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Owens v. U.S. Department of Homeland Security

United States District Court, D. New Hampshire

October 5, 2017

Bobby Mataara Owens
v.
U.S. Department of Homeland Security, Secretary

          Bobby Mataara Owens, pro se Terry Ollila, Esq.

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge.

         Bobby 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.

         Discussion

         Seizing 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.

         Plaintiff 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.

         1. The Executive Order

         In 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 caveat:

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.

         2. The APA

         The APA provision on which plaintiff relies provides, in pertinent part:

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 ...

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