SELVIN LEONARDY SOLIS MEZA, Plaintiff, v. KENNETH T. CUCCINELLI, SENIOR OFFICIAL PERFORMING THE DUTIES OF THE DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant.
Civil Action No. 19-1322 (CKK)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
February 7, 2020
MEMORANDUM OPINION
(February 7, 2020)
relevant legal authorities, and the record as relevant to this Motion, the Court GRANTS Defendant‘s Motion on the basis that the court lacks subject matter jurisdiction over this case. The Court therefore DENIES AS MOOT Defendant‘s alternative Motion to Transfer and Motion for Summary Judgment.
I. BACKGROUND
Plaintiff Selvin Leonardy Solis Meza is a citizen and national of Honduras who currently resides in Pineville, North Carolina. Compl. ¶ 1. He is married to a United States citizen and has two children who are also United States citizens. Id. He originally entered the United States in 2002 and was apprehended by immigration officials. Id. ¶¶ 8-9. According to Mr. Solis, the immigration officials chose to “parole” him into the United States. Id. ¶ 10. They served him with a notice to appear, which initiated removal proceedings. Id. ¶ 11. The notice to appear described Mr. Solis as an “arriving alien.” Id.
Later, on January 26, 2018, Mr. Solis‘s wife filed a Petition for an Alien Relative (Form I-130) on Mr. Solis‘s behalf. Id. ¶ 15. He contemporaneously filed an Application to Register Permanent Residence or Adjust Status (Form I-485, referred to here as “Adjustment Application“). Id. ¶ 16. After interviewing Mr. Solis and his wife, USCIS issued a notice of intent to deny his Application on the basis that Mr. Solis was not an arriving alien. Id. ¶ 19. Mr. Solis provided them with a copy of his
Mr. Solis then brought this suit, which primarily argues that the agency‘s denial of his Application was arbitrary and capricious under the Administrative Procedure Act (“APA“). See, e.g., id. ¶ 4 (invoking APA); id. ¶¶ 28-39 (outlining claim titled “APA—Adjustment Application Denial“).
II. LEGAL STANDARD
A court must dismiss a case pursuant to
In reviewing a motion to dismiss pursuant to
Despite the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff‘s burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. United States Envtl. Prot. Agency, 121 F. Supp. 2d 84, 90 (D.D.C. 2000). “Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to
Defendant argues that the case should be dismissed because this Court lacks subject matter jurisdiction. In short, Defendant argues that under the relevant statutes, there is no jurisdiction because Mr. Solis is challenging a denial of an adjustment of status while there is a pending removal proceeding with respect to Mr. Solis. Def.‘s Mot. at 5-7. Mr. Solis, in response, contends that because there is no pending removal proceeding and because he seeks review of a purely legal matter, this Court has jurisdiction. The Court addresses the relevant statutory and regulatory scheme, and how it has been applied in this context, before turning to the parties’ arguments here.
Some background on the relevant statutory and regulatory scheme provides context for the parties’ arguments. The Immigration and Nationality Act (“INA“) created a process, called “adjustment of status,” by which “certain aliens physically present in the United States could seek lawful permanent resident status without having to depart this country.” Landin-Molina v. Holder, 580 F.3d 913, 916 (9th Cir. 2009). However, in cases in which an alien who is not an arriving alien “has been placed in deportation proceedings or in removal proceedings,” the Immigration Judge in the Department of Justice‘s Executive Office for Immigration Review (“EOIR“) “has exclusive jurisdiction to adjudicate any application for adjustment of status the alien may file.”
If an Immigration Judge denies such an application, the alien may appeal to the Board of Immigration Appeals. See
The “petition for review filed with an appropriate court of appeals” is “the sole and exclusive means for judicial review” of a removal order.
Since the enactment of the INA in 1952, various statutes, such as the 2005 REAL ID Act, have “limited the scope of federal court review respecting certain immigration benefitsdeterminations.” Mamigonian v. Biggs, 710 F.3d 936, 943 (9th Cir. 2013). Under the current scheme, judicial review of a discretionary denial of an adjustment of status application is generally precluded by
But several courts have generally distinguished between non-discretionary, or purely legal, denials of status of adjustment applications and the discretionary denials for which review is statutorily precluded.3 The Third Circuit examined this issue in Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005). As the court there explained, when it comes to subject matter jurisdiction in this
context, courts must “distinguish carefully between a denial of an application to adjust status, and a determination that an immigrant is legally ineligible for adjustment of status.” Id. at 203. An “immigrant‘s eligibility itself is
There are other limits on the Court‘s jurisdiction in this context as well. Mr. Solis bases his claims on the APA, which provides that “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.”
