Opinion
CIVIL ACTION NO. 1:19-CV-30
10-18-2019
Adnan Asif PARVEEN, Plaintiff, v. Kevin MCALEENAN, et al., Defendants.
Cathy Jean Potter, Law Firm of Cathy J. Potter PLLC, Harlingen, TX, for Plaintiff. Nancy Lynn Masso, Office of US Attorney, Brownsville, TX, for Defendants.
Cathy Jean Potter, Law Firm of Cathy J. Potter PLLC, Harlingen, TX, for Plaintiff.
Nancy Lynn Masso, Office of US Attorney, Brownsville, TX, for Defendants.
OPINION AND ORDER
Fernando Rodriguez, Jr., United States District Judge
Plaintiff Adnan Asif Parveen is a citizen of Spain who has unsuccessfully sought status as a lawful permanent resident ("LPR") in the United States. After he was detained and ordered removed from the country, he filed this lawsuit against Kevin K. McAleenan, Acting Secretary of the Department of Homeland Security ("DHS"), and several other defendants. The Defendants move for dismissal of Mr. Asif's claims for lack of jurisdiction and failure to state a claim upon which relief can be granted. (Motion, Doc. 13) For the following reasons, the Court concludes that the Motion is well taken because jurisdiction over Mr. Asif's claims does not exist.
The other Defendants include: Lee Francis Cissna, Director of U.S. Citizenship and Immigration Services ("USCIS"); Stephanie Reither, Field Office Director, Columbus Field Office, USCIS; Ronald D. Vitello, Acting Head of Immigration and Customs Enforcement ("ICE"); and Daniel Bible, Field Office Director, San Antonio Field Office, U.S. Immigration and Customs Enforcement, Enforcement and Removal Operations ("ICE/ERO"). The Court takes judicial notice that McAleenan no longer serves as Acting Secretary of DHS.
I. Allegations and Procedural History
Mr. Asif is a native of Pakistan and a citizen of Spain. (Am. Compl., Doc. 8, ¶¶ 1, 9) In June 2014, he entered the United States as a visitor under the United States' Visa Waiver Program ("VWP") to visit family in New York. (Id. at ¶ 10) Under the VWP, qualifying foreign nationals from designated countries, including Spain, can enter the United States for up to 90 days for pleasure or business purposes without first obtaining a visa. See 8 U.S.C. § 1187(a)(1) ; (Motion, Doc. 13, 1) Mr. Asif continued to live in the United States well beyond the 90-day period. (Am. Compl., Doc. 8, ¶ 11).
In September 2016, he married Jennifer Asif, a United States citizen. (Id. ) In April 2017, she filed an I-130 "Petition for Alien Resident" on behalf of her husband. (Id. at ¶ 12) Around the same time, Mr. Asif filed a Form I-485 application to adjust his status to that of a lawful permanent resident. (Id. ) Mr. Asif also filed a Form I-765 "Application for Employment Authorization" and received an Employment Authorization Document (EAD) valid from August 31, 2017 to August 30, 2018. (Id. )
In September 2017, the Asifs received notice to appear for an interview with USCIS on the pending I-130 Petition and I-485 Application. (Id. at ¶ 13) When the couple timely appeared for the interview, USCIS personnel informed them that it had been cancelled. (Id. ) The Asifs later received the USCIS notice of the cancelation, which also stated that they "would be notified of any other action taken on [the] case, including any rescheduled interview information." (Id. )
In June 2018, Mr. Asif filed to renew his EAD, which would expire at the end of August that year. (Id. at ¶ 15) The expiration date passed without a response to the renewal application, but Mr. Asif alleges that an "announced and published DHS/USCIS policy automatically extended the EAD for 180 days (until February 26, 2019)." (Id. )
In early 2019, when Mr. Asif worked as a truck driver, he stopped at the checkpoint in Falfurrias, Texas. CBP and ICE detained and held him in holding facilities for about six days before transferring him to the Port Isabel Detention Center in Los Fresnos, Texas. (Id. at ¶¶ 17–18) He appeared at least once before an Immigration Judge. (Id. at ¶ 18)
