Ramat v. Nielsen
317 F. Supp. 3d 1111
S.D. Cal.2018Background
- Plaintiff applied for adjustment of status (Form I-485) under 8 U.S.C. § 1255(a); USCIS denied the application for insufficient evidence of inspection and admission. Plaintiff's motion for reconsideration was denied.
- Plaintiff sued under the Administrative Procedure Act seeking review of USCIS's denial and filed a First Amended Complaint (FAC).
- After filing, USCIS initiated removal proceedings by filing a Notice to Appear (NTA) with the Immigration Court on February 8, 2018 and a superseding NTA on March 7, 2018; Plaintiff was served with the March 7 NTA.
- Defendants moved to dismiss for lack of subject-matter jurisdiction because removal proceedings were pending; Plaintiff opposed and invoked Pereira (challenging the NTA defects).
- The Court treated the jurisdictional motion as a factual Rule 12(b)(1) attack, considered extrinsic evidence (NTAs and Immigration Court docket), and concluded removal proceedings had commenced so USCIS's denial was not final.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has subject-matter jurisdiction to review USCIS denial of adjustment of status | Plaintiff: APA allows review because USCIS denial is final and removal proceedings were not properly commenced (defective/unspecified time/place in NTA under Pereira) | Defendants: Removal proceedings were initiated (NTAs filed), so federal review of discretionary adjustment denial is precluded by 8 U.S.C. § 1252 and APA is unavailable | Held: No jurisdiction; §1252 precludes review of discretionary denial and pending removal proceedings make USCIS decision non-final under the APA. |
| Whether Pereira voids commencement of removal proceedings when NTA omits time/place | Plaintiff: Pereira supports that an NTA omitting time/place is defective and thus Immigration Court lacks jurisdiction | Defendants: Pereira only addressed stop-time rule; omission does not prevent commencement by filing under 8 C.F.R. § 1239.1 and subsequent superseding NTA cured service defect | Held: Pereira does not negate commencement; by regulation the filing commenced proceedings and superseding NTA was properly served. |
| Whether Plaintiff's APA claim is ripe/final agency action | Plaintiff: USCIS decision is final and actionable under APA | Defendants: Because removal proceedings are pending, the agency action is not final and claim is unripe; alternative remedy exists in Immigration Court | Held: Not final/ripe; Immigration Judge may revisit adjustment and APA jurisdiction fails. |
| Whether courts may consider after‑arising events (pendency of removal) to defeat jurisdiction | Plaintiff: Relies on original complaint filing date for jurisdiction | Defendants: After-arising events (commencement of removal) can defeat jurisdiction and ripeness | Held: Court may consider after-arising events; pendency of removal proceedings defeats jurisdiction (Cabaccang). |
Key Cases Cited
- Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221 (9th Cir. 1989) (federal courts have limited jurisdiction)
- Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994) (party asserting jurisdiction bears burden)
- White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (facial v. factual Rule 12(b)(1) attacks)
- Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004) (facial dismissal standard under Rule 12(b)(1))
- Morrison v. Amway Corp., 323 F.3d 920 (11th Cir. 2003) (distinguishing factual jurisdictional attacks)
- Savage v. Glendale Union High Sch., 343 F.3d 1036 (9th Cir. 2003) (consideration of extrinsic evidence in factual attacks)
- Landin-Molina v. Holder, 580 F.3d 913 (9th Cir. 2009) (scope of adjustment of status under INA § 245)
- Hassan v. Chertoff, 593 F.3d 785 (9th Cir. 2010) (§1252(a)(2)(B)(i)-(ii) precludes review of adjustment denials)
- Mamigonian v. Biggs, 710 F.3d 936 (9th Cir. 2013) (pending removal proceedings bar APA jurisdiction over adjustment denials)
- Rattlesnake Coalition v. U.S. Envtl. Prot. Agency, 509 F.3d 1095 (9th Cir. 2007) (final agency action test under Bennett)
- Bennett v. Spear, 520 U.S. 154 (1997) (two-part test for final agency action)
- Cabaccang v. U.S. Citizenship & Immigration Servs., 627 F.3d 1313 (9th Cir. 2010) (pending removal proceedings render APA claims unripe)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA omission of time/place affects stop-time rule but does not address commencement of removal proceedings)