Guevara v. Zanotti, Civil No. 1:19-cv-110

399 F.Supp.3d 494

Abilio Josue Chicas GUEVARA, Plaintiff,

v.Kimberly ZANOTTI, Washington Field Office Director, United States Citizenship & Immigration Services, Defendant.

Civil No. 1:19-cv-110

United States District Court, E.D. Virginia, Alexandria Division.

Signed August 5, 2019

Mark Alastair Stevens, Murray Osorio PLLC, Fairfax, VA, for Plaintiff.

Dennis Carl Barghaan, Jr., Rebecca S. Levenson, United States Attorney's Office, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

T.S. Ellis, III, United States District Judge

In this declaratory judgment and mandamus immigration case, the parties do not dispute any substantive agency decision resolving plaintiff's application for adjustment of status to that of permanent resident because no such decision has yet been made. Instead, the parties here dispute which entity should make that decision—United States Citizenship & Immigrations Services ("USCIS") at the Department of Homeland Security or the Immigration Court at the Department of Justice. Although the parties' essential dispute is over which entity is the proper decisionmaker, the manner in which that issue is presented in this case is complicated by the remedies plaintiff seeks.

On June 21, 2018, USCIS issued plaintiff a notice advising him that USCIS had administratively closed its proceedings on plaintiff's application for adjustment of status on the ground that USCIS lacked jurisdiction to grant or deny plaintiff's application. In support of its decision, USCIS explained in the notice that the Immigration Court was vested with exclusive jurisdiction to adjudicate plaintiff's adjustment application pursuant to 8 C.F.R. § 1245.2(a)(1)(i) because plaintiff (i) was a respondent in a removal proceeding and (ii) was not an arriving alien. Rather than pursuing substantive review of USCIS's decision, plaintiff brought the instant action seeking (i) declaratory judgment pursuant to the Declaratory Judgment Act¹ that plaintiff is an "arriving alien"² within the meaning of 8 C.F.R. § 1.2 and (ii) an order pursuant to the Administrative Procedures Act³ and the Mandamus Act⁴ compelling USCIS to adjudicate plaintiff's adjustment of status application.

At issue now is defendant's motion to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Fed. R. Civ. P. In the motion, defendant argues that pursuant to 8 C.F.R. § 1245.2(a)(1)(i), USCIS lacked jurisdiction to adjudicate plaintiff's adjustment of status application because plaintiff was not an "arriving alien" when he was placed into removal proceedings. Thus, according to defendant, (i) plaintiff lacks standing with respect to Count 1 because a declaration that plaintiff is presently an "arriving alien" would not redress plaintiff's claimed injury, i.e. refusal by USCIS to adjudicate plaintiff's application for adjustment of status, and (ii) the relief sought in Count 2, i.e. ordering USCIS to adjudicate plaintiff's application, is moot because USCIS has adjudicated the application to the extent permitted under the regulations.⁵ Defendant's motion has been fully briefed and argued and is thus ripe for disposition. For the reasons that follow, (i) plaintiff lacks standing with respect to Count 1 because the relief plaintiff seeks would not redress plaintiff's claimed injury and (ii) the relief sought by plaintiff in Count 2 is moot.

I.⁶

Plaintiff, a citizen and national of El Salvador, entered the United States when he was ten years old, in or around November 2000. Compl. ¶¶ 3, 6. On February 18, 2012, the Bureau of Immigration and Customs Enforcement ("ICE") initiated removal proceedings against plaintiff in the Immigration Court located in Arlington, Virginia by issuing plaintiff a Notice to Appear. Id. ¶13; Mem. of Law in Supp. of Def.'s Mot. to Dismiss, Ex. A, Dkt. 7-1 ("DEX A"). The Notice to Appear alleged the following:

1. You are not a citizen or national of the United States;

2. You are a native of El Salvador and a citizen of El Salvador;

3. You arrived in the United States at or near Unknown Location; at or about unknown date.

4. You were not then admitted or paroled after inspection by an Immigration Officer.

DEX A. Based on those allegations, ICE charged plaintiff with being removable from the United States pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), "in that [he was] an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General." Id.

