Feria v. Johnson et al

Filing 18

ORDER: The Motion to Dismiss (Dkt # 15 ) is granted. The First Amended Complaint (Dkt # 14 ) is dismissed. Any motion for leave to file an amended complaint must be filed within two weeks of the date this Order is filed. If a motion for leave to file an amended complaint is not filed within two weeks of the date this Order is filed, the Clerk of the Court shall close the case. Signed by Judge William Q. Hayes on 1/13/2017. (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ARGELIA FERIA,

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CASE NO. 15cv1900-WQHKSC

Plaintiff,

vs.

ORDER

JEH JOHNSON, Secretary of
Homeland Security, et al.,
Defendants.

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16 HAYES, Judge:
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The matter before the Court is the Motion to Dismiss the First Amended
18 Complaint filed by Defendants (ECF No. 15).
19 I.
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Background
On August 28, 2015, Plaintiff Argelia Feria filed the Complaint (ECF No. 1)

21 against Defendant Jeh Johnson, Secretary of Homeland Security, and Loretta E. Lynch,
22 Attorney General of the United States, and Alanna Y. Ow, District Director of the
23 United States Citizenship and Immigration Service (collectively, “Defendants”)
24 pursuant to the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., and
25 the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. Id. On March 18,
26 2016, Defendants filed a motion to dismiss or, in the alternative, for summary
27 judgment. (ECF No. 7). On April 3, 2016, Plaintiff filed a response in opposition.
28 (ECF No. 8). On April 18, 2016, Defendants filed a reply. (ECF No. 9). On August
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1 18, 2016, the Court dismissed the Complaint for lack of jurisdiction. (ECF No. 10).
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The Court concluded that, “Because a credibility determination is a decision that

3 involves the exercise of discretion, the Court does not have jurisdiction to review a
4 challenge to an adjustment of status denial when the denial was based on the USCIS’s
5 determination that the applicant lacked credibility.” (ECF No. 10 at 6-7).
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On October 17, 2016, Plaintiff filed the First Amended Complaint against

7 Defendants pursuant to the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101
8 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. (ECF No.
9 14). On October 31, Defendants filed a motion to dismiss for lack of jurisdiction. (ECF
10 No. 15). On November 17, 2016, Plaintiff filed a response in opposition. (ECF No.
11 16). On November 28, 2016, Defendants filed a reply. (ECF No 17).
12 II.

Allegations of the Complaint

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In the First Amended Complaint, Plaintiff seeks “declaratory and injunctive relief

14 to compel Defendants and their subordinates to: (a) find . . . that Plaintiff was lawfully
15 ‘inspected and admitted’ into the United States under INA § 245; 8 U.S.C. 1255; (b)
16 reopen and re-adjudicate the Immigrant Petition (Form I-485 application) that was filed
17 by Plaintiff as an immediate relative spouse of a U.S. citizen; and (c) enjoin the
18 Defendants to continue the employment authorization for Mrs. Feria.” (ECF No. 14 at
19 1-2).
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Plaintiff alleges, “This Court has jurisdiction under 28 U.S.C. § 2241 (c) (1) &

21 (3), art I. § 9, cl. 2 of the United States Constitution (‘Suspension Clause’), and 28
22 U.S.C. § 1331, as Mrs. Feria was deprived of her right to have her immigration
23 application adjusted under the relevant statutes, laws and case interpretations of the
24 United States.” Id. at ¶ 1. “As such, the nondiscretionary denial of Mrs. Feria’s right
25 to have her I-485 Application for the Adjustment of Statute to Legal Permanent
26 Residence was in violation of the Constitution, laws, treaties, statutes, codes and case
27 laws of the United States.” Id. Plaintiff alleges, “This Court is not deprived of
28 jurisdiction by 8 U.S.C. § 1252(a)(2)(B) because this pleading alleges a
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1 nondiscretionary decision by Defendant, and a challenge based on constitutional
2 grounds.” Id.
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Plaintiff alleges that she

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entered into the United States in 2002 in a car through the San Ysidro,
California Port-of-Entry. She was in the vehicle with two other
individuals and was inspected and admitted into the United States by an
immigration officer. The officer stopped the car, asked questions of the
driver and then proceeded to allow the vehicle and the occupants to drive
into the United States. The officer did not speak to nor ask Plaintiff any
questions.

