate her Mexican national husband. The couple was interviewed by DHS in Harlingen, Texas. However, notwithstanding that she had a facially valid U.S. passport, in January, 2009, DHS demanded additional documents to substantiate her birth in Texas. Ms. Guerrero complied with their request. In December, 2009, Ms. Guerrero and her parents were interviewed by DHS. They steadfastly maintained that she had been born in Texas. Nonetheless, by letter dated a few days later, DOS informed Ms. Guerrero that her U.S. passport had been revoked. She was given no opportunity to challenge the revocation, either before or after it occurred. 77. In relevant part, the revocation letter states:
The Department was recently informed of an investigation regarding the circumstances of your birth. The investigation uncovered a Mexican birth record in the name Ana Luisa Guerrero Ornelas that lists your date and place of birth as June 20, 1977, in Matamoros, Mexico. This birth record was filed on July 6, 1977. You provided a sworn statement to U.S. Citizenship and Immigration Services in which you stated that you were aware of this Mexican birth record since you were ten years old. However, the birth record was not amended until February 2, 2007 three days before your application for a U.S. passport. The amended Mexican birth record changed your date and place of birth to July 4, 1977, Brownsville,
18

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 19 of 33
Texas. Based on this new evidence and the totality of the circumstances, we have determined that the revocation of your passport is warranted. 78. Shortly thereafter, Ms. Guerrero received a Notice of Intent to Deny the I-130 filed on behalf of her husband. She responded with additional evidence, and the I-130 petition remains pending. 79. After pursuing a district court action against DOS, the parties agreed to settled Ms. Guerrero’s case. Guerrero v. Clinton, No. B-11-cv-16 (S.D.Tex), Dkt. No. 194 at 6. On March 5, 20120, DOS issued Ms. Guerrero a U.S. passport, [220].
E. ALICIA RUIZ 80. Alicia Ruiz was born in 1933, in Mercedes, Texas, where her family had been living for some time, and where her older brother had been born and baptized. As was common at that time, her birth was not timely registered. At the age of nine months, she was baptized in Mercedes, Texas. Her baptismal certificate shows birth in “Relampago Ranch,” Texas. Ms. Ruiz’ parents moved to Mexico, and when she was ten, registered her birth in Mexico, as having been born there. When she married in Mexico, in 1951, she was required to present a birth certificate, but the only one she possessed showed birth in Mexico, so her marriage certificate also shows birth in Mexico. However, the birth certificates of two of her three children reflect that she was born in Texas. [57]. 81. Ms. Ruiz has applied three times for a U.S. passport. Each time, her application has been rejected. The most recent denial, in 2009, from which there is no administrative appeal, notes only that she was registered in Mexico before her delayed Texas birth certificate was filed. The denial recites as follows, [57:36]:
A check with the Mexican vital records office revealed that there was a birth certificate recorded for you on 9/22/1943 Reynosa, Tamaulipas, Mexico. This record was filed before the Texas birth certificate. As a result of this finding, a US passport cannot be issued to you at this time.
19

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 20 of 33
82. This denial simply ignores all other evidence, including her contemporaneous baptismal certificate, and denies her Due Process. 83. After pursuing a district court action against DOS, this Court found that Ms. Ruiz established U.S. citizenship by a preponderance of the evidence. Ruiz v. Clinton, No. 1:11-cv-84 (S.D.Tex), Dkt. Nos. 184 and 189.
F. MARIA REYES 84. Maria Reyes was born in Creedmore, Travis County, Texas, in 1931. Her brother, Hermenegildo Reyes, was born in Lockhart, Texas, in 1928. In October, 1931, the family was repatriated to Mexico. The repatriation document states that her parents, Abraham Reyes and Carmen Lucio de Reyes, were accompanied by Hermendegido Reyes, age 3, and Maria Reyes, age five months, and that they were coming from “Greehmore, Texas.” On April 21, 1932, Maria Reyes was baptized in Lampazos, N.L., Mexico. Her baptismal certificate reflects birth in “Cremord, Tex.” The following day, her parents registered her birth in Lampazos, N.L., showing the same date of birth, but reflecting her place of birth as Anahuac, N.L., Mexico. [163]. 85. In 1975, Ms. Reyes obtained a delayed Texas birth certificate, using her baptismal certificate, and repatriation record. In 2006, she attempted to obtain a U.S. passport. The application was denied, based solely on the fact that the Mexican birth record predated the delayed Texas birth certificate. 86. In 2007, Ms. Reyes applied for a copy of her Texas birth certificate. The request was denied, since the U.S. Consulate had advised the State of Texas of the Mexican birth certificate. She requested a hearing in Austin, Texas, where the ALJ found that she had, indeed, been in born in Texas, and a new birth certificate was issued, [163:18-30].
20

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 21 of 33
87. In 2008, Ms. Reyes again applied for a U.S. passport, using her newly issued Texas birth certificate. On May 9, 2008, that application was also denied, [163:3]:
A check with the Mexican vital records office revealed that there was a birth certificate recorded for you on 04/22/1932. This record was filed before the Texas birth certificate. As a result of this finding, a U.S. passport cannot be issued to you at this time. 88. This denial, from which no administrative appeal exists, ignores all the other relevant evidence, and denies her Due Process. 89. After pursuing a district court action against DOS, DOS issued determined that Ms. Reyes is a U.S. citizen. Reyes v. Clinton, No. 1:11-cv-85 (S.D.Tex) Dkt No. 194 at 5. DOS issued her a passport on May 8, 2012, [220].
G. ERVEY LORENZO SANTOS 90. Ervey Lorenzo Santos was born in Brownsville, Texas, on August 1974. His mother was attended by Vicenta A Vitte, a midwife. His birth was timely registered in Texas six days later. When he was born, his parents were residing in Poblado Anahuac in Matomoros, Mexico. [161] 91. Approximately three months after his birth, Mr. Santos was baptized in the City of Anahuac, part of the dioceses of Matamoros, Mexico. His baptismal certificate reflects birth in Brownsville. 92. In August of 1980, at the age of six, Mr. Santos’ father registered him in Matamoros, Mexico showing his birth in the City of Anahuac, Tamaulipas, Mexico. The registration also indicated that he was born in July 1974. This was done so that Mr. Santos could attend school in Mexico, starting one year earlier than would otherwise be the case. 93. To the best of his recollection and belief, Mr. Santos first applied for a U.S. Passport in Brownsville, Texas, in about 1995, when he was approximately twenty-one years old. He
21

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 22 of 33
remembers that a government official told him that he would not receive a passport because he was born with a midwife. Mr. Santos did not receive his U.S. Passport. 94. On or about March 20, 2001, Mr. Santos again applied for a U.S. Passport in Mississippi, where he was living at that time. He recalls being told it would take approximately 2 months to receive his U.S. Passport. He did not receive it within 2 months. He later moved, without having received his passport. 95. On or about December 7, 2007, Mr. Santos applied for the third time for a U.S. Passport in Brownsville, Texas. Shortly after, DOS contacted Mr. Santos to ask why he needed another U.S. Passport if he already had one. Mr. Santos wrote back to DOS informing them that he did not received any prior passport. 96. On May 1, 2008, DOS issued Mr. Santos a U.S. Passport. 97. On or about November 30, 2007, Mr. Santos went with his parents to the U.S. Consulate in Ciudad Juarez, Mexico for an interview regarding their pending applications to immigrate to the United States. At this interview, DOS intensively questioned his mother for approximately two hours about the place where her son was born. Throughout the interrogation, his mother repeatedly told the consular officer that Mr. Santos was born in Texas. However, after his mother was interviewed, the consular officer called his father and interviewed him for approximately two hours. Through the use of threats, lies and intimidation, his father was pressured into falsely “admitting” that his son was not born in the United States. Among other things, the consular officer told his father that if he did not admit that his son was not born in the U.S. that they would send his son to jail. Mr. Santos’ father signed a document which he could not read because it was in English. The consular officer did not provide him with a copy of the document.
22

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 23 of 33
98. Shortly after his father signed this document, Mr. Santos was called in and told that his
father had admitted he was not born in the United States. The consular officer confiscated his
social security card and cut in half his Texas Drivers’ License.
99. The consular officer also instructed Mr. Santos to sign a document written in English,
which he could not read. Again, the consular officer did not provide him with a copy of it.
100. After this incident, Mr. Santos’ parents, both of whom suffer from high blood pressure,
became very ill.
101. On or about June 14, 2009, Mr. Santos wrote a letter to immigration informing them that
because of the incident in Cuidad Juarez, where they were threatened and intimidated, his parents
had decided for health reasons that at this time they did not want to continue with the process of
immigrating to the United States. On or about June 17, 2009, DHS sent Mr. Santos a letter
informing him that his parents’ case was closed.
102. On or about March 10, 2011, Mr. Santos received a certified letter from the Department of
State, informing him that his U.S. Passport was being revoked, and ordering him to surrender his
U.S. Passports. The letter stated, in relevant part (emphasis added), [161:19-20]:
An investigation conducted by the Department revealed that the birth certificate presented by you for both applications was false and that you submitted false identity documents in support of your application for U.S. Passport. Your father, Lorenzo Santos Lopez, admitted in a signed statement that you were in fact born in Tamaulipas, Mexico, and that his father in law had purchased the false U.S. birth certificate for you for the sum of $150.00. Additionally, you admitted in a signed statement that you have known of the true circumstance of your birth since 1993. A Mexican birth certificate was located during the investigation that confirms that you were born on July 18, 1974 in Tamaulipas, Mexico. Because you made a false statement of material fact on the passport applications, your passports are revoked pursuant to Section 51.62(a)(2) of Title 22 of the U.S. Code of Federal Regulations. ... You have a right to a hearing under Sections 51.70 through 51.74 of Title 22 of the U.S. Code of Federal Regulations, a copy of which is enclosed. This hearing would address the evidence presented upon which the passports were issued.
23

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 24 of 33
Should you desire such a hearing, you must notify this office in writing within 60 days of receipt of this notice. A request for a hearing does not serve to stay the revocation action taken by the Department of State. 103. On or about April 25, 2011, as mandated by DOS, Mr. Santos surrendered his U.S. Passports. 104. For financial and other reasons, including the facts that the hearing offered would address only the “evidence presented upon which the passports were issued,” could be conducted only in Washington D.C., at Mr. Santos’ expense, and would offer no Due Process protections, [151], and given DOS’ recognition that not requesting such a hearing does not constitute a failure to exhaust administrative remedies, [151:8], Mr. Santos did not request such a hearing. 105. After pursuing a district court action against DOS, DOS agreed to settle the case and issue Mr. Santos a U.S. passport. See Santos v. Clinton, Case No. 1:11-cv-108 (S.D.Tex) Dkt No. 32.
IV. CLASS ALLEGATIONS 106. Plaintiffs hereby incorporate by reference the allegations of the foregoing paragraphs. 107. Plaintiffs seek to represent the following related classes:
First Proposed Class Passports Revoked Based on Allegations Based on Non-Nationality (Represented by Plaintiffs Luis Montemayor and Ana Luisa Guerrero) Individuals who:  have received or will receive U.S. passports based on birth in the United States, a U.S. territory or outlying possession;  whose passports, on or after September 7, 2003, have been or will be revoked by the Department of State based, in whole or in part, on 22 C.F.R. § 51.62(b) (non-national), where the underlying assertion is that the bearer is not a national of the United States;  DOS has revoked, or will revoke, the passport based solely on evidence provided by the party seeking revocation or gathered by the Department of State; and  whose claims of U.S. citizenship have not been finally adjudicated by a federal court.
24

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 25 of 33

Second Proposed Class1
Passports Revoked Based on Allegations Based on Fraud Related to Non-Nationality (Represented by Plaintiff Laura Nancy Castro and Ervey Lorenzo Santos)
Individuals who:  have received or will receive U.S. passports based on birth in the United States, a U.S. territory or outlying possession;  whose passports, on or after September 7, 2003, have been or will be revoked by the Department of State based, in whole or in part, on 22 C.F.R. § 51.62(a)(2) (obtained illegally, or obtained by fraud or error), where the underlying assertion is that the bearer is not a national of the United States;  DOS has revoked, or will revoke, the passport based solely on evidence provided by the party seeking revocation or gathered by the Department of State; and  whose claims of U.S. citizenship have not been finally adjudicated by a federal court.
Third Proposed Class:2 Passport Applications Denied Based on Failure to Prove U.S. Nationality
(Represented by Plaintiffs Garcia and Reyes)
Individuals who:  on or after September 7, 2003, applied for, or who will in the future apply for, United States passport;  whose passport application has been or will be denied by Defendant Clinton based, in whole or in part, on 22 C.F.R. § 51.62(b) (non-national) or 22 C.F.R. § 51.62(a)(2) (obtained illegally, or obtained by fraud or error), where Defendant Clinton’s underlying assertion is that the applicant is not a citizen of the United States; and  whose claim of U.S. citizenship has not been finally adjudicated by a federal court.
108. As used in these class definitions, September 7, 2003, represents six years before the date
of the initial filing of the instant action (September 7, 2009) as contemplated by the applicable
statute of limitations, 28 U.S.C. § 2401.

1

As discussed in the accompanying motion for leave to file, the additions of Plaintiffs Laura

Castro and Ervey Santos as representatives for the Second Proposed Class are the only

substantively new additions to the instant complaint.

2

Plaintiffs acknowledge that the Court already has found that passport applicants do not

have standing to raise the First Cause of Action, [221]. The Third Proposed Class (formerly

labeled the Second Proposed Class in the Fourth Amended Complaint) is pled here to preserve

appeal of that decision.

25

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 26 of 33

109. On information and belief, Plaintiffs allege that, as so defined, the classes number in the

hundreds, not counting future members.

110. The classes are so numerous that joinder of all members would be impracticable. Joinder

is particularly impracticable since the classes include future members.

111. The claims of the representative parties are typical of the claims of the classes.

112. The representative parties, and their counsel, can and will fairly and adequately protect the

interests of the classes. Class counsel are experienced in class action litigation and in litigation of

the type of claims raised here.

113. There are questions of law and fact that are common to the classes which predominate over

any individual questions. Further, Defendants have acted, or refused to act, on grounds generally

applicable to the class, making appropriate final injunctive and declaratory relief, with respect to

the class as a whole.

V. THE CAUSES OF ACTION

FIRST CAUSE OF ACTION3

Violation of the Preponderance of Evidence Standard

Violation of Fifth Amendment (Due Process Clause), Fourteenth Amendment (Citizenship Clause); 5 U.S.C. §§ 702, 706 (APA Claims);
28 U.S.C. § 2201 (Declaratory and Corresponding Injunctive Relief); 28 U.S.C. § 1361 (Mandamus Act)
(Plaintiffs Garcia, Montemayor, Guerrero, Ruiz, Reyes Laura Castro and Ervey Lorenzo Santos4 on their own behalf and behalf of all others similarly situated, Against Defendant Kerry)

114. Plaintiffs incorporate by reference the allegations of the foregoing paragraphs.

3

Plaintiffs acknowledge that this Court already has held that the Administrative Procedures

Act (“APA”) does not provide a basis for the First Cause of Action [190], and also has determined

that the First Cause of Action is moot as to Plaintiffs Garcia, Reyes, and Ruiz [221]. Both the

APA and these Plaintiffs are pled here to preserve appeal of these decisions.

4

In light of the Court’s July 26, 2013 Order [235], Plaintiffs seek leave to amend the instant

complaint to add Laura Castro and Ervey Santos to the First Cause of Action.

26

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 27 of 33

115. As alleged above, Defendant Secretary of State improperly applies the “preponderance of evidence” standard, both in adjudicating U.S. passport applications and in determining whether to revoke previously issued U.S. passports. Such action deprives Plaintiffs of the full enjoyment of the rights and privileges of U.S. citizenship to which they are entitled by virtue of birth within the United States. 116. Defendant Kerry’s actions violate Plaintiffs’ rights under the Fifth and Fourteenth Amendments, the Administrative Procedures Act, the Mandamus Act, and entitle Plaintiffs to relief under the Declaratory Judgment Act.
SECOND CAUSE OF ACTION5 Lack of Due Process in Adjudicating Passport Applications Violation of Fifth Amendment (Due Process Clause); and Fourteenth Amendment (Citizenship Clause); 8 U.S.C. § 1101(a)(22); 22 U.S.C. § 211a; and 5 U.S.C. §§ 702, 706 (APA Claims for
violations of Executive Orders 11295 and 13323) (Plaintiffs Garcia, Ruiz, and Reyes on their own behalf and behalf of all others similarly situated,
Against Defendant Kerry) 117. Plaintiffs incorporate by reference the allegations of the foregoing paragraphs. 118. The regulations implementing 22 U.S.C. § 211a do not provide for Due Process protections in the adjudication of applications for United States passports. 119. Under federal law, a person whose U.S. passport application has been denied based on non-nationality is not entitled to request a hearing in which he or she could obtain review of the basis for the denial. 120. Such actions violate the Fifth and Fourteenth Amendments, 8 U.S.C. § 1101(a)(22), 22 U.S.C. § 211a, and the Administrative Procedures Act and are inconsistent with Executive

5

Plaintiffs acknowledge that this Court already has dismissed the Second Cause of Action

for failure to state a claim, [190]. The Second Cause of Action is pled here to preserve appeal of

that decision.