Consequently, “[f]inality requires exhaustion of administrative remedies.” Pinho, 432 F.3d at 200. In the context of the previously outlined statutory scheme, “[i]f there remain steps that the immigrant can take to have an action reviewed within the agency, then the action is not final and judicial review is premature.” Id. Courts have therefore found that when plaintiffs may obtain review of denials of adjustment of status applications through other agency avenues, such as removal proceedings, this requirement is not met. See, e.g., Cabaccang, 627 F.3d at 1316-17 (“Similarly,
Accordingly, the courts that have considered this issue—including the D.C. Circuit—have found that in general, district courts lack subject matter jurisdiction to review the denial of an adjustment of status application if there is a removal proceeding through which the plaintiff may seek relief. See, e.g., Jama v. Dep‘t of Homeland Sec., 760 F.3d 490, 497 (6th Cir. 2014) (“[W]e hold that termination of refugee status and denial of a status adjustment application are not ‘finalagency actions’ reviewable in district court under the APA[.]“); Maalouf v. Wiemann, No. 09-5394, 2010 WL 4156654, at *1 (D.C. Cir. May 17, 2010) (affirming district court‘s dismissal of case because challenge to decision that plaintiff was “ineligible for adjustment of status” was “not ripe for judicial review while removal proceedings [we]re pending against her“); Cabaccang, 627 F.3d at 1317 (“Accordingly, we join our sister circuits in holding that district courts lack jurisdiction to review denials of status adjustment if removal proceedings are simultaneously pending.“); Howell v. I.N.S., 72 F.3d 288, 293 (2d Cir. 1995) (“In the present case, we think that the district court lacked jurisdiction to review the district director‘s denial of [the plaintiff]‘s application for adjustment of status once deportation proceedings commenced, because [the plaintiff] failed to exhaust her administrative remedies.“); Randall v. Meese, 854 F.2d 472, 480-81 (D.C. Cir. 1988) (finding that plaintiff must take “normal appeal route” and that district court lacked subject matter jurisdiction over denial of status adjustment when removal proceedings were pending); Massignani v. Immigration & Naturalization Serv., 438 F.2d 1276, 1277 (7th Cir. 1971) (finding that district court lacked subject matter jurisdiction because plaintiff would “have another opportunity to present her application for permanent residence” in removal proceedings); Ahlijah v. Nielsen, No. CV PX-17-1720, 2018 WL 3363875, at *3 (D. Md. July 10, 2018) (“Because [the plaintiff‘s] removal proceedings are ongoing
However, courts have generally refrained from finding there is no jurisdiction when there is no way for plaintiff to seek relief through a removal proceeding. An illustrative example isHosseini v. Johnson, 826 F.3d 354 (6th Cir. 2016). The Sixth Circuit reversed the district court, which had concluded that it lacked jurisdiction in a case challenging the denial of an adjustment of status application. Id. at 357-59. But the plaintiff in Hosseini did not, at any point, have any removal proceedings initiated against him. Id. at 361. The government argued that the fact that the agency could, at some hypothetical future time, bring removal proceedings against the plaintiff meant that the agency‘s denial was not sufficiently final. Id. at 361-62. The court rejected that argument. See id. In particular, the court was concerned that because the agency had discretionary control over whether to initiate removal proceedings, precluding review of a plaintiff‘s claim could allow the agency to control whether a claim might be brought before the courts. See id. at 362. Other courts have found the same. See, e.g., Mamigonian, 710 F.3d at 945 (explaining that Ninth Circuit has made clear “that for purposes of the APA, ‘[w]ithout a pending removal proceeding, a denial of status adjustment is final because there is no appeal to a superior administrative authority‘” (quoting Cabaccang, 627 F.3d at 1317)); Pinho, 432 F.3d at 201 (finding that when there were no removal proceedings, plaintiff “had no further opportunity to challenge the legality of the decision within the agency, and would have none at all, were he forced to await deportation proceedings that the agency may or may not choose to institute“); Chen v. Reno, No. 96 CIV. 5792 (RPP), 1997 WL 316482, at *2 (S.D.N.Y. June 11, 1997) (finding that jurisdiction was proper because plaintiff had “exhausted his administrative remedies because as a denied applicant not in deportation proceedings, he ha[d] no further options under the regulatory or statutory scheme to force a prompt decision by the INS“). At least one court has also found there may be subject matter jurisdiction when a plaintiff is “precluded from submitting or renewing an application for adjustment of status before an [Immigration Judge] during removal proceedings,” such as when that plaintiff qualifies as an “arriving alien.” Mamigonian, 710 F.3d at 945.
