Jama v. Dep't of Homeland Sec.

• Decision Date: 16 September 2014
• Docket Number: No. 13–4192.,13–4192.
• Citation: 760 F.3d 490
• Parties: Liban Muse JAMA, Plaintiff–Appellant, v. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

760 F.3d 490

Liban Muse JAMA, Plaintiff–Appellant,

v.DEPARTMENT OF HOMELAND SECURITY, et al., Defendants–Appellees.

No. 13–4192.

United States Court of Appeals,Sixth Circuit.

Argued: May 7, 2014.

Decided and Filed: July 25, 2014.

Rehearing Denied Sept. 16, 2014.

ARGUED:Brian J. Halliday, The Law Offices of Brian J. Halliday, Beachwood, Ohio, for Appellant. Erez Reuveni, Office of Immigration Litigation, Washington, D.C., for Appellees. ON BRIEF:

Brian J. Halliday, The Law Offices of Brian J. Halliday, Beachwood, Ohio, for Appellant. Erez Reuveni, Office of Immigration Litigation, Washington, D.C., for Appellees. Mary Kenney, American Immigration Council, Washington, D.C., for Amicus Curiae.

Before: NORRIS, CLAY, and KETHLEDGE, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Plaintiff Liban Muse Jama appeals the district court's dismissal of his complaint seeking judicial review, under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq. (2011), of certain actions by the United States Citizenship and Immigration Service (“USCIS”), including USCIS's termination of Jama's refugee status. For the reasons that follow, we hold that termination of refugee status and denial of a status adjustment application are not “final agency actions” reviewable in district court under the APA, and AFFIRM the district court's dismissal of Jama's complaint on the basis of Jama's failure to state a claim under the APA.

BACKGROUND

Over ten years after Jama was admitted to the United States as a refugee based on his sworn statement that he was the minor child of a principal refugee, USCIS learned that Jama had made material factual misrepresentations in his application for refugee status. At the time of his admission to the United States, Jama was not, in fact, a legal minor or the biological child of the principal refugee. After providing Jama with notice and an opportunity to respond, USCIS terminated Jama's refugee status on the basis of his fraud, pursuant to 8 C.F.R. § 207.9. USCIS also denied Jama's pending applications for status adjustment and fraud waiver. USCIS subsequently denied Jama's motion to reopen these decisions, and initiated removal proceedings against him, as required by the statute. See8 C.F.R. § 207.9 (“Upon termination of refugee status, USCIS will process the alien under sections 235, 240, and 241 of the Act.”). The agency did not rule on Jama's pending application for asylum and for withholding of removal (Form I–589), which Jama had submitted to the USCIS Asylum Office prior to the termination decision.

On August 18, 2011, Jama was sent a notice to appear before an immigration judge (“IJ”) on the removability charges. On that same date, USCIS also referred Jama's application for asylum to the IJ presiding over Jama's removal proceedings.

On June 14, 2012, the IJ held a merits hearing on the removability charges, and concluded that Jama was removable based on the charge that he did not possess a valid immigrant visa or entry document when he was admitted to the United States. As part of the removability analysis, the IJ considered whether or not Jama was admissible under INA § 207(c)(2)(A) at the time of his entry into the United States.¹ The IJ concluded based on the evidence presented that Jama was not eligible for an entry document as a derivative beneficiary at the time of his entry into the United States, and found him removable on that basis. During this hearing, Jama attempted to argue that the termination of his refugee status was improper. The IJ dismissed Jama's argument that his refugee status was improperly terminated, explainingthat USCIS's decision to terminate Jama's refugee status “is irrelevant .... [and] has no implications for whether [Jama] possessed a valid entry document at the time of his admission.” [R. 28–1, IJ Order at 5.]

Jama filed a motion for reconsideration, which the IJ denied on August 8, 2012. In its order denying reconsideration, the IJ reiterated that the termination of Jama's refugee status was irrelevant to its inquiry, and explained that it lacked jurisdiction to review USCIS's decision to terminate refugee status, citing 8 C.F.R. § 207.9. That regulation provides that “[t]here is no appeal under this chapter I from the termination of refugee status by USCIS.” 8 C.F.R. § 207.9. The IJ did not rule on Jama's asylum claims, which remain pending in immigration court as of the date of this writing.

