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Urquiza v. State ex rel. Kunzweiler

United States District Court, N.D. Oklahoma

May 8, 2018

STATE OF OKLAHOMA, ex rel. Kunzweiler, Steve, D.A. of the 14th Judicial District of Oklahoma Defendant.



         Plaintiff Daniel Urquiza, appearing through counsel, initiated this action on January 16, 2018, by filing a “writ of mandamus” (Doc. 3). By Order filed March 5, 2018 (Doc. 4), the Court directed Plaintiff to clarify the nature of his action and identify the basis, if any, of this Court's jurisdiction. In his written response (Doc. 5), Plaintiff clarifies that this is a “civil action for declaratory relief, ” and invokes this Court's jurisdiction under 28 U.S.C. §§ 1331 and 1345. Construing Plaintiff's “writ of mandamus” as a civil complaint seeking declaratory and injunctive relief, the Court finds the “writ of mandamus” should be dismissed for lack of subject matter jurisdiction, as frivolous, and for failure to state a claim upon which relief may be granted. As a result, the Court dismisses without prejudice Plaintiff's “writ of mandamus.”


         Petitioner, a citizen of Mexico, is currently detained in the David L. Moss Criminal Justice Center (a.k.a., the Tulsa County Jail) awaiting trial on criminal charges in Tulsa County District Court, Case No. CF-2016-1988. Doc. 3 at 1, 3. Plaintiff alleges he is a removable alien because he has been charged with a criminal offense and he is subject to an immigration “hold” issued by the United States Office of Immigration and Customs Enforcement (“ICE”). Id. at 3-4. He further alleges he “would prefer to be deported back to Mexico, ” but he has not been deported because Tulsa County District Attorney Steve Kunzweiler “has yet to pass the veritable baton from State to Federal.” Id. at 4-5.

         Before filing his “writ of mandamus, ” Plaintiff filed two related motions in Tulsa County District Court: (1) a “motion for immediate deportation in accordance with executive order, ” filed September 25, 2017, and (2) a “motion to stay proceedings awaiting answer from USDC to federal question, ” filed January 5, 2018. See Doc. 3 at 4; see also The Oklahoma State Courts Network (“OSCN”), State v. Juarez, et al., No. CF-2016-1988, available at (last visited May 4, 2018). Both motions are pending. Id.

         In support of his state-court motion for immediate deportation, Plaintiff relied on language in an Executive Order issued on January 25, 2017. Doc. 3 at 4; see Exec. Order No. 13768, 82 Fed. Reg. 8799, 8799 (Jan. 25, 2017) (hereafter, “Executive Order”). The Executive Order “declare[s] the policy of the executive branch” as to enforcement of federal immigration law. 82 Fed. Reg. at 8799. The stated purpose of the Executive Order “is to direct executive departments and agencies (agencies) to employ all lawful means to enforce the immigration laws of the United States.” Id., § 1. In relevant part, the Executive Order provides that “[i]t is the policy of the executive branch to:”

(a) Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;
. . .
(c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law; [and]
(d) Ensure that a liens Ordered removed from the United States a re promptly removed.

Id., § 2. The Executive Order also directs the Secretary of Homeland Security to “prioritize for removal those aliens described by the Congress in [certain enumerated sections of the INA], as well as removable aliens who: . . . (b) Have been charged with any criminal offense, where such charge has not been resolved.” Id. at 8800, § 5.

         In this Court, Plaintiff relied on the same Executive Order to support his “writ of mandamus.” See Doc. 3 at 3-5. Plaintiff asserted that the Executive Order, particularly § 5(b), “requires deportable aliens to be sent back to their home countries” and alleged that he is “being unjustly detained in the U.S. against the President's Executive Order.” Id. at 2. Plaintiff asked this Court “to issue an order so as to provide clear direction due to the ostensible appearance of an abuse of discretion by the local District Attorney who seems to remain aloof to the President's authority in and/or to an Executive Order as it pertains directly to the civil liberties of the Plaintiff.” Id. at 1.

         Petitioner also asked this Court “to give rulings on the following federal questions” I.) Should the Executive Order be adhered to by the District Attorney? And if it should be adhered to for reasons in addition ...

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