Perez v. Lynch

Filing 16

ORDER. IT IS ORDERED that 11 defendant Loretta Lynch's motion to dismiss is GRANTED. The complaint is dismissed for lack of jurisdiction. The clerk of court is instructed to close this case. Signed by Judge Andrew P. Gordon on 9/20/17. (Copies have been distributed pursuant to the NEF - ADR)

Download PDF
1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 JACKIELYN PEREZ, 5 6 7 8 Case No. 2:16-cv-02048-APG-NJK Plaintiff, v. LORETTA E. LYNCH, Defendant. ORDER GRANTING MOTION TO DISMISS (ECF No. 11) 9 10 Plaintiff Jackielyn Perez files this action under the Administrative Procedures Act (APA) 11 to challenge the United States Citizenship and Immigration Services’ (USCIS) denial of her 12 motion to reopen the agency’s denial of her application to adjust her status. ECF No. 1. Perez 13 contends USCIS acted arbitrarily and capriciously in finding that she had not established that her 14 prior marriage was bona fide. 15 USCIS moves to dismiss, arguing that Perez has named the wrong party because the 16 Secretary of Homeland Security is the proper defendant. Additionally, USCIS argues that even if 17 Perez amended to name the proper party, amendment would be futile because the decision to 18 deny her motion to reopen was not arbitrary or capricious. 19 Perez responds that she presented her marriage certificate and her own testimony about 20 her marriage, but she admits she was unable to produce other proof that her first marriage was 21 bona fide. She contends she was unable to do so because of abuse in that marriage. She asserts 22 she did not have an attorney before, and she should be given another opportunity to present 23 testimony and evidence to establish her first marriage was bona fide. Perez disputes that her 24 application must be considered based on the initial petition regardless of a change in 25 circumstances. Finally, Perez requests leave to amend to name the proper defendant. 26 In reply, USCIS notes that since Perez filed the complaint, removal proceedings have been 27 initiated. USCIS contends Perez must pursue her remedies in those proceedings, not in this court. 28 1 2 I. BACKGROUND Perez was admitted to the United States in 2008 as a non-immigrant K-1 fiancée of a 3 United States citizen, Denn Andrew Dominguez Jose.1 Id. at 9. She filed an application for 4 adjustment of status. Id. However, neither Perez nor Jose appeared for the interview that was 5 scheduled in August 2009, so the application was denied. Id. 6 Jose filed for divorce in 2010. Id. Perez later married Akrhe Perez in February 2014 and 7 filed a second application for adjustment of status based on this second marriage. Id. Perez and 8 her second husband appeared for an interview in January 2016. Id. The USCIS denied the second 9 application because K-1 visa holders cannot adjust status except through their petitioning spouse 10 (here, Jose). Id. The USCIS found that Perez had provided a marriage certificate, thus 11 establishing the first marriage was legal, but concluded that Perez had not presented evidence that 12 the marriage was bona fide or that she was the victim of abuse by her first spouse. Id. 13 Perez moved to reopen. Id. The USCIS denied the motion to reopen. Id. The USCIS 14 concluded that Perez had not submitted any new evidence that was previously unavailable or any 15 evidence that the law was applied incorrectly. Id. 16 Perez filed the instant lawsuit under the APA on August 29, 2016. After the motion to 17 dismiss and Perez’s response had been filed, the Department of Homeland Security initiated 18 removal proceedings against Perez. ECF Nos. 11 (motion to dismiss filed February 21, 2017); 14 19 (opposition filed April 7, 2017); 15-1 (notice to appear dated April 12, 2017). 20 II. ANALYSIS 21 Because the Department of Homeland Security has initiated removal proceedings against 22 Perez, I lack jurisdiction under the APA to resolve her complaint. As explained in Cabaccang v. 23 U.S. Citizenship & Immigration Services, agency action is subject to judicial review under the 24 APA “only when it is either: (1) made reviewable by statute; or (2) a ‘final’ action ‘for which 25 26 27 28 1 A K-1 visa holder is a person who “is the fiancée or fiancé of a citizen of the United States . . . and who seeks to enter the United States solely to conclude a valid marriage with [a United States citizen] within ninety days after admission.” 8 U.S.C. § 1101(a)(15)(K)(i). Page 2 of 3 1 there is no other adequate remedy in a court.’” 627 F.3d 1313, 1315 (9th Cir. 2010) (quoting 5 2 U.S.C. § 704). “No statute authorizes judicial review over denials of status adjustment,” so the 3 question is whether the denial of Perez’s application, and the related motion to reopen, were final 4 agency actions “for which there [is] no other adequate remedy.” Id. 5 Here, Perez has another adequate remedy because the immigration judge has “unfettered 6 authority to modify or reverse USCIS’s denial of [her] application[], regardless of USCIS’s prior 7 determination.” Id. at 1316 (citing 8 C.F.R. §§ 1240.1(a)(1)(ii), 1245.2(a)(1)(i)). Consequently, 8 Perez’s application for adjustment of status is not final because she can renew it in the removal 9 proceedings. Id. Additionally, “the pendency of removal proceedings means [Perez] ha[s] not 10 exhausted [her] administrative remedies.” Id. It does not matter that the removal proceedings 11 commenced after Perez filed this lawsuit. Id. at 1317 (“Regardless of whether the Cabaccangs’ 12 removal proceedings began before this action, the pendency of removal proceedings now means 13 their claims are not ripe for judicial review.”). Consequently, I dismiss this complaint for lack of 14 jurisdiction. 15 III. CONCLUSION 16 IT IS THEREFORE ORDERED that defendant Loretta Lynch’s motion to dismiss (ECF 17 No. 11) is GRANTED. The complaint is dismissed for lack of jurisdiction. The clerk of court is 18 instructed to close this case. 19 DATED this 20th day of September, 2017. 20 21 22 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 Page 3 of 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?