On December 11, 2012, the presiding Immigration Judge administratively closed the removal proceedings against plaintiff to allow him to apply for relief under the Department of Homeland Security's Deferred Action for Childhood Arrivals ("DACA") policy.⁷ Compl. ¶ 14. Thereafter, USCIS approved plaintiff for deferred action under DACA. Id. ¶ 15. Plaintiff has since successfully renewed his grant of deferred action under DACA twice, and plaintiff's current term of deferred action extends until March 2021. Id. ; Mem. of Law in Supp. of Def.'s Mot. to Dismiss, Ex. C, Dkt. 7-1. In February 2014, the presiding Immigration Judge entered an order providing that plaintiff's removal proceedings would remain administratively closed. Mem. of Law in Supp. of Def.'s Mot. to Dismiss, Ex. D, Dkt. 7-1. The Immigration Judge's order further provided that if the parties desired "further action on this matter, at any time hereafter, a written motion to recalendar the case ... must be filed with the ... Immigration Court." Id.

At some point after plaintiff received deferred action under DACA, plaintiff applied to USCIS for advanced parole to allow him to travel to El Salvador and return to the United States. Compl. ¶ 16. USCIS approved plaintiff's application for advanced parole on November 10, 2016. Id. ¶ 17 & Ex. 1. This grant of advance parole allowed plaintiff to travel outside the United States on a single occasion during the following forty-five days, or until December 25, 2016, and authorized officers of United States Customs and Border Protection ("CBP") to parole plaintiff into the United States upon his return. Id. Ex. 1. USCIS also notified plaintiff that if CBP paroled plaintiff into the United States, plaintiff's removal proceedings would "generally continue to be deferred," and that "deferral will continue until the date specified by USCIS or [ICE] in [his] deferral notice or until the decision to defer removal action in [his] case has been terminated, whichever is earlier." Id.

Plaintiff travelled to El Salvador between November 18 and 21, 2016. Id. ¶ 18. Upon plaintiff's return to the United States at Dulles International Airport, a CBP officer paroled him into the United States. Id. ¶ 19.

On June 5, 2017, plaintiff filed an application with USCIS to adjust his status to that of lawful permanent resident (Form I-485). Id. ¶ 21. USCIS interviewed plaintiff on the adjustment of status application on March 16, 2018. Id. ¶ 22. On June 21, 2018, USCIS issued plaintiff a Notice of Administrative Closure notifying plaintiff that USCIS was "administratively closing [plaintiff's] application because USCIS does not have jurisdiction to adjudicate" the application for adjustment of status. Id. ¶ 23 & Ex. 3. The Notice cited 8 C.F.R. §§ 245.2(a) and 1245.2(a) and explained:

USCIS has jurisdiction to grant adjustment only if the Immigration Judge does not have jurisdiction. [...] The Immigration Judge has jurisdiction to grant or deny a Form I-485 in any case in which the applicant (other than an "arriving alien") is a respondent in a ... removal proceedings before the U.S. Department of Justice, Executive Office for Immigration Review (EOIR).

Id. Ex. 3. Accordingly, USCIS advised plaintiff that because plaintiff was "a respondent in a removal proceeding" and was "not an ‘arriving alien’ only EOIR has jurisdiction to grant or deny [plaintiff's] Form I-485." Id. USCIS further directed plaintiff to "submit [his] Form I-485 to the Immigration Judge in EOIR proceedings." Id.

II.

In Count 1 of the Complaint, plaintiff seeks declaratory judgment that plaintiff is an "arriving alien" based on the fact that CBP paroled plaintiff into the United States when plaintiff returned to the United States at Dulles Airport on November 21, 2016. In other words, plaintiff does not contend that he was an "arriving alien" when he first entered the United States in or around November 2000 or when plaintiff was placed in removal proceedings on February 18, 2012. Rather, plaintiff seeks to establish that he was an "arriving alien" as of November 21, 2016, prior to the date on which plaintiff filed his application for adjustment of status, i.e. June 5, 2017.

In the motion to dismiss, defendant argues that subject matter jurisdiction is lacking with respect to Count 1 because plaintiff lacks Article III standing to pursue such relief. In particular, defendant argues that plaintiff lacks standing because a declaration that plaintiff is now considered to be an "arriving alien" would not redress plaintiff's claimed injury, namely the lack of a decision on the merits of plaintiff's adjustment of status application by USCIS.

Article III of the United States Constitution limits the jurisdiction of federal courts to "cases or controversies." U.S. CONST. art. III; see Whitmore v. Arkansas , 495 U.S. 149, 154–55, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). And it is well-established that "standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To demonstrate standing, a plaintiff must show:

(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable

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