Dasilva v. United States Department of Justice et al

Filing 17

ORDER AND REASONS granting MOTION to Dismiss for Lack of Jurisdiction. Signed by Judge Lance M Africk on 10/24/2012.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RAFAEL ELLWANGER DASILVA

CIVIL ACTION

VERSUS

No. 12-538 c/w 12-807
REF: BOTH CASES

U.S. ATTORNEY GENERAL, ET AL.

SECTION I

ORDER AND REASONS
In his complaint in DaSilva v. U.S. Attorney General, et al., No. 12-cv-538 (E.D. La. filed
February 29, 2012), Rafael Ellwanger DaSilva (“DaSilva”) seeks to compel defendants to adjudicate
his third Form I-485 application, filed on May 5, 2011.1 In his amended complaint in DaSilva v.
Mayorkas, et al., No. 12-cv-807 (E.D. La. filed March 27, 2012), DaSilva seeks to remedy
defendants’ “unlawful denial” of the third Form I-485 and to remedy the administrative closure of
his second Form I-485 application, filed on September 7, 2010.2
Before the Court is a Rule 12(b)(1) motion,3 filed by defendants, U.S. Attorney General, et
al., to dismiss both actions for lack of subject matter jurisdiction. DaSilva opposes the motion4 and
defendants have filed a reply.5 The parties do not dispute that removal proceedings are ongoing.6 For
the following reasons, the motion to dismiss is GRANTED.

1

R. Doc. No. 1.
R. Doc. No. 15, ¶¶ 4, 96. DaSilva refers to this as his second petition at times, apparently
not counting his first petition, which was filed during his prior marriage.
3
R. Doc. No. 22.
4
R. Doc. No. 31.
5
R. Doc. No. 38.
6
R. Doc. No. 37.
2

1

BACKGROUND
DaSilva’s First Petition
DaSilva, a Brazilian citizen, lawfully entered the United States on a tourist visa on March
28, 2006.7 He married Katrina McCarty, a U.S. citizen, on February 23, 2007.8 On June 20, 2008,
McCarty filed a Form I-130 petition for alien relative, and DaSilva filed a Form I-485 application
for adjustment of status with U.S. Citizenship and Immigration Services (“USCIS”).9 A USCIS
officer approved both forms. DaSilva acquired two-year conditional permanent resident status on
November 4, 2008.10 Before the two years expired, on April 15, 2010, DaSilva and McCarty
divorced.11 Accordingly, they never filed a Form I-751 petition to remove conditions on residence
status.12
DaSilva’s Second Petition
On April 20, 2010, DaSilva married Brea Krausser (“Krausser”), a U.S. citizen.13 On the
basis of his marriage to Krausser, DaSilva filed a second Form I-485 on September 7, 2010.14
DaSilva’s two-year conditional permanent resident status, related to his first marriage, terminated
on November 4, 2010.15
7

R. Doc. No. 15, ¶ 8. All background “facts” are factual allegations contained in
DaSilva’s complaints, with the exception of the parties’ stipulation that he is currently in
removal proceedings. R. Doc. No. 37. DaSilva’s amended complaint is unclear on that point. See
R. Doc. No. 15, ¶¶ 80, 84 (“waiting indefinitely until USCIS decides at its will to place Plaintiff
in removal proceedings is futile . . . . [DaSilva’s family] could wait forever if Defendants decide
to never put Plaintiff into removal proceedings. . . .”).
8
Id. ¶ 27.
9
Id. ¶ 28.
10
Id. ¶ 29.
11
Id. ¶¶ 3, 29.
12
Id.
13
Id. ¶ 27.
14
Id. ¶¶ 4, 33.
15
Id. ¶¶ 3, 29.
2

On January 5, 2011, DaSilva and Krausser attended a marriage interview with USCIS Officer
Mary Patin.16 Because Patin suspected marriage fraud, she interviewed them separately.17 During
these interviews, Officer Patin “pelted Plaintiff and his wife separately with questions about why
the couple was living together before they were married and why they had a child out of wedlock.”18
After the interview, Officer Patin stated she would “refuse to adjudicate” Plaintiff’s Form I-485.19
Although the Form I-130 was approved, the Form I-485 was “administratively closed” at some
point.20
Concerned by Officer Patin’s statement that she would not adjudicate his second Form I-485,
DaSilva filed a Form I-751 petition to remove conditions on residence on January 18, 2011.21 He
based this Form I-751 petition on his first Form I-485 application which was associated with his first
marriage.22 USCIS issued a Form I-751 receipt notice stating DaSilva could lawfully remain in the
United States until January 18, 2012, or during the pendency of the Form I-751.23 Despite this
notice, DaSilva received a notice of termination of conditional residence dated February 9, 2011.24
On March 21, 2011, DaSilva received a notice to appear related to the commencement of removal
proceedings.25 On April 18, 2011, DaSilva withdrew his Form I-751 petition, concerned that its
presence might impede the adjudication of his second Form I-485 petition.26

