Ramat v. Nielsen

• Decision Date: 06 July 2018
• Docket Number: Case No.: 3:17-cv-02474-BEN-JLB
• Citation: 317 F.Supp.3d 1111
• Court: U.S. District Court — Southern District of California
• Parties: Zander RAMAT, Plaintiff, v. Kirstjen NIELSEN, Secretary of Homeland Security, et al., Defendants.

317 F.Supp.3d 1111

Zander RAMAT, Plaintiff,

v.Kirstjen NIELSEN, Secretary of Homeland Security, et al., Defendants.

Case No.: 3:17-cv-02474-BEN-JLB

United States District Court, S.D. California.

Signed July 6, 2018

Anna M. Hysell, North County Immigration, Escondido, CA, for Plaintiff.

U.S. Attorney CV, Samuel William Bettwy, U.S. Attorneys Office Southern District of California, San Diego, CA, for Defendants.

ORDER GRANTING MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Hon. Roger T. Benitez, United States District Judge

Pending before the Court are Defendants' motion to dismiss Plaintiff's First Amended Complaint for lack of subject matter jurisdiction,¹ Plaintiff's motion for a preliminary injunction, Plaintiff's ex parte motion for a temporary restraining order, and Plaintiff's motion for leave to file a supplemental memorandum in support of his opposition to Defendant's motion to dismiss. (Docket Nos. 6, 8, 13, 15.) Because the Court finds it lacks subject matter jurisdiction over the action, Defendants' motion to dismiss is GRANTED , and Plaintiff's motions are DENIED as moot .

BACKGROUND & PROCEDURAL HISTORY²

Plaintiff Zander Ramat is a native and citizen of the Philippines. On December 25, 1996, at the age of thirteen, Plaintiff's grandmother brought him to the United States. He entered the United States at the Los Angeles International Airport with a false Philippines passport and a fraudulent United States visa. Plaintiff has never left the United States since his initial entry, and in October 2014, he married Cindy Ramat, a U.S. citizen. On October 26, 2015, Cindy Ramat filed a Form I-130 visa petition, which was approved on April 28, 2017.

Also on October 26, 2015, Plaintiff filed a Form I-485 application for adjustment of status with the United States Citizenship and Immigration Service ("USCIS") under 8 U.S.C. § 1255(a). On September 19, 2016, Plaintiff appeared for an interview with USCIS where he testified about his entrance to the United States. Regarding the passport and visa he presented, Plaintiff testified that his family had told him they had been lost.

On January 11, 2017, the USCIS asked Plaintiff for evidence regarding his entry into the United States. Plaintiff alleges he then contacted the grandmother who brought him to the United States, who told him the Philippines passport and United States visa Plaintiff entered with were "false" and provided by a "rogue Consulate/employee in the Philippines." (FAC ¶ 8.) His grandmother provided a declaration attesting to these facts, which Plaintiff submitted to the USCIS along with his own declaration asserting his lack of knowledge of the falsity of his entry documents.

On May 9, 2017, the USCIS denied Plaintiff's application for adjustment of status on the grounds that Plaintiff lacked sufficient evidence to establish that he had been inspected and admitted into the United States. Plaintiff filed a motion to reconsider the denial of his application, which was denied on November 1, 2017. Subsequently, on December 8, 2017, Plaintiff filed his initial complaint seeking judicial review of the USCIS's denial of his application for adjustment of status under the Administrative Procedures Act. (Docket No. 1.)

On February 12, 2018, Defendants moved to dismiss Plaintiff's complaint for lack of subject matter jurisdiction on the grounds that the USCIS has initiated removal proceedings against Plaintiff on February 8, 2018. (Docket No. 4.) In lieu of filing an opposition to Defendants' motion, Plaintiff exercised his right to amend his pleading and filed the operative FAC. (Docket No. 5.) Defendants responded by moving again to dismiss for lack of subject matter jurisdiction on the same grounds. (Docket No. 8.)

LEGAL STANDARD

"It is a fundamental principle that federal courts are courts of limited jurisdiction." Stock W., Inc. v. Confederated Tribes of the Colville Reservation , 873 F.2d 1221, 1225 (9th Cir. 1989) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) ). Under Rule 12(b)(1), a party can move a court to dismiss an action for lack of subject matter jurisdiction. Fed. R. Civ. Proc. 12(b)(1). In such a motion, the party asserting jurisdiction bears the burden to establish jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ("It is to be presumed that a cause lies outside [federal court] jurisdiction ... and the burden of establishing the contrary rests upon the party asserting jurisdiction.") (internal citations omitted).

