Melendez v. Duke et al

Filing 13

MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
§
v.
§
§
KIRSTJEN M. NIELSEN, Secretary of §
Homeland Security, et al.,
§
Defendants.
§

May 09, 2018
David J. Bradley, Clerk

OSCAR ERNESTO MELENDEZ,
Plaintiff,

CIVIL ACTION NO. H-17-3463

MEMORANDUM AND ORDER
This case is before the Court on the Motion to Dismiss [Doc. # 10] filed by
Defendants Kirstjen M. Nielsen, Secretary of the United States Department of
Homeland Security, Lee F. Cissna, Director of the United States Citizenship and
Immigration Services (“USCIS”), and Mark Seigl, Houston Field Office Director,
USCIS. Defendants argue that the case should be dismissed pursuant to Rule 12(b)(1)
of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction.1
Plaintiff Oscar Ernesto Melendez filed an Opposition [Doc. # 11], and Defendants
filed a Reply [Doc. # 12]. Having reviewed the record, the applicable statutes, and the
governing legal authorities, the Court grants the Motion to Dismiss.

1

Defendants moved in the alternative for dismissal pursuant to Rule 12(b)(6) for failure
to state a claim upon which relief can be granted. Because the Court lacks subject
matter jurisdiction, it need not address the Rule 12(b)(6) aspect of Defendants’
motion.

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I.

BACKGROUND
Plaintiff is a citizen of El Salvador. He entered the United States on February 7,

2000, with a B1/B2 nonimmigrant visa. Plaintiff’s visa expired on March 6, 2000,
after which he remained in the United States without lawful status.
On March 9, 2001, the Attorney General of the United States designated El
Salvador under the Temporary Protected Status (“TPS”) program. TPS status
prevents removal of an alien from the United States during the period of time the
alien’s home country is designated under the TPS program.

See 8 U.S.C.

§ 1254a(a)(1)(A), (b)(1). Upon receiving TPS status, Plaintiff was deemed to be in
lawful status. See 8 U.S.C. § 1254a(f)(4).
On July 11, 2016, Plaintiff submitted a Form I-485 seeking to adjust his status
to lawful permanent resident pursuant to 8 U.S.C. § 1255. On September 26, 2017,
Plaintiff’s application was denied because he had not maintained continuous lawful
status since his entry into the United States.2 See Decision, Exh. to Motion to
Dismiss. Under certain conditions, an alien’s status may be adjusted by the Attorney
General, “in his discretion and under such regulations as he may prescribe,” to that of

2

Plaintiff asserts that the “only basis” for the USCIS Decision was that “the agency did
not consider TPS as an admission or inspection” for status adjustment under
§ 1255(a). See Complaint, ¶ 33. The Decision, however, is based on Plaintiff’s
failure to maintain continuous lawful status since his entry into the United States.

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an alien lawfully admitted for permanent residence. See 8 U.S.C. § 1255(a). Under
regulations governing adjustments to status pursuant to § 1255(a), certain categories
of aliens are ineligible for adjustment of status to that of a lawful permanent resident
alien. See 8 C.F.R. § 245.1. One such category includes, with certain exceptions:
Any alien who files an application for adjustment of status on or after
November 6, 1986, who has failed (other than through no fault of his
or her own or for technical reasons) to maintain continuously a lawful
status since entry into the United States . . ..
8 C.F.R. § 245.1(b)(6) (emphasis added). Plaintiff’s entry into the United States in
February 2000 was lawful, but his lawful status ended in March 2000 when his visa
expired. His status became lawful again in March 2001 when he was granted TPS
status.
Although Plaintiff was given notice of his right to file a Form I-290B, Notice
of Appeal or Motion, to challenge the denial of his Form I-485 application for
adjusted status, Plaintiff failed to do so. As a result, the September 2017 Decision
became final after thirty calendar days.
On November 13, 2017, Plaintiff filed this Complaint for Declaratory and
Injunctive Relief (“Complaint”) [Doc. # 1]. Plaintiff seeks a declaration that the final
Decision to deny his Form I-485 application to adjust status pursuant to § 1255(a) was
“arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with

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law.” See Complaint, ¶ 1. Plaintiff asks the Court to set aside the Decision and to
order Defendants to reopen his Form I-485 application for adjusted status.
Defendants filed their Motion to Dismiss, asserting that the Court lacks subject
matter jurisdiction to review the Decision. The Motion to Dismiss has been fully
briefed, and it is now ripe for decision.
II.

