Vasquez-Perez v. United States of America et al

Filing 10

ORDER Granting 3 Motion to Dismiss: This action is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction. Signed by Judge M. James Lorenz on 11/5/2009. (mjj) (kaj).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In addition to filing an opposition as provided in Civil Local Rule 7.1, Plaintiff also filed a response to Defendants' reply. After the moving party's reply brief, motion briefing 27 is closed, unless otherwise ordered by the court. See Civ. L. Rule 7.1. Plaintiff did not seek leave to court prior to filing his response to the reply. Accordingly, the response was improperly 28 filed. Counsel is advised that any further failure to comply with the Local Rules may lead to sanctions pursuant to Civil Local Rule 83.1. 26
09cv1179
1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

) ) Plaintiff, ) ) v. ) ) UNITED STATES, et al., ) ) Defendants. ) __________________________________ )

JORGE ARTURO VASQUEZ-PEREZ,

Civil No. 09cv1179-L(NLS) ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

Plaintiff is a Mexican citizen whose application for adjustment of status was denied by the United States Citizenship and Immigration Services. He brought this action pursuant to the Administrative Procedure Act, 5 U.S.C. § 701, et seq. ("APA"), contending that the denial of his application is based in a legal error. Defendants filed a motion to dismiss, arguing that this court lacks jurisdiction over the subject matter. Plaintiff opposed the motion.1 Because the court lacks jurisdiction, Defendants' motion is GRANTED. The parties agree that there is no judicial review of administrative agency decision where

1 a statute precludes judicial review. (Opp'n at 3; Reply at 1.) Judicial review of the order 2 denying Plaintiff's application for adjustment of status under 8 U.S.C. § 1255(i) is foreclosed by 3 8 U.S.C. § 1252, as amended by the REAL ID Act, Pub. L. No. 109-13, Stat. 231, Div. B (May 4 11, 2005). 5 6 7 8 9 Section 1252(a)(2)(B) expressly states in pertinent part: Notwithstanding any other provision of law (statutory or nonstatutory), . . . 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 under section . . . 1255 of this title . . ..

10 Because Plaintiff sought relief under section 1255, the court lacks jurisdiction to address his 11 complaint. See Hassan v. Chertoff, 543 F.3d 564, 566 (9th Cir. 2008). 12 Plaintiff maintains, however, that the decision to deny his section 1255 application was

13 not discretionary and that his complaint raises an issue of law rather than challenges a 14 discretionary decision. Assuming arguendo that section 1252(a)(2)(B) does not apply in 15 Plaintiff's circumstances, this court's jurisdiction is precluded by section 1252(a)(2)(D), which 16 provides in pertinent part: 17 18 19 Nothing in subparagraph (B) . . ., or any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of . . . questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

20 Because Plaintiff did not present his claim to a Court of Appeals, this court lacks jurisdiction to 21 address his claim. See Hassan, 543 F.3d at 566. 22 Plaintiff's argument that Hassan v. Chertoff is merely dicta is rejected. His reliance on

23 Romero-Torres v. Ashcroft, 327 F.3d 887 (9th Cir. 2003), and Gomez-Lopez v. Ashcroft, 393 24 F.3d 882 (9th Cir. 2005), is unavailing. Unlike in this case, in Romero-Torres and Gomez-Lopez 25 the petitions for review were filed directly with the Court of Appeals. 26 / / / / / 27 / / / / / 28 / / / / /
2
09cv1179

1

For the foregoing reasons, Defendants' motion to dismiss is GRANTED. This action is

2 DISMISSED WITHOUT PREJUDICE for lack of jurisdiction. 3 4 5 DATED: November 5, 2009 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3
09cv1179

IT IS SO ORDERED.

M. James Lorenz United States District Court Judge