Opinion
No. CV-19-00273-PHX-JJT
04-11-2019
Dominick Cestro, Plaintiff, v. USCIS, Defendant.
ORDER
At issue is Plaintiff Dominick Cestro's Motion to Request Restraining Order, which the Court treats a Motion for a Temporary Restraining Order ("TRO") (Doc. 14, Mot.). The Court will dismiss Plaintiff's Motion and his Complaint (Doc. 1) because Plaintiff has failed to exhaust all administrative remedies as required by law, and even if Plaintiff had properly pursued administrative remedies, this Court would lack jurisdiction over the matter.
Plaintiff provided a copy of USCIS's Notice of Decision, dated April 5, 2018. (Mot. at 5-8.) In that letter, USCIS notified Plaintiff that he "may file a motion to reopen or a motion to reconsider using Form I-290B" within thirty days from receipt of the Notice. (Mot. at 8.) Plaintiff provided no evidence that he exhausted his administrative remedies by filing any such motion to reopen or reconsider. Generally, courts may not review administrative action before a plaintiff has exhausted all administrative remedies. See Barron v. Ashcroft, 358 F.3d 674 (9th Cir. 2004).
Even if Plaintiff had exhausted his administrative remedies, this Court would lack jurisdiction over his claims. While "[c]ertain unfavorable decisions on applications, petitions, and other types of cases may be appealed," the appeal must be considered by the appellate arm of USCIS. 8 C.F.R. §§ 103.3(a)(1)(i)-(iv). Any party seeking review "must submit an appeal on Form I-290B," as Plaintiff was instructed to do in this case. 8 C.F.R. § 103.3(a)(2)(i). After several other steps in an appeals process, a plaintiff who receives an order for removal and has exhausted all administrative remedies may appeal to the Ninth Circuit Court of Appeals. See Alcala v. Holder, 563 F.3d 1009 (9th Cir. 2009) (providing an example of the appeals process).
Because this Court cannot have jurisdiction over a judicial review of USCIS's decision in Plaintiff's case, this matter is dismissed with prejudice.
IT IS THEREFORE ORDERED denying Plaintiff's Motion to Request Restraining Order (Doc. 14).
IT IS FURTHER ORDERED dismissing with prejudice Plaintiff's Complaint (Doc. 1).
IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment accordingly and close this case.
Dated this 11th day of April, 2019.
/s/_________
Honorable John J. Tuchi
United States District Judge