Liban Jama v. DHS, et al

Filing

OPINION and JUDGMENT filed: The dismissal of Jama's complaint is AFFIRMED. Decision for publication. Alan E. Norris, Eric L. Clay (AUTHORING), and Raymond M. Kethledge, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0161p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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LIBAN MUSE JAMA,
Plaintiff-Appellant,
v.

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No. 13-4192

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DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants-Appellees.

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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:12-cv-02881—David D. Dowd, Jr., District Judge.
Argued: May 7, 2014
Decided and Filed: July 25, 2014
Before: NORRIS, CLAY, and KETHLEDGE, Circuit Judges.
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COUNSEL
ARGUED: Brian J. Halliday, THE LAW OFFICES OF BRIAN J. HALLIDAY, Beachwood,
Ohio, for Appellant. Erez Reuveni, OFFICE OF IMMIGRATION LITIGATION, Washington,
D.C., for Appellees. ON BRIEF: Brian J. Halliday, THE LAW OFFICES OF BRIAN J.
HALLIDAY, Beachwood, Ohio, for Appellant. Erez Reuveni, OFFICE OF IMMIGRATION
LITIGATION, Washington, D.C., for Appellees. Mary Kenney, AMERICAN IMMIGRATION
COUNCIL, Washington, D.C., for Amicus Curiae.
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OPINION
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CLAY, Circuit Judge. Plaintiff Liban Muse Jama appeals the district court’s dismissal of
his complaint seeking judicial review, under the Administrative Procedure Act (“APA”),
5 U.S.C. § 551, et seq. (2011), of certain actions by the United States Citizenship and

1

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Immigration Service (“USCIS”), including USCIS’s termination of Jama’s refugee status. For
the reasons that follow, we hold that termination of refugee status and denial of a status
adjustment application are not “final agency actions” reviewable in district court under the APA,
and AFFIRM the district court’s dismissal of Jama’s complaint on the basis of Jama’s failure to
state a claim under the APA.
BACKGROUND
Over ten years after Jama was admitted to the United States as a refugee based on his
sworn statement that he was the minor child of a principal refugee, USCIS learned that Jama had
made material factual misrepresentations in his application for refugee status. At the time of his
admission to the United States, Jama was not, in fact, a legal minor or the biological child of the
principal refugee. After providing Jama with notice and an opportunity to respond, USCIS
terminated Jama’s refugee status on the basis of his fraud, pursuant to 8 C.F.R. § 207.9. USCIS
also denied Jama’s pending applications for status adjustment and fraud waiver.

USCIS

subsequently denied Jama’s motion to reopen these decisions, and initiated removal proceedings
against him, as required by the statute. See 8 C.F.R. § 207.9 (“Upon termination of refugee
status, USCIS will process the alien under sections 235, 240, and 241 of the Act.”). The agency
did not rule on Jama’s pending application for asylum and for withholding of removal (Form I589), which Jama had submitted to the USCIS Asylum Office prior to the termination decision.
On August 18, 2011, Jama was sent a notice to appear before an immigration judge (“IJ”)
on the removability charges. On that same date, USCIS also referred Jama’s application for
asylum to the IJ presiding over Jama’s removal proceedings.
On June 14, 2012, the IJ held a merits hearing on the removability charges, and
concluded that Jama was removable based on the charge that he did not possess a valid
immigrant visa or entry document when he was admitted to the United States. As part of the
removability analysis, the IJ considered whether or not Jama was admissible under INA
§ 207(c)(2)(A) at the time of his entry into the United States.1 The IJ concluded based on the
1

Because Jama’s entry document was stamped with the code used for a child of a derivative refugee (Code
“RE3”), the IJ limited its analysis to the narrow question of whether Jama was eligible for entry as a derivative
beneficiary at the time of his entry. It did not consider whether Jama qualified as a refugee in his own right.

