Mehrdad HOSSEINI, Plaintiff-Appellant, v. Jeh JOHNSON, Secretary of the U.S. Department of Homeland Security, et al., Defendants-Appellees.
No. 15-6082
United States Court of Appeals, Sixth Circuit.
Decided and Filed: June 17, 2016
826 F.3d 354
Before: KEITH, COOK, and STRANCH, Circuit Judges.
OPINION
DAMON J. KEITH, Circuit Judge.
Appellant Mehrdad Hosseini (“Hosseini“) appeals the district court‘s dismissal of his complaint for failure to state a claim. Hosseini sought review of the United States Citizenship and Immigration Service‘s (“USCIS‘s“) denial of his application to adjust his status from that of an asylee to that of a permanent resident. Defendants Rand Beers1 and others, moved to dismiss the complaint for lack of subject-matter jurisdiction and, alternatively, to dismiss the complaint for failure to state a claim. The district court held that it had subject-matter jurisdiction over Hosseini‘s claim pursuant to the federal question statute,
I. BACKGROUND
In 1999, Hosseini‘s wife was granted asylum, and she filed a petition seeking asylum for Hosseini as her spouse. USCIS approved the petition, and Hosseini lawfully entered the United States as a derivative asylee in February 2000. Approximately one year later, Hosseini filed a Form I-485 Application to Register Permanent Residence or Adjust Status, seeking to obtain permanent resident status. He sought the adjustment pursuant to
Thereafter, the USCIS sent Hosseini a Notice of Intent to Deny his application due to the agency‘s determination that he was inadmissible for having engaged in terrorist activities as defined by
On October 28, 2014, Hosseini, acting pro se, filed another complaint in federal district court—this time—challenging the USCIS‘s decision pursuant to the Administrative Procedure Act (“APA“)3 and the Declaratory Judgment Act.4 This second complaint is the subject of the current appeal. Hosseini argued that the USCIS‘s conclusion that he is “inadmissible” was erroneous, arbitrary, and capricious. In support, he stated that he could not be “inadmissible” because he was admitted as a derivative asylee in 2000. He asserted, among other things, that the USCIS erroneously considered his “minimal occasional non-violence [sic] indirect activities of providing literatures” as “engaging in terrorist activities.”
Defendants moved to dismiss the complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and, alternatively, for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants argued that the APA and
II. DISCUSSION
A. Subject-Matter Jurisdiction
(i) Standard of Review
“We review a district court‘s findings as to whether it had subject matter jurisdiction de novo.” Mehanna v. U.S. Citizenship and Immigration Servs., 677 F.3d 312, 314 (6th Cir. 2012) (citing Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 491 (6th Cir. 2011)).
(ii) Analysis
The district court determined that it had jurisdiction over Hosseini‘s APA claim pursuant to federal-question jurisdiction, relying on our opinion in Jama v. Dep‘t of Homeland Sec., 760 F.3d 490 (6th Cir. 2014). In Jama, we noted that although
Defendants argued before the district court that subject-matter jurisdiction was lacking because a statute precludes review of Hosseini‘s claims and because the denial of a status-adjustment application is committed to agency discretion by law. The district court rejected this argument. While Defendants did not challenge the district court‘s jurisdiction determination in a cross-appeal, we must be independently satisfied that subject-matter jurisdiction is met before adjudicating a case on the merits. Siding and Insulation Co., Inc. v. Acuity Mut. Ins. Co., 754 F.3d 367, 368-69 (6th Cir. 2014) (noting that “[s]ubject-matter [jurisdiction] delineations must be policed by the courts on their own initiative“) (second alteration in original) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)).
At the outset, some types of agency determinations are entirely precluded from judicial review by statute. See, e.g.,
Notwithstanding any other provision of law (statutory or nonstatutory) ... and regardless of whether the judgment, decision or action is made in removal proceedings, no court shall have jurisdiction to review—(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any [] decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter5 to be in the discretion of the Attorney General or the Secretary of Homeland Security....
In the present case, Hosseini sought an adjustment of status under
Hosseini alleges that that USCIS‘s ineligibility finding was “erroneous.” While he admits to having been involved with FeK and MeK by, among other things, distributing flyers and literature for the organizations, he argues that he never engaged in terrorist activities and did not provide “material” to the organizations. Hosseini argues that his distribution of flyers constituted free speech. Whether Hosseini‘s conduct amounted to engagement in terrorist activities is not a matter of discretion; it is a matter determined by statute. See
B. The Merits of the APA Claim
(i) Standard of Review
We review the district court‘s dismissal of a complaint for failure to state a
(ii) Analysis
Under the APA, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review” of that agency action.
1. Consummation of the Agency‘s Decision-making Process
In order to mark the consummation of the administrative process, the decision must not be “of a merely tentative or interlocutory nature.” Bennett, 520 U.S. at 177. In Jama, we concluded that the agency‘s denial of an application for adjustment of status was not the consummation of the agency‘s decision-making process because “removal proceedings [were] ongoing” at the time of the action. 760 F.3d at 496. We also recognized that removal proceedings were a necessary occurrence because Jama‘s refugee status had been terminated. Id. (noting that removal proceedings “necessarily follow[] a decision to terminate an alien‘s refugee status“).
