Hosseini v. Johnson

• Decision Date: 17 June 2016
• Docket Number: No. 15-6082,15-6082
• Citation: 826 F.3d 354
• Parties: Mehrdad Hosseini, Plaintiff–Appellant, v. Jeh Johnson, Secretary of the U.S. Department of Homeland Security, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

826 F.3d 354

Mehrdad Hosseini, Plaintiff–Appellant

v.Jeh Johnson, Secretary of the U.S. Department of Homeland Security, et al., Defendants–Appellees.

No. 15-6082

United States Court of Appeals, Sixth Circuit.

Decided and Filed: June 17, 2016

ON BRIEF: Lance Curtright, De Mott, McChesney, Curtright, Armendariz, LLP, San Antonio, Texas, for Appellant. J. Max Weintraub, United States Department of Justice, Washington, D.C., for Appellees.

Before: KEITH, COOK, and STRANCH, Circuit Judges.

OPINION

DAMON J. KEITH

, Circuit Judge.

Appellant Mehrdad Hosseini (“Hosseini”) appeals the district court's dismissal of his complaint for failure to state a claim. Hosseini sought review of the United States Citizenship and Immigration Service's (“USCIS's”) denial of his application to adjust his status from that of an asylee to that of a permanent resident. Defendants Rand Beers¹ and others, moved to dismiss the complaint for lack of subject-matter jurisdiction and, alternatively, to dismiss the complaint for failure to state a claim. The district court held that it had subject-matter jurisdiction over Hosseini's claim pursuant to the federal question statute, 28 U.S.C. § 1331

. The district court dismissed the complaint for failure to state a claim, concluding that the denial of Hosseini's application was not a “final agency action” within the meaning of the Administrative Procedure Act (“APA”). Because we hold that the denial of Hosseini's application was a final agency action, we REVERSE .

I. BACKGROUND

In 1999, Hosseini's wife was granted asylum, and she filed a petition seeking asylum for Hosseini as her spouse. USCIS approved the petition, and Hosseini lawfully entered the United States as a derivative asylee in February 2000. Approximately one year later, Hosseini filed a Form I-485 Application to Register Permanent Residence or Adjust Status, seeking to obtain permanent resident status. He sought the adjustment pursuant to 8 U.S.C. § 1159

. However, no action was taken on Hosseini's application for nearly twelve years. In March 2013, Hosseini filed a pro se complaint in federal district court seeking to compel the USCIS to act on his application. On April 3, 2014, the district court ordered the USCIS to adjudicate Hosseini's application within 60 days.

Thereafter, the USCIS sent Hosseini a Notice of Intent to Deny his application due to the agency's determination that he was inadmissible for having engaged in terrorist activities as defined by 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd)

.² Hosseini responded to the Notice, asserting that he was not, and had never been, a member of a terrorist organization. However, Hosseini stated on his application to adjust status: “I joint [sic] to a political organization called Fedaeian Khalgh [sic] from 1979 to 1982 in Iran.” Hosseini also stated that he had distributed literature for Fadayeen Khalq (“FeK”) and Mujahedin-e Khalq (“MeK”) until sometime in 1985. He provided copying and telefax services to facilitate the distribution of Mek political leaflets and articles. The USCIS denied his application on July 18, 2014, after determining that Hosseini had engaged in activities for Fek and MeK during a time when both groups fell within the definition of an undesignated terrorist organization under 8 U.S.C. § 1182(a)(3)(B)(vi)(III)

. The USCIS concluded that Hosseini, therefore, was “inadmissible.” Accordingly, he did not meet the eligibility requirements for adjustment of status—one of which is to be “admissible.” Despite this inadmissibility determination, Hosseini's asylum status was not revoked, and no removal proceedings were instituted.

On October 28, 2014, Hosseini, acting pro se, filed another complaint in federal district court—this time—challenging the USCIS's decision pursuant to the Administrative Procedure Act (“APA”)³ and the Declaratory Judgment Act.⁴ This second complaint is the subject of the current appeal. Hosseini argued that the USCIS's conclusion that he is “inadmissible” was erroneous, arbitrary, and capricious. In support, he stated that he could not be “inadmissible” because he was admitted as a derivative asylee in 2000. He asserted, among other things, that the USCIS erroneously considered his “minimal occasional non-violence [sic] indirect activities of providing literatures” as “engaging in terrorist activities.”

Defendants moved to dismiss the complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1)

, and, alternatively, for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants argued that the APA and 8 U.S.C. § 1252(a)(2)(B)(ii) preclude judicial review of the USCIS's denial of Hosseini's application for adjustment of status because the decision was discretionary. Defendants also argued that, notwithstanding the jurisdictional bar, Hosseini's claim lacked merit. The district court rejected Defendants' jurisdictional arguments, determining that it had subject-matter jurisdiction over Hosseini's claim pursuant to 28 U.S.C. § 1331 federal-question jurisdiction. The district court then dismissed the complaint for failure to state a claim, holding that the USCIS's denial of Hosseini's adjustment of status application was not a “final agency action” under the APA. Hosseini, now appearing through counsel, timely appealed.