On March 4, 2019, Mr. Asif filed his Complaint for Injunctive and Mandamus Relief. (Doc. 1) A few days later, USCIS notified Mrs. Asif that she should appear for an interview on the pending I-130 Petition. (Am. Compl., Doc. 8, ¶ 19) USCIS also denied the I-485 Application without having interviewed Mr. Asif, although it is unclear when Mr. Asif learned of this decision. (Id. ) The denial notification indicates that in January 2019, ICE had "entered a final administrative removal order against [Mr. Asif] under section 217 of the INA." (Denial Notification, Doc. 13-1, 2) In making its decision, USCIS relied on Mr. Asif's failure "to depart the United States within 90 days of entry" as required by the Visa Waiver Program as a "very significant adverse factor" weighing heavily against approval. (Id. ) USCIS found that the Asifs' marriage was the only factor that weighed in his favor. (Id. )
On March 19, 2019, Mrs. Asif appeared for her interview with USCIS. (Am. Compl., Doc. 8, ¶ 24)
On March 26, 2019, Mr. Asif amended his Complaint. (Doc. 8)
On May 12, 2019, Mr. Asif filed a Motion for a Temporary Restraining Order seeking an Order to enjoin his removal from the country pending the resolution of this lawsuit. (Doc. 12) The following day, Defendants filed their Motion to Dismiss. (Doc. 13)
On May 22, the Court held a hearing and denied Mr. Asif's motion for a temporary restraining order. The next day, Mr. Asif was removed from the country based on the January 2019 Final Administrative Removal Order. (Defendants' Advisory, Doc. 19)
II. Analysis
Mr. Asif alleges a cause of action under the Administrative Procedure Act (APA), 5 U.S.C. § 702 et seq. , asserting that jurisdiction lies under that statute, as well as 28 U.S.C. § 1331 (the "Federal Question Statute"), 28 U.S.C. § 1361 (the Mandamus Act), 28 U.S.C. §§ 2201 (the Declaratory Judgment Act), and 28 U.S.C. § 1651 (the All Writs Act). (Am. Compl., Doc. 8, ¶ 7)
Mr. Asif alleges that USCIS failed to adhere to DHS's regulations and wrongfully denied his I-485 Application in violation of the APA. (Id. at ¶ 32) He also claims that Defendants "unreasonably delayed" and "unlawfully withheld the adjudication and approval" of both the I-130 Petition and the I-485 Application, which "constitutes an unreasonable failure to act" in violation of the APA and the Due Process Clause of the Fifth Amendment. (Id. at ¶ 31) And he alleges that Defendants' "decision to detain [him] and order [his] removal was ... unsupported by substantial evidence, [in violation of the APA]." (Id. at ¶ 33) In relevant part, Mr. Asif asks the Court to: (1) set aside the denial of his I-485 Application; (2) compel USCIS to re-adjudicate his I-485 Application; and (3) oversee its re-adjudication. (Id. at 11–12). The Defendants' Motion to Dismiss urges dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). As the Court's conclusion with respect to the jurisdictional arguments are dispositive, the Court will not address the Rule 12(b)(6) arguments.
Mr. Asif also requests that the Court set aside the removal order. The Court's denial of his motion for a temporary restraining order and his subsequent removal have rendered this requested relief moot.
A. Standard of Review
When considering a Rule 12(b)(1) motion, a trial court must dismiss an action for lack of subject matter jurisdiction when the Court is without the statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Miss., Inc. v. City of Madison , 143 F.3d 1006, 1010 (5th Cir. 1998). In determining whether jurisdiction exists, the Court may consider: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the Court's resolution of disputed facts." Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001). The party seeking the federal forum bears the burden of proving federal jurisdiction. Stockman v. Fed. Election Comm'n , 138 F.3d 144, 151 (5th Cir. 1998).
B. Claims related to the I-130 Petition
In March 2019, USCIF approved the I-130 Petition. (I-130 Approval Notice, Doc. 17-1, 54) This approval moots Mr. Asif's claims based on the delay in resolution of this petition.
