El Fajri v. Napolitano et al

Filing 22

MEMORANDUM DECISION AND ORDERgranting 14 Motion to Dismiss for Lack of Jurisdiction. This case is dismissed for lack of jurisdiction. Signed by Judge Robert J. Shelby on 2/5/2015. (las)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

AMINE EL FAJRI,
Plaintiff,

MEMORANDUM DECISION
AND ORDER

v.

JANET NAPOLITANO, Secretary of
Homeland Security, ALEJANDRO
MAYORKAS, Director of Citizenship and
Immigration Services; GERARD
HEINAUER, Director of Nebraska Service
Center; JEANNE KENT, Field Office
Director of the Salt Lake Field Office of
Citizenship and Immigration Services,

Case No. 2:12-cv-696-RJS

Defendants.

Judge Robert J. Shelby

Plaintiff Amine El Fajri seeks review of the United States Citizenship and Immigration
Service’s (USCIS) denial of his adjustment of status applications based on a false claim of U.S.
citizenship. After careful consideration and for the reasons stated below, the court grants
Defendants’ motion to dismiss.
BACKGROUND
Mr. El Fajri is a Moroccan national who immigrated to the United States on an F-1
student visa in August 2007. In July 2009, Mr. El Fajri submitted an online application to work
1

as an Arabic translator for the Federal Bureau of Investigation. The FBI online application
required applicants to certify their status as a U.S. citizen to qualify for employment. Although
Mr. El Fajri was not a U.S. citizen, he clicked the box indicating he was. Mr. El Fajri maintains
that he clicked the box in order to access the rest of the application and did not understand that
U.S. citizenship was required to work as an interpreter for the FBI. On a later question in the
application, Mr. El Fajri indicated that he was born in Morocco and was not a dual citizen.
Mr. El Fajri currently works as a court-certified Arabic language interpreter in Utah. In
August 2010, he married a U.S. citizen. A short time later, he applied for adjustment of status to
become a legal permanent resident. He and his spouse had an adjustment interview with the
USCIS in January 2011. During the interview, Mr. El Fajri told the hearing officer about his
false claim of citizenship on the FBI application.
A month after the interview, the USCIS denied Mr. El Fajri’s adjustment of status
application, finding that he violated 8 U.S.C. § 1182(a)(6)(C)(ii) by making a false claim of
citizenship. Mr. El Fajri then filed a motion to reopen and reconsider. The USCIS denied the
motion. He filed a second application for adjustment of status and the USCIS once again denied
it. The USCIS deemed him “inadmissible to the United States under the provisions of” 8 U.S.C.
§ 1182(a)(6)(C)(ii), and further found that he did not “warrant the favorable discretion required”
by 8 U.S.C. § 1255(a).
Mr. El Fajri has filed this case under the Administrative Procedure Act, 5 U.S.C. § 701 et
seq., and the Declaratory Judgment Act, 28 U.S.C. § 2201. He brings this action against several
defendants, namely, the Secretary of Homeland Security, the Director of the United States
Citizenship and Immigration Services, the Director of the Nebraska Service Center, and the Field
Office Director of the Salt Lake Field Office of Citizenship and Immigration Services. Mr. El
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Fajri asserts that the USCIS’s denial of his adjustment of status application should be overturned
as erroneous and contrary to law.
ANALYSIS
Defendants assert that the USCIS’s denial of Mr. El Fajri’s application for adjustment of
status was a decision committed to agency discretion that this court lacks jurisdiction to review.
Alternatively, Defendants contend that the USCIS’s determination that Mr. El Fajri was
ineligible to adjust was not arbitrary, capricious, or otherwise contrary to law. Mr. El Fajri urges
the court to exercise jurisdiction and set aside the agency’s decision. The court finds that it lacks
subject matter jurisdiction and therefore dismisses the case pursuant to Federal Rule of Civil
Procedure 12(b)(1).
I. Rule 12(b)(1) Motion to Dismiss
Defendants move for dismissal of Mr. El Fajri’s complaint under Rule 12(b)(1). A Rule
12(b)(1) motion to dismiss takes one of two forms.1 First, a party may facially challenge the
sufficiency of “the complaint’s allegations as to subject matter jurisdiction.”2 In resolving a
facial challenge to jurisdiction, the court must presume all factual allegations in the complaint to
be true.3 Second, “a party may go beyond allegations contained in the complaint and challenge
the facts upon which subject matter jurisdiction depends.”4 In such a case, “a district court may
not presume the truthfulness of the complaint’s factual allegations.”5 Rather, the court has “wide
discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve

