United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE.
se Plaintiff Ivan Vetcher has been detained for over
three years while he challenges removal proceedings brought
against him by the Department of Homeland Security. After
coming up empty in a congeries of cases filed before the
Board of Immigration Appeals, the Northern District of Texas,
the Eastern District of Texas, the Western District of
Louisiana, and the Fifth Circuit, Vetcher brought an action
in this Court alleging that Defendants - the United States
Attorney General and the Secretary of DHS - oversaw actions
and policies that are unconstitutional and in violation of
the Administrative Procedure Act. The Government now moves to
dismiss, contending that this Court lacks jurisdiction and
that Plaintiff has failed to state a claim upon which any
relief can be granted. Agreeing as to both, the Court will
dismiss some of the claims and order that the remainder be
transferred to the Northern District of Texas, where Vetcher
is currently detained.
must at this stage, the Court treats all of the facts in the
Amended Complaint as true. See Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). The
Court will also consider the facts set forth in
Plaintiff's Opposition to the Motion to Dismiss and his
other cases incorporated by reference thereto. See Brown
v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C.
a native and citizen of Belarus, entered the United States in
2001 as a refugee. See Vetcher v. Lynch, 2015 WL
10551735, at *1 (W.D. La. June 15, 2015). In 2014, he was
convicted under Texas Health and Safety Code §
481.113(d), which makes it a first-degree felony to knowingly
manufacture, deliver, or possess with intent to deliver
between 4 and 400 grams of any controlled substance.
See Compl., Exh. G (BIA Decisions) at 4. Shortly
after his conviction, DHS initiated removal proceedings under
8 U.S.C. § 1227(a)(2)(A)(iii), which requires the
Attorney General to order “[a]ny alien who is convicted
of an aggravated felony at any time after admission . . .
deportable.” By statute, any alien “found . . .
deportable” under 8 U.S.C. § 1227(a)(2) is subject
to mandatory detention during the removal period.
Id. § 1231(a)(2). On July 2, 2014, accordingly,
Vetcher was taken into ICE custody. See Compl.,
¶ 1. On August 6, the Immigration Judge sustained the
aggravated-felony charge, found Vetcher ineligible for asylum
or withholding of removal, and denied his request for
deferral of removal under the Convention Against Torture.
See BIA Decisions at 4. He successfully filed a
motion to reopen proceedings on March 25, 2015, however, and
the BIA then remanded the matter because “the
Immigration Judge had not given [him] a meaningful chance to
contest the aggravated felony charge during his [pro
se] initial proceedings.” Id. at 2, 5.
Vetcher's case was remanded, DHS withdrew the
aggravated-felony basis for removal and instead charged him
as “deportable” as an “alien who . . . has
been convicted of a violation of . . . any law . . . relating
to a controlled substance.” 8 U.S.C. §
1227(a)(2)(B)(i). On September 2, 2015, the IJ held a hearing
where Plaintiff was denied release on bond and ordered
detained pending completion of removal proceedings. In a
subsequent remand hearing on the merits the next month, the
Government argued that under a recent Supreme Court decision,
Mellouli v. Lynch, 135 S.Ct. 1980 (2015), the IJ
could determine that Vetcher's Texas conviction qualified
as a controlled-substance offense under §
1227(a)(2)(B)(i). See Compl., Exh. A at 10. Vetcher
protested that he did not have access to Mellouli
and asked for time to review the case. Id. at 13.
The IJ refused and withdrew the § 1227(a)(2)(A)(iii)
aggravated-felony charge while sustaining the §
1227(a)(2)(B)(i) drug-possession charge. Id. at 12.
The IJ also denied Plaintiff cancellation of removal.
again appealed to the BIA, arguing that he had been
“denied access to court and due process.” Compl.,
¶ 4. The BIA nonetheless affirmed the IJ's decision
to sustain the removability charge but remanded for further
factual findings as to the IJ's denial of his application
for cancellation of removal. See BIA Decisions at 5.
