United States District Court, D. Colorado
ORDER GRANTING DEFENDANTS' MOTION TO
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' Motion to
Dismiss for Lack of Subject Matter Jurisdiction (Doc. # 45),
which the Plaintiff Maria Ortega Borjas opposes (Doc. # 48).
The sole issue presented for review is whether this Court has
jurisdiction under the Administrative Procedure Act (APA) to
hear Ms. Ortega's challenge to the United States
Citizenship and Immigration Services' (USCIS) denial of
her application for adjustment of status, given that removal
proceedings are simultaneously pending against her. For the
following reasons, the Court concludes that it does not have
jurisdiction over this action and must accordingly dismiss
Ortega is a native and citizen of Mexico who lives in Denver,
Colorado. (Doc. # 1 at ¶ 3.) Ms. Ortega last entered the
United States on July 9, 1999 after being inspected and
admitted using her border crossing card. (Id. at
October 8, 2014, Ms. Ortega filed an I-485 application for
adjustment of status. (Id. at ¶ 1.) USCIS
denied her application on April 22, 2016, finding that Ms.
Ortega was inadmissible to the United States under INA
212(a)(9)(B)(i)(II). (Id. at ¶ 12.)
5, 2016, Ms. Ortega commenced this action seeking judicial
review of USCIS's denial of her application for a status
adjustment under the APA. (Doc. # 1.) At the time, Ms. Ortega
had no other remedies to pursue. On January 9, 2018,
Defendants issued a Notice to Appear (NTA), charging Ms.
Ortega as removable under the INA. (Doc. # 45 at 7-9.) A
removal proceeding hearing is scheduled for May 2018. (Doc. #
45 at 2, n. 2.)
instant Motion to Dismiss, filed on January 16, 2018, argues
that the recently-filed NTA and pending removal proceedings
strip this Court of jurisdiction because the challenged USCIS
denial is not final as required under the APA, given that Ms.
Ortega “can continue to pursue her application for
adjustment of status through administrative channels.”
(Id. at 1-2.)
FINALITY UNDER THE APA
the APA, agency action is subject to judicial review only
when it is either: (1) made reviewable by statute; or (2) a
“final” action “for which there is no other
adequate remedy in a court.” 5 U.S.C. § 704. No
statute authorizes judicial review over denials of status
adjustment, so the Court must determine whether USCIS's
denial of the Ms. Gomez's application was a
“final” agency action for which there is no other
two conditions must be satisfied for agency action to be
“final” under the APA. “First, the action
must mark the consummation of the agency's
decision-making process-it must not be of a merely tentative
or interlocutory nature. And second, the action must be one
by which rights or obligations have been determined, or from
which legal consequences will flow.” U.S. Army
Corps of Engineers v. Hawkes Co., 136 S.Ct. 1807, 1813
(2016) (citing Bennett v. Spear, 520 U.S. 154
(1997)); see also Franklin v. Massachusetts, 505
U.S. 788, 797 (1992) (“The core question is whether the
agency has completed its decision-making process, and whether
the result of that process is one that will directly affect
the parties.”). An agency action is not final if it
“does not of itself adversely affect complainant but
only affects his rights adversely on the contingency of
future administrative action.” Rochester Tel. Corp.
v. United States, 307 U.S. 125, 130 (1939); Jama v.
Dep't of Homeland Sec., 760 F.3d 490, 496 (6th Cir.
the APA establishes that agency action is “final”
and therefore “subject to judicial review” only
after “an aggrieved party has exhausted all
administrative remedies expressly prescribed by statute or
agency rule.” Darby v. Cisneros, 509 U.S. 137
(1993) (quoting 5 U.S.C. § 704).
FINALITY OF A CHALLENGE TO DENIAL OF STATUS
speaking, “adjustment of status” is an
application filed by an alien who is physically in the United
States to adjust her non-immigrant status to ...