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evidence presented that Jama was not eligible for an entry document as a derivative beneficiary
at the time of his entry into the United States, and found him removable on that basis. During
this hearing, Jama attempted to argue that the termination of his refugee status was improper.
The IJ dismissed Jama’s argument that his refugee status was improperly terminated, explaining
that USCIS’s decision to terminate Jama’s refugee status “is irrelevant . . . . [and] has no
implications for whether [Jama] possessed a valid entry document at the time of his admission.”
[R. 28-1, IJ Order at 5.]
Jama filed a motion for reconsideration, which the IJ denied on August 8, 2012. In its
order denying reconsideration, the IJ reiterated that the termination of Jama’s refugee status was
irrelevant to its inquiry, and explained that it lacked jurisdiction to review USCIS’s decision to
terminate refugee status, citing 8 C.F.R. § 207.9. That regulation provides that “[t]here is no
appeal under this chapter I from the termination of refugee status by USCIS.” 8 C.F.R. § 207.9.
The IJ did not rule on Jama’s asylum claims, which remain pending in immigration court as of
the date of this writing.
On November 19, 2012, with his asylum claims still pending in immigration court, Jama
filed the instant action in United States District Court for the Northern District of Ohio against
USCIS, the Department of Homeland Security, and other related individuals and entities
(collectively, “Defendants”).

In his complaint, Jama asserted jurisdiction under 28 U.S.C.

§ 1331 (the “federal question statute”); 28 U.S.C. § 2201 (the “Declaratory Judgment Act”); and
5 U.S.C. § 555 and § 701, et seq. (the “APA”). He alleged, inter alia, unlawful termination of
his refugee status, improper denial of his status adjustment application, and improper denial of
his fraud waiver application. He sought a declaration that USCIS’s actions were unlawful, and
that he continues to be a derivative refugee.2

2

Jama’s complaint stated four causes of action: “Count 1. Violation of Due Process;” “Count 2. Any
misrepresentation in Mr. Jama’s immigration record are immaterial as he meets the definition of refugee at the time
of admission within the meaning of the Immigration and Nationality Act and the U.N. Protocol and Convention;”
“Count 3. Termination of Mr. Jama’s refugee status by USCIS contradicts the principles of the U.N. Convention;”
and “Count 4. The U.S. Department of Homeland Security has no authority to terminate refugee status.” The district
court found that “a number of his claims are not in fact claims. Rather they are arguments in support of his principal
contention, which is that USCIS erred in its decision to terminate his refugee status without determining that he
would not have qualified as a refugee in his own right at the time he was admitted and/or that USCIS had an
affirmative duty to elicit facts regarding whether he could have qualified in his own right at that time.” Jama v. U.S.

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Defendants filed a motion to dismiss, asserting lack of subject matter jurisdiction and
failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The
district court found that neither the Federal Question statute nor the Declaratory Judgment Act
confers jurisdiction over Jama’s complaint, and that the APA “is the only authority cited by
[Jama] which could provide jurisdiction.” Jama v. U.S. Citizenship & Immigration Servs., 962 F.
Supp. 2d 939, 947 (N.D. Ohio 2013). The court subsequently concluded that it ultimately lacked
jurisdiction under the APA to review the termination of Jama’s refugee status and the denial of
his application for status adjustment because neither decision is “final agency action,” as
required for judicial review under the APA. Id. at 949–50. As an alternative basis for dismissal,
the district court found that 8 U.S.C. §§ 1252(a)(5) and (b)(9) stripped the court of any
jurisdiction it might otherwise have over Jama’s claims. The court also concluded that it lacked
authority under the APA to review the denial of Jama’s fraud waiver application, since USCIS’s
decision to deny Jama’s fraud waiver application is “agency action [that] is committed to agency
discretion by law.” 5 U.S.C. § 701(a). Accordingly, the district court granted Defendants’
motion to dismiss. Jama timely appealed.
DISCUSSION
We review de novo a district court’s order dismissing a claim for lack of subject matter
jurisdiction or failure to state a claim. Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.
2002); E. Brooks Books, Inc. v. City of Memphis, 633 F.3d 459, 464 (6th Cir. 2011).
At the outset, we emphasize that both parties agree that USCIS’s actions, including its
termination of Jama’s refugee status and its denial of Jama’s status adjustment application, are
reviewable in federal court at some stage prior to Jama’s removal; the dispute in this case
concerns when those actions are subject to review, and which federal court is vested with
authority to hear the claims. Jama argues that he is entitled to immediate judicial review of
USCIS’s actions in the district court under the APA. Meanwhile, Defendants contend that the
challenged actions cannot be reviewed until after the conclusion of removal proceedings,
including resolution of Jama’s pending asylum application, and submit that “this claim, and each
and every other basis for relief Jama might raise, can be addressed before the IJ, raised again on
Citizenship & Immigration Servs., 962 F. Supp. 2d 939, 957 (N.D. Ohio 2013).

