United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
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].
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.
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.
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.
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.
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).
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).
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).
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.
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