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Coleman v. United States

September 29, 2006

WALTER L. COLEMAN, AS NEXT FRIEND OF THE MINOR CHILD, SAUL ARELLANO, PLAINTIFF,
v.
THE UNITED STATES, ALBERTO GONZALEZ, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, AND MICHAEL CHERTOFF, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve United States District Judge

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge

Plaintiff Reverend Walter L. Coleman brings this action as the next friend of a minor child, Saul Arellano ("Saul"),*fn1 against the United States, Attorney General Alberto Gonzalez, the United States Department of Homeland Security, and its Secretary Michael Chertoff (collectively "Defendants"). Plaintiff seeks a judgment declaring that any removal of Saul's mother, Elvira Arellano ("Ms. Arellano"), from the United States is, as a matter of law, a constructive removal of her son in violation of his constitutional rights as a birthright citizen of the United States. Plaintiff further requests that the Court remedy this alleged violation by declaring all removal orders against Ms. Arellano null and void. Defendants have moved to dismiss Plaintiff's Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), contending that the Court lacks subject matter jurisdiction and, alternatively, that Saul's claim cannot succeed on the merits. For the reasons detailed below, the Court grants Defendants' Motion. Although the Court has subject matter jurisdiction to consider Saul's claim, the Complaint does not state a claim upon which relief may be granted.

LEGAL STANDARD

I Rule 12(b)(1)

Defendants premise their motion to dismiss on Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). "In ruling on a motion under Rule 12(b)(1), [a] district court must accept as true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff." Capitol Leasing Co. v. Fed. Deposit Ins. Corp., 999 F.2d 188, 191 (7th Cir. 1993) (citing Sladek v. Bell Sys. Mgmt. Pension Plan, 880 F.2d 972, 975 (7th Cir. 1989)); Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). Because a Rule 12(b)(1) motion challenges the existence of federal court jurisdiction, "the district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Johnson v. Apna Ghar, Inc., 330 F.3d 999, 1001 (7th Cir. 2003) (internal quotation and citation omitted); United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003) (on a Rule 12(b)(1) motion "the court is free to weigh the evidence to determine whether jurisdiction has been established"). "The burden of proof on a 12(b)(1) issue is on the party asserting jurisdiction." United Phosphorus, 322 F.3d at 946.

II. Rule 12(b)(6)

A Rule 12(b)(6) motion, in contrast, challenges the legal sufficiency of the allegations in the complaint. In re HealthCare Compare Corp. Sec. Litig., 75 F.3d 276, 279 (7th Cir. 1996). A court should dismiss a complaint under Rule 12(b)(6) only "if it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Centers v. Centennial Mortgage, Inc., 398 F.3d 930, 933 (7th Cir. 2005). When determining whether to grant a 12(b)(6) motion to dismiss, a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor, Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997), but a court is not obliged to accept the complaint's legal conclusions as true. Hickey v. O'Bannon, 287 F.3d 656, 658 (7th Cir. 2002).

BACKGROUND

I. The Complaint

Plaintiff's Complaint alleges the following facts, which for purposes of this motion the Court accepts as true. Saul is a United States citizen, born on December 18, 1998 in Toppenish, Washington. (R. 1-1, Pl.'s Compl. at 1.) Saul currently resides with Ms. Arellano, who is awaiting removal, as ordered by United States Immigration and Customs Enforcement ("ICE"), a branch of the United States Department of Homeland Security. (Id. at 2.) Ms. Arellano came to the United States in August 1997 and moved directly to Oregon, where she met Saul's father. (Id.) Saul has never met his father. (Id.) Saul's father, whose whereabouts remain unknown, left Ms. Arellano when she was three months pregnant with Saul and has never acknowledged Saul as his son. (Id. at 1-2.) Saul has no other family in the United States. (Id. at 2.)

In 2000, Ms. Arellano moved to Chicago, Illinois. (Id.) In 2002, while working in housekeeping at O'Hare International Airport, she was arrested as part of security sweep. (Id.) She has since been convicted of working under a false Social Security Number. (Id.) As a result of this conviction, ICE issued a removal order that required Ms. Arellano to report to the United States Department of Homeland Security in August 2006. (Id.) The Complaint alleges that this removal order is a constructive removal action against Saul that violates his rights as a United States citizen under the Fourteenth Amendment of the United States Constitution. (Id. at 2-3.)

II. Defendants' Affirmative Evidence

In support of their motion to dismiss for lack of subject matter jurisdiction, Defendants have provided evidence supporting the following facts - facts that Plaintiff apparently concedes. On August 23, 1997, Ms. Arellano arrived at the Calexico Port of Entry, seeking entry into the United States as a visitor for pleasure pursuant to a border crossing card, or I-586, bearing the name "Sofia Escobar-Vela." (R. 10-3, Defs.' Exs. ...


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