27

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 28 of 33

Orders 11295 and 13323.

THIRD CAUSE OF ACTION6

Lack of Due Process in Revoking U.S. Passport Based on Non-Nationality

Violation of Fifth Amendment (Due Process Clause); and Fourteenth Amendment (Citizenship Clause); 8 U.S.C. § 1101(a)(22); 22 U.S.C. § 211a; and 5 U.S.C. §§ 702, 706 (APA Claims for
violations of Executive Orders 11295 and 13323)

(Plaintiffs Montemayor and Guerrero, on their own behalf and behalf of all others similarly situated, Against Defendant Kerry)

121. Plaintiffs incorporate by reference the allegations of the foregoing paragraphs.

122. Under federal law, a person whose U.S. passport has been revoked based on

non-nationality is not entitled to request a hearing in which he or she could obtain review of the

basis for the denial.

123. Such actions violate the Fifth and Fourteenth Amendments, 8 U.S.C. § 1101(a)(22), 22

U.S.C. § 211a, and the Administrative Procedures Act and are inconsistent with Executive Orders

11295 and 13323.

FOURTH CAUSE OF ACTION7

Inadequate Hearing for Passports Denied or Revoked Under 22 C.F.R. § 51.62(a)(2)

Violation of Fifth Amendment (Due Process Clause)

(Plaintiff Santos, on his own behalf and behalf of all others similarly situated, Against Defendant Kerry)

124. Plaintiffs incorporate by reference the allegations of the foregoing paragraphs.

6

Plaintiffs acknowledge that this Court already has dismissed the Third Cause of Action for

failure to state a claim, [190]. The Third Cause of Action is pled here to preserve appeal of that

decision.

7

Plaintiffs acknowledge that this Court already has dismissed the Fourth Cause of Action

for failure to state a claim, [190]. The Fourth Cause of Action is pled here to preserve appeal of

that decision.

28

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 29 of 33

125. Plaintiffs complain about the hearing afforded to them when Defendants deny U.S. passports or revoke previously issued U.S. passports where the underlying assertion is that the bearer claims to have been, but was not, born in the United States. 126. The hearing does not afford adequate notice and a meaningful opportunity to contest Defendants’ determinations because, among other things, the hearing officer is not an impartial adjudicator, there is no right to discovery, there are no publicized procedures, no body of applicable law, no right to subpoena critical witnesses, and no contemporaneous record of the hearing for appellate review. 127. Such actions violate Plaintiffs’ right under the Fifth Amendment.
FIFTH CAUSE OF ACTION8 Unequal Treatment of Persons Whose Passport Applications Have Been Denied
Based on Non-Nationality Violation of Equal Protection under the Fifth Amendment (Plaintiffs Garcia, Ruiz, and Reyes on their own behalf and behalf of all others similarly situated,
Against Defendant Kerry) 128. Plaintiffs incorporate by reference the allegations of the foregoing paragraphs. 129. Plaintiffs complain that Defendant wrongfully denies a hearing to applicants for U.S. passports whose applications are denied based on non-nationality. In contrast, a hearing is afforded to persons whose U.S. passports applications are denied based on grounds not-related to non-nationality, specifically under 22 C.F.R. §§ 51.60(b)(1)-(10), 51.60(c), 51.60(d), 51.61(b), 51.62(a)(1), or 51.62(a)(2). 130. Such action violates Equal Protection as applied through the Due Process Clause of the

8

Plaintiffs acknowledge that this Court already has dismissed the Fifth Cause of Action for

failure to state a claim, [190]. The Fifth Cause of Action is pled here to preserve appeal of that

decision.

29

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 30 of 33

Fifth Amendment.

SIXTH CAUSE OF ACTION9

Unequal Treatment of Persons Whose Passports Have Been Revoked Based on Non-Nationality

Violation of Equal Protection under the Fifth Amendment

(Plaintiffs Montemayor and Guerrero, on their own behalf and behalf of all others similarly situated, Against Defendant Kerry)

131. Plaintiffs incorporate by reference the allegations of the foregoing paragraphs.

132. Plaintiffs complain that Defendant wrongfully denies a hearing to persons whose U.S.

passports are revoked based on non-nationality. In contrast, a hearing is afforded to persons

whose U.S. passports applications are revoked based on grounds not-related to non-nationality,

specifically under 22 C.F.R. §§ 51.60(b)(1)-(10), 51.60(c), 51.60(d), 51.61(b), 51.62(a)(1), or

51.62(a)(2).

133. Such action violates Equal Protection as applied through the Due Process Clause of the

Fifth Amendment.

//

//

//

//

//

//

//

9

Plaintiffs acknowledge that this Court already has dismissed the Sixth Cause of Action for

failure to state a claim, [190]. The Sixth Cause of Action is pled here to preserve appeal of that

decision.

30

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 31 of 33
SEVENTH CAUSE OF ACTION10 Deprivation of U.S. Citizenship Claimants’ Access to Counsel
Violation of Fifth Amendment (Due Process Clause), Fourteenth Amendment (Citizenship Clause);
(Plaintiffs Laura, and Yuliana Castro, and Garcia, on their own behalf and behalf of all others similarly situated, Against Defendants Freeman and Napolitano) 134. Plaintiffs incorporate by reference the allegations of the foregoing paragraphs. 135. Plaintiffs complain of a pattern and practice of denying access to counsel at ports of entry when questioning U.S. citizen claimants, including those who have facially valid U.S. passports, about their citizenship claims. Such action violates the Citizenship Clause of the Fourteenth Amendment, and the Due Process Clause of the Fifth Amendment.
VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: 1) Assume jurisdiction over the instant action; 2) Certify this case as a class action, as proposed above; and 3) Declare that the actions, practices and determinations challenged herein violate federal law, including but not limited to, the Constitution, Immigration and Nationality Act, and the Administrative Procedures Act, and issue an appropriate order for injunctive and declaratory relief to remedy these violations and prevent future violations. 4) Issue an award of attorneys’ fees, and such other and further relief as the Court may deem just
10 Plaintiffs acknowledge that this Court already has dismissed part of the Seventh Cause of Action, including Plaintiffs’ claim of unlawful deprivation of counsel, for failure to state a claim [221]. However, the Court did not dismiss Plaintiffs previously pled claims that they were deprived of food, water and bathroom facilities, [221]. The Seventh Cause of Action is pled here to preserve appeal only of the Court’s decision dismissing Plaintiff’s claim of unlawful deprivation of counsel.
31

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 32 of 33

and appropriate.
Respectfully Submitted,
s/ Javier Maldonado Javier Maldonado LAW OFFICE OF JAVIER N. MALDONADO, PC 8918 Tesoro Dr., Ste. 575, San Antonio, TX 78217 (210) 277-1603 (210) 587-4001 (fax) Federal ID: 20113 Texas Bar No. 00794216
Trina Realmuto NATIONAL IMMIGRATION PROJECT of the NATIONAL LAWYERS GUILD 14 Beacon Street, Suite 602 Boston, MA 02108 (617) 227-9727 ext. 8 (617) 227-5495 (fax) California Bar No. 201088

Lisa S. Brodyaga, Attorney REFUGIO DEL RIO GRANDE 17891 Landrum Park Road San Benito, TX 78586 (956) 421-3226 (956) 421-3423 (fax) Federal ID: 1178 Texas Bar No. 03052800 Attorney in Charge
Jaime M. Diez JONES & CRANE P.O. Box 3070 Brownsville, TX 78523 (956) 544-3565 (956) 550-0006 (fax) Federal ID: 23118 Texas Bar No. 00783966

32

Case 1:09-cv-00208 Document 240 Filed in TXSD on 09/30/13 Page 33 of 33 CERTIFICATE OF SERVICE
I, Javier Maldonado, hereby certify that copies of the foregoing were served electronically on all counsel of record, on September 30, 2013. /s/ Javier Maldonado Javier Maldonado LAW OFFICE OF JAVIER N. MALDONADO, PC 8918 Tesoro Dr., Ste. 575, San Antonio, TX 78217 (210) 277-1603 (210) 587-4001 (fax) Federal ID: 20113 Texas Bar No. 00794216
33

 
 Case 1:09-cv-00208 Document 254 Filed in TXSD on 03/26/14 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

LAURA NANCY CASTRO, et al,
Plaintiffs, VS.
MICHAEL T FREEMAN, et al,
Defendants.

§ § § § CIVIL NO. 1:09-CV-208 § § § §

ORDER

BE IT REMEMBERED, that on March 26, 2014, the Court DENIES Plaintiffs’ Opposed Third Motion for Class Certification, Dkt. No. 227.

I. Factual and Procedural Background The following is the background most relevant to the instant motion.
Plaintiffs filed their Fifth Amended Class Action Complaint for Declaratory and Injunctive Relief on September 30, 2013. Dkt. No. 240. Prior to that date, on March 15, 2013, Plaintiffs filed their Opposed Third Motion for Class Certification. Dkt. No. 227. On December 12, 2013, Defendants filed an amended response to Plaintiffs’ motion for class certification.1 Dkt. No. 248. On December 30, 2013, Plaintiffs filed an amended reply to Defendants’ response to the motion for class certification. Dkt. No. 251.
Plaintiffs’ fifth amended complaint sets out seven causes of action, though only the first remains live.2 The first cause of action alleges that the Secretary of State of the United States “improperly applies the ‘preponderance of the evidence’

1 In their reply to Defendants’ response to Plaintiffs’ motion for leave to file the fifth amended complaint, Plaintiffs indicated that the third motion for class certification was not mooted by the request for leave to amend. Dkt. No. 238 at 3. Plaintiffs therefore did not file an amended motion for class certification after they filed the fifth amended complaint.
2 Plaintiffs repled causes of action two through seven to preserve appeal of the Court’s dismissal of those claims. See Dkt. No. 240 at 27–31.
1 / 11

Case 1:09-cv-00208 Document 254 Filed in TXSD on 03/26/14 Page 2 of 11
standard . . . in determining whether to revoke previously issued U.S. passports.” Dkt. No. 240 at 27. More specifically, Plaintiffs allege that after September 7, 2003, the Department of State “stopped relying on the oldest ‘public’ document in adjudicating citizenship claims, unless the oldest public document shows Mexican nationality.” Id. at 6. “Now, in cases of dual birth registration . . . [i]f the Mexican birth registration occurred prior to the U.S. birth registration, [the Department of State] generally takes it as conclusive of birth in Mexico, even ignoring evidence created before the Mexican registration . . . . However, the converse is not true: in most such cases, if the U.S. registration occurred first, [the Department of State] still requires more than one corroborating ‘public’ document, in the absence of which[] the passport application is almost always denied.” Id. Plaintiffs allege that the Department of State makes findings regarding nationality that are inappropriate under the preponderance standard, “even den[ying] passport applications where there is no evidence of foreign birth.” Id. at 7. Plaintiffs allege that these actions violate Plaintiffs’ rights under the Fifth and Fourteenth Amendments and the Mandamus Act, and entitle Plaintiffs to declaratory relief. Id. at 27.
Plaintiffs move to certify two classes of plaintiffs as to this cause of action. Dkt. No. 227-2 at 9. The first class would consist of persons whose passports were revoked based on allegations of non-nationality (represented by Luis Montemayor and Ana Luisa Guerrero), and the second would consist of persons whose passports were revoked based on allegations of fraud related to non-nationality (represented by Laura Nancy Castro and Ervey Lorenzo Santos). Dkt. No. 240 at 24–25; Dkt. No. 227-2 at 9. Plaintiffs allege that the members of these classes were subjected to an improperly-applied preponderance of the evidence standard in violation of their rights. Dkt. No. 240 at 27.
II. Legal Standard In order for a class to be certified for the purpose of pursuing a class action
under the Federal Rules of Civil Procedure, the party seeking certification must
2 / 11

Case 1:09-cv-00208 Document 254 Filed in TXSD on 03/26/14 Page 3 of 11
show that the class meets all four requirements set out under Rule 23(a), and at least one of the subsections of Rule 23(b). M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 837 (5th Cir. 2012). “The party seeking certification bears the burden of demonstrating that the rule 23 requirements have been met.” Stirman v. Exxon Corp., 280 F.3d 554, 562 (5th Cir. 2002). “A district court must conduct a rigorous analysis of the [R]ule 23 prerequisites before certifying a class.” Perry, 675 F.3d at 837.
Rule 23(a) requires that a party seeking to certify a class demonstrate that “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” FED. R. CIV. P. 23(a). These requirements are commonly referred to as the numerosity, commonality, typicality, and adequate representation requirements, respectively. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011). The party seeking certification must also demonstrate that one of the three subsections of Rule 23(b) is met. FED. R. CIV. P. 23(b). The relevant subsection in this case is Rule 23(b)(2), which allows for certification if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” FED. R. CIV. P. 23(b). A class sought to be represented in a class action must be “adequately defined and clearly ascertainable.” Union Asset Management Holding A.G. v. Dell, Inc., 669 F.3d 632, 639 (5th Cir. 2012).
III. Analysis As previously stated, the only remaining claim in this case pertains to the
Department of State’s allegedly improper application of the preponderance of the evidence standard in revoking United States passports. Dkt. No. 240 at 26–27. Plaintiffs seek certification of two classes. Dkt. No. 227 at 2. The first proposed class would consist of individuals 1) who have received or will receive U.S. passports
3 / 11

Case 1:09-cv-00208 Document 254 Filed in TXSD on 03/26/14 Page 4 of 11
based on their birth in the United States, 2) whose passports, on or after September 7, 2003, have been or will be revoked based on non-nationality, 3) where the passport was or will be revoked based solely on evidence provided by the party seeking revocation or gathered by the Department of State, and 4) whose claims of citizenship have not been finally adjudicated by a federal court. Id. at 2. The second proposed class would consist of individuals 1) who have received or will receive U.S. passports based on their birth in the United States, 2) whose passports, on or after September 7, 2003, have been or will be revoked based on fraud related to nonnationality, 3) where the passport was or will be revoked based solely on evidence provided by the party seeking revocation or gathered by the Department of State, and 4) whose claims of citizenship have not been finally adjudicated by a federal court. Id. at 3. Plaintiffs assert that these two proposed classes meet the requirements of class certification and that this case should therefore be certified to proceed as a class action.
Defendants first argue that the classes proposed by Plaintiffs are not ascertainable. Dkt. No. 248 at 6. First, Defendants argue that the fourth component of each class definition (“whose claims of citizenship have not been finally adjudicated by a federal court”) “creates an artificial class of individuals who are harmed, by thwarting the statutory scheme [of 8 U.S.C. § 1503].” Id. at 7. Second, Defendants assert that Plaintiffs are unable to “ascertain who is a class member without reference to undefined criteria outside those contained in their proposed class definitions.” Id. at 9. In reply, Plaintiffs argue that the existence of 8 U.S.C. § 1503 does not defeat class certification, because the class plaintiffs face an ongoing threat of passport revocation that cannot be remedied under § 1503 and because the systemic challenge in this case could not be addressed in an action under § 1503. Dkt. No. 251 at 12–16. Plaintiffs also assert that the classes are readily ascertainable and that the inconsistencies Defendants allege in the class definition are due to factors not relevant to the present litigation and therefore not included in Plaintiffs’ statement of the class. Id. at 17–18.
4 / 11

