United States District Court, D. New Hampshire
Mataara Owens, pro se Terry Ollila, Esq.
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge.
Owens, a citizen of New Zealand who is in the United States
on an expired visa, has been charged with transporting child
pornography in the District of Maine. In an action initiated
by a pleading captioned "Writ of Mandamus, " Owens
asks the court to order the U.S. Department of Homeland
Security ("DHS") to immediately deport him to New
Zealand. Before this magistrate judge for a report and
recommendation is defendant's motion to dismiss for lack
of subject-matter jurisdiction. See Fed.R.Civ.P. 12(b)(1).
Plaintiff objects. For the reasons that follow,
defendant's motion to dismiss should be granted.
upon language drawn from an Executive Order issued by
President Donald Trump, Owens claims that when he was charged
with transporting child pornography, he became subject to
immediate deportation. On several occasions, he asked DHS to
deport him. So far, DHS has not done so. In this action, and
in reliance upon both the Administrative Procedure Act
("APA"), 7 U.S.C. § 702, and this court's
mandamus jurisdiction, see 28 U.S.C. § 1361, Owens asks
the court to order DHS to deport him. Defendant moves to
dismiss, arguing that the court lacks subject-matter
jurisdiction over plaintiff's claim(s). The court agrees.
bears the burden of demonstrating that this court has
subject-matter jurisdiction over his claim(s). See
Calder6n-Serra v. Wilmington Trust Co., 715 F.3d 14,
17 (1st Cir. 2013) (citing Murphy v. United States,
45 F.3d 520, 522 (1st Cir. 1995)). However, because neither 7
U.S.C. § 702 nor 28 U.S.C. § 1361 gives this court
jurisdiction over plaintiff's claim(s), he has
necessarily failed to carry his burden. In this section, the
court considers each of the two statutes upon which plaintiff
relies, but begins by describing the Executive Order on which
plaintiff bases his request for relief.
January of 2017, President Trump issued an Executive Order
titled "Enhancing Public Safety in the Interior of the
United States." Exec. Order No. 137768, 82 Fed. Reg.
8799, 2017 WL 388889 (Jan. 25, 2017). The order explains that
"those who overstay or otherwise violate the terms of
their visas present a significant threat to national security
and public safety, " 82 Fed. Reg. at 8799, and that
"[t]his is particularly so for aliens who engage in
criminal conduct in the United States, " id.
For that reason, the order provides that "the Secretary
of Homeland Security . . . shall prioritize for removal . . .
aliens who: . . . (b) have been charged with any criminal
offense, where such charge has not been resolved."
Id. at 8800. The order concludes with the following
This order is not intended to, and does not, create any right
or benefit, substantive or procedural, enforceable at law or
in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees,
or agents, or any other person.
Id. at 8803.
provision on which plaintiff relies provides, in pertinent
A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof. . . . Nothing herein (1) affects other limitations
on judicial review or the power or duty of the court to
dismiss any ...