Jean Jacques et al v. Wolf et al

Filing 17

ORDER granting 12 Motion to Dismiss in accordance with attached order and directing the clerk to terminate any pending motions/deadlines and to close the case. Signed by Judge William F. Jung on 9/11/2020. (CCM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ESPERANDIEU JEAN JACQUES
and MATILDE PIERRE GILES,
Plaintiffs,

v.

No: 8:20-CV-01296-02-SPF

CHAD F. WOLF, as Acting Secretary,
Dep’t of Homeland Security; and
KEN CUCCINNELLI, as Acting Director,
Citizen and Immigration Services,
Defendants.
__________________________________/
ORDER GRANTING MOTION TO DISMISS
This matter comes before the Court on Defendants’ Motion to Dismiss, Doc.
12, and Plaintiffs’ Response in Opposition, Doc. 14. Plaintiff Esperandieu Jean
Jacques seeks review of the United States Citizenship Immigration Services’
(“USCIS”) decision to deny his I-485 application. Doc. 1. Defendants argue
Jacques’s complaint should be dismissed for lack of subject-matter jurisdiction.
Doc. 12. The Court held a hearing on the matter on September 2, 2020. Doc. 16.
With the benefit of briefing and oral argument, the Court grants the Motion to
Dismiss Plaintiff Jacques’s complaint. The parties agree that Plaintiff Matilde

Pierre Giles received the relief she was seeking in a recent administrative ruling;
thus, her complaint here is dismissed as moot.
FACTUAL BACKGROUND
Plaintiff Jacques is a citizen of Haiti. Doc. 1 at 3. He entered the United
States illegally in 2005, without admission or inspection. Id. Shortly after entering,
Plaintiff applied for asylum. Id. An immigration judge in 2007 ordered Plaintiff
removed from the United States. Doc. 1 at 4. Plaintiff subsequently appealed this
order to the Board of Immigration Appeals, but the Board dismissed the appeal in
2008. Id. Plaintiff did not depart the United States and was not physically removed
by authorities. The removal order against Plaintiff has remained in place since
2007 and is still extant. Doc. 14 at 10.
In 2010, the Attorney General provided Haitian aliens temporary protected
status (“TPS”) due to an earthquake in Haiti. Doc. 1 at 4. TPS for Haitian aliens
does not expire until 2021. See Continuation of Documentation for Beneficiaries of
Temporary Protected Status Designations for El Salvador, Haiti, Honduras, Nepal,
Nicaragua, and Sudan, 84 Fed. Reg. 59,403 (Nov. 4, 2019).
While living in the United States on TPS, Plaintiff traveled overseas several
times and returned to the United States after each trip. Doc. 1 at 5. Plaintiff
facilitated this travel by using a Form I-512L. Id. This form—“Authorization for
Parole of an Alien into the United States”—confirms that a traveling alien may
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reenter the United States upon, and retain, the same TPS status the alien had when
he or she left the United States. See Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991, Pub. L. No. 102-232, § 304(c)(1)(A), 105
Stat. 1733, 1749. Plaintiff’s most recent travel under Form I-512L was in January
2017, when Plaintiff reentered the United States at Port Everglades, Florida, using
this parole document. Doc. 1 at 5.
Plaintiff married Matilde Pierre Giles, a U.S. citizen, in April 2017. Id.
Giles—as a citizen spouse of the alien Plaintiff—then filed a Form I-130, “Petition
for Alien Relative.” Id. at 6. This form is the first step in helping eligible relatives
of U.S. citizens apply for Permanent Resident Cards, commonly known as Green
Cards. See United States v. Palomino Garcia, 606 F.3d 1317, 1324 (11th Cir.
2010).
In September 2018, while Giles’s Petition was pending, Plaintiff submitted a
Form I-485 to USCIS. Doc. 1 at 6. This form is an application to “Register
Permanent Residence or Adjust Status.” Id. Through this application, Plaintiff
sought to readjust his present status of removable alien and begin his process of
obtaining permanent residency. Id.
USCIS denied Giles’s Form I-130 spousal petition in January 2019. Id. Giles
sought a rehearing on the issue, leading USCIS to reopen the case in July 2020.