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appeal to the Board of Immigration Appeals (“BIA”) if necessary, and ultimately, as Section
1252(b)(9) requires, receive review in federal court in the courts of appeal.” Def. Br. at 47.3
I.

Subject Matter Jurisdiction
The APA is not a jurisdiction-conferring statute; it does not directly grant subject matter

jurisdiction to the federal courts. See Califano v. Sanders, 430 U.S. 99, 105 (1977); Air Courier
Conference v. Am. Postal Workers Union, 498 U.S. 517, 523 n.3 (1991). Rather, the judicial
review provisions of the APA provide a limited cause of action for parties adversely affected by
agency action. See Bennett v. Spear, 520 U.S. 154, 175 (1997); Japan Whaling Ass’n v. Am.
Cetacean Soc’y, 478 U.S. 221, 230 n. 4 (1986); Md. Dep’t of Human Res. v. Dep’t of Health &
Human Servs., 763 F.2d 1441, 1445 n. 1 (D.C. Cir. 1985) (“The Supreme Court has clearly
indicated that the [APA] itself, although it does not create subject-matter jurisdiction, does
supply a generic cause of action in favor of persons aggrieved by agency action.”).
Although the APA does not directly grant jurisdiction, the federal question statute,
28 U.S.C. § 1331, “confer[s] jurisdiction on federal courts to review agency action, regardless of
whether the APA of its own force may serve as a jurisdictional predicate.” Califano, 430 U.S. at
105; see also Hill v. Norton, 275 F.3d 98, 103 (D.C. Cir. 2001) (“challenges brought under the
APA fall within the reach of the general federal jurisdiction statute, 28 U.S.C. § 1331”). In the
instant case, the district court had jurisdiction over Jama’s APA claims pursuant to the federal
question statute, 28 U.S.C. § 1331. Accordingly, dismissal pursuant to 12(b)(1) was improper.4
II.

Review Under the APA
Having established that the district court did, in fact, have subject matter jurisdiction over

this claim, we “proceed to address whether [Jama’s] allegations state a claim” on the merits.
3

8 U.S.C. §1252(b)(9) channels review of all questions of law or fact arising from actions taken to remove
an alien to the Court of Appeals, and not the district court.
4

Because the APA does not confer jurisdiction, elements of a claim under the APA, including the final
agency action requirement, are not jurisdictional. See Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 184 (D.C. Cir.
2006) (“[T]he APA’s final agency action requirement is not jurisdictional”). Accordingly, we address the “final
agency action” requirement of § 704 in the following section, where we consider whether Jama has a valid cause of
action for his claims against Defendants. See Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm’n,,
324 F.3d 726, 731 (D.C. Cir. 2003) (“If there was no final agency action . . . there is no doubt that appellant would
lack a cause of action under the APA.”).

