Dai v. U.S. Citizenship and Immigration Services
Filing
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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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