United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT
BALDERAS' MOTION TO DISMISS
MATTER comes before the Court on a Motion to Dismiss filed by
Defendant Hector Balderas on September 6, 2017 (Doc.
13). Having reviewed the parties' briefs and
applicable law, the Court finds that Defendant Balderas'
motion is well-taken and, therefore, is granted.
Abdullah, who is proceeding pro se, alleges that he has been
waiting for United States Citizen and Immigration Services
(“USCIS”) to schedule an interview for his N-400
application for thirty-three (33) months. He has filed this
lawsuit to compel Defendants to perform their duties in
relation to the processing of his immigration
application. He brings this action pursuant to 8 U.S.C.
§§1329, §1331 and 1361, and asserts federal
jurisdiction under 5 U.S.C. §§555(b)
(“Ancillary matters”) and 704 of the
Administrative Procedures Act (“APA”). According
to the Complaint, Plaintiff is suing both federal and state
Defendants: Mario Ortiz is the District Director of the
Albuquerque Field Office of the USCIS; Jesse Mendez is the
Albuquerque Field Office Director of the USCIS; Hector
Balderas is the Attorney General of New Mexico; James Comey
was the Director of the Federal Bureau of Investigation
(“FBI”) at the time relevant to the underlying
incidents; and James McCament is the Deputy Director of
USCIS. Plaintiff is also suing the Office of General Counsel
of the U.S. Department of Homeland Security.
motion pertains only to Defendant Balderas, the state
Attorney General of the State of New Mexico, who advances two
separate arguments for his dismissal from this lawsuit: (1)
that as an employee of the State of New Mexico-and not the
United States-he has no power or duty in regards to federal
immigration matters; and (2) that he is protected from suit
by state sovereign immunity afforded by the Eleventh
Amendment of the United States Constitution as well as
qualified immunity which shields government employees from
suit when sued in their individual capacity.
Court finds good cause to grant Defendant Balderas'
motion, for two reasons. First, Plaintiff has not responded
to the motion, as required under this Court's local
rules, and this constitutes Plaintiff's consent to grant
the motion. See D.N.M. LR-Civ. 7.1(b) (“The
failure of a party to file and serve a response in opposition
to a motion within the time prescribed for doing so
constitutes consent to grant the motion.”).
Plaintiff cites to U.S.C. § 1252 to suggest that
Defendant Balderas as the Attorney General of the State of
New Mexico, is responsible in some capacity for immigration
matters. Section 1252 governs judicial review of
orders of removal, and lists certain matters not subject to
judicial review. It is not clear why this provision would
have any application to this case, much less to the Attorney
General of the state of New Mexico. On the other hand, 8
U.S.C. §1101(b) states that “[t]he term
‘Attorney General' means the Attorney General of
the United States” and thus, Plaintiffs
inclusion of the state Attorney General in this
lawsuit concerning federal immigration law most likely
represents an oversight by a pro se litigant.
a complaint must “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). This means that the
complaint “pleads 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). Because Defendant
Balderas, as Attorney General of the State for New Mexico,
has no power or duty over federal immigration matters.
Consequently, there is no relief that Defendant Balderas can
provide Plaintiff and thus, Plaintiff has failed to state a
claim for which relief can be granted.
Court need not address Defendant Balderas' other
arguments based on sovereign and qualified immunity, in light
of the Court's disposition of the motion on other
IS THEREFORE ORDERED that Defendant Balderas'
Motion to Dismiss (Doc. 13) is hereby
GRANTED for reasons described in this Memorandum Opinion and
 Plaintiff's country of origin is
Iraq. See Doc. 2 at 14.
 Section 1252 governs judicial review
of orders of removal, and lists certain matters not subject
to judicial review. It is not clear why this provision would
have any application to this case, much less ...