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8 Id. ¶ 17.
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Plaintiff alleges she is married to a United States citizen and has three children

10 who are United States citizens. Id. at ¶ 18. Plaintiff alleges she submitted an
11 Application to Register Permanent Resident or Adjust Status to the United States
12 Citizenship and Immigration Service (“USCIS”) “based on being an immediate relative
13 of a United States citizen, her eligibility to receive an immigrant visa, the immediate
14 availability of the immigrant visa, and her inspection and admission into the United
15 States.” Id. Plaintiff alleges she submitted evidence in support of her application,
16 including “a declaration as to her lawful admission and entry into the United States.”
17 Id.
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Plaintiff alleges she appeared at an immigrant interview at USCIS where she

19 “provided testimony regarding her inspection and admission into the United States.”
20 Id. at ¶ 20. “Plaintiff received a decision of denial from USCIS over two weeks after
21 the interview.” Id. at ¶ 21. Plaintiff alleges, “USCIS did NOT make a determination
22 that Plaintiff was not a credible witness. Instead, USCIS determined that Plaintiff was
23 ‘ineligible to adjust [her] status under Section 245 of the Act.’” Id. The decision of
24 denial letter stated:
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During your interview you stated on a record of sworn statement the
following: You last entered the United States from the San Ysidro Port of
Entry at around 9 in the morning of either the 28th or the 29th of June 2002
by car. You stated that you were 19 or 20 years old when you entered the
United States. You stated that you were sitting in the back of a car,
accompanied by a male driver and the person sitting next to you, both of
whom you claim to not know. You claimed that the Immigration Officer
only asked the driver for documentation and that you did not talk to the
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Officer. You claimed that you did not have documents allowing you to
enter into the United States. You also claimed that you were going to go
back to your house if you were refused entry into the United States. You
stated that your dad knew of your plans to come to the United States, that
he said it was dangerous, but that it was your choice and that you wanted
to be with your husband.
The documents in support of your claimed entry into the United States
have been reviewed and considered. The Agency deems your claim to be
insufficient and lacks convincing evidence because of the following
reason(s): Your claim that you entered the United States at the age of 19
or 20 years old while sitting in the back of a car with people you did not
know and your claim that you presented yourself for inspection and were
allowed to proceed into the United States without clarifying your status
lack credibility. In addition, system checks did not reveal any record that
you were ever issued any nonimmigrant visa to legally enter the United
States.
Because you have no proof of lawful entry and your claim that you were
admitted to the United States was insufficient and lacked convincing
corroborating evidence, you have failed to establish that you were
inspected and admitted or paroled into the United States. Therefore, you
are ineligible to adjust your status under Section 245 of the Act.

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Plaintiff alleges “Plaintiff is clearly eligible . . . as she met the requisite

15 requirements for adjustment of status in the United States.” Id. at ¶ 22. Plaintiff alleges
16 “Defendants violated Plaintiff’s statutory right to apply for relief which Congress has
17 provided under the INA, depriving Plaintiff of the opportunity to obtain adjustment of
18 status to lawful permanent resident and live lawfully in the United States under INA
19 §245.” Id. at ¶ 25. Plaintiff alleges “Defendants have unlawfully and erroneously
20 interpreted the definition of the term ‘inspected and admitted’ in INA §245 and based
21 thereon, found Plaintiff ‘ineligible’ to adjust her status.” Id. at ¶ 27. “Based on this
22 erroneous interpretation, Defendants have erroneously denied Plaintiff’s adjustment of
23 status application in violation of clear Congressional intent. Defendants’ decision was
24 nondiscretionary.” Id.
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Plaintiff requests that the Court order Defendants to “approve the I-485

26 application originally filed by Plaintiff” and “authorize her to legally work in the United
27 States through her Employment Authorization card until the ‘entry and inspection’ issue
28 is resolved by this Court.” Id. at 11. Plaintiff requests attorney’s fees and costs under
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1 the Equal Access to Justice Act. Id.
2 III.

Standards of Review

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Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state

4 a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Federal Rule of
5 Civil Procedure 8(a) provides that “[a] pleading that states a claim for relief must
6 contain . . . a short and plain statement of the claim showing that the pleader is entitled
7 to relief.” Fed. R. Civ. P. 8(a)(2). “A district court’s dismissal for failure to state a
8 claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a ‘lack of a
9 cognizable legal theory or the absence of sufficient facts alleged under a cognizable
10 legal theory.’” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011)
11 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)).
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“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

13 requires more than labels and conclusions, and a formulaic recitation of the elements
14 of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
15 (quoting Fed. R. Civ. P. 8(a)). “To survive a motion to dismiss, a complaint must
16 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
17 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
18 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
19 content that allows the court to draw the reasonable inference that the defendant is liable
20 for the misconduct alleged.” Id. (citation omitted). “[T]he tenet that a court must
21 accept as true all of the allegations contained in a complaint is inapplicable to legal
22 conclusions. Threadbare recitals of the elements of a cause of action, supported by
23 mere conclusory statements, do not suffice.” Id. (citation omitted). “In sum, for a
24 complaint to survive a motion to dismiss, the non-conclusory factual content, and
25 reasonable inferences from that content, must be plausibly suggestive of a claim
26 entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.
27 2009) (quotation omitted).
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1 IV.

