Dai v. U.S. Citizenship and Immigration Services

Filing 25

ORDER signed by District Judge Daniel J. Calabretta on 3/26/2024 GRANTING 15 Motion to Dismiss and DISMISSING the 13 First Amended Complaint with prejudice. CASE CLOSED. (Woodson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HONGYU DAI,

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Plaintiff,

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No. 2:23-cv-01402-DJC-AC

v.

ORDER

UR M. JADDOU, Director, U.S.
Citizenship and Immigration Services
Defendant.

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Before the Court is Defendant’s Motion to Dismiss for Lack of Jurisdiction. For

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the reasons below, the Court agrees that Plaintiff’s claims are barred by 8 U.S.C.

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§ 1252(b)(9) which precludes a federal district court from reviewing decisions related

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to immigration removal proceedings. Accordingly, Defendant’s Motion to Dismiss is

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GRANTED.

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I.

Background
Plaintiff Hongyu Dai is a Chinese national who has been residing in the United

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States as a Permanent Resident pursuant to an EB-5 visa. (First Am. Compl. (“FAC”)

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(ECF No. 13) ¶¶ 1, 9, 16–18). Consistent with the requirements of EB-5, two years after

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initial approval Plaintiff filed a Form I-829 with the United States Citizenship and

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Immigration Service (“USCIS”) to remove the conditions on his Permanent Resident

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status by verifying satisfaction of the conditions of his visa. (Id. ¶¶ 17–20.) Plaintiff’s I1

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829 was denied, (id. ¶ 21), which triggers USCIS to issue a Notice to Appear and

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initiate removal proceedings. See 8 C.F.R. § 216.6(d)(2).

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Plaintiff appealed the denial of the I-829 to USCIS’s Administrative Appeals

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Office (“AAO”). (FAC ¶ 25.) Plaintiff originally brought this suit alleging that his

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appeal was unreasonably delayed. (See generally Compl. (ECF No. 1).) However,

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after filing, the AAO issued a decision denying his appeal and affirming the I-829

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denial. (FAC ¶¶ 26–27.) Plaintiff now alleges that the AAO’s decision is arbitrary and

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capricious in violation of the Administrative Procedure Act (“APA”). (Id. ¶¶ 28, 31.)

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Defendant, the Director of USCIS, filed a Motion to Dismiss the FAC asserting

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that 8 U.S.C. § 1252(b)(9) bars the Court from exercising jurisdiction over Plaintiff’s

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claim, and that the claim is not reviewable under the APA because it is nonfinal. (Mot.

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to Dismiss (“MTD”) (ECF No. 15) at 1.) Plaintiff has opposed this Motion (Opp’n (ECF

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No. 21)) and Defendant has filed a Reply (ECF No. 22.) This matter is now fully briefed

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and was submitted upon the record and briefs of the Parties, without oral argument,

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pursuant to Local Rule 230(g). (ECF No. 24.)

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II.

Legal Standard for Motion to Dismiss
A party may move to dismiss a complaint for “lack of subject matter jurisdiction”

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under Federal Rule of Civil Procedure 12(b)(1). A Rule 12(b)(1) jurisdictional attack

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may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.

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2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a facial attack, the

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challenger takes the allegations in the complaint as true, but challenges whether

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those allegations are sufficient to invoke jurisdiction. See id. at 1039. By contrast, in a

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factual attack the challenger disputes the “truth of the allegations that, by themselves,

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would otherwise invoke federal jurisdiction.” Id. “When a factual attack is mounted,

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the responding party ‘must support her jurisdictional allegations with “competent

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proof” . . . under the same evidentiary standard that governs in the summary judgment

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context.’” Salter v. Quality Carriers, Inc., 974 F.3d 959, 964–65 (9th Cir. 2020) (citations

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omitted). Ultimately, under either standard, “the party asserting federal jurisdiction
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bears the burden of proving the case is properly in federal court.” In re Ford Motor

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Co./Citibank (S. Dakota), N.A., 264 F.3d 952, 957 (9th Cir. 2001).

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III.

Discussion

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By asserting that Plaintiff’s claims are jurisdictionally barred by 8 U.S.C.

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§ 1252(b)(9), Defendant mounts a facial attack to jurisdiction. See Jian Wang v. Wolf,

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511 F. Supp. 3d 1060, 1066 (C.D. Cal. 2021). Accordingly, the Court assumes

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plaintiff's factual allegations to be true and draws all reasonable inferences in his

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favor. Id. (quoting Wolfe v. Strankman, 392 F.3d 358, 360 (9th Cir. 2004), overruled on

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other grounds as recognized by Munoz v. Superior Ct. of Los Angeles Cnty., 91 F.4th

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977, 981 (9th Cir. 2024)).