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Doc. 12 at 1 n.1. USCIS ultimately granted her spousal petition in August 2020,
thereby mooting her claim here.
In November 2019, Defendant USCIS denied Plaintiff Jacques’s Form I-485
Petition. Doc. 1 at 6. Plaintiff says USCIS denied his Form I-485 Petition “on
grounds that Plaintiff Jacques had filed the Form I-485 after USCIS had denied
[Giles’s] Form I-130.” Id.
Plaintiff Jacques then filed this suit under the Administrative Procedures Act
(“APA”), stating that denial of his Form I-485 was a final agency action within the
meaning of the APA, 5 U.S.C. § 702. Doc. 1 at 6. He claims the agency’s denial of
his I-485 Petition was arbitrary and capricious, constituting an abuse of discretion
that violated 5 U.S.C. § 706(2). Id. at 7. He asks this Court to enter an injunction
compelling USCIS to reconsider and adjudicate his Form I-485 readjustment
petition appropriately. Id. at 7-8. Plaintiff also asks this Court for fees and costs. Id.
at 8. Defendants argue that the jurisdiction for any adjustment to Plaintiff’s status
resides with an immigration judge and, eventually, the court of appeals on review.
Doc. 12 at 7. Plaintiff retorts that Defendants are wrong as a matter of law, arguing
that USCIS has jurisdiction and must adjudicate his Form I-485 Petition. Doc. 14
at 1.

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LEGAL STANDARD
A complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a), set forth in “numbered
paragraphs each limited as far as practicable to a single set of circumstances,” Fed.
R. Civ. P. 10(b). Thus, to survive a Rule 12(b)(6) motion to dismiss, the complaint
“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Courts must also view the
complaint in the light most favorable to the plaintiff and resolve any doubts as to
the sufficiency of the complaint in the plaintiff’s favor. Hunnings v. Texaco, Inc.,
29 F.3d 1480, 1483 (11th Cir. 1994) (per curiam). A claim is plausible on its face
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. The Court accepts Plaintiffs’ factual allegations as true at this
stage. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th
Cir. 1997).
A defendant may attack subject-matter jurisdiction in two manners: facially
and factually. McMaster v. United States, 177 F.3d 936, 940 (11th Cir. 1999). A
facial attack to subject-matter jurisdiction requires that the court assess, taking the
allegations of the complaint as true, whether the complaint sufficiently alleges a
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basis for jurisdiction. Fed. R. Civ. P. 12(b)(1). By contrast, in assessing a factual
challenge to subject-matter jurisdiction, the court may consider matters outside of
the complaint. McMaster, 177 F.3d at 940. This is a facial challenge. If a court
finds at any point in the litigation that it lacks subject-matter jurisdiction over an
action, it must dismiss the complaint. Fed. R. Civ. P. 12(h)(3).
LEGAL ANALYSIS
The Immigration and Nationality Act (“INA”) limits which courts have
jurisdiction to hear challenges against removal orders. See 8 U.S.C. § 1252(a)(5)
(“[A] petition for review filed with an appropriate court of appeals in accordance
with this section shall be the sole and exclusive means for judicial review of an
order of removal[.]”); see also § 1252(b)(9) (consolidating “all questions of law
and fact, including interpretation and application of constitutional and statutory
provisions” into judicial review by the circuit court of appeals). Federal district
courts do not have jurisdiction over challenges against removal orders, regardless
of whether such challenges are direct or indirect. See Del Carmen Espinosa v.
Swacina, No. 19-21315-civ, 2019 WL 6682836, at *2 (S.D. Fla. Dec. 6, 2019)
(citing Singh v. U.S. Citizenship & Immigr. Servs., 878 F.3d 441, 445 (2d Cir.
2017), as amended (Jan. 9, 2018)); see also Delgado v. Quarantillo, 643 F.3d 52,
55 (2d Cir. 2011). Moreover, district courts lack jurisdiction over challenges to
decisions that are “inextricably linked” to removal orders. See Morales-Izquierdo
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v. Dep’t of Homeland Sec., 600 F.3d 1076, 1082-83 (9th Cir. 2010), overruled in
part on other grounds by Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir.
2012) (en banc).
The jurisdiction rules differ for “arriving aliens.” See 8 C.F.R. §
1245.2(a)(1). USCIS generally has jurisdiction over cases in which an arriving
alien in removal proceedings seeks an adjustment of his or her status. See id.; see
also Scheerer v. U.S. Atty. Gen., 513 F.3d 1244, 1251 (11th Cir. 2008) (finding that
arriving aliens generally must file their adjustment applications with USCIS rather
than before an Immigration Judge). An “arriving alien” is:
an applicant for admission coming or attempting to come into the
United States at a port-of-entry, or an alien seeking transit through the
United States at a port-of- entry, or an alien interdicted in international
or United States waters and brought into the United States by any
means, whether or not to a designated port-of-entry, and regardless of
the means of transport. An arriving alien remains an arriving alien
even if paroled pursuant to section 212(d)(5) of the Act, and even
after any such parole is terminated or revoked.
8 C.F.R. § 1.2.
Here, Defendants argue an immigration judge has exclusive jurisdiction over
Plaintiff’s claims. Doc. 12 at 2. According to Defendants, Plaintiff’s case amounts
to an impermissible attack on the final order of deportation. Id. Plaintiff was
ordered deported in 2007 and remains under that order; he cannot now indirectly
attack the order in an inappropriate forum. Id. Accordingly, Defendants argue an

