394 F.Supp.3d 279
E.D.N.Y2019Background
- Plaintiff Josy Islam, a Bangladeshi national, entered the U.S. without inspection as a child in 1994; her parents later departed and left her in the U.S. with a relative.
- Her father had previously filed an I-130 that named her as a derivative beneficiary; in 2013 she married a U.S. citizen and her husband filed an I-130 which USCIS approved in 2014.
- Islam filed an I-485 to adjust status in 2016 (including Form I-485A and paying the penalty for entry without inspection); USCIS interviewed her in August 2017.
- USCIS denied adjustment on June 7, 2018, finding she was eligible but that adverse discretionary factors (unlawful entry, failure to depart after an IJ order, unauthorized employment) warranted denial; USCIS affirmed on appeal Nov. 14, 2018.
- Plaintiff appealed to district court under the APA and asserted Fifth Amendment due process and equal protection claims; while the federal case was pending, ICE issued a Notice to Appear initiating removal proceedings.
- Defendants moved to dismiss for lack of subject-matter jurisdiction (failure to exhaust administrative remedies) and, alternatively, for failure to state a claim; the court granted the motion and dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court has subject-matter jurisdiction over APA and constitutional claims after commencement of removal proceedings | Islam: APA permits direct district-court review and exhaustion is not required | Defs: Howell and related law require exhaustion once deportation/removal proceedings have commenced because administrative remedies remain available | Court: No jurisdiction — exhaustion required and Islam had not exhausted administrative remedies |
| Whether an exhaustion exception applies because administrative review is inadequate or futile | Islam: BIA cannot review USCIS constitutional/AP A errors so administrative remedy is inadequate/futile | Defs: Immigration judge can adjudicate adjustment de novo in removal proceedings, providing an adequate remedy | Court: Exceptions do not apply — administrative process provides genuine opportunity and is not futile |
| Whether Islam raised a substantial constitutional question to excuse exhaustion (due process) | Islam: USCIS adjudication violated due process (interest in proceedings) | Defs: No protected liberty or property interest in discretionary adjustment; thus no substantial due-process claim | Court: Islam failed to allege a protected liberty or property interest; no substantial due-process claim |
| Whether Islam raised a substantial equal protection claim to excuse exhaustion | Islam: USCIS treated similarly situated applicants differently and considered impermissible factors | Defs: Allegations are conclusory and lack factual detail showing disparate treatment of similarly situated persons | Court: Allegations insufficient to show a substantial equal protection claim; cannot excuse exhaustion |
Key Cases Cited
- N.Y. Pet. Welfare Ass'n v. City of New York, 850 F.3d 79 (2d Cir. 2017) (pleading facts accepted on Rule 12 review)
- Makarova v. United States, 201 F.3d 110 (2d Cir. 2000) (Rule 12(b)(1) standards; burden on plaintiff to show jurisdiction)
- Howell v. Immigration & Naturalization Serv., 72 F.3d 288 (2d Cir. 1995) (exhaustion required once deportation proceedings commence)
- Darby v. Cisneros, 509 U.S. 137 (1993) (APA exhaustion principles)
- Guitard v. U.S. Sec'y of Navy, 967 F.2d 737 (2d Cir. 1994) (exceptions to exhaustion where substantial constitutional question is raised)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleadings)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state a plausible claim)
- Matthews v. Eldridge, 424 U.S. 319 (1976) (procedural due process requires protected liberty or property interest)
- Wallace v. Gonzales, 463 F.3d 135 (2d Cir. 2006) (no constitutionally protected liberty or property interest in discretionary immigration relief)
- Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010) (pleading standard when facts are within defendant's control)