Parveen v. McAleenan

410 F.Supp.3d 809

Adnan Asif PARVEEN, Plaintiff,

v.Kevin MCALEENAN, et al., Defendants.

CIVIL ACTION NO. 1:19-CV-30

United States District Court, S.D. Texas, Brownsville Division.

Signed October 18, 2019

Cathy Jean Potter, Law Firm of Cathy J. Potter PLLC, Harlingen, TX, for Plaintiff.

Nancy Lynn Masso, Office of US Attorney, Brownsville, TX, for Defendants.

OPINION AND ORDER

Fernando Rodriguez, Jr., United States District Judge

Plaintiff Adnan Asif Parveen is a citizen of Spain who has unsuccessfully sought status as a lawful permanent resident ("LPR") in the United States. After he was detained and ordered removed from the country, he filed this lawsuit against Kevin K. McAleenan, Acting Secretary of the Department of Homeland Security ("DHS"), and several other defendants.¹ The Defendants move for dismissal of Mr. Asif's claims for lack of jurisdiction and failure to state a claim upon which relief can be granted. (Motion, Doc. 13) For the following reasons, the Court concludes that the Motion is well taken because jurisdiction over Mr. Asif's claims does not exist.

I. Allegations and Procedural History

Mr. Asif is a native of Pakistan and a citizen of Spain. (Am. Compl., Doc. 8, ¶¶ 1, 9) In June 2014, he entered the United States as a visitor under the United States' Visa Waiver Program ("VWP") to visit family in New York. (Id. at ¶ 10) Under the VWP, qualifying foreign nationals from designated countries, including Spain, can enter the United States for up to 90 days for pleasure or business purposes without first obtaining a visa. See 8 U.S.C. § 1187(a)(1) ; (Motion, Doc. 13, 1) Mr. Asif continued to live in the United States well beyond the 90-day period. (Am. Compl., Doc. 8, ¶ 11).

In September 2016, he married Jennifer Asif, a United States citizen. (Id. ) In April 2017, she filed an I-130 "Petition for Alien Resident" on behalf of her husband. (Id. at ¶ 12) Around the same time, Mr. Asif filed a Form I-485 application to adjust his status to that of a lawful permanent resident. (Id. ) Mr. Asif also filed a Form I-765 "Application for Employment Authorization" and received an Employment Authorization Document (EAD) valid from August 31, 2017 to August 30, 2018. (Id. )

In September 2017, the Asifs received notice to appear for an interview with USCIS on the pending I-130 Petition and I-485 Application. (Id. at ¶ 13) When the couple timely appeared for the interview, USCIS personnel informed them that it had been cancelled. (Id. ) The Asifs later received the USCIS notice of the cancelation, which also stated that they "would be notified of any other action taken on [the] case, including any rescheduled interview information." (Id. )

In June 2018, Mr. Asif filed to renew his EAD, which would expire at the end of August that year. (Id. at ¶ 15) The expiration date passed without a response to the renewal application, but Mr. Asif alleges that an "announced and published DHS/USCIS policy automatically extended the EAD for 180 days (until February 26, 2019)." (Id. )

In early 2019, when Mr. Asif worked as a truck driver, he stopped at the checkpoint in Falfurrias, Texas. CBP and ICE detained and held him in holding facilities for about six days before transferring him to the Port Isabel Detention Center in Los Fresnos, Texas. (Id. at ¶¶ 17–18) He appeared at least once before an Immigration Judge. (Id. at ¶ 18)

On March 4, 2019, Mr. Asif filed his Complaint for Injunctive and Mandamus Relief. (Doc. 1) A few days later, USCIS notified Mrs. Asif that she should appear for an interview on the pending I-130 Petition. (Am. Compl., Doc. 8, ¶ 19) USCIS also denied the I-485 Application without having interviewed Mr. Asif, although it is unclear when Mr. Asif learned of this decision. (Id. ) The denial notification indicates that in January 2019, ICE had "entered a final administrative removal order against [Mr. Asif] under section 217 of the INA." (Denial Notification, Doc. 13-1, 2) In making its decision, USCIS relied on Mr. Asif's failure "to depart the United States within 90 days of entry" as required by the Visa Waiver Program as a "very significant adverse factor" weighing heavily against approval. (Id. ) USCIS found that the Asifs' marriage was the only factor that weighed in his favor. (Id. )

On March 19, 2019, Mrs. Asif appeared for her interview with USCIS. (Am. Compl., Doc. 8, ¶ 24)

On March 26, 2019, Mr. Asif amended his Complaint. (Doc. 8)

On May 12, 2019, Mr. Asif filed a Motion for a Temporary Restraining Order seeking an Order to enjoin his removal from the country pending the resolution of this lawsuit. (Doc. 12) The following day, Defendants filed their Motion to Dismiss. (Doc. 13)