In this case, Defendant argues that a “removal proceeding is pending against plaintiff” and, as a result, he must first seek review of the denial of his adjustment of status application with an Immigration Judge and appeal it to the Board of Immigration Appeals before seeking judicial review in the relevant circuit court of appeals. See Def.‘s Mot. at 5-6. Defendant refers to an Order of Removal issued August 8, 2002 and a Warrant of Removal/Deportation dated January 12, 2004. See id. at 5. In response, Mr. Solis argues that this Court has jurisdiction because “no removal proceedings are currently pending.” Pl.‘s Opp‘n at 2. He concedes that removal proceedings were initiated against him in 2002 and that he was ordered removed in 2002. Id. However, he explains, because there are no ongoing removal proceedings, jurisdiction lies. See id. The Court agrees with Defendant.
What Mr. Solis‘s primary argument overlooks is that, under the legal scheme outlined above, the question is whether he has exhausted administrative remedies. It
Mr. Solis suggests that he cannot avail himself of this route because he is an arriving alien, and “the Board of Immigration Appeals has held that it has no jurisdiction to consider anadjustment of status application for an arriving alien with a final order of removal.” Pl.‘s Opp‘n at 2. It is true that the jurisdictional provision in section 1245.2(a)(1)(i) does not apply to an arriving alien. See
Since you are a respondent in a removal proceeding, and you are not an “arriving alien” only EOIR has jurisdiction to grant or deny your Form I-485[.] See Title 8, Code of Federal Regulations (8 CFR), sections 252.2(a) and 1245.2(a). You must submit your Form I-485 to the Immigration Judge in EOIR proceedings. Since EOIR has already entered a removal order, you must move EOIR to reopen the proceedings in order for you to be able to apply for adjustment of status.
Because USCIS does not have jurisdiction, your Form I-485 is administratively closed; however, this does not prevent you from seeking adjustment before EOIR. 8 CFR sections 245.2(a)(1) and 1245(a)(1).
Id. Ex. 5 at 2. In light of the finding that he is not an arriving alien, Mr. Solis has not explained how the decision upon which he relies, In re Yauri, 25 I. & N. Dec. 103, 106-07 (BIA 2009), would apply to his application. Indeed, in In re Yauri, there was neither a dispute that the alien was an arriving alien nor a finding by USCIS that she was not an arriving alien. See id. at 104 (noting that alien “acknowledge[d] that she [was] an ‘arriving alien‘“).
In any event, it is far from clear that In re Yauri should be accorded deference. For instance, the Ninth Circuit held in Singh v. Holder, 771 F.3d 647 (9th Cir. 2014), that “the Board of Immigration Appeals has authority to reopen proceedings of an alien who is under a final order of removal in order to afford the alien an opportunity to pursue an adjustment of status application before [USCIS],” id. at 649. In doing so, it accorded no deference to In re Yauri because it found that the Board‘s holding in that case ignored “the unambiguous language of
Administrative remedies are therefore still available to Mr. Solis. He may move to reopen his removal proceeding to adjudicate his adjustment of status application there. See generally, e.g.,
IV. CONCLUSION
For the foregoing reasons, Defendant‘s Motion to Dismiss, ECF No. 11, is GRANTED. This Court lacks subject matter jurisdiction over Mr. Solis‘s case. The Court therefore DENIES AS MOOT Defendant‘s alternative Motion to Transfer and Motion for Summary Judgment. An appropriate Order accompanies this Memorandum Opinion.
Date: February 7, 2020
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
Notes
- Def.‘s Mot. to Dismiss or, Alternatively, Mot. to Transfer or, Alternatively, Mot. for Summ. J. (“Def.‘s Mot.“), ECF No. 11;
- Resp. in Opp‘n to Def.‘s Mot. to Dismiss, Mot. to Transfer, and Mot. for Summ. J. (“Pl.‘s Opp‘n“), ECF No. 12; and
- Reply in Further Supp. of Def.‘s Mot. to Dismiss or, Alternatively, Mot. to Transfer or, Alternatively, Mot. for Summ. J. (“Def.‘s Reply“), ECF No. 13.