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immigration judge controls any adjustment to Plaintiff’s status in removal
proceedings and this Court therefore lacks subject-matter jurisdiction. Id.
Plaintiff argues USCIS has jurisdiction over his claims. Doc. 14 at 11. In an
inventive but not original argument, Plaintiff says his travels abroad and
subsequent returns to the United States—made possible by his TPS—turned him
into an “arriving alien.” Id. at 13. Just like other arriving aliens, Plaintiff claims he
is now subject to USCIS jurisdiction. Id. at 14. Essentially, Plaintiff argues his
foreign travels fulfilled the 2007 removal order, allowing him to return to the
United States anew and cleansed of his prior status. Id. at 15.
The problem with Plaintiff’s theory is there is no legal precedent to support
it. In fact, there is sound precedent against it. See, e.g., Del Carmen Espinosa, 2019
WL 6682836, at *1 (ruling that an alien under deportation order and traveling
under TPS did not qualify as an “arriving alien” to invest USCIS with jurisdiction
over her adjustment of status); Gonzalez v. Mayorkas, No. 1:13-cv-1230, 2014 WL
585863, at *5 (E.D. Va. Feb. 12, 2014), aff’d sub nom. 585 F. App’x 130 (4th Cir.
2014) (same). USCIS even released a policy memorandum in August 2020
expressly rejecting Plaintiff’s argument. See USCIS Policy Memorandum PM 6020179, Matter of Z-R-Z-C-, Adopted Decision 2020-02 (AAO) (Aug. 20, 2020).
As such, Plaintiff is not an “arriving alien” by dint of his short travels. He
has lived in the United States for over a decade in both illegal and lawful status. He
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has never permanently left the United States since being ordered deported. In fact,
were Plaintiff to argue otherwise, he would be disqualified from TPS. See 8 U.S.C.
§ 1254a(c)(3)(B) (providing that the Attorney General shall withdraw TPS when
an alien has not remained continuously present in the United States); but c.f. 8
U.S.C. § 1254a(c)(4) (stating that “brief, casual, and innocent departures” from the
United States do not violate TPS). Plaintiff did not satisfy and abrogate the final
removal order when he “removed” himself for a short vacation overseas secure in
the knowledge that his TPS papers would enable his reentry unimpeded.
Thus, Plaintiff’s status remained unchanged by his travels. Aliens who have
been granted TPS and who are permitted to temporarily travel abroad “shall be . . .
admitted in the same immigration status the alien had at the time of departure”
when they return to the United States. § 304(c)(1)(A), 105 Stat. 1733.1
Accordingly, when Plaintiff returned to the United States from his overseas travels,
he entered with the same immigration status he had when he departed: as an alien
who entered without inspection, who was ordered removed after hearing and
appeal, and who was then granted TPS due to a natural disaster in his homeland.
Plaintiff’s short travels did not transform this status.
Therefore, the Court finds that the relief sought—an injunction compelling
Defendants to adjudicate Plaintiff’s Form I-485—is an indirect challenge to the 2007

1

These provisions appear as a note to 8 U.S.C. § 1254(a).

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order of removal. See Lambert v. Sec’y, Dep’t of Homeland Sec., No. 6:19-cv-59ORL-40LRH, 2019 WL 2411226, at *1 (M.D. Fla. June 7, 2019) (“The substance
of the relief sought—an order requiring Defendants to reopen and ‘properly
adjudicate’ [alien’s] Form I-485—is an indirect challenge to the order of removal
against [alien].”). Because federal district courts lack subject-matter jurisdiction
over indirect challenges to removal orders, as well as challenges to decisions that
are “inextricably linked” to removal orders, this Court must dismiss the complaint
with prejudice for lack of subject-matter jurisdiction.2 The complaint is not
amenable to cure as there is no jurisdiction here.
CONCLUSION
Defendants’ Motion to Dismiss (Doc. 12) is GRANTED, and the action is
DISMISSED. The Clerk is directed to terminate any pending motions and
deadlines and to close the case.
DONE AND ORDERED at Tampa, Florida, on September 11, 2020.

/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE

Because the Court is dismissing Plaintiff’s claims on jurisdictional grounds, the Court need not
address the remaining arguments presented in Defendants’ motion. See Boda v. United States,
698 F. 2d 1174, 1177 n.4 (11th Cir. 1983) (explaining that “[w]here dismissal can be based on
lack of subject matter jurisdiction and failure to state a claim, the court should dismiss on only
the jurisdictional grounds.”).
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COPIES FURNISHED TO:
Counsel of Record

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