Duron v. Nielsen
| Decision Date | 30 September 2020 |
| Docket Number | Civil Action No. 4:19-CV-272 |
| Citation | 491 F.Supp.3d 256 |
| Parties | Gloria DEL CARMEN DURON, Plaintiff, v. Kirstjen NIELSEN, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Raed Gonzalez, Gonzalez Olivieri, Houston, TX, for Plaintiff.
Ariel Nicole Wiley, Andrea Elaine Belgau, U.S. Attorney's Office, Houston, TX, for Defendants.
Pending before this Court are Plaintiff and Defendants’ Motions for Summary Judgment. (Docs. 15, 16.) The parties’ arguments focus on whether Plaintiff is inadmissible under 8 U.S.C. § 1182(a)(9)(A)(ii)(II) and thus whether the U.S. Citizenship and Immigration Services ("USCIS") violated the Administrative Procedure Act ("APA") in finding her ineligible for adjustment of status. In considering the parties’ cross motions, the Court conducted a sua sponte review of subject matter jurisdiction. Upon identifying a potential issue, the Court subsequently ordered the parties to provide supplemental briefing. (Minute Entry Aug. 6, 2020; Docs. 22, 23) After considering the motions, the parties’ briefs and supplemental briefs, the parties’ oral arguments, and all applicable law, the Court determines that Plaintiff's Motion for Summary Judgment should be GRANTED and Defendants’ Motion for Summary Judgment should be DENIED .
Plaintiff Gloria Del Carmen Duron is a citizen of Honduras. (Doc. 1 ¶ 23.) She was previously ordered removed in abstentia by an immigration judge on March 30, 1998, after failing to appear for an immigration court hearing. (Id. ) The removal order was not enforced. For unknown reasons, Plaintiff left the United States on November 25, 2005. (Doc. 1 ¶ 24.) She was paroled back into the country three days later on November 28, 2005. (Id. )
On June 16, 2015, Plaintiff filed a Form I-485 Application to Register Permanent Residence or Adjust Status to apply to become a lawful permanent resident ("LPR"). (Doc. 1 ¶ 26.) The basis for her application was a concurrently filed visa petition, Form I-130, by her U.S. citizen daughter. (Id. ; Doc. 23 at 3.) Plaintiff appeared for several interviews with USCIS relating to her adjustment application in August of 2016 and 2018.
On October 30, 2018, USCIS denied Plaintiff's adjustment application because she was deemed inadmissible under 8 U.S.C. § 1182(a)(9)(A)(ii)(II). (Doc. 1-1 at 2.) Specifically, the written denial letter stated: (Doc. 1-1 at 3.)
Plaintiff filed the instant action alleging violations of the APA against Defendants Kirstjen Nielsen, in her official capacity as the Secretary of the DHS; Lee F. Cissna, in his official capacity as the Director of the USCIS; and Mark Siegl, in his official capacity as the Houston Field Office Director of the USCIS. Plaintiff asserts that USCIS's denial of her adjustment application was arbitrary, capricious, and contrary to law because she is not in fact inadmissible under 8 U.S.C. § 1182(a)(9)(A)(ii)(II). Plaintiff seeks (1) de novo review of the USCIS's decision, (2) a declaratory judgment that the USCIS acted arbitrarily, capriciously, and not in accordance with the law when it denied Plaintiff's adjustment application, and (3) relief under the APA to compel the USCIS to reopen and reissue a new decision on her adjustment application. (Doc. 1 at 2.)
Plaintiff filed a Motion for Summary Judgment on June 19, 2020, and Defendant filed a Motion for Summary Judgment on June 22, 2020. The Court held a hearing on August 6, 2020, and parties agreed to provide supplemental briefing as to subject matter jurisdiction. The Court turns first to the question of subject matter-jurisdiction and thereafter discusses the merits of the parties’ claims.
Summary judgment is proper when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party. Springboards to Educ., Inc. v. Hous. Indep. Sch. Dist. , 912 F.3d 805, 811 (5th Cir. 2019). The court can consider any evidence in "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The evidence and inferences must be viewed in the light most favorable to the nonmoving party. Springboards to Educ. , 912 F.3d at 811. The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex , 477 U.S. at 322-25, 106 S.Ct. 2548. Once a movant meets this burden, the burden shifts to the nonmovant to show the existence of a genuine fact issue for trial. Id. at 325, 106 S.Ct. 2548.