On November 19, 2012, with his asylum claims still pending in immigration court, Jama filed the instant action in United States District Court for the Northern District of Ohio against USCIS, the Department of Homeland Security, and other related individuals and entities (collectively, “Defendants”). In his complaint, Jama asserted jurisdiction under 28 U.S.C. § 1331 (the “federal question statute”); 28 U.S.C. § 2201 (the “Declaratory Judgment Act”); and 5 U.S.C. § 555 and § 701, et seq. (the “APA”). He alleged, inter alia, unlawful termination of his refugee status, improper denial of his status adjustment application, and improper denial of his fraud waiver application. He sought a declaration that USCIS's actions were unlawful, and that he continues to be a derivative refugee.²

Defendants filed a motion to dismiss, asserting lack of subject matter jurisdiction and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district court found that neither the Federal Question statute nor the Declaratory Judgment Act confers jurisdiction over Jama's complaint, and that the APA “is the only authority cited by [Jama] which could provide jurisdiction.” Jama v. U.S. Citizenship & Immigration Servs., 962 F.Supp.2d 939, 947 (N.D.Ohio 2013). The court subsequently concluded that it ultimately lacked jurisdiction under the APA to review the termination of Jama's refugee status and the denial of his application for status adjustment because neither decision is “final agency action,” as required for judicial review under the APA. Id. at 949–50. As an alternative basis for dismissal, the district court found that 8 U.S.C. §§ 1252(a)(5) and (b)(9) stripped the court of any jurisdiction it might otherwise have over Jama's claims. The court also concluded that it lacked authority under the APA to review the denial of Jama's fraud waiver application, since USCIS's decision to deny Jama's fraud waiver application is “agency action [that] is committed to agency discretion by law.” 5 U.S.C. § 701(a). Accordingly, the district court granted Defendants' motion to dismiss. Jama timely appealed.

DISCUSSION

We review de novo a district court's order dismissing a claim for lack of subject matter jurisdiction or failure to state a claim. Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.2002); E. Brooks Books, Inc. v. City of Memphis, 633 F.3d 459, 464 (6th Cir.2011).

At the outset, we emphasize that both parties agree that USCIS's actions, including its termination of Jama's refugee status and its denial of Jama's status adjustment application, are reviewable in federal court at some stage prior to Jama's removal; the dispute in this case concerns when those actions are subject to review, and which federal court is vested with authority to hear the claims. Jama argues that he is entitled to immediate judicial review of USCIS's actions in the district court under the APA. Meanwhile, Defendants contend that the challenged actions cannot be reviewed until after the conclusion of removal proceedings, including resolution of Jama's pending asylum application, and submit that “this claim, and each and every other basis for relief Jama might raise, can be addressed before the IJ, raised again on appeal to the Board of Immigration Appeals (“BIA”) if necessary, and ultimately, as Section 1252(b)(9) requires, receive review in federal court in the courts of appeal.” Def. Br. at 47.³

I. Subject Matter Jurisdiction

The APA is not a jurisdiction-conferring statute; it does not directly grant subject matter jurisdiction to the federal courts. See Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Air Courier Conference v. Am. Postal Workers Union, 498 U.S. 517, 523 n. 3, 111 S.Ct. 913, 112 L.Ed.2d 1125 (1991). Rather, the judicial review provisions of the APA provide a limited cause of action for parties adversely affected by agency action. See Bennett v. Spear, 520 U.S. 154, 175, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 n. 4, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986); Md. Dep't of Human Res. v. Dep't of Health & Human Servs., 763 F.2d 1441, 1445 n. 1 (D.C.Cir.1985) (“The Supreme Court has clearly indicated that the [APA] itself, although it does not create subject-matter jurisdiction, does supply a generic cause of action in favor of persons aggrieved by agency action.”).

Although the APA does not directly grant jurisdiction, the federal question statute, 28 U.S.C. § 1331, “confer[s] jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional predicate.” Califano, 430 U.S. at 105, 97 S.Ct. 980; see also Hill v. Norton, 275 F.3d 98, 103 (D.C.Cir.2001) (“challenges brought under the APA fall within the reach of the general federal jurisdiction statute, 28 U.S.C. § 1331”). In the instant case, the district court had jurisdiction over Jama's APA claims pursuant to the federal question statute, 28 U.S.C. § 1331. Accordingly, dismissal pursuant to 12(b)(1) was improper.⁴

II. Review Under the APA

Having established that the district court did, in fact, have subject matter jurisdiction over this claim, we “proceed to address whether [Jama's] allegations state a claim” on the merits. Morrison v. Nat'l Australia Bank Ltd., 561 U.S. 247, 254, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010).⁵ Section 704 of the APA authorizes judicial review of “[a]gency action made reviewable by statute and final agency action for which...