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Ortega v. United States

United States District Court, D. Colorado

February 28, 2018

MONCERRAT LOPEZ ORTEGA, Plaintiff,
v.
UNITED STATES OF AMERICA, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, and KRISTI BARROWS, Acting District Director of USCIS, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. # 41), which the Plaintiff Moncerrat Lopez Ortega opposes (Doc. # 44). The sole issue presented for review is whether this Court has jurisdiction under the Administrative Procedure Act (APA) to hear Mr. Lopez's challenge to the United States Citizenship and Immigration Services' (USCIS) denial of his application for adjustment of status, given that removal proceedings are simultaneously pending against him. For the following reasons, the Court concludes that it does not have jurisdiction over this action and must accordingly dismiss this case.

         I. BACKGROUND

         Mr. Lopez is a native and citizen of Mexico who lives in Denver, Colorado. (Doc. # 1 at ¶ 3.) Mr. Lopez last departed from the United States sometime in December 2004; he then re-entered in later that same month December 2004 after being inspected and admitted using his border crossing card. (Id. at ¶ 9.) On February 18, 2015, Mr. Lopez filed an I-485 application for adjustment of status. (Id. at ¶ 11.) USCIS denied his application on August 24, 2016, finding that Mr. Lopez was inadmissible to the United States under INA 212(a)(9)(B)(i)(II). (Id. at ¶ 12.)

         On October 17, 2016, Mr. Lopez commenced this action seeking judicial review of USCIS's denial of his application for a status adjustment under the APA. (Doc. # 1.) At the time, Mr. Lopez had no other remedies to pursue. On January 9, 2018, Defendants issued a Notice to Appear (NTA), charging Mr. Lopez as removable under the INA. (Doc. # 41 at 7-9.) A removal proceeding hearing is scheduled for May 2018. (Doc. # 41 at 2, n. 2.)

         Defendants' 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 Mr. Lopez “can continue to pursue his application for adjustment of status through administrative channels.” (Id. at 1-2.)

         II. LAW

         A. FINALITY UNDER THE APA

         Under 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 Mr. Gomez's application was a “final” agency action for which there is no other adequate remedy.

         Generally, 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. 2014).

         Likewise, 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).

         B. FINALITY OF A CHALLENGE TO DENIAL OF STATUS ADJUSTMENT

         Broadly speaking, “adjustment of status” is an application filed by an alien who is physically in the United States to adjust his non-immigrant status to immigrant status, i.e. permanent resident status.

         Pursuant to 8 C.F.R 245.2(a)(5)(ii), “No appeal lies from the denial of an application [for an adjustment of status]. . . but the applicant . . . retains the right to renew his or her application in proceedings under 8 CFR part 240, ” i.e. in removal proceedings. In other words, without a pending removal proceeding, a denial ...


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