Karr Karr v. United States Citizenship & Immigration Services

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction [Docket No. 15]. Plaintiff responded on August 23, 2019 [Docket No. 16].

         I. BACKGROUND

         Plaintiff filed this suit in January 2019 after having her residency application denied. Docket No. 1 at 2, ¶ 5. Plaintiff alleges that her application was denied based on an erroneous interpretation of 8 U.S.C. § 1182(a)(9)(B)(i)(II) and so should be set aside under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. Id. at 2, ¶¶ 2-6. On May 20, 2019, defendant informed the Court that it had re-opened plaintiff's application for adjustment of status. Docket No. 11 at 2, ¶ 4. Defendant stated that resolving plaintiff's re-opened application would take considerable time and asked that the case be administratively closed. Docket No. 11 at 2, ¶¶ 4-5. The Court granted the motion. Docket No. 12. At the time the case was filed, removal proceedings against plaintiff had not been initiated. Docket No. 1 at 5, ¶ 34. Defendant has subsequently begun removal proceedings against plaintiff and has issued a Notice to Appear (“NTA”) to plaintiff. Docket No. 15 at 2.^[1]

         Defendant argues that, because it has initiated removal proceedings against plaintiff, defendant's original denial of plaintiff's residency application is no longer final agency action. Id. at 6-7. Defendant claims that the lack of finality strips the Court of subject matter jurisdiction. Id. at 7-9. Plaintiff ultimately agrees. Docket No. 16 at 1, ¶ 1.

         Neither side has requested that the case be re-opened. In order to consider defendant's motion, the Court will administratively re-open this matter upon a finding of good cause. D.C.Colo.LCivR 41.2.

         II. LEGAL STANDARD

         Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate if the Court lacks subject matter jurisdiction over claims for relief asserted in the complaint. Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)).

         Where, as here, the defendant attacks the factual basis for subject matter jurisdiction, the Court “may not presume the truthfulness of the factual allegations in the complaint, but may consider evidence to resolve disputed jurisdictional facts.” SK Fin. SA v. La Plata Cty., 126 F.3d 1272, 1275 (10th Cir. 1997). “Reference to evidence outside the pleadings does not convert the motion to dismiss into a motion for summary judgment in such circumstances.” Id. Ultimately, plaintiff has “[t]he burden of establishing subject matter jurisdiction” because she is “the party asserting jurisdiction.” Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008).

         III. ANALYSIS

         There is no statutory basis for judicial review of denials of status adjustment, making the APA the sole means by which plaintiff can seek review. See Cabaccang v. U.S. Citizenship & Immigration Servs., 627 F.3d 1313, 1315 (9th Cir. 2010). The APA provides that “[a]gency action[s] made reviewable by statute and final agency action[s] for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. “A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.” Id. Thus, unless an agency's action is “final, ” the Court does not have subject matter jurisdiction. Plaintiff “[has] the burden of identifying specific federal conduct and explaining how it is ‘final agency action.'” Colo. Farm Bureau Fed'n v. U.S. Forest Serv., 220 F.3d 1171, 1173 (10th Cir. 2000).

         There are two requirements for final agency action. “First, the action must mark the consummation of the agency's decisionmaking 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 Eng'rs v. Hawkes Co., 136 S.Ct. 1807, 1813 (2016) (citing Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). The plaintiff must also exhaust all administrative remedies for agency action to be reviewable. Darby v. Cisneros, 509 U.S. 137, 146 (1993).

         Applicants may not appeal from the denial of an application for adjustment of status. See 8 C.F.R. § 245.2(a)(5)(ii). As a result, the denial is final because it is the “consummation of the agency's decisionmaking process” by which “legal consequences will flow.” Hawkes, 136 S.Ct. at 1813. And because there is no other adm inistrative body to which the applicant can appeal, administrative remedies are exhausted. Darby, 509 U.S. at 146.

         That, however, is not so when the government issues an NTA and removal proceedings are pending. During the removal hearing, an applicant may renew her application and argue for a status adjustment in front an immigration judge, who may then modify or reverse the original denial of status adjustment. See 8 C.F.R. §§ 245.2(a)(5)(ii), (c), 1240.1(a)(1)(ii), 1245.2(a). Thus, once an NTA has been issued, the agency has not come to the consummation of its decisionmaking process because the agency has not reached a final conclusion as to the applicant's adjustment of status. Cf. Hawke, 136 S.Ct. at 1813. Additionally, because an applicant can receive further review from an ...