Case 1:09-cv-00208 Document 254 Filed in TXSD on 03/26/14 Page 5 of 11
With regard to Defendants’ first argument, the mere fact that the § 1503 remedy exists does not mean that a class defined in part by not accessing that remedy is unascertainable. Indeed, the class definitions are specifically intended to identify persons who cannot access the § 1503 remedy or could not challenge the alleged violations in a § 1503 action, and yet are at risk of being affected by the alleged systemic failure to properly apply the preponderance of the evidence standard. In other words, the existence of § 1503 does not render the classes in question unascertainable, and Defendants cite no authority that would suggest a contrary conclusion. In a number of circumstances courts have allowed class action litigation regardless of the fact that a judicial remedy may be available to individual plaintiffs. See Haitian Refugee Center v. Smith, 676 F.2d 1023, 1033 (5th Cir. 1982); Ali v. Ashcroft, 346 F.3d 873, 888 (9th Cir. 2003) (withdrawn on other grounds). Moreover, to the extent that Defendants are asserting that the first cause of action should be dismissed for lack of subject matter jurisdiction or for failure to state a claim, their arguments are better addressed in the context of their motion to dismiss. Dkt. No. 243.
As to Defendants’ second argument, the Court finds that Plaintiffs’ proposed class definitions describe a sufficiently ascertainable class regardless of the alleged inconsistency at this stage. Defendants’ argument is based on the fact that Plaintiffs excluded 32 individuals from their proposed first class who, based on their passport revocation letters, appear to fit the class definition. Dkt. No. 248 at 8. However, Plaintiffs explain that these individuals were excluded because they either held diplomatic status at the time of their United States births or had final convictions related to identity theft. Dkt. No. 251 at 18. At this stage in the proceedings, though the proposed class must be specifically ascertainable, “the identity of individual class members need not be ascertained.” MANUAL FOR COMPLEX LITIGATION (FOURTH), § 21.222 (2004); see John v. National Sec. Fire and Cas. Co., 501 F.3d 443 (5th Cir. 2007) (citing DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970)). Therefore, Plaintiffs’ exclusion of certain individuals at this
5 / 11

Case 1:09-cv-00208 Document 254 Filed in TXSD on 03/26/14 Page 6 of 11
stage does not make the class unascertainable.3 Both proposed classes in this case are defined by four specific parameters, which together adequately define two specifically ascertainable groups of people. Dkt. No. 227 at 2–3. Having concluded that the classes in question are sufficiently ascertainable, the Court will address the requirements of Rule 23(a).
A. Commonality The first issue Defendants raise as to commonality is what legal issues are properly included within the live cause of action in this case, and therefore what issues are properly considered for the purposes of commonality. Dkt. No. 248 at 10– 14. The remaining claim as stated in Plaintiffs’ live complaint alleges that the Department of State improperly applies the preponderance of the evidence standard in revoking previously-issued United States passports by failing to consider all available evidence and giving improper weight to certain evidence. Dkt. No. 240 at 6–7, 27. In Plaintiffs’ motion for class certification, however, they argue that the Department of State “is misapplying the preponderance of the evidence standard by (1) erroneously shifting the burden of proving loss of nationality . . . to the U.S. passport holder; and (2) . . . manipulating the burden of proof by . . . failing to consider all the evidence, including evidence the passport holder might submit and by denying U.S. passport holders notice and an opportunity to respond before revocation. Dkt. No. 227-2 at 12. With regard to the first point, Defendants argue that Plaintiffs do not correctly frame the issue of burden-shifting, and that in any event that legal issue is not properly part of the live cause of action. Dkt. No. 248 at 10–13. As to the second point, Defendants argue that Plaintiffs are attempting to revive their previously-
3 The Court notes that a class is not ascertainable and may not be certified if the definition requires consideration of the merits of each case before determining membership in the class. In re Vioxx Products Liability Litigation, No. MDL1657, 2008 WL 4681368 (E.D. La. Oct. 21, 2008) (citing Eisen v. Carlisle and Jacquelin, 417 U.S. 156 (1974)). In this case, the class definition may not incorporate a judgment on the merits of the class plaintiffs’ claims to a passport by virtue of birth in the United States. Though Plaintiffs state that they do not object to revising the class definition to exclude individuals who held diplomatic status at the time of their United States births or had final convictions related to identity theft, it seems possible that such a revision would incorporate a judgment on the merits of those plaintiffs’ passport revocations. The Court therefore declines to consider such a revision.
6 / 11

Case 1:09-cv-00208 Document 254 Filed in TXSD on 03/26/14 Page 7 of 11
dismissed due process claims by asserting that failure to provide notice and an opportunity for a hearing constitutes a misapplication of the preponderance standard. Id. at 13–14. Plaintiffs reply that Defendants have mischaracterized Plaintiffs’ claims, and that the burden-shifting and due process issues Defendants challenge are necessarily encompassed by the live claim regarding misapplication of the preponderance standard. Dkt. No. 251 at 6–7.
By incorporating due process arguments into their argument in the motion for class certification, Plaintiffs have confused the instant issue. Dkt. No. 227-2 at 12 (“by denying U.S. passport holder notice and an opportunity to respond”); id. at 13 (“due process requires”); id. at 15–17. Plaintiffs may not revive their previouslydismissed due process claims by subsuming those issues into the live preponderance-of-the-evidence claim. See Dkt. No. 240 at 27–30. Because a claim that Plaintiffs were denied notice and an opportunity for a hearing is properly characterized as a procedural due process claim, and Plaintiffs’ due process claims were previously dismissed, that aspect of the motion for class certification must be disregarded.4
With regard to the burden-shifting issue, the main disagreement between the parties at this point is whether the Plaintiffs’ claim that the Department of State misapplies the preponderance of the evidence standard encompasses both the burden of production and the burden of persuasion. Defendants correctly point out that nowhere in the live complaint do Plaintiffs indicate that their live cause of action incorporates the allegedly shifting burden of production. See Dkt. No. 240 at 6–7. It is also quite clear that Defendants have not unfairly mischaracterized Plaintiffs’ claim as Plaintiffs stated it in the live complaint. See Dkt. No. 240; Dkt. No. 248 at 10–14; Dkt. No. 251 at 6. Moreover, it is not apparent that in this context, the burden of production is a meaningful issue such that it should be
4 To the extent that it does not approach a procedural due process statement, Plaintiffs’ assertion that failure to consider all available evidence substantively violates the preponderance standard may be properly part of the live cause of action. However, at this stage the Court merely considers it in the context of Plaintiffs’ broader claim that the preponderance of the evidence standard is systemically misapplied, without deciding whether it is properly included in this case of action or whether it is in fact a due process claim.
7 / 11

Case 1:09-cv-00208 Document 254 Filed in TXSD on 03/26/14 Page 8 of 11
included in the live cause of action.5 See Dkt. No. 248 at 10–11. However, because at this stage of the proceeding the Court cannot address the substantive scope of the live claim, not least because the issue has not been fully briefed, and because the inclusion of this issue does not affect the Court’s ultimate conclusion, the Court will consider this issue within the context of Plaintiffs’ assertion that the preponderance of the evidence standard is systemically misapplied.6
Having clarified, to some degree, the scope of the legal issues in the instant action, the Court now turns to the question of whether the commonality requirement of Rule 23(a)(2) is met in this case. Rule 23(a)(2) states that for a class to be certified, there must be “questions of law or fact common to the class.” FED. R. CIV. P. 23(a)(2). Plaintiffs argue that the legal issue common to the class in this case is whether the Department of State improperly applies the preponderance of the evidence standard in adjudicating passport revocations. Dkt. No. 227-2 at 24. Plaintiffs also assert that there are common factual questions, essentially restating the facts that define the classes themselves. Id. Defendants argue that resolution of the common issues of law posited by Plaintiffs would not resolve any question that is central to the validity of each class member’s claim, and that the issues at stake are not suitable for classwide resolution. Dkt. No. 248 at 15. Specifically, Defendants assert that “even if the Court ordered [the Department of State] to apply a different burden, or consider different evidence, this would not affect [the Department’s] weighing of the available evidence for any individual class member.” Id. at 17. Plaintiffs reply that the only questions common to the class are legal
5 Defendants state that “the term ‘burden’ as used in this context does not have the same meaning as it might in an adversarial proceeding.” However, Defendants cite no authority to that effect.
6 A court must “look beyond the pleadings to understand the claims . . . relevant facts, and applicable substantive law in order to make a meaningful determination of whether this question satisfies commonality.” Perry, 675 F.3d at 841 (internal quotations and citations omitted). On the basis of that mandate, the Court here considers the proposed common issue(s) with a certain degree of breadth. The Court notes that the theories advanced in Plaintiffs’ live complaint with regard to the first cause of action differ from the theories advanced in Plaintiffs’ motion for class certification, and acknowledges that this inconsistency would need to be clarified before addressing the merits of Plaintiffs’ claims. However, it best serves the advancement of this case on the merits that the common issues be construed somewhat generously for the purpose of resolving the long-standing issue of class certification.
8 / 11

Case 1:09-cv-00208 Document 254 Filed in TXSD on 03/26/14 Page 9 of 11
questions that do not require any individualized analysis, and that certification is therefore appropriate regardless of the fact that “there are factual variations in individual cases.” Dkt. No. 227-2 at 23; Dkt. No. 251.
It is no longer true, as Plaintiffs posit, that the commonality requirement is met when there is an issue common to the class whose resolution will affect a significant number of class members. Perry, 675 F.3d at 839–40 (citing James v. City of Dallas, 254 F.3d 551 (5th Cir. 2001); Forbush v. J.C. Penney Co., Inc., 994 F.2d 1101 (5th Cir. 1993)). “After Wal-Mart, Rule 23(a)(2)’s commonality requirement demands more than the presentation of questions that are common to the class because ‘any competently crafted class complaint literally raises common questions.’” Perry, 675 F.3d at 840 (citing Wal-Mart, 131 S.Ct. at 2551 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 131–32 (2009))). Though it is not necessary for all legal and factual issues at issue in the litigation to be common to the class, a plaintiff must show that there is at least one common issue that is “capable of classwide resolution.” Wal-Mart, 131 S.Ct. at 2551. An issue is capable of classwide resolution if “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 131 S.Ct. at 2551.
Furthermore, where the alleged common issue is “a somewhat amorphous claim of systemic or widespread misconduct on the part of the defendant . . . the district court should be particularly precise” in finding that the resolution of the common question will “’resolve an issue that is central to the validity’” of each individual class member’s claims. Perry, 675 F.3d at 844 (citing Wal-Mart, 131 S.Ct. at 2551). In other words, “mere allegations of systemic violations of the law . . . will not automatically satisfy Rule 23(a)’s commonality requirement.” Id. (citing D.G. ex rel. Stricklin v. Devaughn, 594 F.3d 1188 (2010)).
Here, Plaintiffs have not shown that there is an issue common to the class that is capable of classwide resolution. Wal-Mart, 131 S.Ct. at 2551. More specifically, Plaintiffs have not shown that resolving the question of whether the Department of State misapplies the preponderance of the evidence standard will
9 / 11

Case 1:09-cv-00208 Document 254 Filed in TXSD on 03/26/14 Page 10 of 11
resolve a question that is central to the validity of each of the class plaintiffs’ claims—that is, their nationality and corresponding entitlement to a United States passport. Even if the court found that the Department of State systematically misapplies the preponderance of the evidence standard to passport revocations,7 the individual class members would be no closer to having their passports reissued than they were before the resolution of the class claim. Each individual’s entitlement to a passport would still need to be adjudicated, whether by the Department of State or by a federal court in an action under 8 U.S.C. § 1503.
Though Plaintiffs’ class complaint does “literally raise[] common questions”, the proposed common question does not have the capacity “to generate common answers apt to drive the resolution of the litigation.” Wal-Mart, 131 S.Ct. at 2551 (quoting Nagareda, supra page 9 at 131–32). Plaintiffs do not clearly articulate a theory of how their proposed common question meets the Rule 23(a)(2) standard as stated in Wal-Mart, instead merely asserting that the question is “relevant to all class members.”8 See Dkt. Nos. 227-2, 251. Further, merely alleging a systemic violation to which all class members have been subjected is not sufficient to meet the commonality requirement. Perry, 675 F.3d at 844; but see Dkt. No. 227-2 at 24 (citing James, 254 F.3d 551). Plaintiffs have therefore not “affirmatively demonstrate[d] [their] compliance” with Rule 23(a)(2). Wal-Mart, 131 S.Ct. at 2551.
Because the Court finds that Plaintiffs have not met the commonality requirement of Rule 23(a)(2), it need not address the remaining requirements of Rule 23(a) and Rule 23(b). Accordingly, the Court DENIES Plaintiffs’ Opposed Third Motion for Class Certification. The parties are ORDERED to file a joint
7 This is true whether the misapplication occurred by shifting the burden of proof, by failing to consider all available evidence, or by making substantively incorrect preponderance determinations. The Court reiterates that it considered all appropriate alternative framings of Plaintiffs’ proposed common legal issue. Regardless of how the question is framed, the answer does not resolve an issue central to the validity of the class members’ claims. 8 Indeed, it is not clear that Plaintiffs were relying on the correct standard in their discussion, as they cited several pre-Wal-Mart decisions with no discussion of Wal-Mart or its progeny and without indicating that those cases had been superseded.
10 / 11

Case 1:09-cv-00208 Document 254 Filed in TXSD on 03/26/14 Page 11 of 11 status report in light of this order, informing the Court of what issues remain live in this case and proposing new deadlines by April 25, 2014. IV. Conclusion
For the foregoing reasons, the Court DENIES Plaintiffs’ Opposed Third Motion for Class Certification and ORDERS the parties to file a joint status report by April 25, 2014.
SIGNED this 26th day of March, 2014. ___________________________________ Hilda Tagle Senior United States District Judge
11 / 11

 
 Case 1:09-cv-00208 Document 258 Filed in TXSD on 05/08/14 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

LAURA NANCY CASTRO, et al,
Plaintiffs, VS.
MICHAEL T FREEMAN, et al,
Defendants.

§ § § § CIVIL NO. 1:09-CV-208 § § § §

ORDER

BE IT REMEMBERED, that on May 8, 2014, the Court considered Plaintiffs’ Stipulation of Dismissal, Dkt. No. 256, and Joint Status Report, Dkt. No. 257.
Plaintiffs filed the stipulation of dismissal on May 2, 2014. The stipulation states Plaintiffs Castro, Montemayor, Guerrero, and Santos’s intention to dismiss their individual claims as to the first cause of action as stated in the fifth amended complaint. Dkt. No. 256. The stipulation is signed by all parties to the action. The Court finds that the stipulation satisfies Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, which states that “the plaintiff may dismiss an action without a court order by filing . . . a stipulation of dismissal signed by all parties who have appeared.” FED. R. CIV. P. 41(a)(1)(A)(ii).
On May 5, 2014, the parties filed a joint status report1 stating that the stipulated dismissal of Plaintiffs’ claims means that there are no other claims pending in this case.

