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Fabian Banton v. John Morton

February 22, 2011

FABIAN BANTON
v.
JOHN MORTON, ET AL.



The opinion of the court was delivered by: Padova, J.

MEMORANDUM

Plaintiff Fabian Banton brings this mandamus action against John Morton, Director of United States Immigration and Customs Enforcement ("ICE"); Thomas Decker, ICE Field Office Director, Philadelphia District; Kent Frederick, Chief Counsel, Office of the Chief Counsel, Philadelphia District; and Thomas G. Snow, Acting Director, Executive Office for Immigration Review (collectively, "the Government"), seeking to compel the Government to return Plaintiff to the United States for the completion of his removal proceedings. Presently before the Court is the Government's Motion to Dismiss. For the reasons that follow, we grant the Motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Complaint alleges the following facts. Plaintiff is a native and citizen of Jamaica who entered the United States as an agricultural worker on July 15, 1978. (Compl. ¶ 10.) Between 1978 and 1995, Plaintiff resided in Philadelphia. (Id. ¶ 10-11.) ICE initiated deportation proceedings on January 12, 1995, alleging that Plaintiff had been convicted of a drug-trafficking offense in 1991 and a firearms offense in 1993, both in Philadelphia. (Id. ¶¶ 11, 25.) On October 11, 1996, Plaintiff failed to appear for a hearing, and an immigration judge entered an in absentia order of removal against him. (Id. ¶¶ 11, 30.) Plaintiff filed a motion to reopen his deportation proceedings, which was denied. (Id. ¶ 11.) Plaintiff appealed the denial of his motion to reopen to the Board of Immigration Appeals ("BIA"). (Id.)

While Plaintiff's appeal was pending before the BIA, Plaintiff was deported to Jamaica. (5/5/06 Order, United States Court of Appeals for the Third Circuit, Case No. 05-3946.) The BIA dismissed Plaintiff's pending appeal in an order dated July 22, 2005. (Compl. ¶¶ 2, 12, 31.) Plaintiff appealed to the Third Circuit and the Government filed a motion to remand. (Id. ¶¶ 2, 33.) In an order granting the Government's motion to remand, the Third Circuit held that Plaintiff's deportation prior to the adjudication of his appeal, as well as the BIA's refusal to consider the merits of the in absentia removal order in light of Plaintiff's deportation, violated the automatic stay provisions of 8 U.S.C. §§ 1003.23(b)(4)(iii)(C), 1003.6. (Id.; 5/5/06 Order.)

On remand, the BIA affirmed the in absentia removal order, and Plaintiff appealed. (Id. ¶¶ 12, 13, 34.) On appeal to the Third Circuit, the Government again moved for remand to the BIA, and the Third Circuit granted the motion. (Id. ¶ 13, 34-35; 10/18/07 Order, United States Court of Appeals for the Third Circuit, Case Number 06-5198.) The Third Circuit also denied a motion filed by Plaintiff to compel his return to the United States, "not[ing] the Acting Attorney General's representation that the Department of Homeland Security will permit Petitioner's return to the United States to attend any hearing before an Immigration Judge." (10/18/07 Order.)

On June 13, 2008, the BIA remanded the case to the Immigration Court for further consideration of Plaintiff's deportability. (Compl. ¶¶ 13, 35-36.) Before the Immigration Judge, Plaintiff filed a motion to reset the date of his hearing, in order to allow time for Plaintiff to return to the United States. (Id. ¶¶ 39, 40; see also Motion to Reset Hearing Date, Executive Office for Immigration Review, Office of the Immigration Judge, Case Number A 072-504-689, attached as Ex. 1 to Defs.' Mem.) In an order dated November 1, 2010, the Immigration Judge granted the motion, but noted that Plaintiff "must pay for transport to U.S." (11/1/10 Order, Executive Office for Immigration Review, Office of the Immigration Judge, Case Number A. 072-504-689, attached as Ex. 2 to Defs.' Mem.)

The Complaint asserts one cause of action against all Defendants. Count I asserts a claim for a writ of mandamus compelling Defendants to return Plaintiff to the United States. The Government has moved to dismiss Plaintiff's claim pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that Plaintiff can identify no authority that imposes on the Government a duty to return Plaintiff to the United States.

II. LEGAL STANDARD

"In deciding motions to dismiss pursuant to Rule 12(b)(6), courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum v. Bank of Am., 361 F.3d 217, 222 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997), and Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). We take the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)). Legal conclusions, however, receive no deference, and the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986) (cited with approval in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

A plaintiff's pleading obligation is to set forth "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), which gives the defendant "fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (quotation omitted). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). In the end, we will dismiss a complaint if the factual allegations in the complaint are not sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, at 1235-36 (3d ed. 2004)).

III. DISCUSSION

The contours of Plaintiff's claims have shifted since Plaintiff filed his Complaint in this action. In the Complaint, Plaintiff sought to compel the Government to return him to the United States. (Compl. ¶¶ 1, 4-5, 23, 24, 40-41, 47, 51, 57(e).) In a February 11, 2011 letter to the Court, Plaintiff appeared to request a writ of mandamus compelling the Government to return him to the United States, or, in the alternative, a writ of mandamus compelling the Government to pay the cost of his return. (2/11/11 letter at 1-2.)*fn1

It is well-established that "relief is available to a plaintiff under [the Mandamus Act] 'only if he has exhausted all other avenues of relief and only if the defendant owes him a clear, non-discretionary duty.'" Harmon Cove Condo. Ass'n, Inc. v. Marsh, 815 F.2d 949, 951 (3d Cir. 1987) (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)). The duty owed to the plaintiff must be "legal duty which is a specific, plain ministerial act devoid of the exercise of judgment or discretion." Richardson v. United States, 465 F.2d 844, 849 (3d Cir. 1972) (en banc) (quotation marks omitted). An act is ministerial when it "'is positively commanded and so plainly ...


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