Verastegui v. Wolf

468 F.Supp.3d 94

Primitiva JIMENEZ VERASTEGUI et al., Plaintiffs,

v.Chad WOLF et al., Defendants.

Civil Action No. 18-2358 (TJK)

United States District Court, District of Columbia.

Signed June 18, 2020

Roy Kevin Petty, Pro Hac Vice, Roy Petty & Associates, PLLC, Dallas, TX, Ava C. Benach, Benach Collopy LLP, Washington, DC, for Plaintiffs.

Kenneth A. Adebonojo, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge

Primitiva Jimenez Verastegui and her husband Rafael Bahena Velasquez, Mexican citizens unlawfully present in the United States, applied for lawful permanent residency or "adjustment of status" in this country under the Immigration and Nationality Act, 8 U.S.C. § 1255. Their applications were denied, and they now request that this Court review those decisions. Defendants argue that this Court has no jurisdiction to do so because Section 1252(a)(2)(B)(i) commands that "no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section ... 1255 of this title." To the contrary, say Plaintiffs, because the decisions to deny their applications turned on a question of law and not the exercise of agency discretion, that jurisdictional bar does not prevent the Court from reviewing them under the Administrative Procedure Act. Although Plaintiffs’ position has some support in the case law, the Court ultimately agrees with Defendants that Section 1252(a)(2)(B)(i) means what it says. Thus, it must grant Defendants’ motion to dismiss for lack of subject-matter jurisdiction.

I. Background

Plaintiffs are aliens unlawfully present in the United States. ECF No. 1 ("Compl.") ¶¶ 9, 14; ECF No. 29-2 at 6, 12. In 2015, each completed an I-485 "Application to Register Permanent Residence or Adjust Status" pursuant to 8 U.S.C. § 1255 of the Immigration and Nationality Act (INA). Compl. ¶¶ 15–16; ECF No. 29-2 at 5, 11. The year after, United States Citizenship and Immigration Services (USCIS) denied both applications because the agency found them inadmissible under 8 U.S.C. § 1182(a)(9)(B)(i)(I).¹ Compl. ¶¶ 19–20; ECF No. 29-2 at 6, 12. That provision sets a three-year bar on admissibility for applicants who were "unlawfully present in the United States for a period of more than 180 days but less than 1 year," then "voluntarily depart[ ] the United States" before removal proceedings and "again seek[ ] admission within 3 years of the date of such alien[s’] departure or removal." 8 U.S.C. § 1182(a)(9)(B)(i)(I). Plaintiffs requested that USCIS reconsider these decisions, but in December 2016 it reaffirmed them. ECF No. 29-2 at 4, 10. Even so, Plaintiffs have not been subject to removal proceedings. Compl. ¶ 31.

Several years later, Plaintiffs sued the Secretary of Homeland Security and Director of USCIS under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. They seek (1) a declaration that USCIS's denials of their applications were illegal, arbitrary, and capricious; (2) an order to set aside those decisions; and (3) an order that USCIS re-adjudicate their applications consistent with their interpretation of the statute.² Compl. at 1, 6.

Defendants moved to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1). They argue that USCIS's decisions to deny Plaintiffs’ applications were "judgment[s] regarding the granting of relief under section ... 1255" that "no court shall have jurisdiction to review," 8 U.S.C. § 1252(a)(2)(B)(i). ECF No. 29-1 ("MTD") at 6, 9. Defendants also moved to dismiss for failure to state a claim under Rule 12(b)(6), arguing that USCIS's decisions reflected a reasonable interpretation of the three-year bar in 8 U.S.C. § 1182(a)(9)(B)(i)(I). According to USCIS, although Plaintiffs first arrived in 1994, for purposes of the statute, they "began to accrue unlawful presence" only in April 1997, "the date on which the unlawful presence provisions went into effect." ECF No. 29-2 at 3, 9. Then, Defendants argue, "although Plaintiffs allegedly left the Country voluntarily in 1997, they returned in 1998, which tolled the running of their three years of inadmissibility[,] thereby making them inadmissible and their adjustment of status application deniable." MTD at 9–10.