16

Id. ¶ 36.
Id.
18
Id.
19
Id. ¶ 37.
20
Id. ¶ 38,
21
Id. ¶ 39.
22
Id. ¶ 39.
23
Id. ¶ 40.
24
Id.
25
Id. ¶ 42.
26
Id. ¶ 44.
17

3

DaSilva’s Third Petition
On May 5, 2011, DaSilva filed a third Form I-485 (his second Form I-485 premised on his
marriage to Krausser).27 Krausser and DaSilva attended a marriage interview (their second) with
Officer Patin on August 4, 2011.28 According to DaSilva, his individual interview focused solely on
his first marriage in an “obvious fishing expedition to gather evidence for a marriage fraud case.”29
At the advice of counsel, DaSilva refused to sign the answers Officer Patin had written down during
the interview because they were “completely false” and part of “an obvious set-up attempt by
Officer Patin to place Plaintiff in removal proceedings.”30
On September 8, 2011, DaSilva’s counsel complained to USCIS District Director Cindy
Gomez that Officer Patin was refusing to adjudicate DaSilva’s applications.31 DaSilva alleges that
various conversations on October 11, 2011, show that Officer Patin was attempting to “circumvent
the law to punish Plaintiff for complaining about her by unlawfully throwing Plaintiff into removal
proceedings.”32 On October 31, 2011, DaSilva, through counsel, mailed Director Gomez a second
complaint detailing Officer Patin’s “vendetta.”33
On December 15, 2011, DaSilva’s counsel was informed that DaSilva’s third Form I-485
petition was still pending with Officer Patin.34 DaSilva notified Director Gomez on January 17,
2012, that he would file a federal lawsuit should Director Gomez and Officer Patin continue to

27

Id. ¶ 47.
Id. ¶ 50.
29
Id.
30
Id.
31
Id. ¶ 51.
32
Id. ¶ 55.
33
Id. ¶ 59.
34
Id. ¶ 60.
28

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refuse to adjudicate his Form I-485.35 On February 13, 2012, DaSilva’s counsel inquired and was
again told that DaSilva’s Form I-485 application was still pending.36
DaSilva filed a complaint on February 29, 2012, for “injunctive and mandamus relief,”
requesting that the Court compel the adjudication of his third Form I-485 application.37 That same
day, DaSilva also received a notice of decision on his third Form I-485 application. The decision
stated that because DaSilva was already a conditional resident, his third Form I-485 would be
denied.38 DaSilva filed a second civil action on March 26, 2012, and his actions were consolidated
on April 24, 2012.39
On July 10, 2011, USCIS Field Office Director Jonathan Crawford issued a notice of
termination of conditional status, stating that DaSilva’s conditional resident status had been
terminated effective November 4, 2010.40 The notice further stated that DaSilva could request a
review of this determination while in removal proceedings. DaSilva was placed in removal
proceedings the next day.41
On July 30, 2012, DaSilva filed his amended complaint in case number 12-807.42 While his
original complaint sought to compel the adjudication of his Form I-485 application, the amended
complaint requests that the Court review that adjudication, arguing that the denial of his application
violates governing statutes and regulations as well as the Constitution.

35

Id. ¶ 61.
Id. ¶ 62.
37
R. Doc. No. 1, ¶ 90.
38
R. Doc. No. 15, ¶ 67.
39
R. Doc. Nos. 4, 15, ¶ 65.
40
R. Doc. No. 15, ¶ 69.
41
R. Doc. No. 37.
42
R. Doc. No. 15.
36

5

In his amended complaint, DaSilva alleges, among other things, that certain individual
defendants unconstitutionally denied his Form I-485 application because he and his second wife had
their child before they were married and while he was still married to his first wife.43 DaSilva also
alleges that “[d]efendants continue to force Plaintiff to remain a Conditional Permanent Resident for
the sole purpose of unlawfully blocking him from applying for permanent residents status.”44 He
further alleges that defendants have demanded he file another Form I-751 based on his first marriage,
solely to “embark on another unlawful fishing expedition.”45
STANDARD OF LAW
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of an action
where the court finds that it does not have subject matter jurisdiction. Rule 12(b)(6) provides for
dismissal for failure of a party to state a claim for which relief can be granted. Where “a Rule
12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule
12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.
1977)).
A motion to dismiss for lack of subject matter jurisdiction should be granted “only if it
appears certain that the plaintiff cannot prove any set of facts in support of his claim that would
entitle plaintiff to relief.” Ramming, 281 F.3d at 161. Lack of subject matter jurisdiction may be
found through an examination of: (1) the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus