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Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 254 (2010).5 Section 704 of the APA
authorizes judicial review of “[a]gency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a court . . . .” 5 U.S.C. § 704. The APA
expressly does not permit judicial review in those instances where “statutes preclude judicial
review” or “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a).
1. The Denial Of Jama’s Fraud Waiver Application Is Committed To Agency
Discretion By Law
Title 8 U.S.C. § 1182(i) forecloses judicial review of an agency’s discretionary decision
to deny a request for a waiver of inadmissibility based on fraud or misrepresentation. The statute
provides: “No court shall have jurisdiction to review a decision or action . . . regarding a waiver
under paragraph (1).” 8 U.S.C. § 1182(i)(2). Under the clear language of the statute, denial of a
fraud waiver application is clearly “agency action . . . committed to agency discretion by law.”
5 U.S.C. § 701(a).
In an attempt to eschew this preclusive rule, Jama attempts to recast USCIS’s decision as
a “refusal to adjudicate,” which Jama describes as a nondiscretionary decision. We agree with
the district court’s observation that “[t]his argument is disingenuous” since “USCIS did consider
and deny Jama’s I-602 application for a fraud waiver.” Jama, 962 F. Supp. 2d at 967. We also
agree that “the distinction Jama attempts to make is one without a difference. . . . [I]t is clear that
[Jama] wants this Court to review the merits of the fraud waiver denial, which this Court is
barred by statute from doing.” Id. Accordingly, dismissal of this portion of Jama’s complaint
was appropriate.
2. The Termination Of Jama’s Refugee Status And Denial Of Jama’s Status
Adjustment Application Are Not “Final Agency Action”
There is no statute that precludes judicial review of USCIS’s termination of Jama’s
refugee status or its denial of Jama’s status adjustment application. Nor is there a statute that
expressly makes these actions reviewable in district court. In order to state a claim under the

5

Remand is not necessary for this error. See Morrison, 561 U.S. at 254 (“Since nothing in the analysis of
the courts below turned on the mistake, a remand would only require a new Rule 12(b)(6) label for the same Rule
12(b)(1) conclusion.”).

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APA, Jama “must allege that [his] injury stems from a final agency action for which there is no
other adequate remedy in court.” Bangura v. Hansen, 434 F.3d 487, 500 (6th Cir. 2006) (citing
5 U.S.C. § 704).
We apply a two-prong test to determine whether an agency action is “final:”
First, the action must mark the “consummation” of the agency’s decisionmaking
process--it must not be of a merely tentative or interlocutory nature. And second,
the action must be one by which “rights or obligations have been determined,” or
from which “legal consequences will flow.”
Bennett, 520 U.S. at 177–78 (internal citations omitted); see also Franklin v. Massachusetts, 505
U.S. 788, 797 (1992) (“The core question is whether the agency has completed its
decisionmaking process, and whether the result of that process is one that will directly affect the
parties.”). An agency action is not final if it “does not of itself adversely affect complainant but
only affects his rights adversely on the contingency of future administrative action.” Rochester
Tel. Corp. v. United States, 307 U.S. 125, 130 (1939).
Jama contends that the actions for which he seeks judicial review satisfy both prongs of
the “final agency action” test, notwithstanding the fact that his removal proceedings are ongoing.
With respect to the first prong, Jama avers that his inability to pursue a direct appeal of USCIS’s
decision to terminate his refugee status,6 and the IJ’s inability to review the decision, means that
the decision necessarily marks the consummation of the agency’s decisionmaking process. We
disagree.
Congress has delegated to specific government agencies the task of enforcing
immigration laws and determining aliens’ immigration statuses. The agencies’ decisionmaking
process consummates when they issue a final decision regarding an alien’s immigration status.
Termination of refugee status and denial of a status adjustment application are intermediate steps
in the removal of an alien, and not the consummation of the agencies’ decisionmaking on the
alien’s immigration status. Further administrative relief is available in the removal proceeding,
which necessarily follows a decision to terminate an alien’s refugee status. See 8 C.F.R. § 207.9.
6

The immigration regulation at 8 C.F.R. § 207.9 provides, “[t]here is no appeal . . . from the termination of
refugee status by USCIS.”

