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. # 16),
which the Plaintiff Bernardo Morales Arreola opposes (Doc. #
20). The sole issue presented for review is whether this
Court has jurisdiction under the Administrative Procedure Act
(APA) to hear Mr. Morales Arreola'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.
Morales Arreola is a native and citizen of Mexico who lives
in Aurora, Colorado. (Doc. # 1 at ¶ 7.) Mr. Morales
Arreola last departed from the United States sometime in
December 2006; he then re-entered in June 2007 after being
inspected and admitted using his border crossing card.
(Id. at ¶ 2.)
18, 2016, Mr. Morales Arreola filed an I-485 application for
adjustment of status. (Id. at ¶ 3.) USCIS
denied his application on July 7, 2017, finding that Mr.
Morales Arreola was inadmissible to the United States under
INA 212(a)(9)(B)(i)(II), which states that any alien who
“has been unlawfully present in the United States for
one year or more, and who again seeks admission within 10
years of that date of such alien's departure or removal
from the United States is inadmissible.” (Id.
at ¶¶ 3, 4.)
August 28, 2017, Mr. Morales Arreola 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. Morales Arreola had no other remedies to
pursue. On January 9, 2018, Defendants issued a Notice to
Appear (NTA), charging Mr. Morales Arreola as removable under
the INA. (Doc. # 16 at 7-9.) A removal proceeding hearing is
scheduled for May 2018. (Doc. # 16 at 2, n. 2.)
instant Motion to Dismiss, filed on January 17, 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.
Morales Arreola “can continue to pursue his 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 Mr. 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 his non-immigrant status to ...