1 The Court also GRANTS the parties’ joint request for an extension of time to file the joint status report, Dkt. No. 255, and considers the status report to have been timely filed.
1 / 2

Case 1:09-cv-00208 Document 258 Filed in TXSD on 05/08/14 Page 2 of 2 In accordance with the stipulation of dismissal as to the first cause of action,
and the prior orders of the Court dismissing all other causes of action, the Court ORDERS the Clerk to close the above-captioned case.
SIGNED this 8th day of May, 2014. ___________________________________ Hilda Tagle Senior United States District Judge
2 / 2

 
 Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 1 of 26
CLOSED,HABEAS
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Brownsville)
CIVIL DOCKET FOR CASE #: 1:09−cv−00208

Castro et al v. Freeman et al Assigned to: Judge Hilda G Tagle Related Cases: 1:07−cv−00218
7:08−cv−00087 1:09−cv−00034 1:09−cv−00036 1:09−cv−00045 1:09−cv−00080 1:09−cv−00108 1:09−cv−00109 1:11−cv−00086 1:11−cv−00108 1:11−cv−00109 1:11−cv−00128 1:11−cv−00169 1:11−cv−00175 1:11−cv−00176 1:11−cv−00177 1:11−cv−00080 1:11−cv−00056 1:11−cv−00043 1:11−cv−00257 1:12−cv−00021 1:12−cv−00026 1:12−cv−00074 1:12−cv−00089 1:12−cv−00129 1:11−cv−00025 1:12−cv−00121 1:11−cv−00082 1:12−cv−00124 1:12−cv−00154 1:12−cv−00155 1:12−cv−00161 1:12−cv−00172 1:12−cv−00173 1:12−cv−00206 1:13−cv−00011 1:13−cv−00041 1:13−cv−00093 1:13−cv−00101 1:13−cv−00103 1:13−cv−00104 7:13−cv−00361 1:13−cv−00141 1:13−cv−00161 1:13−cv−00167

Date Filed: 09/07/2009 Date Terminated: 05/08/2014 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: Federal Question

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 2 of 26

1:13−cv−00168 1:13−cv−00169 1:11−cv−00083 1:11−cv−00084 1:11−cv−00085 1:11−cv−00180 1:11−cv−00208 1:11−cv−00001 1:11−cv−00217 Cause: 28:2241 Petition for Writ of Habeas Corpus (federa Plaintiff

Laura Nancy Castro

represented by Cathy Jean Potter Law Firm of Cathy J. Potter PLLC 203 South Commerce Street Harlingen, TX 78550 956 622−3011 Fax: 956−622−3017 Email: cpotter.atty@gmail.com TERMINATED: 03/17/2014 ATTORNEY TO BE NOTICED

Elisabeth Lisa S Brodyaga Attorney at Law 17891 Landrum Park Rd San Benito, TX 78586−7197 956−421−3226 Fax: 956−421−3423 Email: lisabrodyaga@aol.com ATTORNEY TO BE NOTICED

Jaime M Diez Jones Crane PO Box 3070 Brownsville, TX 78523 956−544−3565 Email: JaimeMDiez1@gmail.com ATTORNEY TO BE NOTICED

Javier N Maldonado Attorney at Law 8919 Tesoro, Suite 575 San Antonio, TX 78217 210−277−1603 Fax: 210−587−4001 Email: jmaldonado.law@gmail.com ATTORNEY TO BE NOTICED

Trina Realmuto National Immigration Project of the National Lawyers Guild 14 Beacon St Suite 602 Boston, MA 02108 617−227−9727 ext. 8 Fax: 617−227−5495 Email: trina@nationalimmigrationproject.org ATTORNEY TO BE NOTICED

Plaintiff Yuliana Trinidad Castro

represented by Cathy Jean Potter (See above for address)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 3 of 26

TERMINATED: 03/17/2014 ATTORNEY TO BE NOTICED

Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED

Jaime M Diez (See above for address) ATTORNEY TO BE NOTICED

Javier N Maldonado (See above for address) ATTORNEY TO BE NOTICED

Trina Realmuto (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Trinidad Muraira de Castro TERMINATED: 12/07/2012

represented by Cathy Jean Potter (See above for address) TERMINATED: 03/17/2014 ATTORNEY TO BE NOTICED

Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED

Jaime M Diez (See above for address) ATTORNEY TO BE NOTICED

Javier N Maldonado (See above for address) ATTORNEY TO BE NOTICED

Trina Realmuto (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jessica Garcia

represented by Elisabeth Lisa S Brodyaga (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cathy Jean Potter (See above for address) TERMINATED: 03/17/2014 ATTORNEY TO BE NOTICED

Jaime M Diez (See above for address) ATTORNEY TO BE NOTICED

Javier N Maldonado (See above for address) ATTORNEY TO BE NOTICED

Trina Realmuto (See above for address) ATTORNEY TO BE NOTICED

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 4 of 26

Plaintiff Rodrigo Sampayo TERMINATED: 07/03/2012
Plaintiff Maria Reyes TERMINATED: 07/26/2013
Plaintiff Jenifer Itzel Gonzalez TERMINATED: 12/07/2012
Plaintiff Alicia Ruiz TERMINATED: 07/26/2013

represented by Jaime M Diez (See above for address) ATTORNEY TO BE NOTICED
Javier N Maldonado (See above for address) ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address) ATTORNEY TO BE NOTICED
Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED
represented by Jaime M Diez (See above for address) ATTORNEY TO BE NOTICED
Javier N Maldonado (See above for address) ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address) ATTORNEY TO BE NOTICED
Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED
represented by Jaime M Diez (See above for address) ATTORNEY TO BE NOTICED
Javier N Maldonado (See above for address) ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address) ATTORNEY TO BE NOTICED
Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED
represented by Jaime M Diez (See above for address) ATTORNEY TO BE NOTICED
Javier N Maldonado (See above for address) ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 5 of 26

ATTORNEY TO BE NOTICED

Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ana Alanis TERMINATED: 12/07/2012

represented by Jaime M Diez (See above for address) ATTORNEY TO BE NOTICED

Javier N Maldonado (See above for address) ATTORNEY TO BE NOTICED

Trina Realmuto (See above for address) ATTORNEY TO BE NOTICED

Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ana Luisa Guerrero

represented by Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED

Javier N Maldonado (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Luis Montemayor

represented by Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED

Javier N Maldonado (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ervey Lorenzo Santos TERMINATED: 12/07/2012

represented by Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED

Javier N Maldonado (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Port Director Michael T Freeman

represented by Elizabeth J. Stevens U.S. Dept of Justice Civil Division 450 5th Street NW Room 6108 Washington, DC 20001 202−616−9752 Fax: 202−305−7000 Email: elizabeth.stevens@usdoj.gov

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 6 of 26

ATTORNEY TO BE NOTICED

Julie Shana Saltman US Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave NW Washington, DC 20001 202−532−4252 Fax: 202−616−8470 Email: julie.saltman@usdoj.gov TERMINATED: 09/17/2012 ATTORNEY TO BE NOTICED

Sarah B Fabian USDOJ Office of Immigration Litigation PO Box 868 Ben Franklin Station Washington, DC 20044 202−532−4824 Email: sarah.b.fabian@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED

Victor Rodriguez , Jr Victor Rodriguez Law Firm 121 North 10th Street McAllen, TX 78501 956−630−3266 Email: victor@vrodriguezlaw.com ATTORNEY TO BE NOTICED

Defendant John Kerry

represented by Elizabeth J. Stevens (See above for address) ATTORNEY TO BE NOTICED

Julie Shana Saltman (See above for address) TERMINATED: 09/17/2012 ATTORNEY TO BE NOTICED

Sarah B Fabian (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Victor Rodriguez , Jr (See above for address) ATTORNEY TO BE NOTICED

Defendant Secretary Janet Napolitano

represented by Elizabeth J. Stevens (See above for address) ATTORNEY TO BE NOTICED

Julie Shana Saltman (See above for address) TERMINATED: 09/17/2012 ATTORNEY TO BE NOTICED

Sarah B Fabian (See above for address) PRO HAC VICE

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 7 of 26

ATTORNEY TO BE NOTICED

Victor Rodriguez , Jr (See above for address) ATTORNEY TO BE NOTICED

Defendant UNITED STATES OF AMERICA

represented by Elizabeth J. Stevens (See above for address) ATTORNEY TO BE NOTICED

Julie Shana Saltman (See above for address) TERMINATED: 09/17/2012 ATTORNEY TO BE NOTICED

Sarah B Fabian (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Victor Rodriguez , Jr (See above for address) ATTORNEY TO BE NOTICED

Defendant Eliseo Cabrera

represented by Julie Shana Saltman (See above for address) TERMINATED: 09/17/2012 ATTORNEY TO BE NOTICED

Sarah B Fabian (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Eric Holder, Jr

represented by Julie Shana Saltman (See above for address) TERMINATED: 09/17/2012 ATTORNEY TO BE NOTICED

Sarah B Fabian (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 09/07/2009
09/07/2009
09/07/2009 09/07/2009

# Docket Text
1 PETITION for Writ of Habeas Corpus (Filing fee $ 5 receipt number 05410000000005456417) filed by Laura Nancy Castro, Yuliana Trinidad Castro, Trinidad Muraira de Castro.(Brodyaga, Elisabeth) (Entered: 09/07/2009)
2 EXHIBITS re: 1 Petition for Writ of Habeas Corpus by Laura Nancy Castro, Yuliana Trinidad Castro, Trinidad Muraira de Castro, filed.(Brodyaga, Elisabeth) (Entered: 09/07/2009)
3 Sealed Event, filed. (Entered: 09/07/2009)
4 EXHIBITS re: 1 Petition for Writ of Habeas Corpus by Laura Nancy Castro, Yuliana Trinidad Castro, Trinidad Muraira de Castro, filed.(Brodyaga, Elisabeth) (Entered: 09/07/2009)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 8 of 26

09/07/2009 09/08/2009 09/08/2009 09/08/2009 09/08/2009 09/08/2009
09/08/2009 09/08/2009 09/08/2009 09/08/2009 09/08/2009 09/08/2009 09/10/2009
09/10/2009 09/14/2009 09/14/2009

5 MOTION for Temporary Restraining Order by Laura Nancy Castro, Yuliana Trinidad Castro, Trinidad Muraira de Castro, filed. Motion Docket Date 9/30/2009. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) Modified on 1/6/2010 (bcampos, ). Modified on 7/14/2010 (bcampos, ). (Entered: 09/07/2009)
Summons Issued as to Hillary Clinton, filed.(mperez, ) (Entered: 09/10/2009)
Summons Issued as to Janet Napolitano, filed.(mperez, ) (Entered: 09/10/2009)
14 ORDER Setting Hearing on Motion 5 Motion for Temporary Restraining Order : Motion Hearing set for 9/8/09 at 4:00 p.m. in Courtroom 3 before Judge Hilda G. Tagle.(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 06/11/2010)
15 Emergency MOTION (Motion Docket Date 10/1/2009) Motion Telephonic Appearance by Hillary Clinton, Michael T Freeman, filed. Motion Docket Date 9/29/2009. (bcampos, ) (Entered: 06/11/2010)
Minute Entry for proceedings held before Judge Hilda G Tagle.MOTION HEARING held on 9/8/2009 as to MEMBER CASE: 1:09cv208. Case called. Appearances: Elisabeth Lisa S Brodyaga, Jaime M Diez, Elizabeth J. Stevens, Victor Rodriguez and Daniel Hu. Ms. Stevens motion to appear telephonically (#15) was granted. Counsel addressed the Court on their respective positions regarding this motion. Discussion had. The parties are in agreement to reset for a later date to allow Respondents time to fully investigate what occurred on the date in question. Ms. Stevens requested a brief recess to call her clients regarding the issue of admitting Petitioner Laura Nancy Castro; request granted. Hearing resumed. Ms. Stevens was unable to reach her clients. The Court ORDERED the admission of Laura Nancy Castro into the United States as a person with undetermined status under the parties. This Order is based on the representation by Plaintiff's counsel that the Petitioner needs medical care due to her pregnancy and the possibility of a miscarriage. The Court granted Plaintiffs Temporary Restraining Order and ORDERS Respondents to admit Petitioner Laura Nancy Castro into the United States immediately. An Order will follow. (Court Reporter: Heather Hall), filed. [4:17−4:35/4:49−4:52](bcampos, ) (Entered: 06/11/2010)
16 ORDER granting 15 Motion to Appear Telephonically as to Elizabeth J. Stevens. (Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 06/11/2010)
Summons Issued as to Hillary Clinton, filed.(bcampos, ) (Entered: 06/11/2010)
Summons Issued as to Janet Napolitano, filed.(bcampos, ) (Entered: 06/11/2010)
Summons Issued as to Michael T Freeman, filed.(bcampos, ) (Entered: 06/11/2010)
Summons Issued as U.S. Attorney, filed.(bcampos, ) (Entered: 06/11/2010)
Summons Issued as to Eric J. Holder, Jr., filed.(bcampos, ) (Entered: 06/11/2010)
17 ORDER granting in part 5 Petitioner's Application for Temporary Restraining Order. The Court ORDERED the Respondents to admit Petitioner Laura Nancy Castro to the U.S. with the same rights as a person presenting a facially valid birth card and receipt for one's passport application and shall return to her any and all documents confiscated from her on or about August 24, 2009, when she was refused admission and returned to Mexico. Respondents shall comply with this order immediately. The Court CONTINUED the hearing until September 16, 2009 at 1:30 PM. The parties are ORDERED to appear on September 16, 2009 at 1:30 PM to resume the hearing of this motion No. 1:09−cv−208, Dkt. No. 5 (S.D. Tex. Sept 7, 2009).(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 06/11/2010)
18 EXHIBITS re: 1 Petition for Writ of Habeas Corpus by Laura Nancy Castro, Yuliana Trinidad Castro, Trinidad Muraira de Castro, filed.(bcampos, ) (Entered: 06/11/2010)
19 BRIEF in Support of Motion for Preliminary Injunction re: 1 Petition for Writ of Habeas Corpus by Laura Nancy Castro, Yuliana Trinidad Castro, Trinidad Muraira de Castro, filed.(bcampos, ) (Entered: 06/11/2010)
20 Amended BRIEF in Support of Motion for Preliminary Injunction re: 1 Petition for Writ of Habeas Corpus by Laura Nancy Castro, Yuliana Trinidad Castro, Trinidad Muraira de Castro, filed.(bcampos, ) (Entered: 06/11/2010)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 9 of 26

09/15/2009 09/15/2009 09/16/2009 09/16/2009 09/16/2009 09/16/2009 09/16/2009 09/16/2009
09/17/2009 09/17/2009
09/20/2009 09/22/2009 09/22/2009
09/22/2009 09/22/2009

21 EXHIBITS re: 1 Petition for Writ of Habeas Corpus by Laura Nancy Castro, Yuliana Trinidad Castro, Trinidad Muraira de Castro, filed.(bcampos, ) (Entered: 06/11/2010)
22 Amended EXHIBITS re: 1 Petition for Writ of Habeas Corpus by Laura Nancy Castro, Yuliana Trinidad Castro, Trinidad Muraira de Castro, filed.(bcampos, ) (Entered: 06/11/2010)
23 RESPONSE in Opposition to 5 MOTION for Temporary Restraining Order, filed by Hillary Clinton, Michael T Freeman, Janet Napolitano, UNITED STATES OF AMERICA. (bcampos, ) (Entered: 06/11/2010)
24 Witness List by Plaintiff, filed.(bcampos, ) (Entered: 06/11/2010)
25 Exhibit List by Plaintiffs, filed.(bcampos, ) (Entered: 06/11/2010)
26 Witness List by Deft, filed.(bcampos, ) (Entered: 06/11/2010)
27 Exhibit List by Deft, filed.(bcampos, ) (Entered: 06/11/2010)
Minute Entry for proceedings held before Judge Hilda G Tagle. PRELIMINARY INJUNCTION HEARING held on 9/16/2009. Case called. Opening statements made. Witnesses sworn and placed under the Rule. Recess taken to allow counsel to confer over exhibits they intend to offer that are not objected to. Hearing resumed. Plaintiff's exhibits were offered, admitted and modified as to their exhibit number. Deft's exhibits 4, 5, 6, 7, 8 were admitted. The parties were advised to file their Amended Exhibit Lists by tomorrow afternoon. Ms Brodyaga called Trinidad Muraira. Witness testified and cross−examined by Mr Rodriguez. The Court Ordered the parties to file supplemental briefs regarding jurisdiction. The Court will continue with evidence in this matter on 9/25/09 at 10:30 a.m. Hearing adjourned. Appearances: Elisabeth Lisa S Brodyaga, Jaime M Diez, Victor Rodriguez, Jr, Julie Shana Saltman. (ERO:Rita Nieto) (Law Clerk: Iain Kennedy) (Interpreter:Karen Pena), filed. [1:45−4:57, filed.(bcampos, ) (Entered: 06/11/2010)
28 Amended Exhibit List by Laura Nancy Castro, Yuliana Trinidad Castro, Trinidad Muraira de Castro, filed.(bcampos, ) (Entered: 06/11/2010)
29 ORDER: Be it remembered that on 9/17/09, the Court ORDERED the Parties to brief all issues relating to Petitioners Laura Nancy Castro and Yuliana Trinidad Castro's Request for a Preliminary Injunction by 9/22/09, at 10:00 A.M., Dkt. #5. In particular, the Court ORDERED the Parties to brief whether this Court has jurisdiction to enter such an injunction under 28 USC 1503, 1453, or the Administrative Procedures Act. Therefore, the Court ORDERS that the hearing on Petitioner's Request for a Preliminary Injunction shall resume on 9/25/09 at 10:30 A.M in Courtroom 3 before Judge Hilda G Tagle..(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 06/11/2010)
30 Supplemental BRIEF in Support of Motion for Preliminary Injunction re: 1 Petition for Writ of Habeas Corpus by Laura Nancy Castro, Yuliana Trinidad Castro, Trinidad Muraira de Castro, filed.(bcampos, ) (Entered: 06/11/2010)
31 BRIEF Oppositon by Hillary Clinton, Michael T Freeman, Janet Napolitano, UNITED STATES OF AMERICA, filed.(bcampos, ) Modified on 6/14/2010 (bcampos, ). (Entered: 06/11/2010)
33 ORDER entered. The Court AMENDED its Order of September 17, 2009, Dkt. No. 136, and rescheduled the resumption of the hearing on Petitioner's Request for Preliminary Injunction for September 25, 2009 at 8:00 a.m. Injunction Hearing set for 9/25/2009 at 08:00 AM in Courtroom 3 before Judge Hilda G. Tagle.(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 06/14/2010)
34 Amended BRIEF in Opposition by Hillary Clinton, Michael T Freeman, Janet Napolitano, UNITED STATES OF AMERICA, filed.(bcampos, ) (Entered: 06/14/2010)
35 NOTICE of Filing Amended Brief re: 34 Brief by Hillary Clinton, Michael T Freeman, Janet Napolitano, UNITED STATES OF AMERICA, filed. (bcampos, ) (Entered: 06/14/2010)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 10 of 26