II. DISCUSSION

A. Subject–Matter Jurisdiction

(i) Standard of Review

“We review a district court's findings as to whether it had subject matter jurisdiction de novo.” Mehanna v. U.S. Citizenship and Immigration Servs. , 677 F.3d 312, 314 (6th Cir. 2012)

(citing Carson v. U.S. Office of Special Counsel , 633 F.3d 487, 491 (6th Cir. 2011) ).

(ii) Analysis

The district court determined that it had jurisdiction over Hosseini's APA claim pursuant to federal-question jurisdiction, relying on our opinion in Jama v. Dep't of Homeland Sec. , 760 F.3d 490 (6th Cir. 2014)

. In Jama, we noted that although the APA is not itself a jurisdiction-conferring statute, our jurisdiction over APA claims derives from the general federal-question statute, 28 U.S.C. § 1331

. 760 F.3d at 494. However, the APA does not apply where “statutes preclude judicial review” or where “agency action is committed to agency discretion by law.” Id. at 495 ; accord 5 U.S.C. § 701(a). Accordingly, we must determine whether a statute precludes judicial review of Hosseini's claim or if the agency decision he challenges is committed to agency discretion by law. See

Jean v. Gonzales , 435 F.3d 475, 480 (4th Cir. 2006) (concluding that “it is critical for us to determine whether ... the petition seeks review of a discretionary determination”).

Defendants argued before the district court that subject-matter jurisdiction was lacking because a statute precludes review of Hosseini's claims and because the denial of a status-adjustment application is committed to agency discretion by law. The district court rejected this argument. While Defendants did not challenge the district court's jurisdiction determination in a cross-appeal, we must be independently satisfied that subject-matter jurisdiction is met before adjudicating a case on the merits. Siding and Insulation Co., Inc. v Acuity Mut. Ins. Co. , 754 F.3d 367, 368–69 (6th Cir. 2014)

(noting that “[s]ubject-matter [jurisdiction] delineations must be policed by the courts on their own initiative”) (second alteration in original) (quoting Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ).

At the outset, some types of agency determinations are entirely precluded from judicial review by statute. See, e.g. , 8 U.S.C. 1252(a)(2)(B)(i)–(ii)

. For example, 8 U.S.C. § 1252(a)(2)(B) states in relevant part:

Notwithstanding any other provision of law (statutory or nonstatutory) ... and regardless of whether the judgment, decision or action is made in removal proceedings, no court shall have jurisdiction to review—(i) any judgment regarding the granting of relief under section 1182(h)

, 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any [ ] decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter⁵ to be in the discretion of the Attorney General or the Secretary of Homeland Security ....

8 U.S.C. § 1252(a)(2)(B)

(emphasis added).

In the present case, Hosseini sought an adjustment of status under 8 U.S.C. § 1159

. Section 1159 specifies that the Secretary of Homeland Security or the Attorney General in their “discretion ... may adjust” the status of an alien granted asylum to the status of a permanent resident, but only if certain prerequisites for eligibility are met. See 8 U.S.C. § 1159 (emphasis added). Because the ultimate decision of whether to adjust status is committed to the agency's discretion, “section 1252(a)(2)(B) appears, [at first blush], to create an unqualified bar to judicial review” of all things related to the denial of adjustment of status, but it does not. See

Jean , 435 F.3d at 480 ; Billeke

–

Tolosa v. Ashcroft , 385 F.3d 708, 711 (6th Cir. 2004). Courts may review “non-discretionary decisions that underlie determinations that are ultimately discretionary.” Billeke–Tolosa , 385 F.3d at 711 (citing Valenzuela–Alcantar v. INS , 309 F.3d 946, 949 (6th Cir. 2002) ). Satisfaction of the eligibility “requirements is a condition precedent to any exercise of [ ] discretion.” See Sagastume v. Holder , 490 Fed.Appx. 712, 715 (6th Cir. 2012)

(citing Billeke–Tolosa , 385 F.3d at 711 ). So eligibility determinations underlying the agency's decision are non-discretionary determinations that are subject to judicial review. See id. ; see also

Lepe–Paz v. Holder , 531 Fed.Appx. 645, 646 (6th Cir. 2013) ; Mejia Rodriguez v. U.S. Dep't of Homeland Sec. , 562 F.3d 1137, 1144 (11th Cir. 2009) ; Addo v. Mukasey , 267 Fed.Appx. 442, 447 (6th Cir. 2008) ; Jean , 435 F.3d at 480 (observing that many courts had held that “non-discretionary legal determinations...