Meza v. Cuccinelli

• Decision Date: 07 February 2020
• Docket Number: Civil Action No. 19-1322 (CKK)
• Citation: 438 F.Supp.3d 25
• Parties: Selvin Leonardy Solis MEZA, Plaintiff, v. Kenneth T. CUCCINELLI, Senior Official Performing the Duties of the Director, United States Citizenship and Immigration Services, Defendant.
• Court: U.S. District Court — District of Columbia

438 F.Supp.3d 25

Selvin Leonardy Solis MEZA, Plaintiff,

v.Kenneth T. CUCCINELLI, Senior Official Performing the Duties of the Director, United States Citizenship and Immigration Services,¹ Defendant.

Civil Action No. 19-1322 (CKK)

United States District Court, District of Columbia.

Signed February 7, 2020

Bradley Bruce Banias, Wasden Banias LLC, Mount Pleasant, SC, for Plaintiff.

Marsha Wellknown Yee, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

Pending before the Court is Defendant's Motion to Dismiss or, Alternatively, Motion to Transfer or, Alternatively, Motion for Summary Judgment, ECF No. 11. Defendant first moves to dismiss the Complaint, ECF No. 1, for lack of subject matter jurisdiction. Second, Defendant moves to transfer this case to the United States District Court for the Western District of North Carolina pursuant to 28 U.S.C. § 1404(a). Lastly, Defendant moves for summary judgment with respect to whether the actions of the agency at issue, the United States Citizenship and Immigration Services ("USCIS"), were arbitrary and capricious. Upon consideration of the briefing,² the relevant legal authorities, and the record as relevant to this Motion, the Court GRANTS Defendant's Motion on the basis that the court lacks subject matter jurisdiction over this case. The Court therefore DENIES AS MOOT Defendant's alternative Motion to Transfer and Motion for Summary Judgment.

I. BACKGROUND

Plaintiff Selvin Leonardy Solis Meza is a citizen and national of Honduras who currently resides in Pineville, North Carolina. Compl. ¶ 1. He is married to a United States citizen and has two children who are also United States citizens. Id. He originally entered the United States in 2002 and was apprehended by immigration officials. Id. ¶¶ 8–9. According to Mr. Solis, the immigration officials chose to "parole" him into the United States. Id. ¶ 10. They served him with a notice to appear, which initiated removal proceedings. Id. ¶ 11. The notice to appear described Mr. Solis as an "arriving alien." Id.

Later, on January 26, 2018, Mr. Solis's wife filed a Petition for an Alien Relative (Form I-130) on Mr. Solis's behalf. Id. ¶ 15. He contemporaneously filed an Application to Register Permanent Residence or Adjust Status (Form I-485, referred to here as "Adjustment Application"). Id. ¶ 16. After interviewing Mr. Solis and his wife, USCIS issued a notice of intent to deny his Application on the basis that Mr. Solis was not an arriving alien. Id. ¶ 19. Mr. Solis provided them with a copy of his notice to appear that indicated he was an arriving alien. Id. ¶ 21. However, the agency still denied his Adjustment Application on the basis that it lacked jurisdiction because Mr. Solis was not an arriving alien. Id. ¶ 22; see id. Ex. A (denial letter), ECF No. 1-5.

Mr. Solis then brought this suit, which primarily argues that the agency's denial of his Application was arbitrary and capricious under the Administrative Procedure Act ("APA"). See, e.g. , id. ¶ 4 (invoking APA); id. ¶¶ 28–39 (outlining claim titled "APA—Adjustment Application Denial").

II. LEGAL STANDARD

A court must dismiss a case pursuant to Federal Rule 12(b)(1) when it lacks subject matter jurisdiction. In determining whether there is jurisdiction, the Court may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta , 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation marks omitted) (quoting Herbert v. Nat'l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir. 1992) ); see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin. , 402 F.3d 1249, 1253 (D.C. Cir. 2005) ("[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.").