On February 21, 2017, the BIA further denied Plaintiff's
request for appointed counsel to assist him in accessing
legal information because “there is no Sixth Amendment
right to counsel in immigration proceedings.”
Id. at 11; see also Compl., ¶ 5.
Following remand, the IJ again denied Plaintiff cancellation
of removal and ordered him removed. The BIA affirmed this
decision on May 11, 2018, entering a final order of removal.
See ECF No. 17. Vetcher has not yet, to this
Court's knowledge, filed a petition for review.
addition to agency proceedings, Vetcher has also brought
several actions in various federal courts. He attempted to
challenge the “denial of counsel” from the IJ and
BIA through an interlocutory appeal to the Fifth Circuit,
which was dismissed for lack of jurisdiction. See
Opp. at 3. He also filed a habeas action in the
Western District of Louisiana, which was ultimately
dismissed. See Vetcher v. Lynch, 2016 WL 1230560
(W.D. La. Mar. 23, 2016) (denying habeas petition
and dismissing with prejudice). Plaintiff next attempted to
challenge his underlying state conviction and, after he was
transferred to a Texas facility, he filed an additional
habeas petition. See Vetcher v. Lynch, No.
16-4, ECF No. 17 (N.D. Tex. Feb. 13, 2017) (dismissed for
lack of jurisdiction). He has additionally filed suit
contesting his conditions of confinement, which is currently
pending. See Vetcher v. ICE, No. 16-164 (N.D. Tex.);
Opp. at 4.
August 21, 2017 - prior to receiving a final order of removal
- Plaintiff filed a “petition for review under
Administrative Procedures [sic] Act” in this
Court. See Compl. Endeavoring to combine all of the
claims from his prior suits, he challenges both his detention
and his conditions of confinement. The Government now moves
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of an action where a complaint fails “to state a claim
upon which relief can be granted.” In evaluating
Defendants' Motion to Dismiss, the Court must
“treat the complaint's factual allegations as true
. . . and must grant [P]laintiff ‘the benefit of all
inferences that can be derived from the facts
alleged.'” Sparrow, 216 F.3d at 1113
(quoting Schuler v. United States, 617 F.2d 605, 608
(D.C. Cir. 1979)); see also Jerome Stevens Pharm., Inc.
v. FDA, 402 F.3d 1249, 1250 (D.C. Cir. 2005). The
pleading rules are “not meant to impose a great burden
upon a plaintiff, ” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 347 (2005), and he must thus be
given every favorable inference that may be drawn from the
allegations of fact. See Sparrow, 216 F.3d at 1113.
“detailed factual allegations” are not necessary
to withstand a Rule 12(b)(6) motion, “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) (citation omitted). The Court need not accept as
true, then, “a legal conclusion couched as a factual
allegation, ” nor an inference unsupported by the facts
set forth in the Complaint. Trudeau v. Fed. Trade
Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)
(internal quotation marks omitted)). For a plaintiff to
survive a 12(b)(6) motion even if “recovery is very
remote and unlikely, ” the facts alleged in the
complaint “must be enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007) (citing Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974)).
standard to survive a motion to dismiss under Rule 12(b)(1)
is less forgiving. Under this Rule, Plaintiff bears the
burden of proving that the Court has subject-matter
jurisdiction to hear his claims. See Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992). A court also has
an “affirmative obligation to ensure that it is acting
within the scope of its jurisdictional authority.”
Grand Lodge of Fraternal Order of Police v.
Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). For this
reason, “‘the [p]laintiff's factual
allegations in the complaint . . . will bear closer scrutiny
in resolving a 12(b)(1) motion' than in resolving a
12(b)(6) motion for failure to state a claim.”
Id. at 13-14 (quoting 5A Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 1350 (2d ed. 1987) (alteration in original)).
Additionally, unlike with a motion to dismiss under Rule
12(b)(6), the Court “may consider materials outside the
pleadings in deciding whether to grant a motion to dismiss
for lack of jurisdiction.” Jerome Stevens, 402
F.3d at 1253; see also Venetian Casino Resort, LLC v.
EEOC, 409 F.3d 359, 366 (D.C. Cir. 2005).