09/23/2009 09/23/2009 09/23/2009 09/23/2009 09/24/2009 09/24/2009 09/24/2009 09/24/2009
09/25/2009 10/29/2009 11/06/2009

36 ORDER entered. Be it remembered that on September 23, 2009, the court AMENDED its Order of September 17, 2009, Dkt. No. 136, and its Order of September 22, 2009, Dkt. No. 139, and rescheduled the resumption of the hearing on Petitioner's Request for Preliminary Injunction for September 24, 2009 a.m.(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 06/14/2010)
37 EXHIBITS re: 1 Petition for Writ of Habeas Corpus by Laura Nancy Castro, Yuliana Trinidad Castro, filed.(bcampos, ) (Entered: 06/14/2010)
38 ORDER entered by the Court. The Court AMENDED its Order of September 23, 2009 and rescheduled the resumption of the hearing on Petitioner's Request for Preliminary Injunction for September 24, 2009 at 1:30 p.m.(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 06/14/2010)
39 Supplemental BRIEF in Support of Motion for Preliminary Injunction re: 1 Petition for Writ of Habeas Corpus by Laura Nancy Castro, Yuliana Trinidad Castro, filed.(bcampos, ) (Entered: 06/14/2010)
40 MOTION to Strike 37 Exhibits by Hillary Clinton, Michael T Freeman, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 10/15/2009. (bcampos, ) (Entered: 06/14/2010)
41 MOTION to Strike 39 Brief by Hillary Clinton, Michael T Freeman, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 10/15/2009. (bcampos, ) (Entered: 06/14/2010)
42 AO 435 TRANSCRIPT ORDER FORM by Plaintiff, Laura N. Castro. This is to order a transcript of Preliminary Injunction Hearing held on 9/24/09 before Judge Hilda G Tagle (original). Court Reporter/Transcriber: Transcriber, filed. (bcampos, ) (Entered: 06/14/2010)
Minute Entry for proceedings held before Judge Hilda G Tagle. RESUMPTION of PRELIMINARY INJUNCTION HEARING held on 9/24/2009. Case called. Petitioner calls Claudio J. Ortiz to testify. Witness sworn and testified. Petitioner's exhibits 11A, 11B, 11C, B9 and B10 were admitted. Deft's objection to B9 and B10 was overruled. Testimony concluded; witness excused. Parties requested a recess to discuss a possible resolution. Recess taken. Hearing resumed. The parties have reached a partial resolution regarding the preliminary injunction. Petitioners have agreed to withdraw the preliminary injunction and will amend their complaint. Petitioner's Laura and Yuliana Castro will drop their 8 USC 1503 and APA claims. Laura Castro will remain in the U.S. until her passport is revoked and while deportation charges proceed against her. Yuliana Castro will be paroled to the U.S. and will remain while her case will proceed in immigration court. The Govt agrees not to detain Laura and Yuliana Castro while their immigration case proceeds unless they violate the law. The parties join in requesting the Court to enter an order that will sever this Member Case No. 09cv208 from Lead Case No. 07cv218 since the allegations in this case differ from the others. The Court will enter an order of severance once the Amended Complaint is filed by Petitioners. Hearing concluded; Court adjourned. Exhibits secured. Appearances: Elisabeth Lisa S Brodyaga, Jaime M Diez, Victor Rodriguez, Jr, Julie Shana Saltman. (ERO:Dahlila Ahumada) (Law Clerk: Iain Kennedy) (Interpreter: Ignacio Barrientos−in part), filed. [1:34−2:06/3:13−3:18](bcampos, ) (Entered: 06/14/2010)
43 AO 435 TRANSCRIPT ORDER FORM by Jaime Diez. This is to order a transcript of Motion Hearing held on 9/24/09 before Judge Hilda G Tagle (original). Court Reporter/Transcriber: Transcriber, filed. (bcampos, ) (Entered: 06/14/2010)
44 TRANSCRIPT re: Continuation of Injunction Hearing held on 9/24/09 before Judge Hilda G Tagle. Court Reporter/Transcriber Exceptional Reporting. Release of Transcript Restriction set for 1/27/2010., filed. (bcampos, ) (Entered: 06/14/2010)
45 ORDER entered. Be it remembered that on November 6, 2009, the court ORDERED the Petitioners to file their amended petition in Castro, et al vs. Clinton, et al., Civil Action No. B:09−218, by November 13, 2009. To date, Petitioners have not filed their amended complaint in this matter. Therefore, the Court ORDERS the Petitioners to do so by November 13, 2009.(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 06/14/2010)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 11 of 26

11/13/2009
11/20/2009
11/20/2009
11/20/2009 12/07/2009 12/07/2009 12/09/2009 12/20/2009 01/19/2010
01/22/2010
02/11/2010
03/14/2010 03/16/2010 03/22/2010 03/22/2010 03/31/2010
04/02/2010 04/04/2010 04/08/2010 04/18/2010 05/03/2010
05/03/2010

46 Unopposed MOTION for Extension of Time to file amended complaint by Laura Nancy Castro, Yuliana Trinidad Castro, Trinidad Muraira de Castro, filed. Motion Docket Date 12/4/2009. (bcampos, ) (Entered: 06/14/2010)
47 AMENDED Petition for Habeas Corpus against Hillary Clinton, Michael T Freeman, Janet Napolitano, UNITED STATES OF AMERICA filed by Laura Nancy Castro, Trinidad Muraira de Castro, Jessica Garcia, Yuliana Trinidad Castro.(bcampos, ) (Entered: 06/14/2010)
48 EXHIBITS re: 47 Amended Complaint/Counterclaim/Crossclaim etc. by Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Trinidad Muraira de Castro, filed.(bcampos, ) (Entered: 06/14/2010)
49 Sealed Event, filed. (Entered: 06/14/2010)
50 RETURN of Service of SUMMONS Executed as to Michael T Freeman served on 9/11/2009, answer due 11/10/2009, filed.(bcampos, ) (Entered: 06/14/2010)
51 RETURN of Service of SUMMONS Executed as to Eliseo Cabrera on 12/1/09 answer due 12/22/09, filed.(bcampos, ) (Entered: 06/14/2010)
52 STIPULATION re: Extension of Time to Respond to Amended Complaint by Hillary Clinton, Michael T Freeman, filed.(bcampos, ) (Entered: 06/14/2010)
53 Sealed Event, filed. (Entered: 06/14/2010)
54 Unopposed MOTION for Extension of Time Respond to Amended Complaint by Hillary Clinton, Michael T Freeman, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 2/9/2010. (bcampos, ) (Entered: 06/14/2010)
55 ORDER granting 54 Motion for Extension of Time; Answer due for Hillary Clinton 1/29/2010; Michael T Freeman 1/29/2010; Janet Napolitano 1/29/2010; UNITED STATES OF AMERICA 1/29/2010.(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 06/14/2010)
56 AO 435 TRANSCRIPT ORDER FORM by Jaime Diez. This is to order a transcript of Preliminary Injunction Hearing held on 9/16/09 before Judge Hilda G Tagle (original). ERO: Rita Nieto, filed. (bcampos, ) (Entered: 06/14/2010)
57 Sealed Event, filed. (With attachments) (Entered: 06/14/2010)
58 Sealed Event, filed. (Entered: 06/14/2010)
59 Sealed Event, filed. (Entered: 06/14/2010)
60 Sealed Event, filed. (Entered: 06/14/2010)
61 TRANSCRIPT re: Partial Transcript − Testimony of Muraira De Castro only [Excerpt from Hearing on Injunction] merged FROM of B09CV208 Castro, et al vs. Freeman, et al held on 9/16/09 before Judge Hilda G Tagle. Court Reporter/Transcriber Transcribers of Texas, Inc.. Release of Transcript Restriction set for 6/29/2010., filed. (bcampos, ) (Entered: 06/14/2010)
62 Notice of Filing of Official Transcript as to 61 Transcript,. Party notified, filed. (bcampos, ) (Entered: 06/14/2010)
63 Sealed Event, filed. (With attachments) (Entered: 06/14/2010)
64 Sealed Event, filed. (Entered: 06/14/2010)
65 Sealed Event, filed. (Entered: 06/14/2010)
66 Opposed MOTION to Amend by Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, filed. Motion Docket Date 5/24/2010. (bcampos, ) (Entered: 06/14/2010)
67 Opposed MOTION to Sever CA B−09−208 from CA B−07−218 by Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, filed. Motion Docket Date 5/24/2010. (bcampos, ) (Entered: 06/14/2010)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 12 of 26

05/03/2010 05/19/2010 05/24/2010 05/24/2010 05/24/2010 05/27/2010 06/03/2010
06/03/2010
06/06/2010 06/09/2010 06/10/2010 06/10/2010 06/10/2010 06/10/2010 06/10/2010
06/11/2010

68 Opposed MOTION to Consolidate Lead Case No. B−07−218 and Member Case No. B−09−208 by Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Trinidad Muraira de Castro, filed. Motion Docket Date 5/24/2010. (bcampos, ) (Entered: 06/14/2010)
69 Sealed Event, filed. (Entered: 06/14/2010)
70 NOTICE of Non−opposition re: 66 MOTION to Amend by Hillary Clinton, Michael T Freeman, Janet Napolitano, UNITED STATES OF AMERICA, filed. (bcampos, ) (Entered: 06/14/2010)
71 NOTICE of Non−Opposition re: 67 MOTION to Sever CA B−09−208 from CA B−07−218 by Hillary Clinton, Michael T Freeman, Janet Napolitano, UNITED STATES OF AMERICA, filed. (bcampos, ) (Entered: 06/14/2010)
72 STIPULATION re: Extension of Time to Respond by Hillary Clinton, Michael T Freeman, Janet Napolitano, UNITED STATES OF AMERICA, filed.(bcampos, ) (Entered: 06/14/2010)
73 STATUS REPORT by Hillary Clinton, Michael T Freeman, Janet Napolitano, UNITED STATES OF AMERICA, filed.(bcampos, ) (Entered: 06/14/2010)
6 Second AMENDED Petition for Writ of Habeas Corpus, Constitutional Tort Claims, Bivens Action for Damages, and Class Action Complaint for Declaratory and Injunctive Relief with Jury Demand against Hillary Clinton, Michael T Freeman, Janet Napolitano, UNITED STATES OF AMERICA filed by Laura Nancy Castro, Trinidad Muraira de Castro, Yuliana Trinidad Castro.(bcampos, ) (Entered: 06/04/2010)
74 ORDER granting 66 Plaintiffs' Motion for Leave to File Second Amended Petition; granting 67 Plaintiffs' Motion to Sever. Finally, the Court ORDERS the Clerk to file Plaintiffs' Proposed Second Amended Petition, Dkt. No. 66, Ex. 1 into the new case record.(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 06/14/2010)
75 REPLY in Support of 68 MOTION to Consolidate Lead Case No. B−07−218 and Member Case No. B−09−208, filed by Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Trinidad Muraira de Castro. (bcampos, ) (Entered: 06/14/2010)
7 DECLARATION of Jessica Garcia re: 6 Amended Complaint/Counterclaim/Crossclaim etc.,, filed.(Brodyaga, Elisabeth) (Entered: 06/09/2010)
8 Sealed Event, filed. (Entered: 06/10/2010)
9 MOTION for Order to Show Cause as to Why Preliminary Relief Should Not Be Granted by Jessica Garcia, filed. Motion Docket Date 7/1/2010. (Attachments: # 1 Memorandum in support, # 2 Proposed Order)(Brodyaga, Elisabeth) (Entered: 06/10/2010)
10 MOTION Expedited Hearing by Jessica Garcia, filed. Motion Docket Date 7/1/2010. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 06/10/2010)
11 MOTION for Preliminary Injunction by Jessica Garcia, filed. Motion Docket Date 7/1/2010. (Attachments: # 1 Memorandum of law, # 2 Proposed Order)(Brodyaga, Elisabeth) (Entered: 06/10/2010)
12 ORDER, entered. BE IT REMEMBERED, that on June 10, 2010, the Court ORDERED the Defendants to respond to Plaintiff Jessica Garcia ("Garcia")'s Request for an Order to Show Cause and Motion for Preliminary Injunction and Expedited Hearing, Dkt. No. 9, by June 21, 2010. Therefore, the Court GRANTS Garcia leave to supplement her motion by June 18, 2010. Should the Court determine from the parties' submissions that a hearing is necessary, it will schedule one at that time. Responses due by 6/21/2010.(Signed by Judge Hilda G Tagle) Parties notified.(mperez, ) (Entered: 06/10/2010)
13 EXHIBITS re: 11 MOTION for Preliminary Injunction, 10 MOTION Expedited Hearing, 9 MOTION for Order to Show Cause as to Why Preliminary Relief Should Not Be Granted by Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Trinidad Muraira de Castro, filed.(Brodyaga, Elisabeth) (Entered: 06/11/2010)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 13 of 26

06/13/2010 06/15/2010 06/17/2010 06/17/2010 06/18/2010 06/18/2010 06/18/2010
06/18/2010 06/18/2010 06/18/2010 06/18/2010
06/21/2010
06/21/2010
06/22/2010 06/23/2010 06/25/2010
07/04/2010 07/04/2010
07/09/2010

32 Sealed Event, filed. (Entered: 06/13/2010)
76 Notice of Filing of Official Transcript as to 61 Transcript, 44 Transcript. Party notified, filed. (dnoriega, ) (Entered: 06/15/2010)
77 Sealed Event, filed. (Entered: 06/17/2010)
78 EXHIBITS re: 11 MOTION for Preliminary Injunction, 9 MOTION for Order to Show Cause as to Why Preliminary Relief Should Not Be Granted by Jessica Garcia, filed.(Brodyaga, Elisabeth) (Entered: 06/17/2010)
79 Sealed Event, filed. (Entered: 06/18/2010)
80 Sealed Event, filed. (Entered: 06/18/2010)
81 EXHIBITS re: 11 MOTION for Preliminary Injunction, 9 MOTION for Order to Show Cause as to Why Preliminary Relief Should Not Be Granted by Jessica Garcia, filed. (Attachments: # 1 Expert Report, # 2 Deposition)(Brodyaga, Elisabeth) (Entered: 06/18/2010)
82 EXHIBITS re: 11 MOTION for Preliminary Injunction, 9 MOTION for Order to Show Cause as to Why Preliminary Relief Should Not Be Granted by Jessica Garcia, filed.(Brodyaga, Elisabeth) (Entered: 06/18/2010)
83 Sealed Event, filed. (Entered: 06/18/2010)
84 DECLARATION of Jessica Garcia re: 11 MOTION for Preliminary Injunction, 9 MOTION for Order to Show Cause as to Why Preliminary Relief Should Not Be Granted, filed.(Brodyaga, Elisabeth) (Entered: 06/18/2010)
85 BRIEF In Support of Motions for Order to Show Cause, and Preliminary Injunction re: 11 MOTION for Preliminary Injunction, 9 MOTION for Order to Show Cause as to Why Preliminary Relief Should Not Be Granted by Jessica Garcia, filed.(Brodyaga, Elisabeth) (Entered: 06/18/2010)
86 NOTICE of Potential Settlement re: 11 MOTION for Preliminary Injunction, 10 MOTION Expedited Hearing, 9 MOTION for Order to Show Cause as to Why Preliminary Relief Should Not Be Granted by Hillary Clinton, Michael T Freeman, Janet Napolitano, UNITED STATES OF AMERICA, filed. (Saltman, Julie) (Entered: 06/21/2010)
87 MOTION for Extension of Time Respond to Plaintiffs' Motion for Preliminary Injunction by Hillary Clinton, Michael T Freeman, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 7/12/2010. (Attachments: # 1 Proposed Order)(Saltman, Julie) (Entered: 06/21/2010)
89 ORDER granting 87 Motion for Extension of Time; Motion−related deadline set re: 11 MOTION for Preliminary Injunction. Responses due by 6/25/2010.(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 06/24/2010)
88 STIPULATION re: Settlement of Motion For Preliminary Injunction by Jessica Garcia, filed.(Brodyaga, Elisabeth) (Entered: 06/23/2010)
90 ORDER denying as moot 9 Motion for Order to Show Cause as Why Preliminary Relief Should not be granted; denying as moot 10 Motion for Expedited Hearing; denying as moot 11 Motion for Preliminary Injunction.(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 06/28/2010)
91 NOTICE of Appearance by Cathy J. Potter on behalf of Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Trinidad Muraira de Castro, filed. (Potter, Cathy) (Entered: 07/04/2010)
92 Unopposed MOTION to Seal Docs 44 and 61 transcripts by Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Trinidad Muraira de Castro, filed. Motion Docket Date 7/26/2010. (Attachments: # 1 Proposed Order Motion and Order to Seal Docs)(Potter, Cathy) (Entered: 07/04/2010)
93 ORDER granting 92 Motion to Seal Documents number 44 and 61. On consideration of same, and good cause appearing therefore, it is ordered that said motion be, and it hereby is, GRANTED..(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, )

