Opinion
Case No. 20-CV-577 (NEB/HB)
07-02-2020
J.M.O., Plaintiff, v. UNITED STATES OF AMERICA, U.S. CITIZENSHIP & IMMIGRATION SERVICES, and MICHAEL PAUL, Defendants.
ORDER ON PRELIMINARY INJUNCTION
Plaintiff Jaime M.O. is a citizen of Mexico who brought this suit against the United States Citizenship and Immigration Services ("USCIS") for denying his application for adjustment of status to lawful permanent resident under 8 U.S.C. § 1255(m). He now moves for a preliminary injunction relating to his immigration proceedings. Because the Court determines it has no subject-matter jurisdiction to review the underlying order or grant the relief Jaime requests, it denies the motion for preliminary injunction.
BACKGROUND
In 2015, Jaime applied for and was granted a U-visa under 8 U.S.C. § 1101(a)(15)(U). (ECF No. 1 ¶ 22.) After three years, he was eligible to apply for an adjustment of status to become a lawful permanent resident under 8 U.S.C. § 1255(m). In 2019 he did so, filing an I-485 Application for Adjustment to Status. In January 2020, USCIS denied his application because it concluded he was not lawfully admitted to qualify for adjustment and because it found that Jaime had not met his burden to demonstrate "that a favorable exercise of discretion" was warranted to adjust his status. (ECF No. 1-2 at 9.) Based on this denial, Jaime was no longer lawfully present in the United States. USCIS warned that if he did not depart the country within 33 days from the denial, then it may issue a "notice to appear and commence removal proceedings against" him. It further warned that those proceedings could result in his removal from the United States and a finding that he is ineligible for future immigration benefits. Id. More than 33 days have elapsed since the denial.
At the hearing on this motion, the parties informed the Court that they reached an agreement that USCIS will not commence removal proceedings against Jaime until the conclusion of this litigation.
Jaime brought this suit, claiming that USCIS erred in denying his I-485 application for adjustment of status. He then moved for a preliminary injunction to enjoin (1) the effective date of the denial of his application for adjustment, (2) the defendants from initiating removal proceedings against him until the conclusion of these proceedings, and (3) the defendants from rejecting or denying his employment authorization document renewal application until the conclusion of these proceedings. The defendants responded that the motion should be denied because the Court has no subject-matter jurisdiction over this case.
ANALYSIS
I. Request to Postpone Effective Date of Adjustment
Jaime's first request is that the Court enjoin the effective date of the denial of his application for adjustment of status under 8 U.S.C. § 1255(m) until the Court reviews the underlying denial. Enjoining the effective date will do no good if the Court lacks jurisdiction, which is what USCIS contends. The relevant statute is 8 U.S.C. § 1252(a)(2)(B), which addresses judicial review of USCIS determinations of I-485 applications. The statute provides: "Notwithstanding any other provision of law . . . and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under section . . . 1255 of this title." 8 U.S.C. § 1252(a)(2)(B)(i). Further, no court shall have jurisdiction to review "any other decision or action of the Attorney General or the Secretary of Homeland Security" which is made in their discretion. 8 U.S.C. § 1252(a)(2)(B)(ii).
Based on the plain language of § 1252(a)(2)(B)(i), the Court has no jurisdiction to review the underlying denial of Jaime's adjustment of status under 8 U.S.C. § 1255(m). See, e.g., Xiong Huang v. Gonzales, 224 F. App'x 554, 555 (8th Cir. 2007) (dismissing petition for review of adjustment of status under § 1255, explaining "[a]djustment of status is entirely within the discretion of the Attorney General," and "Congress has stripped the courts of jurisdiction to review decisions executed pursuant to that discretion." (citing 8 U.S.C. § 1252(a)(2)(B)(i))); Abdulahi A.S. v. Tritten, No. 19-CV-2262 (ECT/BRT), 2020 WL 919508, at *3 (D. Minn. Feb. 26, 2020). If the Court does not have subject-matter jurisdiction to review the denial, it cannot enjoin the effective date of the denial.
Jaime argues for a different reading of the statute. First, he contends that the provision only applies to a "judgment regarding the granting" of adjustment under § 1255, and because his application was denied rather than granted, the Court has subject-matter jurisdiction. But courts interpret the cited language to encompass both grants and denials of adjustment. See, e.g., Abdulahi A.S., 2020 WL 919508, at *4 (dismissing a claim against USCIS for denying an adjustment of status for lack of subject-matter jurisdiction under § 1252(a)(2)(B)(i)); Orwa A. v. Whitaker, No. 18-CV-02043 (ECT/KMM), 2018 WL 6492353, at *7 (D. Minn. Dec. 10, 2018) ("Judgments 'regarding the granting of relief' describes a broader class than judgments merely 'granting or denying relief.'" (brackets omitted)). Indeed, no court appears to interpret § 1252(a)(2)(B)(i) the way Jaime urges.