For their part, Plaintiffs read Section 1252 to permit this Court to decide whether they "are inadmissible under 8 U.S.C. § 1182(a)(9)(B)(i)(I), and thereby[ ] statutorily ineligible for adjustment of status under 8 U.S.C. § 1255," Compl. ¶ 1, because the issue "is [a] pure question of law," ECF No. 32-1 ("Opp.") at 13. And indeed, the parties agree that "the factual findings upon which the two denials were based are correct in relevant part," Compl. ¶ 8, and "the only issue in this case is Defendants’ interpretation of § 1182(a)(9)(B)(i)(I) that led to the denial of Plaintiffs’ adjustment of status request[s]," MTD at 3 n.1. Plaintiffs argue that "[t]he correct interpretation of 8 U.S.C. § 1182(a)(9)(B)(i)(I) is that an alien who was unlawfully present in the United States for more than 180 days but less than one year, is inadmissible for three years after the date of departure. The provision does not require the alien to be absent from the United States for three years and is not tolled by the alien's return." Opp. at 24–25.³

II. Legal Standard

To survive a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, a plaintiff must prove by a preponderance of the evidence that the Court has jurisdiction. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In evaluating such a motion, the Court must accept as true factual allegations in the complaint and draw all reasonable inferences in a plaintiff's favor. Ctr. for Biological Diversity v. Kempthorne , 498 F. Supp. 2d 293, 296 (D.D.C. 2007). Additionally, "where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Herbert v. Nat'l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir. 1992).

III. Analysis

"Like all federal courts, the district court is a court of limited jurisdiction." Belhas v. Ya'alon , 515 F.3d 1279, 1282 (D.C. Cir. 2008). The jurisdictional source for an APA action is the "federal question" statute, 28 U.S.C. § 1331. See Califano v. Sanders , 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). But the APA itself is not an independent source of jurisdiction. Trudeau v. Fed. Trade Comm'n , 456 F.3d 178, 183 (D.C. Cir. 2006). It provides merely that 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 thereof." 5 U.S.C. § 702. And that grant of jurisdiction does not apply when a "statute[ ] preclude[s] judicial review." 5 U.S.C. § 701(a)(1). The Court holds that the INA does so here.⁴

The relevant part of the INA, 8 U.S.C. § 1252(a)(2)(B), is titled "Denials of discretionary relief." It directs that "[n]otwithstanding any other provision of law (statutory or nonstatutory), ... and except as provided in subparagraph (D), 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 undersection 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title.

(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.

8 U.S.C. § 1252(a)(2)(B) (emphasis added). Subparagraph (D), which Congress added to the INA through the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302,⁵ is titled "Judicial review of certain legal claims"; it clarifies that despite the INA's bar on judicial review of agency judgments under Section 1255, "[n]othing in subparagraph (B) ... shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section." 8 U.S.C. § 1252(a)(2)(D). As the statute makes clear elsewhere, "a petition for review filed with an appropriate court of appeals ... [is] the sole and exclusive means for judicial review of an order of removal." Id. § 1252(a)(5).

In summary, through subparagraph (B), "Congress expressly included decisions to deny relief under § 1255 within this jurisdiction-limiting provision," and in subparagraph (D), "Congress made explicit that despite the jurisdiction-stripping language of § 1252(a)(2)(B), courts of appeals"—not district courts—"retain a narrowly circumscribed jurisdiction to resolve constitutional claims or questions of law raised by aliens seeking discretionary relief," and "only in the context of removal proceedings." Lee v. U.S. Citizenship & Immigration Servs. , 592 F.3d 612, 619–20 (4th Cir. 2010) (cleaned up); see Schroeck v. Gonzales , 429 F.3d 947, 950–51 (10th Cir. 2005) (describing the jurisdiction of courts of appeals).

This suit falls within this jurisdictional bar. Plaintiffs applied for adjustment of status under 8 U.S.C. § 1255. Compl. ¶¶ 15–16; ECF No. 29-2 at 5, 11. USCIS denied their applications because it found them inadmissible under 8 U.S.C. § 1182(a)(9)(B)(i)(I). Compl. ¶¶ 19–20; ECF No. 29-2 at 6, 12. Plaintiffs brought this case to reverse those decisions, Compl. at 6, and to challenge USCIS's interpretation of 8 U.S.C. § 1182(a)(9)(B)(i)(I) that precludes Plaintiffs’ eligibility "for adjustment of status under 8 U.S.C. § 1255," id. ¶ 1. But Section 1252(a)(2)(B)(i) precludes district courts from reviewing such "judgment[s] regarding the granting of relief under ...