RULE 12(b)(1) MOTION TO DISMISS
“A case is properly dismissed for lack of subject matter jurisdiction when the

court lacks the statutory or constitutional power to adjudicate the case.” Smith v.
Regional Transit Auth., 756 F.3d 340, 347 (5th Cir. 2014) (quoting Krim v.
pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005)). When the court’s subject
matter jurisdiction is challenged, the party asserting jurisdiction bears the burden of
establishing it. See Alabama-Coushatta Tribe of Tex. v. U.S., 757 F.3d 484, 487 (5th
Cir. 2014); Gilbert v. Donahou, 751 F.3d 303, 307 (5th Cir. 2014).
This Court lacks subject matter jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(2)(B)(i), which provides:
Notwithstanding any other provision of law (statutory or nonstatutory),
including section 2241 of Title 28, or any other habeas corpus provision,
and sections 1361 and 1651 of such title, and except as provided in
subparagraph (D), . . . no court shall have jurisdiction to review – (i) any
judgment regarding the granting of relief under section . . . 1255 of this
title.

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8 U.S.C. § 1252(a)(2)(B)(i); see also Ayanbadejo v. Chertoff, 517 F.3d 273, 277 (5th
Cir. 2008). Indeed, the statute makes clear that this Court lacks “jurisdiction over
determinations made with respect to an I-485 application for permanent resident status
under § 1255.” See id. (citing Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir.
2006)).
Plaintiff argues that the Court has jurisdiction under the Administrative
Procedure Act (“APA”), asserting that the APA provides jurisdiction to review agency
decisions “for which there is no other adequate remedy.” See Opposition, pp. 2-3.
Initially, the Court notes that the reason there arguably is “no other adequate remedy”
is that Plaintiff elected not to pursue his available remedy through a Form I-290B
motion to reopen and reconsider the USCIS Decision. Moreover, the clear language
of § 1252(a)(2)(B)(i) precludes judicial review “notwithstanding any other provision
of law (statutory or nonstatutory).” Additionally, the APA does not provide a basis
for federal question jurisdiction where the statute at issue “precludes judicial review.”
See 5 U.S.C. § 701(a); id., § 702 (“Nothing herein . . . affects other limitations on
judicial review”); Webster v. Doe, 486 U.S. 592, 599 (1988) (“Section 701(a),
however, limits application of the entire APA to situations in which judicial review
is not precluded by statute”); Lundeen v. Mineta, 291 F.3d 300, 304 (5th Cir. 2002)
(“The APA expresses a broad exception, however, to its general rule: courts may not

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review an agency action when the “(1) statutes preclude judicial review”).
Section 1252(a)(2)(B)(i) precludes judicial review of decisions made with respect to
an I-485 application for permanent resident status under § 1255 and, therefore, the
APA does not provide this Court with jurisdiction.
Plaintiff argues also that he is challenging the legal conclusions in the Decision,
not any discretionary rulings. Indeed, “constitutional claims or questions of law”
related to claims under § 1252(a)(2)(B) are excluded from the category of nonreviewable decisions left to the discretion of the Attorney General. See 8 U.S.C.
§ 1252(a)(2)(D); Ayanbadejo, 517 F.3d at 277 n.11. That provision, however, does
not provide this Court with jurisdiction.

Instead, the issues subject to the

§ 1252(a)(2)(D) exception must be presented “upon a petition for review filed with
an appropriate court of appeals in accordance with this section.” See 8 U.S.C.
§ 1252(a)(2)(D) (emphasis added). Consequently, any jurisdiction to review the
USCIS Decision based on “constitutional claims or questions of law” lies with the
Court of Appeals and not with the district court.
This Court lacks subject matter jurisdiction over Plaintiff’s Complaint seeking
review of the USCIS decision denying his I-485 application for permanent resident
status under § 1255. As a result, the case must be dismissed pursuant to Rule 12(b)(1)
of the Federal Rules of Civil Procedure.

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III.

CONCLUSION AND ORDER
Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), and the Fifth Circuit’s holding in

Ayanbadejo, this Court lacks subject matter jurisdiction to review the denial of
Plaintiff’s Form I-485 application seeking to adjust his immigration status to lawful
permanent resident. As a result, it is hereby
ORDERED that the Motion to Dismiss [Doc. # 10] is GRANTED and this
case is DISMISSED for lack of subject matter jurisdiction. The Court will issue a
separate Final Order.
SIGNED at Houston, Texas, this 9th day of May, 2018.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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