Pool Cante v. Department of Homeland Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SEBASTIAN POOL CANTE, Case No. 21-cv-09383-VC

Plaintiff,

ORDER GRANTING MOTION TO

v. DISMISS

DEPARTMENT OF HOMELAND Re: Dkt. No. 19 SECURITY, et al., Defendants.

The government filed a motion to dismiss this case for lack of subject matter jurisdiction. That motion included a stray reference to Rule 12(b)(6) and several arguments more appropriate for a 12(b)(6) motion than a 12(b)(1) motion. That “labeling snafu” does not prevent the Court from construing the motion under 12(b)(6). Gomez v. Magliocco Group Inc., 2022 WL 1537938, at *2 (N.D. Cal. Apr. 22, 2022) (citing cases). But to ensure fairness, the Court ordered supplemental briefing from Pool Cante on the 12(b)(6) issues. 1. The Court has subject matter jurisdiction over this case. The decision to waive a noncitizen’s inadmissibility is clearly a discretionary decision that falls within the scope of the jurisdiction-stripping provision in section 1252(a)(2)(B)(ii). See 8 U.S.C. § 1182(d)(3); id. § 1182(d)(14). However, the non-discretionary legal determinations the agency makes in the process of exercising that…