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 14 of 26

07/09/2010
08/02/2010 08/09/2010 08/09/2010 08/10/2010
08/22/2010 09/01/2010 09/12/2010 09/13/2010 09/17/2010 10/15/2010 10/18/2010 10/20/2010
10/26/2010
11/04/2010 11/14/2010

(Entered: 07/09/2010)
94 ORDER denying 68 Motion to Consolidate Cases. The court therefore DENIES the Petitioners' Motion to Consolidate Civil Action No. B−09−208 with Civil Action Nos. B−10−71 and B−10−72. As a result, the Court ORDERS the Castro Petitioners to file an amended version of their complaint which only includes the claims of petitioners to that suit with the Court by August 13, 2010.(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 07/09/2010)
95 ORDER that the parties are to file a new Joint Case Management Plan. Joint Discovery/Case Management Plan due by 8/30/2010.(Signed by Judge Hilda G Tagle) Parties notified.(dnoriega, ) (Entered: 08/02/2010)
96 EXHIBITS by Laura Nancy Castro, Yuliana Trinidad Castro, Trinidad Muraira de Castro, filed.(Brodyaga, Elisabeth) (Entered: 08/09/2010)
97 Unopposed MOTION for Extension of Time to file Third Amended Petition and Complaint by Laura Nancy Castro, Yuliana Trinidad Castro, Trinidad Muraira de Castro, filed. Motion Docket Date 8/30/2010. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 08/09/2010)
98 ORDER granting 97 Motion for Extension of Time IT IS FURTHER ORDERED that Plaintiffs shall have to and including September 13, 2010, in which to file their Third Amended Petition and Complaint herein. Amended Pleadings due by 9/13/2010.(Signed by Judge Hilda G Tagle) Parties notified.(jtabares, ) (Entered: 08/10/2010)
99 Sealed Event, filed. (Entered: 08/22/2010)
100 Sealed Event, filed. (Entered: 09/01/2010)
101 Sealed Event, filed. (Entered: 09/12/2010)
102 PETITION for Writ of Habeas Corpus (Filing fee $ 5 receipt number 0541−6919278) filed by Trinidad Muraira de Castro, Jessica Garcia, Yuliana Trinidad Castro, Laura Nancy Castro, Rodrigo Sampayo, Maria Reyes, Jenifer Itzel Gonzalez, Alicia Ruiz, Ana Alanis.(Brodyaga, Elisabeth) (Entered: 09/13/2010)
103 ORDER entered. The Court ORDERS the parties to file a new joint case management plan by 10/14/2010.(Signed by Judge Hilda G Tagle) Parties notified.(dnoriega, ) (Entered: 09/21/2010)
104 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA, filed. (Attachments: # 1 Proposed Order)(Saltman, Julie) (Entered: 10/15/2010)
105 Sealed Event, filed. (Entered: 10/18/2010)
106 Joint MOTION for Leave to File Joint Discovery Etc. Out of Time by Ana Alanis, Eliseo Cabrera, Laura Nancy Castro, Yuliana Trinidad Castro, Hillary Clinton, Michael T Freeman, Jessica Garcia, Jenifer Itzel Gonzalez, Eric Holder, Jr, Trinidad Muraira de Castro, Janet Napolitano, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, UNITED STATES OF AMERICA, filed. Motion Docket Date 11/10/2010. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 10/20/2010)
107 ORDER granting 106 Joint Motion for Leave to File Joint Discovery/Cae Management Plaint and Proposed Scheduling Order out of Time..IT IS FURTHER ORDERED that the Joint Discovery/Case Management Plan and Proposed Scheduling Order, filed on October 15, 2010, be deemed to have been timely filed.(Signed by Judge Hilda G Tagle) Parties notified.(jtabares, ) (Entered: 10/26/2010)
108 ANSWER to Complaint by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA, filed.(Saltman, Julie) (Entered: 11/04/2010)
110 Amended EXHIBITS by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Trinidad Muraira de Castro, Rodrigo Sampayo, filed.(Brodyaga, Elisabeth) (Entered: 11/14/2010)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 15 of 26

11/15/2010 11/16/2010 11/22/2010 11/29/2010 12/29/2010 12/29/2010
12/31/2010 12/31/2010 12/31/2010 01/14/2011 01/19/2011 01/25/2011 02/01/2011 02/02/2011
02/03/2011

111 Unopposed MOTION to Strike Document 109 by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Trinidad Muraira de Castro, Rodrigo Sampayo, filed. Motion Docket Date 12/6/2010. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 11/15/2010)
112 Order Granting Petitioners/Plaintiffs' (Unopposed) Motion to Strike Document 109 for Failure to Properly Redact (Signed by Judge Hilda G Tagle) Parties notified.(dahumada, ) (Entered: 11/16/2010)
113 ORDER entered. Wherefore, the Court ORDERS Plaintiffs clarify whether it is their intention to file a Motion for Class Certification by, and including, November 29, 2010.(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 11/22/2010)
114 Plaintiffs' Response To Court's Query by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed.(Brodyaga, Elisabeth) (Entered: 11/29/2010)
115 EXHIBITS re: 113 Order by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed.(Brodyaga, Elisabeth) (Entered: 12/29/2010)
116 MOTION to Sever Individual Section 1503 claims; Alleged Class Claims Against Defendant Department of State; Alleged Class Claims Against Defendant Customs and Border Protection; and Claims For Money Damages Against Defendant Cabrera by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 1/19/2011. (Saltman, Julie) (Entered: 12/29/2010)
117 Sealed Event, filed. (Entered: 12/31/2010)
118 EXHIBITS by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed.(Brodyaga, Elisabeth) (Entered: 12/31/2010)
119 Opposed MOTION for Discovery by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed. Motion Docket Date 1/21/2011. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 12/31/2010)
120 AMENDED MOTION by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 2/4/2011. (Saltman, Julie) (Entered: 01/14/2011)
121 ADVISORY by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed.(Brodyaga, Elisabeth) (Entered: 01/19/2011)
122 EXHIBITS re: 119 Opposed MOTION for Discovery by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed.(Brodyaga, Elisabeth) (Entered: 01/25/2011)
123 Sealed Event, filed. (Entered: 02/01/2011)
124 Unopposed MOTION for Extension of Time to file Opposition to Motion to Sever by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed. Motion Docket Date 2/23/2011. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 02/02/2011)
126 ORDER granting 124 Motion for Extension of Time. IT IS FURTHER ORDERED that Plaintiffs have to and including February 7, 2011, in which to respond to Defendants' Amended Partially Opposed Motion to Sever Parties and Claims, 120 (Signed by Judge Hilda G Tagle) Parties notified.(jtabares, ) (Entered: 02/07/2011)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 16 of 26

02/04/2011 02/07/2011 02/07/2011
02/08/2011 02/08/2011 02/08/2011 02/09/2011
02/09/2011 02/10/2011 02/12/2011 02/25/2011
02/28/2011 02/28/2011 03/04/2011 03/04/2011

125 Sealed Event, filed. (Entered: 02/04/2011)
127 RESPONSE in Opposition to 120 AMENDED MOTION, filed by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 02/07/2011)
128 Unopposed MOTION for Extension of Time defendants' responses to plaintiffs' second set of requests for admission by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 2/28/2011. (Attachments: # 1 Proposed Order)(Saltman, Julie) (Entered: 02/07/2011)
129 EXHIBITS re: 120 AMENDED MOTION by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed.(Brodyaga, Elisabeth) (Entered: 02/08/2011)
130 Sealed Event, filed. (Entered: 02/08/2011)
131 EXHIBITS re: 119 Opposed MOTION for Discovery by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed.(Brodyaga, Elisabeth) (Entered: 02/08/2011)
132 Unopposed MOTION to Strike Document 131 by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed. Motion Docket Date 3/2/2011. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 02/09/2011)
133 EXHIBITS by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed.(Brodyaga, Elisabeth) (Entered: 02/09/2011)
134 ORDER granting 132 Unopposed MOTION to Strike Document 131 Exhibits..(Signed by Judge Hilda G Tagle) Parties notified.(jtabares, ) (Entered: 02/10/2011)
135 Opposed MOTION for Discovery by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed. Motion Docket Date 3/7/2011. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 02/12/2011)
136 MOTION for Sarah B. Fabian to Appear Pro Hac Vice by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 3/18/2011. (Fabian, Sarah) (Additional attachment(s) added on 2/28/2011: # 1 Verified Status of Bar Membership for Motion Pro Hac Vice) (megarcia, ). (Entered: 02/25/2011)
137 MOTION to Dismiss 102 Petition for Writ of Habeas Corpus, by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 3/21/2011. (Attachments: # 1 Proposed Order)(Saltman, Julie) (Entered: 02/28/2011)
138 REPLY in Support of 120 AMENDED MOTION, filed by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Saltman, Julie) (Entered: 02/28/2011)
139 ORDER granting 136 Motion to Appear Pro Hac Vice. Attorney Sarah B. Fabian added as Pro Hac Vice..(Signed by Judge Hilda G Tagle) Parties notified.(avleal, ) (Entered: 03/04/2011)
140 Unopposed MOTION for Extension of Time Response to Plaintiffs' Motion For Discovery by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 3/25/2011. (Attachments: # 1 Proposed Order)(Saltman, Julie) (Entered: 03/04/2011)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 17 of 26

03/07/2011 03/07/2011 03/08/2011 03/11/2011 03/13/2011
03/14/2011 03/17/2011
03/21/2011 03/24/2011 03/25/2011 03/27/2011 04/04/2011
04/06/2011 04/14/2011

141 AMENDED 137 MOTION, MOTION to Dismiss 102 Petition for Writ of Habeas Corpus, ( Motion Docket Date 3/28/2011.) by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA, filed. (Attachments: # 1 Proposed Order)(Saltman, Julie) (Entered: 03/07/2011)
142 MOTION to Dismiss 102 Petition for Writ of Habeas Corpus, by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 3/28/2011. (Attachments: # 1 Proposed Order)(Fabian, Sarah) (Entered: 03/07/2011)
143 ORDER granting 140 Motion for Extension of Time. The Court ORDERS defendants to file a response to Plaintiff's motion on or before 3/11/2011.(Signed by Judge Hilda G Tagle) Parties notified.(dnoriega, ) (Entered: 03/08/2011)
144 RESPONSE in Opposition to 135 Opposed MOTION for Discovery, filed by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA. (Saltman, Julie) (Entered: 03/11/2011)
145 RESPONSE in Opposition to 141 AMENDED 137 MOTION AMENDED 137 MOTION MOTION to Dismiss 102 Petition for Writ of Habeas Corpus, MOTION to Dismiss 102 Petition for Writ of Habeas Corpus,, filed by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 03/13/2011)
146 EXHIBITS by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed.(Brodyaga, Elisabeth) (Entered: 03/14/2011)
147 RESPONSE in Opposition to 142 MOTION to Dismiss 102 Petition for Writ of Habeas Corpus, MOTION to Dismiss 102 Petition for Writ of Habeas Corpus,, filed by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 03/17/2011)
148 REPLY in Support of 135 Opposed MOTION for Discovery, filed by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo. (Brodyaga, Elisabeth) (Entered: 03/21/2011)
149 ORDER denying as moot 128 Motion for Extension of Time.(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 03/24/2011)
150 EXHIBITS re: 120 AMENDED MOTION by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed.(Brodyaga, Elisabeth) (Entered: 03/25/2011)
151 Sealed Event, filed. (Entered: 03/27/2011)
152 REPLY in Support of 141 AMENDED 137 MOTION AMENDED 137 MOTION MOTION to Dismiss 102 Petition for Writ of Habeas Corpus, MOTION to Dismiss 102 Petition for Writ of Habeas Corpus,, filed by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA. (Fabian, Sarah) (Entered: 04/04/2011)
153 REPLY in Support of 142 MOTION to Dismiss 102 Petition for Writ of Habeas Corpus, MOTION to Dismiss 102 Petition for Writ of Habeas Corpus,, filed by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA. (Fabian, Sarah) (Entered: 04/06/2011)
154 MOTION for Trina Realmuto to Appear Pro Hac Vice by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed. Motion Docket Date 5/5/2011. (megarcia) (Entered: 04/14/2011)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 18 of 26

04/15/2011 04/18/2011 04/18/2011 04/26/2011
05/06/2011 05/27/2011 05/27/2011 05/27/2011 05/27/2011 05/27/2011 05/27/2011 06/01/2011

155 ORDER granting 154 Motion to Appear Pro Hac Vice.(Signed by Judge Hilda G Tagle) Parties notified. (megarcia) (Entered: 04/15/2011)
156 MOTION to Certify Class by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed. Motion Docket Date 5/9/2011. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 04/18/2011)
157 BRIEF In support of class certification re: 156 MOTION to Certify Class by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed.(Brodyaga, Elisabeth) (Entered: 04/18/2011)
158 ORDER granting in part and denying in part 120 Amended Motion; denying 135 Motion for Discovery; granting 141 Amended Motion; granting 141 Motion to Dismiss; granting 142 Motion to Dismiss; denying as moot 156 Motion to Certify Class. Based on the foregoing, the Court ORDERS the following: 1. Defendants Amended Motion to Dismiss Causes of Action Seeking Declaratory and Injunctive Relief Relating to Delay in Adjudication of Passport Applications and Motion to Dismiss Claims of Laura and Yuliana Castro for Relief Under 8 U.S.C. § 1503(a), Dkt. No. 141, is GRANTED in its entirety. Plaintiffs Laura Castros, Yuliana Castros, Rodrigo Sampayos and Jessica Garcias claims for unreasonable delay in the adjudication of their passports are DISMISSED. Plaintiffs Laura Castros and Yuliana Castros claims for declaratory relief under 8 U.S.C. § 1503 are DISMISSED. 2. Defendants Partial Motion to Dismiss Habeas Corpus Causes of Action, Dkt. No. 142, is GRANTED and Plaintiffs Trinidad Muraira de Castros and Rodrigo Sampayos claims under 28 U.S.C. § 2241 are DISMISSED. 3. Defendants Amended Partially Opposed Motion to Sever Parties and Claims, Dkt. No. 120, is GRANTED IN PART and DENIED IN PART. The Court ORDERS Plaintiffs Rodrigo Sampayos, Jessica Garcias, Alicia Ruizs, Maria Reyess, and Jenifer Gonzalezs individual claims under 8 U.S.C. § 1503 SEVERED from the above−captioned case and ORDERS the District Clerk to assign each Plaintiff their own cause number. The Court ORDERS Plaintiffs Laura Castro, Yuliana Castro, Trinidad Muraira de Castro, C.A.G., Rodrigo Sampayo, Jessica Garcia, and Ana Alaniss claims under Bivens and the Federal Torts Claims Act SEVERED into one separate cause and ORDERS the District Clerk to assign it a new cause number. The Court ORDERS the remaining claims, class action claims for violations of due process against Defendants, to proceed in the above−captioned cause number. 4. Plaintiffs Amended Motion to Determine the Sufficiency of Defendants Responses to Plaintiffs First Set of Requests for Admission pursuant to Rule 36(a)(6) of the Federal Rules of Civil Procedure, Dkt. No. 135, is DENIED. 5. Plaintiffs First Motion for Class Certification, Dkt. Nos. 156, 157, is DENIED AS MOOT. The Court GRANTS Plaintiffs leave to re−file the appropriate portions of the motion in the appropriate cause number. (Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 04/26/2011)
159 ORDER entered. The parties are to file an amended joint discovery case management plan for this case by 5/30/2011.(Signed by Judge Hilda G Tagle) Parties notified.(dnoriega, ) (Entered: 05/06/2011)
160 Sealed Event, filed. (Entered: 05/27/2011)
161 Sealed Event, filed. (Entered: 05/27/2011)
162 Sealed Event, filed. (Entered: 05/27/2011)
163 Sealed Event, filed. (Entered: 05/27/2011)
164 Sealed Event, filed. (Entered: 05/27/2011)
165 Unopposed MOTION for Leave to File Fourth Amended Complaint by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Ana Luisa Guerrero, Luis Montemayor, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, Ervey Lorenzo Santos, filed. Motion Docket Date 6/17/2011. (Attachments: # 1 Complaint, # 2 Proposed Order)(Brodyaga, Elisabeth) (Entered: 05/27/2011)
166 ORDER granting 165 Motion for Leave to File fourth Amended Class Action Complaint for Declaratory and Injunctive Relief and Extend Time to File Joint