43

R. Doc. No. 15, ¶ 30.
Id. ¶ 63.
45
Id. ¶ 63.
44

6

the court's resolution of disputed facts. See id. Because the burden of proof on a motion to dismiss
for lack of subject matter jurisdiction is on the party asserting jurisdiction, plaintiff “constantly bears
the burden of proof that jurisdiction does in fact exist.” See Ramming, 281 F.3d at 161 (citing
McDaniel v. United States, 899 F. Supp. 305, 307 (E.D. Tex. 1995), and Menchaca v. Chrysler Credit
Corp., 613 F.2d 507, 511 (5th Cir. 1980)).
DISCUSSION
DaSilva contends that there is subject matter jurisdiction because he presents a federal
question under the Mandamus Act, the Declaratory Judgment Act, the All Writs Act, and the
Administrative Procedure Act (“APA”).46 Mandamus relief is inappropriate because, as discussed
below, an adequate alternative remedy exists: the adjudication of his claims in immigration court and
potential appeals to the Bureau of Immigration Appeals (“BIA”) and the U.S. Court of Appeals for
the Fifth Circuit. See Jones v. Alexander, 609 F.2d 778, 781 (5th Cir. 1980). Neither the Declaratory
Judgment Act nor the All Writs Act provides an independent basis for jurisdiction. Id.; Brittingham
v. Commissioner, 451 F.2d 315, 317 (5th Cir. 1971). The Court proceeds to DaSilva’s claim that
jurisdiction exists under the APA.
The APA provides for judicial review of an agency action which is final and “for which there
is no other adequate remedy.” Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011). “If there is no
final agency action, a federal court lacks subject matter jurisdiction.” Id. An agency action is not final
“when removal proceedings are pending.” Id. (quoting Cabacang v. USCIS, 627 F.3d 1313, 1317 (9th

46

R. Doc. No. 15, ¶¶ 17-18; R. Doc. No. 1, ¶ 15.
7

Cir. 2010)). The APA does not support jurisdiction in this case because removal proceedings are
pending.47
Separate from the APA’s general finality requirement, 8 U.S.C. § 1252(a)(2)(B) expressly
strips courts of subject matter jurisdiction to review discretionary adjustment of status decisions.
According to Fifth Circuit precedent, “The law makes clear that we and the district court lack
jurisdiction over determinations made with respect to an I-485 application for permanent resident
status under § 1255” because those decisions are discretionary. Ayanbadejo v. Chertoff, 517 F.3d 273,
277 (5th Cir. 2008).
DaSilva contends that defendants’ denial of his Form I-485 application was not a
discretionary decision. Accordingly, he argues, 8 U.S.C. § 1252(a)(2)(B)’s jurisdiction-stripping
provision does not apply.48 See Bokhari v. Holder 622 F.3d 357, 359-60 & n.1 (5th Cir. 2010); Pinho
v. Gonzales, 432 F.3d 193, 203-04 (3d Cir. 2005). Because the Court concludes that the agency action
is not yet final, this Court need not reach DaSilva’s arguments regarding whether the USCIS decision
was discretionary.49

47

DaSilva’s arguments pursuant to 5 U.S.C. § 555(b) relate to agency inaction, which is
not at issue given that the parties agree removal proceedings are ongoing. Compare Bian v.
Clinton, et al., 605 F.3d 249, 255 (5th Cir. 2010) (concluding Congress has precluded judicial
review of the USCIS’s pace of adjudication), vacated as moot, Nos. 09-10568, 09-10742, 2010
WL 3633770 (5th Cir. Sept. 16, 2010).
48
Id. ¶ 20.
49
The Fifth Circuit “has repeatedly held that discretionary relief from removal, including
an application for an adjustment of status, is not a liberty or property right that requires due
process protection.” Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006).
8

DaSilva claims that the denial of his Form I-485 application violates his constitutional right
to procedural due process. He also brings a Bivens action against Officer Patent and Director Gomez.
Cloaking his immigration-law claims as constitutional claims does not circumvent the lack of subject
matter jurisdiction. See Aguilera v. District Director, 432 F. App’x 916, 918 (11th Cir. 2011). While
constitutional claims “are exempted from the category of non-reviewable decisions left to the
discretion of the Attorney General,” those claims will be subject to review by the Fifth Circuit,
following the entry of a final removal order. Ayanbadejo, 517 F.3d at 277; see also 8 U.S.C. §
1252(a)(2)(D). “To the extent Congress decided to permit judicial review of a constitutional or legal
issue bearing upon the denial of adjustment of status, it intended for the issue to be raised to the court
of appeals during removal proceedings.” Lee v. USCIS., 592 F.3d 612, 620 (4th Cir. 2010) (citing
Hassan v. Chertoff, 543 F.3d 564, 566 (9th Cir. 2008)).
For the foregoing reasons,
DaSilva’s motions50 to strike statements and exclude evidence are DISMISSED as MOOT.
Defendants’ motion51 to dismiss for lack of subject matter jurisdiction is GRANTED and
DaSilva’s complaints are DISMISSED WITH PREJUDICE.
Defendants have filed an additional motion52 for dismissal pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure. In light of this Court’s conclusion that it lacks

50

R. Doc. Nos. 28, 40.
R. Doc. No. 22.
52
R. Doc. No. 23.
51

9

subject matter jurisdiction over DaSilva’s claims, defendants’ additional grounds in support of its
motion for dismissal are not considered.
New Orleans, Louisiana, October 24, 2012.
__________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

10