1

Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).
Id.
3
See id.
4
Id. at 1003.
5
Id.
3
2

disputed jurisdictional facts under Rule 12(b)(1).”6 In this context, “a court’s reference to
evidence outside the pleadings does not convert the motion to a Rule 56 motion.”7
Pursuant to 8 U.S.C. §1255(a), 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 an alien
lawfully admitted for permanent residence.”8 Further, 8 U.S.C. § 1252(a)(2)(B) states,
“[n]otwithstanding any other provision of law . . . , no court shall have jurisdiction to review (i)
any judgment regarding the granting of relief under section . . . 1255 of this title.” 9 A plain
reading of the statute indicates that federal courts do not have subject matter jurisdiction to
review a discretionary denial of adjustment of status under Section 1255(a).10
Consequently, the only issue left for the court is whether the USCIS exercised its
discretion when it denied Mr. El Fajri’s second application. In its denial of the application, the
USCIS stated, “Further, your adjustment of status application (Form 1-485) has been denied
since you do not warrant the favorable discretion required under section 245(a) of the Act.”
Mr. El Fajri contends that the USCIS made a legal determination when it concluded that
his conduct constituted a false claim to citizenship under 8 U.S.C. § 1182(a)(6)(C)(ii). For this
reason, he argues, the court must review the USCIS’s decision, and the agency cannot “hide
behind the cloak of discretion.”11 The USCIS may, however, base its denial of an application on
multiple grounds, including an exercise of discretion. In Marrakchi v. Napolitano,12 the Tenth

6

Id.
Id.
8
8 U.S.C. §1255(a) (emphasis added).
9
8 U.S.C. § 1252(a)(2)(B); Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1149 (10th Cir. 2005) (“[T]he two
subsections of § 1252(a)(2)(B) indicate Congress’s intention to prohibit review only of those ‘judgments’ that are
discretionary in nature. In sum, we join our sister circuits and hold that we may review non-discretionary
decisions.”).
10
See Schroeck v. Gonzales, 429 F.3d 947, 949 (10th Cir. 2005).
11
Plaintiff’s Mem. in Opp. (Dkt. 17), at 21.
12
494 F. App’x 877 (10th Cir. 2012).
7

4

Circuit examined nearly identical language in a USCIS action denying an alien adjustment of
status based on marriage to a U.S. citizen and held that “[u]se of the word ‘further’ to introduce
the discretionary denial in the final sentence shows that the discretionary denial is beyond and in
addition to the statement of ineligibility for statutory relief in the preceding sentence.”13 The
court ultimately found that it did not have jurisdiction to review the discretionary denial.14
Likewise, the USCIS in this case articulated two separate grounds for denying Mr. El Fajri’s
application, one of which was a discretionary denial. Rather than using discretion to veil an
arbitrary and capricious act, the USCIS made a discretionary denial that was “beyond and in
addition to the statement of ineligibility.”
In sum, the USCIS lawfully exercised its discretion and this court does not have
jurisdiction to review the agency’s decision. Consequently, the court lacks jurisdiction and
cannot reach Defendants’ remaining Rule 12(b)(6) arguments.15
CONCLUSION
For the reasons stated, Defendants’ Motion to Dismiss (Dkt. 14) is GRANTED. This
case is dismissed for lack of jurisdiction. The court directs the Clerk of Court to close the case.
SO ORDERED this 5th day of February, 2015.
BY THE COURT:

______________________________
ROBERT J. SHELBY
United States District Judge

13

Id. at 881-82.
Id. at 884.
15
See Ex parte McCardle, 74 U.S. 506, 514 (1868) (“Without jurisdiction the court cannot proceed at all in any
cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court
is that of announcing the fact and dismissing the cause.”); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 94 (1998); Guy v. Barnhart, 62 F. App’x 848, 850 (10th Cir. 2003).
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