C. Claims related to the I-485 Application
Mr. Asif filed his I-485 Application to seek status as a legal permanent resident based on his marriage to Mrs. Asif, a United States citizen. Section 245 of the Immigration and Nationality Act ("INA") governs I-485 Applications. See 8 U.S.C § 1255. In 2005, the REAL ID Act modified the INA in relevant part by adding a provision that significantly limited federal court jurisdiction over matters related to adjustment-of-status decisions, such as on I-485 Applications:
Notwithstanding any other provision of law (statutory or nonstatutory), including ... Title 28 ... section[ ] 1361 [the Mandamus Act] ... no court shall have jurisdiction to review--
(i) any judgment regarding the granting of relief under section ... 1255 [adjustment of status] ... or
(ii) any other decision or action ... which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security
8 U.S.C. § 1252(a)(2)(B). The Fifth Circuit has held that section 1252(a)(2)(B)(i) of the REAL ID Act "explicitly places any judgment regarding the granting of relief ... [of] I–485 applications, in [the] category of discretionary decisions that no courts have jurisdiction to review." Ayanbadejo v. Chertoff , 517 F.3d 273, 277 (5th Cir. 2008) (internal quotation marks omitted); see also Jean v. Gonzales , 452 F.3d 392, 396 (5th Cir. 2006) (explaining that the REAL ID Act "amends the jurisdictional provisions of the [INA], altering the way in which noncitizens can seek judicial review of administrative orders of removal"). In addition, Section 1252(a)(2)(B)(ii) proscribes jurisdiction in a federal district court over any decision or action "in the discretion" of the Attorney General or the Secretary of Homeland Security. Such discretionary decisions include adjustments to status based on an I-485 Application. 8 U.S.C. § 1255(a) ("The status of an alien ... admitted or paroled into the United States ... 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." (emphasis added)). As a result, both sub-sections of Section 1252(a)(2)(B) bar jurisdiction over Mr. Asif's claims based on the denial of his I-485 Application.
While the text of 8 U.S.C. § 1255(a) refers to the Attorney General, since the enactment of that statute, the authority to adjudicate I–485 Applications has been transferred to the Secretary of Homeland Security and the Secretary's delegates. See 6 U.S.C. § 271(b)(5) ; 6 U.S.C. § 557.
1. The APA
Mr. Asif nevertheless relies on the APA to argue that jurisdiction exists to set aside and re-adjudicate his denied I-485 Application. (Response, Doc. 17, 6–9)
Under certain circumstances, the APA provides for judicial review of agency actions. See 5 U.S.C. § § 702, 706. But review is unavailable when other statutes "preclude judicial review" or when "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a). As previously discussed, Section 1252(a)(2)(B) of the REAL ID Act precludes judicial review of a decision on an I-485 Application. As a result, the APA does not support jurisdiction in this case.
Mr. Asif argues that he is not "asking this court to review [ ] the discretionary decision of [USCIS]," but instead, is asking the Court "to review whether [USCIS] acted in accordance with the regulations prescribed by [DHS]" as related to adjudicating I-485 Applications. (Response, Doc. 17, 7) Specifically, Mr. Asif argues that USCIS failed to abide by the regulations in deciding his I-485 Application because USCIS: (1) failed to provide Mr. Asif with an interview as required by 8 C.F.R. § 245.6 ; (2) relied on significant adverse factors that were not bars to adjustment in themselves and were the products of the agency's own actions; and (3) failed to consider all of the favorable factors it could have considered. (Response, Doc. 17, 9–11)
But even if Mr. Asif's argument presented a viable avenue for relief under the APA, none of the arguments that he presents demonstrate that USCIS violated DHS's regulations. First, the full text of 8 C.F.R. § 245.6 provides that an interview in connection with an I-485 Application "may be waived ... when it is determined by [USCIS] that an interview is unnecessary." Second, Mr. Asif has not identified any regulation that prohibits USCIS from considering an issued removal order or an alien's immigration status. And third, no regulation requires USCIS to consider every conceivable factor.
The Court concludes that the REAL ID Act precludes the type of judicial review that Mr. Asif requests under the APA. Even if the Court had jurisdiction, Mr. Asif has failed to demonstrate that USCIS decided his I-485 Application in an arbitrary and capricious manner, without regard to applicable regulations.