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 19 of 26

06/01/2011 06/01/2011 06/18/2011 06/20/2011 06/21/2011 06/27/2011 06/27/2011 06/30/2011 07/11/2011 07/12/2011

Discovery and Case Management plan. IT IS HEREBY ORDERED that the Fourth Amended Class Action Complaint for Declaratory and Injunctive Relief be FILED, and that Defendants' Answer thereto shall be due on June 27,2011. IT IS FURTHER ORDERED that the parties shall have to and including June 30, 2011, in which to file their Joint Discovery and Case Management Plan. (Signed by Judge Hilda G Tagle) Parties notified.(sbejarano, ) Modified on 6/2/2011 (sbejarano, ). (Entered: 06/02/2011)
167 FOURTH AMENDED CLASS ACTION Complaint for Declaratory and Injunctive Relief against Hillary Clinton, Michael T Freeman, Janet Napolitano filed by Alicia Ruiz, Yuliana Trinidad Castro, Ana Alanis, Laura Nancy Castro, Jenifer Itzel Gonzalez, Maria Reyes, Ana Luisa Guerrero, Ervey Lorenzo Santos, Trinidad Muraira de Castro, Jessica Garcia, Rodrigo Sampayo, Luis Montemayor.(sbejarano, ) (Entered: 06/02/2011)
***Answer due for Hillary Clinton 6/27/2011; Michael T Freeman 6/27/2011; Janet Napolitano 6/27/2011., ***Set/Reset Deadlines: Answer due for Hillary Clinton 6/27/2011; Michael T Freeman 6/27/2011; Janet Napolitano 6/27/2011. Joint Discovery/Case Management Plan due by 6/30/2011 (sbejarano, ) (Entered: 06/02/2011)
168 EXHIBITS re: 167 Amended Complaint/Counterclaim/Crossclaim etc., by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Ana Luisa Guerrero, Luis Montemayor, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, Ervey Lorenzo Santos, filed.(Brodyaga, Elisabeth) (Entered: 06/18/2011)
169 MOTION for Extension of Time to Answer Plaintiff's Fourth Amended Complaint by Hillary Clinton, Michael T Freeman, Janet Napolitano, filed. Motion Docket Date 7/11/2011. (Attachments: # 1 Proposed Order Proposed Order)(Fabian, Sarah) (Entered: 06/20/2011)
170 ORDER granting 169 Motion for Extension of Time. Ordered that the deadline for Defendants' to file a response to Plaintiffs' fourth Amended Complaint is now July 15th, 2011. (Signed by Judge Hilda G Tagle) Parties notified.(sbejarano, ) (Entered: 06/21/2011)
171 Opposed MOTION to Certify Class by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Ana Luisa Guerrero, Luis Montemayor, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed. Motion Docket Date 7/18/2011. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 06/27/2011)
172 BRIEF In Support of Class Certification re: 171 Opposed MOTION to Certify Class by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Ana Luisa Guerrero, Luis Montemayor, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, filed.(Brodyaga, Elisabeth) (Entered: 06/27/2011)
173 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Ana Alanis, Eliseo Cabrera, Laura Nancy Castro, Yuliana Trinidad Castro, Hillary Clinton, Michael T Freeman, Jessica Garcia, Jenifer Itzel Gonzalez, Ana Luisa Guerrero, Eric Holder, Jr, Luis Montemayor, Trinidad Muraira de Castro, Janet Napolitano, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, Ervey Lorenzo Santos, UNITED STATES OF AMERICA, filed.(Brodyaga, Elisabeth) (Entered: 06/30/2011)
174 Unopposed MOTION for Extension of Time for filing response to Plaintiffs' Second Motion for Class Certification by Hillary Clinton, Michael T Freeman, Janet Napolitano, filed. Motion Docket Date 8/1/2011. (Attachments: # 1 Proposed Order Proposed Order)(Fabian, Sarah) (Entered: 07/11/2011)
175 ORDER granting 174 Motion for Extension of Time Answer due by 7/22/2011. ORDERED that the deadline for Defendants' to file a response to Plaintiffs' Fourth Amended Complaint is now July 22, 2011.(Signed by Judge Hilda G Tagle) Parties notified. (megarcia) (Entered: 07/12/2011)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 20 of 26

07/12/2011 07/12/2011 07/12/2011 07/12/2011 07/13/2011
07/13/2011 07/13/2011 07/15/2011 07/22/2011 07/29/2011
07/29/2011
08/01/2011
08/18/2011 08/18/2011
08/25/2011

***Deadlines terminated. (megarcia) (Entered: 07/12/2011)
***Answer due for Hillary Clinton 7/22/2011; Janet Napolitano 7/22/2011. (megarcia) Modified on 7/12/2011 (megarcia, ). (Entered: 07/12/2011)
***Answer due for Michael T Freeman 7/22/2011. (megarcia) (Entered: 07/12/2011)
176 Unopposed MOTION to Amend 175 Order on Motion for Extension of Time, by Hillary Clinton, Michael T Freeman, Janet Napolitano, filed. Motion Docket Date 8/2/2011. (Attachments: # 1 Proposed Order Proposed Order)(Fabian, Sarah) (Entered: 07/12/2011)
177 AMENDED ORDER granting 176 Motion to Amend. ORDERED that the deadline for Defendants to file a response to Plaintiffs' Fourth Amended Complaint is July 15, 2011, and the deadline for Defendants to file a response to Plaintiffs' Second Motion for Class Certification is July 22, 2011.(Signed by Judge Hilda G Tagle) Parties notified. (megarcia) Modified on 7/13/2011 (megarcia, ). (Entered: 07/13/2011)
***Answer due for Hillary Clinton 7/15/2011; Michael T Freeman 7/15/2011; Janet Napolitano 7/15/2011. (megarcia) (Entered: 07/13/2011)
***Set/Reset Deadlines as to 171 Opposed MOTION to Certify Class : Responses due by 7/22/2011 (megarcia) (Entered: 07/13/2011)
178 MOTION to Dismiss 167 Amended Complaint/Counterclaim/Crossclaim etc., by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 8/5/2011. (Saltman, Julie) (Entered: 07/15/2011)
179 RESPONSE in Opposition to 171 Opposed MOTION to Certify Class, filed by Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA. (Fabian, Sarah) (Entered: 07/22/2011)
180 **THIS WAS INCORRECTLY RECORDED AND HAS BEEN RE−DOCKETED AS DOCUMENT #181** RESPONSE in Opposition to 178 MOTION to Dismiss 167 Amended Complaint/Counterclaim/Crossclaim etc.,, filed by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Ana Luisa Guerrero, Luis Montemayor, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, Ervey Lorenzo Santos. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) Modified on 7/29/2011 (jtabares, ). (Entered: 07/29/2011)
181 MOTION for Extension of Time File Opposition to Dkt 178 and Reply in support of Dkt 171 by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Ana Luisa Guerrero, Luis Montemayor, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, Ervey Lorenzo Santos, filed. Motion Docket Date 8/19/2011. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 07/29/2011)
182 ORDER granting 181 Unopposed Motion for Extension of Time to File Responses to Defendants' Motion to Dismiss, 178 and Reply to Defendants' Opposition, 179 , to Plaintiffs' Second Motion for Class Certificaiton, 171 Responses due by 8/18/2011 Reply due by 8/25/2011.(Signed by Judge Hilda G Tagle) Parties notified.(jtabares, ) (Entered: 08/01/2011)
183 Sealed Event, filed. (Entered: 08/18/2011)
184 RESPONSE in Opposition to 178 MOTION to Dismiss 167 Amended Complaint/Counterclaim/Crossclaim etc.,, filed by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Ana Luisa Guerrero, Luis Montemayor, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, Ervey Lorenzo Santos. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 08/18/2011)
185 REPLY in Support of 171 Opposed MOTION to Certify Class, filed by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Ana Luisa Guerrero, Luis Montemayor, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, Ervey Lorenzo Santos. (Brodyaga, Elisabeth) (Entered: 08/25/2011)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 21 of 26

09/01/2011
09/06/2011 09/08/2011 09/09/2011 11/22/2011 12/06/2011 01/20/2012
04/12/2012 05/08/2012 05/14/2012 05/26/2012
06/04/2012
06/04/2012 06/10/2012

186 SCHEDULING ORDER. ETT: 2 weeks. Joinder of Parties due by 9/30/2011 Pltf Expert Report due by 10/31/2011 Deft Expert Report due by 11/30/2011 Discovery due by 6/29/2012. Dispositive Motion Filing due by 7/16/2012. Joint Pretrial Order due by 10/17/2012. Docket Call & Final Pretrial Conference set for 10/30/2012 at 01:30 PM in Courtroom 3 before Judge Hilda G Tagle.(Signed by Judge Hilda G Tagle) Parties notified.(dnoriega, ) (Entered: 09/01/2011)
187 Unopposed MOTION for Extension of Time Reply In Support of Motion To Dismiss by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 9/27/2011. (Attachments: # 1 Proposed Order)(Saltman, Julie) (Entered: 09/06/2011)
188 ORDER granting 187 Motion for Extension of Time; Motion−related deadline set re: 178 MOTION to Dismiss 167 Amended Complaint/Counterclaim/Crossclaim etc.,. Replies due by 9/9/2011.(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 09/08/2011)
189 REPLY in Support of 178 MOTION to Dismiss 167 Amended Complaint/Counterclaim/Crossclaim etc.,, filed by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA. (Saltman, Julie) (Entered: 09/09/2011)
190 ORDER denying as moot 171 Motion to Certify Class; granting in part and denying in part 178 Motion to Dismiss.(Signed by Judge Hilda G Tagle) Parties notified.(dnoriega, ) (Entered: 11/22/2011)
191 ANSWER to 167 Amended Complaint/Counterclaim/Crossclaim etc., by Hillary Clinton, Michael T Freeman, Janet Napolitano, filed.(Saltman, Julie) (Entered: 12/06/2011)
192 NOTICE of Appearance by Javier N Maldonado on behalf of Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Ana Luisa Guerrero, Luis Montemayor, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, Ervey Lorenzo Santos, filed. (Maldonado, Javier) (Entered: 01/20/2012)
193 NOTICE of Dismissal as to Jenifer Itzel Gonzalez by Jenifer Itzel Gonzalez, filed. (Maldonado, Javier) (Entered: 04/12/2012)
194 MOTION to Dismiss Cause of Action One for Lack of Subject Matter Jurisdiction by Hillary Clinton, UNITED STATES OF AMERICA, filed. Motion Docket Date 5/29/2012. (Fabian, Sarah) (Entered: 05/08/2012)
195 Opposed MOTION to Quash Depositions( Motion Docket Date 6/4/2012.), Opposed MOTION for Protective Order by Hillary Clinton, filed. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Fabian, Sarah) (Entered: 05/14/2012)
196 Unopposed MOTION for Extension of Time to File Opposition to Defendants' Motion to Dismiss First Cause of Action by Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Ana Luisa Guerrero, Luis Montemayor, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, Ervey Lorenzo Santos, filed. Motion Docket Date 6/18/2012. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 05/26/2012)
197 RESPONSE in Opposition to 194 MOTION to Dismiss Cause of Action One for Lack of Subject Matter Jurisdiction, filed by Ana Alanis, Yuliana Trinidad Castro, Jessica Garcia, Ana Luisa Guerrero, Luis Montemayor, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, Ervey Lorenzo Santos. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 06/04/2012)
198 RESPONSE to 195 Opposed MOTION to Quash DepositionsOpposed MOTION for Protective Order filed by Laura Nancy Castro. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Maldonado, Javier) (Entered: 06/04/2012)
199 EXHIBITS by Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Ana Luisa Guerrero, Luis Montemayor, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, Ervey Lorenzo Santos, filed.(Brodyaga, Elisabeth) (Entered: 06/10/2012)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 22 of 26

06/25/2012 06/25/2012 06/29/2012 06/29/2012 07/03/2012
07/03/2012
07/03/2012 07/05/2012 07/24/2012
07/25/2012 07/26/2012 08/01/2012 09/17/2012
09/17/2012 09/17/2012 09/26/2012 09/26/2012

200 REPLY in Support of 195 Opposed MOTION to Quash DepositionsOpposed MOTION for Protective Order, filed by Hillary Clinton. (Fabian, Sarah) (Entered: 06/25/2012)
201 REPLY in Support of 194 MOTION to Dismiss Cause of Action One for Lack of Subject Matter Jurisdiction, filed by Hillary Clinton. (Fabian, Sarah) (Entered: 06/25/2012)
202 Joint MOTION to Modify Scheduling Order as to 186 Scheduling Order, by Hillary Clinton, Michael T Freeman, Janet Napolitano, filed. Motion Docket Date 7/20/2012. (Attachments: # 1 Proposed Order)(Fabian, Sarah) (Entered: 06/29/2012)
203 NOTICE of Dismissal as to All Defendants by Rodrigo Sampayo, filed. (Brodyaga, Elisabeth) (Entered: 06/29/2012)
204 ORDER granting 202 Motion to Modify. The Court GRANTS the parties' Joint Motion to Modify Scheduling Order, Dkt. No. 202, and ORDERS the Scheduling Order RESET as follows: Discovery must be completed by: 9/27/2012; Dispositive Motion will be filed by: 10/15/2012; Joint Pretrial Order is due by: 12/17/2012; Docket Call and Final Pretrial Conference is set for 1:30 p.m. on: 1/3/2013.(Signed by Judge Hilda G Tagle) Parties notified. (megarcia) (Entered: 07/03/2012)
***Set/Reset Scheduling Order and Trial Settings: Discovery due by 9/27/2012. Dispositive Motion Filing due by 10/15/2012. Joint Pretrial Order due by 12/17/2012. Docket Call and Final Pretrial Conference set for 1/3/2013 at 01:30 PM in Courtroom 3 before Judge Hilda G Tagle. (megarcia) (Entered: 07/03/2012)
205 ORDER Dismissing 203 Plaintiff Rodrigo Sampayo. (Signed by Judge Hilda G Tagle) Parties notified. (rnieto) (Entered: 07/03/2012)
206 MOTION to Dismiss Seventh Cause of Action in Fourth Amended Complaint by Michael T Freeman, Janet Napolitano, filed. Motion Docket Date 7/26/2012. (Fabian, Sarah) (Entered: 07/05/2012)
207 RESPONSE in Opposition to 206 MOTION to Dismiss Seventh Cause of Action in Fourth Amended Complaint, filed by Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Brodyaga, Elisabeth) (Entered: 07/24/2012)
208 Amended RESPONSE in Opposition to 206 MOTION to Dismiss Seventh Cause of Action in Fourth Amended Complaint, filed by Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia. (Brodyaga, Elisabeth) (Entered: 07/25/2012)
209 Sealed Event, filed. (Entered: 07/26/2012)
210 REPLY in Support of 206 MOTION to Dismiss Seventh Cause of Action in Fourth Amended Complaint, filed by Eliseo Cabrera, Michael T Freeman, Eric Holder, Jr, Janet Napolitano. (Fabian, Sarah) (Entered: 08/01/2012)
211 MOTION for Julie Saltman to Withdraw as Attorney by Eliseo Cabrera, Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 10/9/2012. (Saltman, Julie) (Entered: 09/17/2012)
212 PROPOSED ORDER re: 211 MOTION for Julie Saltman to Withdraw as Attorney, filed.(Saltman, Julie) (Entered: 09/17/2012)
213 ORDER granting 211 Motion to Withdraw as Attorney Julie S. Saltman.(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 09/18/2012)
214 Joint MOTION to Modify Scheduling Order as to 204 Order on Motion to Modify, by Laura Nancy Castro, filed. Motion Docket Date 10/17/2012. (Maldonado, Javier) (Entered: 09/26/2012)
215 ORDER granting 214 Motion to Modify. It is hereby ORDERED that the discover deadline in this case is suspended until there is a ruling on the pending Motions to Dismiss (ECF Nos. 194 and 206) and Motion to Quash (ECF Dkt. 195). The discovery deadline in this case shall be continued for 90 days after the Court rules on the pending motion.(Signed by Judge Hilda G Tagle) Parties notified.(jtabares, ) (Entered:

