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Oudom v. Tritten

United States District Court, D. Minnesota

November 14, 2017

Iliana Beatriz Oudom, Plaintiff,
v.
Leslie Tritten, Field Office Director, U.S. and Immigration Services, James McCament, U.S. Citizenship and Immigration Services, Acting Director, Washington, D.C., Elaine Duke, Acting Secretary, Department of Homeland Security, Washington, D.C., Defendants.

          Marc Prokosch, Esq. and Karam & Associates, counsel for plaintiff.

          Ubaid Ul-Haq, U.S. Department of Justice, for defendants.

          ORDER

          David S. Doty, Judge

         This matter is before the court upon the motion to dismiss by defendants Leslie Tritten, Field Office Director of U.S. Citizenship and Immigration Services (USCIS) in Minneapolis, Minnesota; James McCament, Acting Director of USCIS; and John Kelly, Secretary of the Department of Homeland Security.[1] Based on a review of the file, record, and proceedings herein, and for the following reasons, the court denies in part the motion.

         BACKGROUND

         This immigration dispute arises out of USCIS's denial of plaintiff Iliana Beatriz Oudom's Application to Register Permanent Residence or Adjust Status. On April 17, 2012, Oudom, a citizen and native of El Salvador, presented herself at a port-of-entry in Hidalgo, Texas for inspection by a Department of Homeland Security (DHS) official. Compl. ¶¶ 6-7; see ECF No. 17-3 at 1.[2] Oudom wanted to apply for asylum, and DHS allowed her to enter the United States pending her application.[3] Compl. ¶ 7. Oudom was given a “credible fear interview”[4] for her asylum application on February 24, 2014, and the DHS official determined that she had a credible fear of torture if she were returned to El Salvador. See ECF No. 17-2 at 4.

         On August 8, 2014, while residing in the United States, Oudom married Prathna Oudom, a United States citizen. Compl. ¶ 8. On February 12, 2015, Oudom applied to Register Permanent Residence or Adjust Status based on her marriage to a United States citizen. Id. USCIS denied her application for failure to demonstrate that she was admitted or paroled into the United States pursuant to 8 U.S.C. § 1255(a). Id. ¶ 9.

         On June 12, 2017, Oudom filed this suit seeking a writ of mandamus[5] and a declaratory judgment that she is eligible to adjust her status to lawful permanent resident and that defendants erred in finding that she was not paroled into the United States.[6]Defendants now move to dismiss for failure to state a claim.

         DISCUSSION

         I. Standard of Review

         In order to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (citations and internal quotation marks omitted). “A claim has facial plausibility when the plaintiff [has pleaded] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp v. Twombly, 550 U.S. 544, 556 (2007)). Although a complaint need not contain detailed factual allegations, it must raise a right of relief above the speculative level. See Twombly, 550 U.S. at 555. “[L]abels and conclusions or a formulaic recitation of the elements of a cause of action” are not sufficient to state a claim. Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted).

         The court does not consider matters outside the pleadings under Rule 12(b)(6). Fed.R.Civ.P. 12(d). The court may, however, consider matters of public record and materials that are “necessarily embraced by the pleadings.” Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (citation and internal quotation marks omitted). Here, the court properly considers documents pertaining to Oudom's immigration status.

         II. Motion to Dismiss

         At issue are two statutes under which the government may “parole” an alien. Under 8 U.S.C. § 1182(d)(5)(A), the Attorney General may, at his discretion and on a case-by-case basis, temporarily parole an alien into the United States for “urgent humanitarian reasons or significant public benefit.” After the purposes of the parole have been served “the alien shall forthwith return or be returned to the custody from which he was paroled and ... his case shall continue ... in the same manner as that of any other applicant.” 8 ...


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