Contentions of the Parties

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Defendants contend that the First Amended Complaint is “nearly identical to the

3 initial complaint.” (ECF No. 15-1 at 1). Defendants contend that the Court dismissed
4 Plaintiff’s initial Complaint because Plaintiff failed to allege facts to support an
5 inference that Defendants erroneously interpreted the definition of “inspected and
6 admitted” and because the USCIS credibility determination was a discretionary decision
7 not reviewable by this Court. Id. Defendants contend that Plaintiff has alleged no
8 additional facts in the First Amended Complaint to demonstrate that the Court has
9 subject matter jurisdiction. Id.
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Plaintiff contends that this Court properly has subject matter jurisdiction over the

11 action because the First Amended Complaint alleges a nondiscretionary USCIS decision
12 and constitutional claims. (ECF No. 16 at 3). Plaintiff contends that her allegations are
13 based on the nondiscretionary decision that Plaintiff was not eligible for adjustment of
14 status. Id. at 4. In the event that this Court dismisses the First Amended Complaint,
15 Plaintiff seeks leave to amend. Id. at 7.
16 V.

Discussion

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To qualify for adjustment of status to lawful permanent resident based on the

18 status of immediate family relations, an applicant must, among other things, establish
19 that she “was inspected and admitted or paroled into the United States.” 8 U.S.C. §
20 1255(a). The applicant has the burden to prove that she had been inspected and
21 admitted to the United States. See 8 C.F.R. § 1240.8.
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“The 2005 REAL ID Act limited the scope of federal court review respecting

23 certain immigration benefits determinations.” Mamigonian v. Biggs, 710 F.3d 936, 943
24 (9th Cir. 2013). Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), “Notwithstanding any other
25 provision of law . . . and regardless of whether the judgment, decision, or action is made
26 in removal proceedings, no court shall have jurisdiction to review— (i) any judgment
27 regarding the granting of relief under section . . . 1255 of this title . . . .” 8 U.S.C. §
28 1252(a)(2)(B)(i). The Ninth Circuit Court of Appeals has held that the REAL ID Act
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1 did not impact its earlier determination that the language of this jurisdiction-limiting
2 provision “eliminates jurisdiction only over decisions ... that involve the exercise of
3 discretion.” Mamigonian, 710 F.3d at 943 (quoting Montero-Martinez v. Ashcroft, 277
4 F.3d 1137, 1144 (9th Cir. 2002). “[D]istrict courts maintain jurisdiction to hear cases
5 under the APA challenging final agency determinations respecting eligibility for the
6 immigration benefits enumerated in § 1252(a)(2)(B)(i) made on nondiscretionary
7 grounds when there are no pending removal proceedings at which the alien could seek
8 those benefits.” Id. at 946.
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This Court properly has subject matter jurisdiction over Plaintiff’s claim only if

10 the USCIS decision to deny Plaintiff’s application for an adjustment of status was made
11 on nondiscretionary grounds. In the letter to Plaintiff attached to the First Amended
12 Complaint, the USCIS denies Plaintiff’s application and states,
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Your claim that you entered the United States at the age of 19 or 20 years
old while sitting in the back of a car with people you did not know and
your claim that you presented yourself for inspection were allowed to
proceed into the United States without clarifying your status lack
credibility. In addition, system checks did not reveal any record that you
were ever issued any nonimmigrant visa to legally enter the United States.

17 (ECF 14-1 at 2). Based upon this, USCIS determined that Plaintiff “failed to establish
18 that [she] was inspected and admitted or paroled into the United States” and deemed
19 Plaintiff to be ineligible for a status adjustment. Id. The First Amended Complaint
20 shows that the USCIS determination of Plaintiff’s ineligibility and denial of the
21 application was based on the determination that Plaintiff’s claims of being “inspected
22 and admitted” lacked credibility. In the Court’s previous Order dismissing the initial
23 Complaint, the Court stated “Because a credibility determination is a decision that
24 involves the exercise of discretion, the Court does not have jurisdiction to review a
25 challenge to an adjustment of status denial when the denial was based on the USCIS’s
26 determination that the applicant lacked credibility.” (ECF No. 13 at 3). Plaintiff’s First
27 Amended Complaint includes language alleging the legal conclusion that the USCIS
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1 decision was nondiscretionary but fails to allege sufficient facts in support of this
2 assertion. See Iqbal, 556 U.S. at 678 (“The tenet that a court must accept as true all of
3 the allegations contained in a complaint is inapplicable to legal conclusions.”).
4 Plaintiff fails to allege sufficient facts to support an inference that this Court has
5 jurisdiction on constitutional grounds or based on a nondiscretionary decision by the
6 USCIS. The Court concludes that the First Amended Complaint suffers from the same
7 deficiencies of the initial Complaint and lacks “a cognizable legal theory.” See
8 Conservation Force, 646 F.3d at 1242.
9 VI.
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Conclusion
IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 15) is granted.

11 The First Amended Complaint (ECF No. 14) is dismissed.
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IT IS FURTHER ORDERED that any motion for leave to file an amended

13 complaint must be filed within two weeks of the date this Order is filed.1 If a motion
14 for leave to file an amended complaint is not filed within two weeks of the date this
15 Order is filed, the Clerk of the Court shall close the case.
16 DATED: January 13, 2017
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WILLIAM Q. HAYES
United States District Judge

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Defendants did not request that the First Amended Complaint be dismissed with
prejudice in the motion to dismiss.
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