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 23 of 26

09/26/2012 11/07/2012 11/20/2012 11/29/2012
12/05/2012 12/06/2012 12/07/2012
02/05/2013 02/22/2013 03/01/2013 03/07/2013 03/07/2013
03/15/2013

09/27/2012)
***Deadlines terminated (discovery deadline 9/27/12). (jtabares, ) (Entered: 09/27/2012)
216 ORDER entered. Submission Date 11/21/2012. Defendant DOS is ORDERED to submit answers to the above questions to the Court in an affidavit of an individual with sufficient institutional knowledge and binding authority to adequately and accurately represent DOS's policies by November 21, 2012. (Signed by Judge Hilda G Tagle) Parties notified.(avleal, ) (Entered: 11/07/2012)
217 RESPONSE to 216 Order,, filed by Hillary Clinton. (Attachments: # 1 Exhibit J. Rolbin Declaration)(Fabian, Sarah) (Entered: 11/20/2012)
218 ORDER entered. Be it remembered that on November 29, 2012 the Court ORDERED the parties to separately inform the Court of their respective answers to the following question: Has Defendant Department of State issued United States passports to Maria Reyes and Ana Luisa Guerrero? The parties are hereby ORDERED to file their respective answers to this question and any supporting documentation by December 6, 2012.(Signed by Judge Hilda G Tagle) Parties notified.(bcampos, ) (Entered: 11/29/2012)
219 Sealed Event, filed. (With attachments) (Entered: 12/05/2012)
220 Sealed Event, filed. (Entered: 12/06/2012)
221 ORDER granting in part and denying in part 194 Motion to Dismiss; denying 195 Motion to Quash; denying 195 Motion for Protective Order; granting 196 Motion for Extension of Time, and the Court GRANTS deems Plaintiffs' Opposition to Defendant's Motion to Dismiss Cause of Action One in Plaintiffs' Fourth Amended Complaint, Dkt. No. 197, to be timely filed. ; granting in part and denying in part 206 Motion to Dismiss. The Court RESETS the deadlines in this case as follows: Discovery as to class certification must be completed by February 5, 2013. Plaintiffs must submit a motion for class certification, if at all, by March 7, 2013, Discovery due by 3/7/2013, Dispositive Motion Filing due by 4/8/2013, Joint Pretrial Order due by 6/11/2013, Docket Call and Final Pretrial Conference set for 6/25/2013 at 01:30 PM in Courtroom 3 before Judge Hilda G Tagle). Plaintiffs Trinidad Muraira de Castro, Ana Alanis, Ervey Lorenzo Santos are TERMINATED as named plaintifs, and Jennifer Itzel Gonzalez is TERMINATED as both a named plaintiff and potential class member. (Signed by Judge Hilda G Tagle) Parties notified. (megarcia) (Entered: 12/07/2012)
222 Opposed MOTION to Compel Discovery by Laura Nancy Castro, filed. Motion Docket Date 2/26/2013. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Maldonado, Javier) (Entered: 02/05/2013)
223 RESPONSE in Opposition to 222 Opposed MOTION to Compel Discovery, filed by Hillary Clinton. (Fabian, Sarah) (Entered: 02/22/2013)
224 Opposed MOTION for Protective Order by Eliseo Cabrera, Michael T Freeman, filed. Motion Docket Date 3/22/2013. (Attachments: # 1 Proposed Order)(Fabian, Sarah) (Entered: 03/01/2013)
225 Joint MOTION to Modify Scheduling Order by Laura Nancy Castro, filed. Motion Docket Date 3/28/2013. (Maldonado, Javier) (Entered: 03/07/2013)
226 ORDER granting 225 Joint Motion to Modify Scheduling Order. Accordingly, the Court RESETS the deadlines in this case as follows: Plaintiffs must submit a motion for class certification, if at all, on or before March 15, 2013; Discovery must be completed on or before 60 days after the entry of an order disposing of Plaintiff's motion for class certification, if such order be granted. The Court will address the remainder of the deadlines in its ruling on Plaintiff's motion for class certification. (Signed by Judge Hilda G Tagle) Parties notified.(mperez, ) (Entered: 03/07/2013)
227 MOTION to Certify Class by Laura Nancy Castro, filed. Motion Docket Date 4/5/2013. (Attachments: # 1 Proposed Order Proposed Order, # 2 Brief in Support of Motion, # 3 Exhibit A, # 4 Exhibit B−1, # 5 Exhibit B−2, # 6 Exhibit B−3)(Maldonado, Javier) (Entered: 03/15/2013)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 24 of 26

04/03/2013 04/04/2013 04/11/2013 04/18/2013 04/18/2013 05/14/2013 06/11/2013 07/26/2013
08/01/2013 08/08/2013

228 Unopposed MOTION for Extension of Time to file Opposition by Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 4/24/2013. (Attachments: # 1 Proposed Order)(Fabian, Sarah) (Entered: 04/03/2013)
229 ORDER granting Unopposed Motion for Extension of Time. The Court finds that the Defendants' Motion should be granted. It is therefore, Ordered that the deadline for Defendants to file their Opposition to the Plaintiffs' Third Motion for Class Certification is now April 11,2013. Opposition due by 4/11/2013.(Signed by Judge Hilda G Tagle) Parties notified.(dahumada, ) Modified on 4/4/2013 (dahumada, ). (Entered: 04/04/2013)
230 RESPONSE in Opposition to 227 MOTION to Certify Class, filed by Hillary Clinton, Michael T Freeman, Eric Holder, Jr, Janet Napolitano, UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2, # 3 Exhibit A−3)(Fabian, Sarah) (Entered: 04/11/2013)
231 Unopposed MOTION for Extension of Time For Plaintiffs' To Reply by Laura Nancy Castro, filed. Motion Docket Date 5/9/2013. (Maldonado, Javier) (Entered: 04/18/2013)
232 ORDER granting 231 Motion for Extension of Time; Motion−related deadline set re: 227 MOTION to Certify Class. Replies due by 5/14/2013. It is therefore ORDERED that the deadline for Plaintiffs to file their Reply to Defendants' Opposition to Plaintiffs' Third Motion for Class Certification is now May 14, 2013.(Signed by Judge Hilda G Tagle) Parties notified. (megarcia) (Entered: 04/19/2013)
233 REPLY to Response to 227 MOTION to Certify Class, filed by Laura Nancy Castro. (Maldonado, Javier) (Entered: 05/14/2013)
234 ORDER, entered. BE IT REMEMBERED that on June 11, 2013, the Court sua sponte VACATED the deadline in this case in light of its March 7, 2013 Order. The Court will reset the deadlines in this case upon its ruling on the motion for class certification. (Signed by Judge Hilda G Tagle) Parties notified.(mperez, ) (Entered: 06/11/2013)
235 ORDER denying 222 Motion to Compel; granting 224 Motion for Protective Order. The Court GRANTS CBP's instant motion, and ORDERS that discovery produced by CBP and its witnesses by request of Plaintiffs as to the seventh cause of action shall be limited to the issue of whether Laura, Yuliana, and Garcia were denied access to food, water, and bathroom facilities constituted a violation of the Fifth and Fourteenth Amendments, as alleged in the Fourth Amended Complaint. Additionally, the Court GRANTS CBP's request for a 14 day extension to the deadline for discovery on the merits for the seventh cause of action. The Court TERMINATES Reyes and Ruiz as named plaintiffs; SUBSTITUTES John Kerry for Hillary Clinton; ORDERS that Plaintiffs may file a motion seeking leave to amend their complaint to add Laura to the first cause of action on or before August 2, 2013, ORDERS that if Plaintiffs elect to do so, Defendants' response is due on or before the seventh day after the filing of Plaintiffs' motion, and ORDERS that Plaintiffs' reply due on or before the seventh day after the filing of Defendants' reply; HOLDS IN ABEYANCE Plaintiffs' Oppposed Motion for Class Certification, Dkt. No. 227, pending either the expiration of the period during which Plaintiffs may file a motion seeking leave to amend their complaint to add Laura to the first cause of action, or the Court's disposition of such motion should Plaintiff seek such leave; ORDERS that the deadline for merits discovery of Plaintiffs' seventh cause of action shall extend to and include August 9, 2013.(Signed by Judge Hilda G Tagle) Parties notified. (megarcia) (Entered: 07/26/2013)
236 Opposed MOTION for Leave to File Complaint by Laura Nancy Castro, filed. Motion Docket Date 8/22/2013. (Attachments: # 1 Exhibit Exhibit A Final 5th Amended Complaint, # 2 Exhibit Exhibit B Final Redlined 5th Amended Complaint, # 3 Exhibit Exhibit C Proposed Order)(Maldonado, Javier) (Entered: 08/01/2013)
237 RESPONSE in Opposition to 236 Opposed MOTION for Leave to File Complaint, filed by Michael T Freeman, Eric Holder, Jr, John Kerry, Janet Napolitano, UNITED STATES OF AMERICA. (Fabian, Sarah) (Entered: 08/08/2013)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 25 of 26

08/15/2013 09/24/2013
09/30/2013 10/08/2013 10/09/2013 10/31/2013 11/06/2013 11/12/2013 12/04/2013 12/10/2013 12/12/2013 12/17/2013 12/30/2013 01/02/2014

238 REPLY to Response to 236 Opposed MOTION for Leave to File Complaint, filed by Laura Nancy Castro. (Maldonado, Javier) (Entered: 08/15/2013)
239 ORDER granting 236 Opposed MOTION for Leave to File Fifth Amended Class Action Complaint. The Court GRANTS Plaintiff's Motion for Leave to File Fifthe Amended Class Action Complaint. Plaintiff's are ORDERED to file their Fifth Amended Complaint by September 30, 2013. ( Amended Complaint due by 9/30/2013, Discovery due by 11/22/2013, Responses due by 12/13/2013.)(Signed by Judge Hilda G Tagle) Parties notified.(avleal, 1) (Entered: 09/25/2013)
240 AMENDED Complaint against All Defendants filed by Alicia Ruiz, Yuliana Trinidad Castro, Ana Alanis, Laura Nancy Castro, Jenifer Itzel Gonzalez, Maria Reyes, Ana Luisa Guerrero, Ervey Lorenzo Santos, Trinidad Muraira de Castro, Jessica Garcia, Rodrigo Sampayo, Luis Montemayor.(Maldonado, Javier) (Entered: 09/30/2013)
241 Unopposed MOTION for Extension of Time Respond to Fifth Amended Complaint by Michael T Freeman, Eric Holder, Jr, John Kerry, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 10/29/2013. (Fabian, Sarah) (Entered: 10/08/2013)
242 ORDER granting 241 Motion for Extension of Time. The deadline to file a response is RESET for 14 days after the date on which Defendants' counsel and other government employees necessary to this litigation are authorized to continue work. (Signed by Judge Hilda G Tagle) Parties notified.(avleal, 1) (Entered: 10/09/2013)
243 MOTION to Dismiss 240 Amended Complaint/Counterclaim/Crossclaim etc., by Michael T Freeman, Eric Holder, Jr, John Kerry, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 11/21/2013. (Fabian, Sarah) (Entered: 10/31/2013)
244 Unopposed MOTION for Extension of Time File Response to Defendants' Third Motion to Dismiss by Laura Nancy Castro, filed. Motion Docket Date 11/27/2013. (Maldonado, Javier) (Entered: 11/06/2013)
245 ORDER granting 244 Motion for Extension of Time. Plaintiffs are ORDERED to file their response to Defendants' motion to dismiss by December 5, 2013. Responses due by 12/5/2013..(Signed by Judge Hilda G Tagle) Parties notified.(dahumada, 1) (Entered: 11/12/2013)
246 RESPONSE in Opposition to 243 MOTION to Dismiss 240 Amended Complaint/Counterclaim/Crossclaim etc., , filed by Laura Nancy Castro. (Attachments: # 1 Proposed Order)(Maldonado, Javier) (Entered: 12/04/2013)
247 Unopposed MOTION for Extension of Time to File Reply by Michael T Freeman, Eric Holder, Jr, John Kerry, Janet Napolitano, UNITED STATES OF AMERICA, filed. Motion Docket Date 12/31/2013. (Attachments: # 1 Proposed Order)(Fabian, Sarah) (Entered: 12/10/2013)
248 Amended RESPONSE in Opposition to 227 MOTION to Certify Class, filed by John Kerry. (Attachments: # 1 Exhibit A1, # 2 Exhibit A2, # 3 Exhibit A3, # 4 Exhibit B)(Fabian, Sarah) (Entered: 12/12/2013)
249 ORDER granting 247 Motion for Extension of Time. The Court Orders Defendant to file a reply in support of the motion for summary judgment. Replies due by 12/31/2013.(Signed by Judge Hilda G Tagle) Parties notified.(sbejarano, 1) (Entered: 12/17/2013)
250 REPLY in Support of 243 MOTION to Dismiss 240 Amended Complaint/Counterclaim/Crossclaim etc., , filed by Michael T Freeman, Eric Holder, Jr, John Kerry, Janet Napolitano, UNITED STATES OF AMERICA. (Fabian, Sarah) (Entered: 12/30/2013)
251 REPLY to 248 Response in Opposition to Motion to Certify Class, filed by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Ana Luisa Guerrero, Luis Montemayor, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, Ervey Lorenzo Santos. (Attachments: # 1 Exhibit A (Part 1), # 2 Exhibit A (Part 2), # 3 Exhibit A (Part 3), # 4 Exhibit A (Part 4))(Maldonado, Javier) (Entered: 01/02/2014)

Case: 1:09-cv-208 As of: 10/31/2018 05:32 PM CDT 26 of 26

02/14/2014
03/17/2014 03/26/2014 03/26/2014 04/24/2014
05/02/2014 05/05/2014 05/08/2014

252 MOTION for Cathy J Potter to Withdraw as Attorney by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Ana Luisa Guerrero, Luis Montemayor, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, Ervey Lorenzo Santos, filed. Motion Docket Date 3/7/2014. (Attachments: # 1 Proposed Order)(Potter, Cathy) (Entered: 02/14/2014)
253 ORDER granting 252 Motion to Withdraw as Attorney. Attorney Cathy Jean Potter terminated.(Signed by Judge Hilda G Tagle) Parties notified.(sbejarano, 1) (Entered: 03/17/2014)
254 ORDER denying 227 Motion to Certify Class. The Court Orders the parties to file a joint status report by April 25, 2014.(Signed by Judge Hilda G Tagle) Parties notified.(dahumada, 1) (Entered: 03/26/2014)
***Set/Reset Deadlines/Hearings: Status Report due by 4/25/2014 (dahumada, 1) (Entered: 03/26/2014)
255 Joint MOTION for Extension of Time File Joint Status Report by Ana Alanis, Laura Nancy Castro, Yuliana Trinidad Castro, Jessica Garcia, Jenifer Itzel Gonzalez, Ana Luisa Guerrero, Luis Montemayor, Trinidad Muraira de Castro, Maria Reyes, Alicia Ruiz, Rodrigo Sampayo, Ervey Lorenzo Santos, filed. Motion Docket Date 5/15/2014. (Maldonado, Javier) (Entered: 04/24/2014)
256 STIPULATION of Dismissal of First Cause of Action, individually by Laura Nancy Castro, Ana Luisa Guerrero, Luis Montemayor, Ervey Lorenzo Santos, filed.(Brodyaga, Elisabeth) (Entered: 05/02/2014)
257 STATUS REPORT by Michael T Freeman, Eric Holder, Jr, John Kerry, Janet Napolitano, UNITED STATES OF AMERICA, filed.(Fabian, Sarah) (Entered: 05/05/2014)
258 ORDER re: 257 Status Report, 256 Stipulation of Dismissal. In accordance with the stipulation of dismissal as to the first cause of action, and the prior orders of the Court dismissing all other causes of action, the Court ORDERS the Clerk to close the above−captioned case. (Signed by Judge Hilda G Tagle) Parties notified.(mperez, 1) (Entered: 05/08/2014)