"[F]ederal courts are duty-bound to examine the basis of subject matter jurisdiction sua sponte." Union Planters Bank Nat'l Ass'n v. Salih , 369 F.3d 457, 460 (5th Cir. 2004). The issue of lack of subject matter jurisdiction may be raised at any time. Giles v. NYLCare Health Plans, Inc. , 172 F.3d 332, 336 (5th Cir. 1999).
Plaintiff's motion for summary judgment asserts that USCIS's denial of her adjustment of status application was arbitrary, capricious, and contrary to law in violation of the APA. Defendants’ cross motion for summary judgment argues that USCIS's denial was proper because Plaintiff is inadmissible, and thus ineligible for an adjustment of status to become a lawful permanent resident under 8 U.S.C. § 1255.
Under 8 U.S.C. § 1255, an individual who has been admitted or paroled into the United States may adjust one's status to a lawful permanent resident at the discretion of the Attorney General1 if "(1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed." 8 U.S.C. § 1255(a) (emphasis added). The relevant basis of inadmissibility states an individual is inadmissible if the individual "departed the United States while an order of removal was outstanding" and subsequently "seeks admission within 10 years of the date of ... departure." 8 U.S.C. § 1182(a)(9)(A)(ii)(II).
In this case, it is undisputed that Plaintiff was ordered removed in 1998 and departed the United States on November 25, 2005. It is also undisputed that she was paroled into the United States on November 28, 2005 and that she applied for an adjustment of status on June 16, 2015. What is in dispute is whether either parole or an application for adjustment of status constitutes a request for admission for the purposes of 8 U.S.C. § 1182(a)(9)(A)(ii)(II). If either does, then Plaintiff sought admission within 10 years of her November 25, 2005 departure date and would thus be inadmissible under § 1182. Accordingly, she would be statutorily ineligible for an adjustment of status as USCIS decided.
Although neither party raises jurisdictional concerns, the Court sua sponte reviews its subject matter jurisdiction in the instant case. However, the Court finds that it retains subject matter jurisdiction over Plaintiff's claim for relief, and thus further proceeds to the merits of Plaintiff's claim.
The Court addresses two questions with regard to subject matter jurisdiction. First, the Court finds that the jurisdiction-stripping provisions in the Immigration and Nationality Act ("INA") do not apply here because USCIS's denial of Plaintiff's application was not a discretionary decision. Second, the Court finds that Plaintiff's claim is exhausted, as required under the APA, because she is explicitly foreclosed from seeking review of her application by an immigration judge, and thus USCIS's denial amounts to a final agency action.
The Court first finds and holds that the jurisdiction-stripping provisions of the INA do not apply here. The INA, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), contains a jurisdiction-stripping provision that states, "no court shall have jurisdiction to review ... any judgment regarding the granting of relief under ... [ 8 U.S.C. §] 1255." 8 U.S.C. § 1252(a)(2)(B)(i). This jurisdiction-stripping applies "regardless of whether the judgment, decision, or action is made in removal proceedings." Id. ; Abanov v. Gonzales , No. H-06-3725, 2007 WL 2872765, at *2–3 (S.D. Tex. Sept. 28, 2007). However, this jurisdiction-stripping provision only precludes review of discretionary decisions. Mireles-Valdez v. Ashcroft , 349 F.3d 213, 216 (5th Cir. 2003). The Fifth Circuit has squarely held that Section 1252(a)(2)(B)(i) does not bar review of the denial of an application for adjustment of status based on statutory ineligibility because it is a nondiscretionary decision. Melendez v. McAleenan , 928 F.3d 425, 426 (5th Cir. 2019), cert. denied , ––– U.S. ––––, 140 S. Ct. 561, 205 L.Ed.2d 358 (2019).
That is the case here. Under the adjustment of status statute, 8 U.S.C. § 1255, the Attorney General has the discretion to grant lawful permanent resident status—but only if the statutory requirements are first met. Plaintiff's application was denied because she failed to meet a requirement, admissibility, and thus the USCIS's judgment was not a discretionary decision. Therefore, this Court has jurisdiction under the INA.
The Court further holds that Plaintiff has met the APA's exhaustion requirement. The APA "confers a general cause of action upon persons ‘adversely...
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