A Rule 12(b)(1) jurisdictional attack may be facial or factual. White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000). A facial attack asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. See Safe Air v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A Rule 12(b)(1) motion will be granted if, on the face of the complaint, and when considered in its entirety, the complaint fails to allege facts sufficient to establish subject matter jurisdiction. Id.

In contrast, a factual attack is one that "relie[s] on extrinsic evidence and [does] not assert lack of subject matter jurisdiction solely on the basis of the pleadings." Id. (quoting Morrison v. Amway Corp. , 323 F.3d 920, 924 n.5 (11th Cir. 2003) ). "In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Id. (citing Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) ). Additionally, the court need not assume the truth of the plaintiff's allegations, and "once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Id. (quoting Savage, 343 F.3d at 1039 n.2.).

DISCUSSION

A. The Immigration & Nationality Act

Plaintiff's action seeks judicial review of the USCIS's denial of his application for adjustment of status under 8 U.S.C. § 1255(a). In 1952, Congress enacted the Immigration and Nationality Act ("INA") § 245, 8 U.S.C. § 1255, which authorized what is presently known as the "adjustment of status" process,³ "whereby certain aliens physically present in the United States could seek lawful permanent resident status[.]" Landin-Molina v. Holder , 580 F.3d 913, 916 (9th Cir. 2009) (citing Immigration and Nationality Act, Pub. L. No. 82-414, tit. II, ch. 5, § 245, 66 Stat. 163, 217 (1952) ). Adjustment of status under 8 U.S.C. § 1255(a), "is available only to aliens who were inspected and admitted or paroled into the United States, and to certain aliens with approved classification petitions brought under the Violence Against Women Act ("VAWA")." Id. (citing 8 U.S.C. § 1255(a) ).

Importantly, "judicial review of the denial of an adjustment of status application" such as Plaintiff's "is expressly precluded by 8 U.S.C. § 1252(a)(2)(B)(i)." Hassan v. Chertoff , 593 F.3d 785, 788-89 (9th Cir. 2010) (per curiam). Additionally, where, as here, Plaintiff seeks judicial review for the USCIS's "abuse of discretion" in denying his application for adjustment of status,⁴ "judicial review of a discretionary determination is also expressly precluded by 8 U.S.C. § 1252(a)(2)(B)(ii)." Id. ; see also Mamigonian v. Biggs , 710 F.3d 936, 945 (9th Cir. 2013) (same). As a result, the Court lacks subject matter jurisdiction over Plaintiff's action.⁵

B. The Administrative Procedures Act

Plaintiff's reliance on the Administrative Procedures Act, 5 U.S.C. § 701 et seq. ("APA"), as the basis of his action does not require a different result for two reasons.

First, the APA does not apply "to the extent that statutes preclude judicial review." 5 U.S.C. § 701(a)(1). Thus, as discussed above, because 8 U.S.C. § 1252, subds. (a)(2)(B)(i) & (a)(2)(B)(ii) expressly precludes judicial review of Plaintiff's denial of his application for adjustment of status, such review is also precluded under the ADA. Mohsenzadeh v. Kelly , 276 F.Supp.3d 1007, 1014-15 (S.D. Cal. 2017).

Second, even if 5 U.S.C. § 701(a)(1) did not apply, subject matter jurisdiction is lacking because Plaintiff's claim is not ripe. The APA "permits a citizen suit against an agency when an individual has suffered ‘a legal wrong because of agency action’ or has been ‘adversely affected or aggrieved by agency action within the meaning of a relevant statute.’ " Rattlesnake Coal. v. U.S. Envtl. Prot. Agency , 509 F.3d 1095, 1103 (9th Cir. 2007) (quoting 5 U.S.C. § 702 ). However, the APA does not authorize review of all agency actions. Rather, only "final agency action for which there is no other adequate remedy in court" are actionable. Id. (quoting 5 U.S.C. § 704 ). "An agency action is ‘final’ when (1) the agency reaches the ‘consummation’ of its decisionmaking process and (2) the action determines the ‘rights and obligations’ of the parties or is one from which ‘legal consequences will flow.’ " Id. (quoting Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) ).

Defendants, relying on Cabaccang v. U.S. Citizenship & Immigration Servs. , 627 F.3d 1313 (9th Cir. 2010), argue that this Court lacks subject matter jurisdiction because removal proceedings against Plaintiff commenced on February 8, 2018 and, therefore, the USCIS's decision to deny his application for adjustment of status is not a "final agency action" as defined by the APA. To support their argument, Defendants submitted the 8 U.S.C. § 1229a Notice to Appear ("NTA") that was filed with the Immigration Court on February 8, 2018. (See Docket No. 4-2.) In opposition, Plaintiff argues this Court retains subject matter jurisdiction because: (1) Defendants failed to properly place him in removal proceedings when ...