369 F. Supp. 3d 1312
S.D. Fla.2019Background
- Canal A. Media (U.S. subsidiary of Guatemalan Canal Antigua) filed an I-129 seeking L-1A status for Canal Antigua's president, Erick Archila; USCIS denied the petition on July 24, 2017, concluding Canal Media was not a subsidiary because Canal Antigua made no capital contribution.
- Plaintiffs allege USCIS adopted a novel "capital contribution" requirement contrary to regulations, constituting arbitrary/retroactive policy change tied to Buy American/Hire American, violating the APA and due process.
- Plaintiffs seek declaratory and injunctive relief directing USCIS to approve the I-129 and enjoining use of undisclosed criteria; they asserted federal-question jurisdiction under 28 U.S.C. § 1331 and APA review.
- Defendants moved to dismiss under Rule 12(b)(1), arguing no final agency action because Archila remains in removal proceedings (so administrative review is ongoing) and that 8 U.S.C. § 1252 channels review to the courts of appeals.
- The immigration judge continued Archila’s removal hearing because of this suit; the district court evaluated finality under Bennett and the statutory review/"channeling" provisions of the INA.
- The Court concluded USCIS’s denial was not final (administrative review in removal proceedings could remedy the alleged harms) and that § 1252(b)(9) / § 1252(g) require claims tied to removal to be channeled to the court of appeals; dismissed without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether USCIS denial of I‑129 is final agency action under the APA | Denial is final under Bennett; IJ lacks authority to review visa-petition denials, so district court review is appropriate | Denial is an intermediate action while removal proceedings and administrative appeals remain available | Not final: dismissal for lack of jurisdiction because relief may be obtained in removal process |
| Whether § 1252 bars district-court review and channels claims to courts of appeals | Constitutional and APA claims cannot be resolved in removal proceedings, so § 1252 should not bar district-court review | § 1252(b)(9) and § 1252(g) channel all claims arising from removal-related actions to the administrative process and courts of appeals | Claims must be channeled to the court of appeals after exhaustion; § 1252 bars district-court adjudication now |
| Whether plaintiffs may avoid channeling by seeking different relief (e.g., injunction to approve petition) | Plaintiffs argue relief sought is distinct and cannot be granted by IJ/BIA, so district court jurisdiction is proper | Framing cannot evade channeling; injunction would moot or directly affect removal proceedings | Recharacterization does not avoid § 1252; relief is inextricably linked to removability and must proceed through removal appeals |
| Whether APA notice-and-comment / retroactivity / due process claims may be heard now | Plaintiffs: agency imposed a novel rule without notice, applied retroactively, violating APA and due process | Defendants: even constitutional claims tied to removal are reviewable only after final removal order via PFR | Such claims must be raised in removal proceedings and, if necessary, on petition for review to the court of appeals |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (finality test for agency action)
- Darby v. Cisneros, 509 U.S. 137 (exhaustion and final agency action under APA)
- Ibarra v. Swacina, 628 F.3d 1269 (11th Cir.) (denial of adjustment not final while removal proceedings pending)
- Jama v. Dep't of Homeland Sec., 760 F.3d 490 (6th Cir.) (intermediate agency actions in immigration context are not final; channeling to appeals)
- Dhakal v. Sessions, 895 F.3d 532 (7th Cir.) (agency denials are tentative where immigration adjudication remains)
- Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (statutory review scheme can preclude district-court jurisdiction)
- Aguilar v. U.S. Immigration & Customs Enforcement, 510 F.3d 1 (1st Cir.) (§1252(b)(9) "channeling" effect)
- J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir.) (broad reach of §1252(b)(9) over removal-related claims)