On May 22, the Court held a hearing and denied Mr. Asif's motion for a temporary restraining order. The next day, Mr. Asif was removed from the country based on the January 2019 Final Administrative Removal Order. (Defendants' Advisory, Doc. 19)

II. Analysis

Mr. Asif alleges a cause of action under the Administrative Procedure Act (APA), 5 U.S.C. § 702 et seq. , asserting that jurisdiction lies under that statute, as well as 28 U.S.C. § 1331 (the "Federal Question Statute"), 28 U.S.C. § 1361 (the Mandamus Act), 28 U.S.C. §§ 2201 (the Declaratory Judgment Act), and 28 U.S.C. § 1651 (the All Writs Act). (Am. Compl., Doc. 8, ¶ 7)

Mr. Asif alleges that USCIS failed to adhere to DHS's regulations and wrongfully denied his I-485 Application in violation of the APA. (Id. at ¶ 32) He also claims that Defendants "unreasonably delayed" and "unlawfully withheld the adjudication and approval" of both the I-130 Petition and the I-485 Application, which "constitutes an unreasonable failure to act" in violation of the APA and the Due Process Clause of the Fifth Amendment. (Id. at ¶ 31) And he alleges that Defendants' "decision to detain [him] and order [his] removal was ... unsupported by substantial evidence, [in violation of the APA]." (Id. at ¶ 33) In relevant part, Mr. Asif asks the Court to: (1) set aside the denial of his I-485 Application; (2) compel USCIS to re-adjudicate his I-485 Application; and (3) oversee its re-adjudication. (Id. at 11–12).²

The Defendants' Motion to Dismiss urges dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). As the Court's conclusion with respect to the jurisdictional arguments are dispositive, the Court will not address the Rule 12(b)(6) arguments.

A. Standard of Review

When considering a Rule 12(b)(1) motion, a trial court must dismiss an action for lack of subject matter jurisdiction when the Court is without the statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Miss., Inc. v. City of Madison , 143 F.3d 1006, 1010 (5th Cir. 1998). In determining whether jurisdiction exists, the Court may consider: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the Court's resolution of disputed facts." Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001). The party seeking the federal forum bears the burden of proving federal jurisdiction. Stockman v. Fed. Election Comm'n , 138 F.3d 144, 151 (5th Cir. 1998).

B. Claims related to the I-130 Petition

In March 2019, USCIF approved the I-130 Petition. (I-130 Approval Notice, Doc. 17-1, 54) This approval moots Mr. Asif's claims based on the delay in resolution of this petition.

C. Claims related to the I-485 Application

Mr. Asif filed his I-485 Application to seek status as a legal permanent resident based on his marriage to Mrs. Asif, a United States citizen. Section 245 of the Immigration and Nationality Act ("INA") governs I-485 Applications. See 8 U.S.C § 1255. In 2005, the REAL ID Act modified the INA in relevant part by adding a provision that significantly limited federal court jurisdiction over matters related to adjustment-of-status decisions, such as on I-485 Applications:

Notwithstanding any other provision of law (statutory or nonstatutory), including ... Title 28 ... section[ ] 1361 [the Mandamus Act] ... no court shall have jurisdiction to review--

(i) any judgment regarding the granting of relief under section ... 1255 [adjustment of status] ... or

(ii) any other decision or action ... which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security

8 U.S.C. § 1252(a)(2)(B). The Fifth Circuit has held that section 1252(a)(2)(B)(i) of the REAL ID Act "explicitly places any judgment regarding the granting of relief ... [of] I–485 applications, in [the] category of discretionary decisions that no courts have jurisdiction to review." Ayanbadejo v. Chertoff , 517 F.3d 273, 277 (5th Cir. 2008) (internal quotation marks omitted); see also Jean v. Gonzales , 452 F.3d 392, 396 (5th Cir. 2006) (explaining that the REAL ID Act "amends the jurisdictional provisions of the [INA], altering the way in which noncitizens can seek judicial review of administrative orders of removal"). In addition, Section 1252(a)(2)(B)(ii) proscribes jurisdiction in a federal district court over any decision or action "in the discretion" of the Attorney General or the Secretary of Homeland Security. Such discretionary decisions include adjustments to status based on an I-485 Application. 8 U.S.C. § 1255(a) ("The status of an alien ... admitted or paroled into the United States ... may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe , to that of an alien lawfully admitted for permanent residence." (emphasis added)).³ As a result, both sub-sections of Section 1252(a)(2)(B) bar jurisdiction over Mr. Asif's claims based on the denial of his I-485 Application.

1. The APA

Mr. Asif nevertheless relies on the APA to argue that jurisdiction exists to set aside and re-adjudicate his denied I-485 Application. (Response, Doc. 17, 6–9)

Under certain circumstances, the APA provides for judicial review of agency actions. See 5 U.S.C. § §...