In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts must accept as true all factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole Comm'n , 429 F.3d 1098, 1106 (D.C. Cir. 2005) ("At the motion to dismiss stage, counseled complaints as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact."); Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit , 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) ("We review here a decision granting a motion to dismiss, and therefore must accept as true all the factual allegations in the complaint."); Koutny v. Martin , 530 F. Supp. 2d 84, 87 (D.D.C. 2007) ("[A] court accepts as true all of the factual allegations contained in the complaint and may also consider ‘undisputed facts evidenced in the record.’ " (internal citations omitted) (quoting Mineta , 333 F.3d at 198 )).

Despite the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff's burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. United States Envtl. Prot. Agency , 121 F. Supp. 2d 84, 90 (D.D.C. 2000). "Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff['s] factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wright v. Foreign Serv. Grievance Bd. , 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks omitted) (quoting Grand Lodge of Fraternal Order of Police v. Ashcroft , 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) ), aff'd , 2008 WL 4068606 (D.C. Cir. Mar. 17, 2008). A court need not accept as true "a legal conclusion couched as a factual allegation" or an inference "unsupported by the facts set out in the complaint." Trudeau v. Fed. Trade Comm'n , 456 F.3d 178, 193 (D.C. Cir. 2006) (internal quotation marks omitted) (quoting Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ).

III. DISCUSSION

Defendant argues that the case should be dismissed because this Court lacks subject matter jurisdiction. In short, Defendant argues that under the relevant statutes, there is no jurisdiction because Mr. Solis is challenging a denial of an adjustment of status while there is a pending removal proceeding with respect to Mr. Solis. Def.'s Mot. at 5–7. Mr. Solis, in response, contends that because there is no pending removal proceeding and because he seeks review of a purely legal matter, this Court has jurisdiction. The Court addresses the relevant statutory and regulatory scheme, and how it has been applied in this context, before turning to the parties' arguments here.

Some background on the relevant statutory and regulatory scheme provides context for the parties' arguments. The Immigration and Nationality Act ("INA") created a process, called "adjustment of status," by which "certain aliens physically present in the United States could seek lawful permanent resident status without having to depart this country." Landin-Molina v. Holder , 580 F.3d 913, 916 (9th Cir. 2009). However, in cases in which an alien who is not an arriving alien "has been placed in deportation proceedings or in removal proceedings," the Immigration Judge in the Department of Justice's Executive Office for Immigration Review ("EOIR") "has exclusive jurisdiction to adjudicate any application for adjustment of status the alien may file." 8 C.F.R. § 1245.2(a)(1)(i) ; see also 8 C.F.R. § 1240.1(a)(1)(ii) (granting immigration judge in removal proceeding authority to determine applications for adjustment of status); 8 C.F.R. § 245.2(a)(1) ("USCIS has jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 CFR 1245.2(a)(1).").

If an Immigration Judge denies such an application, the alien may appeal to the Board of Immigration Appeals. See 8 C.F.R. § 1003.1(b) (outlining appellate jurisdiction of Board of Immigration Appeals, which includes "[d]ecisions of Immigration Judges in removal proceedings"); 8 C.F.R. § 1003.3(a) (providing process for appeals of decisions by Immigration Judges to Board of Immigration Appeals). Certain questions in final decisions by the Board of Immigration Appeals related to removal proceedings may be appealed to the appropriate federal Court of Appeals. See 8 U.S.C. § 1252(a)(5) ("[A] petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter[.]"); id. § 1252(b)(2) ("The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings."); id. § 1252(b)(9) ("Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section ." (emphasis added)); see also Vetcher v. Sessions , 316 F. Supp. 3d 70, 76 (D.D.C. 2018) ("Taken together, then, these two subsections streamline all issues arising from removal proceedings into a petition for review that must be filed with a court of appeals after a final order of removal from the BIA.").

The "petition for review filed with an appropriate court of appeals" is "the sole and exclusive means for judicial review" of a removal order. 8 U.S.C. §...