United States District Court, D. Minnesota
Prokosch, Esq. and Karam & Associates, counsel for
Ul-Haq, U.S. Department of Justice, for defendants.
S. Doty, Judge
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. Based on a review of the file, record, and
proceedings herein, and for the following reasons, the court
denies in part the motion.
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
Oudom wanted to apply for asylum, and DHS allowed her to
enter the United States pending her
application. Compl. ¶ 7. Oudom was given a
“credible fear interview” 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.
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.
12, 2017, Oudom filed this suit seeking a writ of
mandamus 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.Defendants now move to dismiss for
failure to state a claim.
Standard of Review
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).
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.
Motion to Dismiss
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 ...