Kurth et al v. Holston et al

Filing 20

ORDER Granting 11 Motion to Dismiss for Lack of Jurisdiction. Case terminated. Signed by Judge James C. Mahan on 5/24/12. (Copies have been distributed pursuant to the NEF - MMM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 ERIC KURTH & GIRLIE KURTH, 9 10 11 2:11-CV-1638 JCM (PAL) Plaintiffs, v. LENADER B. HOLSTON, et al., 12 Defendants. 13 14 ORDER 15 Presently before the court is defendants Leander Holston, et. al.’s motion to dismiss. (Doc. 16 #11). Plaintiffs Eric and Girlie Kurth filed an opposition. (Doc. #14). Defendants then filed a reply. 17 (Doc. #15). 18 Plaintiff Girlie Kurth (“Ms. Kurth”), a citizen and national of the Philippines, entered the 19 United States on a fiancee visa on March 9, 2003. (Doc. #1). Ms. Kurth married Jessie Quintos 20 (“Quintos”) within 90 days of her arrival, and on June 26, 2003, she filed an application for 21 adjustment of status. (Doc. #1). While waiting for an interview with USCIS, Ms. Kurth’s father 22 became ill, and she was granted advance parole to leave the United States and reenter at a later date. 23 (Doc. #1). Ms. Kurth returned to the United States on February 17, 2004. (Doc. #1). 24 After her return, Ms. Kurth became involved with some domestic violence issues with her 25 then-husband Quintos, and she moved to Las Vegas. (Doc. #1). Ms. Kurth attended a USCIS 26 interview in Las Vegas, but Quintos refused to attend. Ms. Kurth’s 2003 application to adjust her 27 status was denied accordingly. (Doc. #1). 28 James C. Mahan U.S. District Judge 1 On July 1, 2010, Ms. Kurth divorced Quintos, and then married plaintiff Eric Kurth (“Mr. 2 Kurth”) on September 9, 2010. (Doc. #1). In 2011, Mr. Kurth filed a petition for an immigrant visa 3 for Ms. Kurth, and Ms. Kurth filed a second application for adjustment of status. (Doc. #1). USCIS 4 interviewed the Kurths on June 1, 2011. On July 8 and 9, 2011, USCIS approved Mr. Kurth’s 5 petition for an immigrant visa but denied Ms. Kurth’s application for adjustment of status. (Doc. 6 #1). The denial stated that the only way Ms. Kurth could adjust her status was to marry the petitioner 7 for the non-immigrant fiancee visa under which she entered the United States (i.e., Quintos). (Doc. 8 #1). Ms. Kurth was then placed in removal proceedings. (Doc. #1). 9 The complaint alleges that the United States Citizenship and Immigration Services 10 (“USCIS”) violated the Administrative Procedures Act (“APA”) by denying Ms. Kurth’s 2011 11 application for adjustment of status from non-immigrant to lawful permanent resident. (Doc. #1). 12 Plaintiffs request declaratory and injunctive relief. (Doc. #1). The complaint asserts jurisdiction 13 pursuant to 5 U.S.C. § 702, 28 U.S.C. § 2201, and Federal Rule of Civil Procedure 65. (Doc. #1). 14 Defendants now move to dismiss the complaint for lack of subject matter jurisdiction and 15 failure to state a claim. (Doc. #11). Defendants first argue that none of the cited provisions confer 16 jurisdiction on this court to hear this case. Therefore, the case should be dismissed for lack of 17 jurisdiction. (Doc. #11). Second, to the extent this court exercises jurisdiction, the complaint should 18 be dismissed for failure to state a claim upon which relief can be granted. (Doc. #11). 19 Legal standard 20 “Federal courts are courts of limited jurisdiction.” United States v. Marks, 530 F.3d 799, 810 21 (9th Cir. 2008). “A federal court is presumed to lack jurisdiction in a particular case unless the 22 contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 23 873 F.2d 1221, 1225 (9th Cir. 1989). “The party seeking to invoke the court’s jurisdiction bears the 24 burden of establishing that jurisdiction exists.” Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986). 