The district court in the present case relied on Jama to conclude that the agency‘s denial of Hosseini‘s application for adjustment of status was not the consummation of the agency‘s decision-making process. But there is one critical distinction between Jama and the present case--here, no removal proceedings are ongoing and no removal proceedings will necessarily follow because Hosseini‘s asylee status has not been terminated. See Cabaccang v. U.S. Citizenship & Immigration Servs., 627 F.3d 1313, 1317 (9th Cir. 2010) (noting that for the purposes of adjudicating immigration claims in the APA context, the distinction between cases where removal proceedings are pending and cases where removal proceedings are not pending is “crucial“). The applicant in Jama was certain to have the opportunity to seek judicial review of the non-discretionary decisions underlying the denial of his application to adjust status during his removal proceedings. See Jama, 760 F.3d at 496. An applicant who is not in removal proceedings, and who may never have removal proceedings, has no opportunity to receive that judicial review. Therein lies the difference between Jama and the present case. Thus, we must decide whether the denial of an application to adjust status is a final agency action within the meaning of the APA when no removal proceedings are pending. This court has not previously addressed this question, but some of our sister circuits have. See Cabaccang, 627 F.3d at 1317; Pinho v. Gonzales, 432 F.3d 193, 202 (3d Cir. 2005); but see Ibarra v. Swacina, 628 F.3d 1269, 1270 n. 2 (11th Cir. 2010) (saving the question for another day).
On appeal, the Third Circuit pointed out the unique posture of the case--there had been “no hearing before an Immigration Judge” and “no appeal to the [Board of Immigration Appeals].” Id. at 200. And “[i]f the agency institutes removal proceedings against” Pinho at some future time, he could renew his application during those proceedings. See id. at 200-01. However, the court found the hypothetical possibility of future removal proceedings insufficient to render the agency‘s determination tentative or interlocutory. Id. The court reasoned that “if the agency does not seek to deport [Pinho], there can never be an appeal within the agency by which any higher level of administrative authority can be invoked to review the legal determination made by the” agency. Id. at 201. Additionally, because Pinho had no other avenue for administrative appeal,7 “Pinho had no further opportunity to challenge the legality of the decision within the agency.” Id. An applicant should not be “forced to await deportation proceedings that the agency may or may not choose to institute.” Id.
To make matters worse, “[t]he decision of whether or not to institute deportation proceedings is entirely within the discretion of the agency.” Id. at 202. Namely, “[t]here are no steps that Pinho can take to force the question in order to have his claim resolved.” Id. Foreclosing review of Pinho‘s claim would mean that “the agency retains sole control over whether an individual‘s purely legal claim—one which has not been made non-reviewable by statute—may ever be brought before the courts.” See id. “Such a result would be plainly at odds not only with the APA, but also with broader principles of separation of powers.” Id. Therefore, the Third Circuit held that the agency‘s decision denying Pinho‘s adjustment of status application was deemed final because there were “no deportation proceedings pending in which the decision might be reopened or challenged.” Id.
Like the applicant in Pinho, Hosseini filed an application for adjustment of status which was ultimately denied. Hosseini also sought review of the decision in the district court, and no removal proceedings were instituted against him. The government on appeal argues that because the agency can elect to institute removal proceedings against Hosseini at some future time, the agency‘s denial of his application is tentative, not final. Like the Third Circuit, we find this argument unavailing. Here, removal proceedings are not even possible at this time because Hosseini‘s asylum status has not been terminated.
We are also not persuaded by the government‘s argument that Hosseini can merely reapply for admission as often as he wants; this approach suffers from the same flaw--“there can never be an appeal within the agency by which any higher level of administrative authority can be invoked to review the legal determination.” See id. at 201. In other words, the government‘s argument that Hosseini can simply “try again” fails to appreciate that even if Hosseini receives four or five denials, he would never receive meaningful review of any of them. And given that the agency took over twelve years to adjudicate Hosseini‘s first application, and even then only after forced to do so by court order, the strength of the government‘s “try again” argument is all the more diminished.
For these reasons, we hold that where no removal proceedings are pending, the agency‘s denial of an application for status adjustment under § 1159 marks the consummation of the agency‘s decisionmaking process. See Pinho, 432 F.3d at 202; see also Cabaccang, 627 F.3d at 1317 (“Without a pending removal proceeding, a denial of status adjustment is final because there is no appeal to a superior administrative authority.“); but cf. Lee v. U.S. Citizenship and Immigration Servs., 592 F.3d 612, 621 (4th Cir. 2010) (disagreeing with Pinho on jurisdictional grounds regarding an application for adjustment of status under § 1255, a statutory provision not applicable here).8
2. Rights or Obligations Have Been Determined
Next, we must decide whether the agency‘s action determined Hosseini‘s rights or obligations. See Bennett, 520 U.S. at 177-78. In this case, the government itself cited various rights that Hosseini is deprived of as a result of the denial of an application for adjustment of status--he is denied the right to live permanently in the United States; he is denied the right to apply for and be granted naturalization, and he is denied a “green card,” which would reflect his right to live and work in the United States permanently. See Appellee Br. at 10 n.5. Accordingly, we hold that rights or obligations have been determined. See Pinho, 432 F.3d at 203 (holding that the ineligibility determination itself had “clear adverse effects“).
III. CONCLUSION
For the foregoing reasons, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.