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Section 1252(b)(9) expressly precludes judicial review of “all questions of law

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and fact, including interpretation and application of constitutional and statutory

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provisions, arising from any action taken or proceeding brought to remove

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an alien from the United States under this subchapter.” 8 U.S.C. § 1252(b)(9). The

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Ninth Circuit has broadly interpreted this section to mean “that any issue—whether

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legal or factual—arising from any removal-related activity” is precluded from review in

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the federal district courts. See J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016)

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(emphasis in original). Section 1252(b)(9) “swallows up virtually all claims that are tied

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to removal proceedings” and channels them through the administrative removal

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process. See id.; 8 U.S.C. § 1252. Removal related claims are only judicially

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reviewable after issuance of a final order of removal, and only by the relevant circuit

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court. J.E.F.M., 837 F.3d at 1031. The denial of an I-829 petition is an action taken to

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remove an alien within the scope of section 1252. See Li v. United States Citizenship &

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Immigr. Servs., No. 5:21-CV-01259-AB-SHK, 2021 WL 6882637, at *2 (C.D. Cal. Dec. 2,

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2021). Upon denial of an I-829 petition, permanent residence status is terminated and

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a Notice to Appear issues which commences removal proceeding. See id.; 8 C.F.R.

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§ 216.6(d)(2).

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Despite Plaintiff’s attempts to excise his claim from the grip of section 1252 by

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challenging only the denial of his I-290B appeal, Plaintiff’s claim is fundamentally an

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indirect challenge to the underlying I-829 denial. Plaintiff appears to acknowledge

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that a direct challenge to the denial of the I-829 would be barred by section 1252, but

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argues that he may challenge the AAO’s discrete decision to affirm the denial of the I-

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829. (See Opp’n at 2 (“Perhaps if Mr. Dai was challenging his Form I-829 denial,

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USCIS’s arguments may prevail, but Mr. Dai is challenging the denial of his Form I-

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290B administrative appeal.”); FAC ¶ 30 (“The AAO’s decision affirming USCIS’s denial

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of Mr. Dai’s Form I-829 is a final agency action that aggrieved him.”).) While questions

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which are “collateral to, or independent of, the removal process” remain reviewable

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by a district court where otherwise proper, “[w]hen a claim by an alien, however it is

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framed, challenges the procedure and substance of an agency determination that is

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‘inextricably linked’ to . . . removal, it is prohibited . . . .” J.E.F.M., 837 F.3d at 1032

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(quoting Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012)). Although the

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AAO’s affirmation may be a technically separate action, the decision is “inextricably

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linked” to the procedure and substance of the I-829 denial. Plaintiff’s I-290B appeal

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sought to overturn USCIS’s determination on the I-829 which would have directly

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impacted the removal proceedings. Because of the direct nexus between the I-829

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denial and the I-290B denial, there is no way to consider the AAO’s action without

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invoking the I-829 denial and the removal proceedings themselves. Thus, Plaintiff’s

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claim arises from “an action taken . . . to remove an alien” which this Court has no

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jurisdiction to review.

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Further, the AAO’s affirmation of the I-829 denial is not a final agency action

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that is judicially reviewable by any court. The APA only permits judicial review of

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“final” actions. 5 U.S.C. § 704. An agency decision is not final and reviewable where

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the plaintiff maintains a right to renew their challenge in an administrative proceeding.

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Cabaccang v. U.S. Citizenship & Immigr. Servs., 627 F.3d 1313, 1316 (9th Cir. 2010).

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The denial of a Form I-829 is subject to review in removal proceedings. See Hui Ran
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Mu v. Barr, 936 F.3d 929, 931 (9th Cir. 2019) (”[An alien] may request review of the

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denial [of the I-829] in his or her removal proceedings.”); 8 C.F.R. § 216.6(d)(2); 8

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U.S.C. § 1186b(c)(3)(D). Here, because Plaintiff may request further review of the

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denial of the I-829 during his removal proceedings — and the Immigration Judge

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therefore has the ability to effectively overturn the AAO’s decision to affirm the I-829

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denial — the AAO’s decision did not result in a final agency action. “It is immaterial

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that this further review takes place in a different agency within a different executive

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department.” Cabaccang v., 627 F.3d at 1316. Accordingly, the AAO’s decision is not

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reviewable independent of the Court’s determination that the claims are

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jurisdictionally barred by section 1252.

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Because the Court has no jurisdiction to review the AAO’s decision, it must

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dismiss Plaintiff’s claim. There are no set of facts which could remedy the jurisdictional

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bar presented by section 1252. Further, if Plaintiff receives a reviewable final order of

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removal, it will be routed to the Ninth Circuit, not this Court. Thus, amendment would

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be futile, and the claims are hereby dismissed with prejudice. See Zucco Partners, LLC

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v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009), as amended (Feb. 10, 2009)

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(denial of leave to amend appropriate where amendment would be futile).

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IV.

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For the above reasons, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss

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Conclusion

(ECF No. 15) is GRANTED and Plaintiff’s FAC is dismissed with prejudice.
The Clerk of Court is directed to close this case.

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IT IS SO ORDERED.
Dated:

March 26, 2024
Hon. Daniel J. Calabretta
UNITED STATES DISTRICT JUDGE

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DJC2 — Dai23cv01402

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