2. The Mandamus Act
Mr. Asif argues that the Mandamus Act provides a jurisdictional basis for his allegation that Defendants violated his rights when they "unreasonably delayed and unlawfully withheld the adjudication and approval of ... [his I-485 Application] for adjustment of status." (Am. Compl., Doc. 8, ¶ 31)
USCIS's decision on Mr. Asif's I-485 Application rendered moot any claims based on a delay in the consideration of the application. The Court will consider only Mr. Asif's claims based on the denial of his I-485 Application.
--------
Under the Mandamus Act, a district court has the authority to "compel an officer or employee of the U.S. or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. Mandamus relief is a "drastic and extraordinary remedy" reserved for extraordinary situations. Cheney v. U.S. Dist. Court for the Dist. of Columbia , 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). To establish jurisdiction under the Mandamus Act, the plaintiff's claim must be "clear and certain and the duty of the officer [must be] ministerial and so plainly prescribed as to be free from doubt." Giddings v. Chandler , 979 F.2d 1104, 1108 (5th Cir. 1992). "[M]andamus is not available to review the discretionary acts of officials." Id. "The extraordinary remedy of mandamus ... will issue only to compel the performance of a clear nondiscretionary duty." Pittston Coal Group v. Sebben , 488 U.S. 105, 121, 109 S.Ct. 414, 102 L.Ed.2d 408 (1984).
These principles defeat Mr. Asif's reliance on the Mandamus Act, as USCIS's decision over his I-485 Application fell within its discretion. In addition, the jurisdiction-stripping provision in Section 1252 of the INA expressly states that it applies despite the Mandamus Act, 8 U.S.C. § 1252(a)(2)(B), and persuasive authority has applied this provision in an analogous circumstance to bar claims similar to Mr. Asif's. See Abanov v. Gonzales , No. CIV.A. H-06-3725, 2007 WL 2872765, at *1 (S.D. Tex. Sept. 28, 2007) ("Finally, the court notes that section 1252 expressly precludes judicial review notwithstanding section 1361 (Mandamus Act) or any other provision of law."). As a result, the Mandamus Act does not provide a jurisdictional basis for Mr. Asif's claims.
3. Constitutional Claims
Mr. Asif alleges that the Defendants' conduct violated his rights under the Due Process Clause of the Fifth Amendment. (Am. Compl., Doc. 8, ¶ 23) Specifically, Mr. Asif claims that USCIS denied him due process by failing to interview him, delaying adjudicating of his I-485 Application, and ignoring applicable DHS regulations. (Am. Compl., Doc. 8, ¶ 31).
But to the extent that Mr. Asif has constitutional challenges to USCIS's conduct, the Real ID Act specifies that any such claim, if it is viable, would have to be presented through "a petition for review filed with an appropriate court of appeals." 8 U.S.C. § 1252(a)(2)(D) ; see also Hinojosa v. U.S. Dept. of Justice , Civ.A. H-10-437, 2010 WL 5419046, at *4 (S.D. Tex. Dec. 23, 2010). As a result, the statute provides no jurisdictional basis in this Court over Mr. Asif's constitutional claims.
4. Other Alleged Jurisdictional Bases
Mr. Asif also turns to the Declaratory Judgment Act, the All Writs Act, and the Federal Question Statute to argue that jurisdiction exists in this case. None of these statutes, however, establish jurisdiction. First, neither the Declaratory Judgment Act nor the All Writs Act provide an independent basis for subject matter jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co. , 339 U.S. 667, 671–72, 70 S.Ct. 876, 94 L.Ed. 1194 (1950) (considering the Declaratory Judgment Act); Texas v. Real Parties in Interest, et al. , 259 F.3d 387, 392 (5th Cir. 2001) (considering the All Writs Act). Rather, a federal court must have jurisdiction under another federal statute to then issue a Declaratory Judgment or a Writ. As to Section 1331, this statute confers jurisdiction in cases arising under the Constitution and laws of the United States. But as discussed previously, the REAL ID Act does not support jurisdiction over these claims in a District Court.
III. Conclusion
For these reasons, it is:
ORDERED that Defendants' Motion to Dismiss Complaint for Lack of Jurisdiction under Fed. R. Civ. P. 12(B)(1) (Doc. 13) is GRANTED .