Second, he argues that the Court has subject-matter jurisdiction because his adjustment under § 1255(m) was non-discretionary. This means, according to Jaime, that neither § 1252(a)(2)(B)(i) nor (ii) preclude jurisdiction. As a matter of law, and simple logic, an adjustment of status under § 1255(m) is a discretionary decision. Xiong Huang, 224 F. App'x at 555 ; Johnson v. Dist. Dir. of U.S. Citizenship, No. 15-CV-62420, 2016 WL 5390572, at *4 (S.D. Fla. Sept. 27, 2016) ("As the USCIS's power to grant or deny a § 1255 application (Form I-485) is discretionary, the [c]ourt does not have jurisdiction to review the USCIS's decision."). The statute states that the "Secretary of Homeland Security may adjust the status of an alien admitted into the United States . . . under section § 1101(a)(15)(U) of this title." 8 U.S.C. § 1255(m) (emphasis added). The word "may" clearly indicates discretion. Pinos-Gonzales v. Mukasey, 519 F.3d 436, 440 (8th Cir. 2008). Thus, Jaime's adjustment may be denied even if he meets all the requirements of § 1255(m). That is what happened here. USCIS denied Jaime's application for adjustment of status for two independent reasons: (1) his application did not merit "a favorable exercise of discretion;" and (2) he was not lawfully admitted in the United States and did not qualify for the adjustment. This first reason for denial is based on discretion and precludes review.
True, the Eighth Circuit has determined that § 1252(a)(2)(B) does not preclude review of predicate legal questions, such as whether a person is eligible to adjust their status. E.g., Dominguez-Herrera v. Sessions, 850 F.3d 411, 414-15 (8th Cir. 2017). But "[i]f an agency relies on two grounds for a decision, a court may sustain it if one is valid and if the agency would clearly have acted on that ground even if the other were unavailable." AES Sparrows Point LNG, LLC v. Wilson, 589 F.3d 721, (4th Cir. 2009) (quoting Syracuse Peace Council v. F.C.C., 867 F.2d 654, 657 (D.C. Cir. 1989)). Assuming without deciding that the second reason was a predicate legal question and was non-discretionary, USCIS independently denied Jamie's application as matter of discretion, and thus the Court cannot review it. Even if the Court were to find that USCIS applied the wrong standard to determine Jaime's eligibility to adjust, it could not reverse the decision because USCIS independently determined that his adjustment did not merit an exercise of discretion. In sum, the Court cannot postpone the effective date of the denial because it has no subject-matter jurisdiction to review the denial.
II. Request to Enjoin the Commencement of Removal Proceedings
Jaime next requests that this Court enjoin USCIS from issuing a notice to appear and commencing removal proceedings. The Court is unable to grant this relief also, and again because it has no subject-matter jurisdiction. Under § 1252(g) "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders." The parties do not dispute that Congress has transferred authority from the Attorney General to the Secretary of the Department of Homeland Security to adjudicate cases or execute removal orders under 6 U.S.C. § 557 and 6 U.S.C. § 251. Jaime argues that the authority to "commence proceedings" has not been explicitly transferred to the Department of Homeland Security, so the statute does not strip the Court of jurisdiction.
As the Eighth Circuit has noted, "[i]n light of legislation transferring functions of the former Immigration and Naturalization Service to the Department of Homeland Security, 6 U.S.C. §§ 202, 251, 557, the statutory reference to 'Attorney General' now means the Secretary of the Department of Homeland Security." Silva v. United States, 866 F.3d 938, 940 n.2 (8th Cir. 2017). The statute should therefore be read, "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the [Secretary of the Department of Homeland Security] to commence proceedings . . . ." Id. at 940 (brackets extant).
The Eighth Circuit also regularly finds under § 1252(g) that it "lacks jurisdiction to hear a challenge to the decision to forgo or initiate proceedings against an alien." S-Cheng v. Ashcroft, 380 F.3d 320, 324 (8th Cir. 2004); Hanggi v. Holder, 563 F.3d 378, 383 (8th Cir. 2009) (same). Thus, the Court has no subject-matter jurisdiction and no authority to enjoin the commencement of removal proceedings.
III. Request to Enjoin the Denial of Employment Authorization
Finally, Jaime asks the Court to enjoin USCIS from rejecting or denying his application for employment authorization. The Court has no subject-matter jurisdiction here either, because the claim is not ripe. Judicial review for injunctive remedies is limited to controversies that are ripe for judicial resolution, which is when "the effects of the administrative action challenged have been 'felt in a concrete way by the challenging parties.'" Reno v. Catholic Social Servs., Inc, 509 U.S. 43, 57 (1993) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967)). In the immigration context, a plaintiff's claim "would ripen only once he took the affirmative steps that he could take before the INS blocked his path by applying the regulation to him." Id.at 59. It appears that Jaime has not applied to renew his employment authorization, and his current employment authorization is valid until August 2020. He advances no argument as to why this claim is ripe. Because he has not taken the affirmative step to apply, the defendants do not have the opportunity to block his path to renewal by applying the regulations. Without an application, the claim rests "upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Parrish v. Dayton, 761 F.3d 873, 875-76 (8th Cir. 2014) (quoting Texas v. United States, 523 U.S. 296, 300 (1998)). Without a ripe controversy, the Court is without subject-matter jurisdiction to consider this claim.
Because the Court lacks subject-matter jurisdiction to grant any of the relief requested by the plaintiff, it denies the motion for a preliminary injunction.
CONCLUSION
Based on the foregoing and on all the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT J.M.O.'s motion for a preliminary injunction (ECF No. 10) is DENIED. Dated: July 2, 2020
BY THE COURT:
s/Nancy E. Brasel
Nancy E. Brasel
United States District Judge