25 I. Final agency action and exhaustion 26 Defendants first argue that this court does not have jurisdiction pursuant to 5 U.S.C. § 704 27 because USCIS’s 2003 denial of Ms. Kurth’s adjustment of status applications is not a final decision, 28 James C. Mahan U.S. District Judge -2- 1 and Ms. Kurth has not exhausted her administrative remedies. (Doc. #11). 2 Pursuant to 5 U.S.C. § 704, agency action is subject to judicial review only when it is either: 3 (1) made reviewable by statute, or (2) a “final” action “for which there is no other adequate remedy 4 in a court.” 5 U.S.C. § 704. “No statute authorizes judicial review over denials of status 5 adjustment,” so this case turns on whether the status adjustment denials were final agency actions 6 “for which there was no other adequate remedy.” Cabaccang v. U.S. Citizenship and Immigration 7 Services, 627 F.3d 1313, 1315 (9th Cir. 2010). 8 In Cabaccang, the Ninth Circuit held that the denial of adjustment of status by USCIS is not 9 a final agency action subject to judicial review during the pendency of removal proceedings. Id. at 10 1316. The immigration judge has “unfettered authority to modify or reverse USCIS’s denial of 11 [adjustment of status applications] regardless of USCIS’s prior determination.” Id. (citing 8 C.F.R. 12 §§ 1240.1(a)(1)(I), 1245.2(a)(1)(I)). “[T]he crucial consideration here is that the [immigration judge] 13 may completely wipe away USCIS’s prior decision.” Id. Consequently, during the pendency of 14 removal proceedings, “[d]istrict courts lack jurisdiction to review denials of status adjustment” 15 applications. Id. at 1317. 16 The Ninth Circuit’s Cabaccang decision controls the case currently before the court. 17 Removal proceedings are currently pending against Ms. Kurth, and this court lacks jurisdiction to 18 review the denial of Ms. Kurth’s status adjustment application. See Cabaccang, 627 F.3d at 1317. 19 Therefore, this court lacks jurisdiction under 5 U.S.C. § 704. Id. 20 II. Declaratory Judgment Act 21 Defendants next state that the Declaratory Judgment Act is not an independent basis for 22 jurisdiction. Plaintiffs respond that the declaratory judgment act confers enlarged remedies to settle 23 a justiciable claim. 24 The Declaratory Judgment Act “in no way modifies the district court’s jurisdiction, which 25 must properly exist independent of the” Declaratory Judgment Act. Countrywide Home Loans, 26 Inc. v. Mortgage Guar. Ins. Corp., 642 F.3d 849, 853 (9th Cir. 2011). 27 ... 28 James C. Mahan U.S. District Judge -3- 1 In the case at bar, plaintiffs plead the Declaratory Judgment Act as an independent source of 2 jurisdiction. (Doc. #1). Plaintiffs’ claim that the Declaratory Judgment Act confers enlarged 3 remedies is immaterial to this court’s jurisdictional analysis. Because the Declaratory Judgement 4 Act does not confer independent jurisdiction, this court must dismiss plaintiffs’ complaint to the 5 extent it asserts jurisdiction pursuant to the Declaratory Judgment Act. See Countrywide Home 6 Loans, Inc., 642 F.3d at 853. 7 III. Federal Rule of Civil Procedure 65 8 Finally, plaintiff asserts Federal Rule of Civil Procedure 65 as a jurisdictional basis. (Doc. 9 #1). Rule 65 is not an independent basis of jurisdiction. See FED. R. CIV. P. 82; Zepeda v. U.S. 10 Immigration and Naturalization Service, 753 F.2d 719, 727 (9th Cir. 1983). Further, to the extent 11 plaintiffs seek to review and enjoin USCIS’s decision to initiate removal proceedings, this court 12 lacks jurisdiction pursuant to 8 U.S.C. § 1252(g). See 8 U.S.C. § 1252(g); Jimenez-Angeles v. 13 Ashcroft, 291 F.3d 594, 599 (9th Cir. 2002). 14 Accordingly, 15 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants Leander 16 17 Holston, et. al.’s motion to dismiss (doc. #11) be, and the same hereby is, GRANTED. DATED May 24, 2012. 18 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -4-

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