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Jama’s removal proceedings are presently ongoing; the IJ has not yet considered his application
for asylum and for withholding of removal. If Jama’s application is granted, he will be permitted
to remain lawfully in the United States notwithstanding USCIS’s decision to terminate his
refugee status or the IJ’s decision regarding removability. Thus, USCIS’s decision is merely an
intermediate decision at this stage of the proceedings.
Jama contests this point, arguing that the approval of his application for asylum status
would not provide administrative relief, since there are substantive and practical differences
between the grant of asylum status and the reinstatement of his refugee status. We recognize the
legal and practical differences between refugee status and asylum status, but find that the
operative question in this case for purposes of the APA is whether there is a final decision on
Jama’s immigration status. Once a final decision is rendered––regardless of the nature of that
decision, then Jama can seek review of that decision, as well as all intermediate decisions,
including termination of Jama’s refugee status. This approach is consistent with Congress’ clear
intent to streamline the review process by “consolidat[ing] and channel[ing] review of all legal
and factual questions that arise from the removal of an alien into the administrative process, with
judicial review of those decisions vested exclusively in the courts of appeals.” Aguilar v. U.S.
Immigration & Customs Enforcement Div. of Dep’t of Homeland Sec., 510 F.3d 1, 9 (1st Cir.
2007); see id. (“In enacting section 1252(b)(9), Congress plainly intended to put an end to the
scattershot and piecemeal nature of the review process that previously had held sway in regard to
removal proceedings.”).
Jama’s primary argument against dismissal is that he will be denied the opportunity to be
heard on USCIS’s termination of his refugee status if the district court does not review USCIS’s
action at this time. But, as the district court recognized, “the APA provides that ‘[a] preliminary,
procedural, or intermediate agency action ruling not directly reviewable is subject to review on
the review of the final agency action.’” Jama, 962 F. Supp. 2d at 964 (quoting 5 U.S.C. § 704).
Accordingly, once the agency has made a final decision on Jama’s immigration status, i.e., at the
conclusion of removal proceedings and following appeal to the BIA, then Jama may seek review
of intermediate agency actions, including the termination of his refugee status and the denial of
his status adjustment application, in the United States Court of Appeals. See Qureshi v. Holder,

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663 F.3d 778, 780 (5th Cir. 2011) (stating that although “[n]either the IJ nor the BIA has
authority to review USCIS’s decision to terminate asylum . . . if the BIA upholds the final order
of removal, the ex-asylee may then appeal to the appropriate circuit court to review
‘constitutional claims or questions of law’ underlying the final order of removal, including direct
challenges to USCIS’s original decision”) (internal citation omitted). At the conclusion of the
removal proceedings, Jama can challenge both the outcome of those proceedings as well as
USCIS’s actions in a petition for review. At that time, the Court of Appeals can review each
individual claim, including Jama’s challenges to intermediate agency actions.

Thus, there

remains an avenue available for effective review of USCIS’s decision to terminate Jama’s
refugee status and deny Jama’s status adjustment application.
For these reasons, we hold that termination of refugee status and denial of a status
adjustment application are not “final agency actions” reviewable in district court under the APA,
and, consequently, Jama’s claim was properly dismissed.
CONCLUSION
For the reasons stated above, we AFFIRM the dismissal of Jama’s complaint. Jama can
petition this Court for review of the challenged agency actions after the conclusion of his
removal proceedings. At that time, this Court can consider each of USCIS’s decisions––the
termination of Jama’s refugee status, the denial of his status adjustment application, and the
denial of his fraud waiver application––as well as the IJ and BIA’s final decisions regarding
Jama’s removability and asylum application.