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In Jian Wang v. Wolf, 511 F.Supp.3d 1060, 1063-65 (CD. Cal. 2021), a noncitizen abandoned his permanent resident status- allegedly involuntarily-after which DHS placed his derivative beneficiary wife in removal proceedings.
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Case No. CV-19-06558-AB (JPRx)
2021-01-07
JIAN WANG, and Dongchen Li, Plaintiffs, v. Chad F. WOLF, Acting Secretary of Homeland Security, et al., Defendants.
Meixuan Zhang, Reeves Immigration Law Group APLC, Pasadena, CA, for Plaintiffs. Glenn M. Girdharry, U.S. Department of Justice, Joshua Samuel Press, DOJ-Civ, Washington, DC, for Defendants Kevin K. McAleenan, John P. Sanders, Kenneth Cuccinelli, Mark Koumans, Daniel M. Renaud, Sarah M. Kendall, United States Customs and Border Protection, United States Citizenship and Immigration Services, United States Department of Homeland Security, Robert E. Perez. Glenn M. Girdharry, U.S. Department of Justice, Washington, DC, for Defendants Chad F. Wolf, Mark Morgan, Mark A. Morgan.
Meixuan Zhang, Reeves Immigration Law Group APLC, Pasadena, CA, for Plaintiffs.
Glenn M. Girdharry, U.S. Department of Justice, Joshua Samuel Press, DOJ-Civ, Washington, DC, for Defendants Kevin K. McAleenan, John P. Sanders, Kenneth Cuccinelli, Mark Koumans, Daniel M. Renaud, Sarah M. Kendall, United States Customs and Border Protection, United States Citizenship and Immigration Services, United States Department of Homeland Security, Robert E. Perez.
Glenn M. Girdharry, U.S. Department of Justice, Washington, DC, for Defendants Chad F. Wolf, Mark Morgan, Mark A. Morgan.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
ANDRÉ BIROTTE JR., UNITED STATES DISTRICT JUDGE
Before the Court is a Motion to Dismiss Plaintiffs’ First Amended Complaint ("Motion," Dkt. No. 40) filed by Defendants United States Citizenship and Immigration Services ("USCIS"), United States Customs and Border Protection ("USCBP"), United States Department of Homeland Security ("USDHS"), and seven individual heads of these and other law enforcement/immigration agencies, (collectively, "Defendants"). Plaintiffs Jian Wang and Dongchen Li ("Plaintiffs") filed an Opposition ("Opp'n.," Dkt. No. 41) and Defendants filed a Reply ("Reply," Dkt. No. 43). The parties also filed Court-ordered supplemental briefing. (Dkt. Nos. 53, 54.) For the following reasons, the Court GRANTS Defendants’ Motion.
I. BACKGROUND
In this civil action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et. seq. , Plaintiffs Jian Wang ("Wang") and his wife Dongchen Li ("Li") seek judicial review of Defendants’ decision that Wang willingly and voluntarily signed Form I-407, abandoning his lawful permanent residence status, resulting in the denial of his pending Form I-829 Petition by Investor to Remove Conditions on Permanent Resident Status ("I-829 Petition"), and in the termination of Li's permanent residence status. The First Amended Complaint ("FAC," Dkt. No. 36) alleges as follows.
Both Wang and Li are citizens of China; Wang is currently in China and Li resides in Arcadia, California. (FAC ¶¶ 4-5.) Plaintiffs obtained conditional lawful permanent resident status ("CPR" or conditional green card) through the EB-5 immigrant investor visa program, with Wang the primary applicant and Li the derivative beneficiary spouse. (FAC ¶ 17.) In 2013, before Plaintiffs’ CPR status expired, Wang filed with USCIS a Form I-829 Petition by Investor to Remove Conditions on Permanent Resident Status ("I-829 Petition"). Id.
Wang regularly travelled between the United States and China to conduct business. (FAC ¶ 17.) On February 6, 2019, Wang was travelling back to the United States from China and entered at Daniel K. Inouye International Airport in Honolulu, Hawaii. (FAC ¶ 18.) At the airport, Wang signed USCIS and USDHS's Form I-407, Record of Abandonment of Lawful Permanent Resident Status ("Form I-407"). (FAC ¶ 18; see also Form I-407 (Mot. Ex. A , Dkt. No. 40-1).) The Form I-407 states Wang's name and gives the reason for abandoning lawful permanent resident status as "I don't Live America, I Live in China[.]" (Form I-407, § 10.) The form includes a paragraph entitled "Certification" stating that the signatory "knowingly, willingly, and affirmatively declare[s]" they have no intention of residing in the United States, and that they "knowingly and willingly abandoned [their] lawful permanent residence status" and waive the right to a hearing before an immigration judge about whether the person abandoned their lawful permanent residence status, below which is Wang's signature. (Form I-407, § 13(a).) It also shows that an interpreter was provided and CBP Officer Kim signed the form as well. (FAC ¶ 19; Form I-407 at 2.) At the port of entry, USCBP provided Wang a visitor visa waiver under 8 U.S.C. § 1182(d)(4), ("Form I-193") and admitted him into the United States as a temporary visitor for pleasure, in B-2 nonimmigrant status, valid until August 5, 2019. (FAC ¶ 20; see also Wang's Form I-193 Waiver (Mot. Exh. B, Dkt. No. 40-2).) On the Form I-193 waiver, Wang indicated that he needed visitor visa waiver because "I [gave] up my green card." (Form I-193, § 10.)
Defendants attached Exhibits A through D to their Motion. These purport to be immigration forms, a Decision, and a Notice referenced in, or foundational to, the FAC. However, Defendants did not file a declaration to authenticate these documents. This is improper. However, the authenticity of the exhibits is not contested so the Court will consider them despite this oversight.
Wang contends that CBP Officer Kim coerced him into signing the Form I-407 that abandoned his lawful permanent residence status, and falsely told him that if he sought review, he could be barred from entering the United States for 5 years. (FAC ¶ 18.) Wang, who is not fluent in English, contends that he was not provided a competent interpreter because when one was finally brought to assist him, the interpreter had to use her phone to translate Officer Kim's speech. (FAC ¶ 19.) Wang alleges that he signed the form only because he was fearful he would be barred from entering the United States where his family and business reside, and that he did not sign it "willingly" or "voluntarily[.]" (FAC ¶ 20.)
Within 30 days of entering the United States, Wang contacted USCBP at Honolulu and told them he did not wish to relinquish his CPR status and that his signature was not knowing or voluntary, and he requested a hearing before an Immigration Judge pursuant to INA § 240. (FAC ¶ 21.) USCBP declined Wang's request, stating he "voluntarily, willingly and affirmatively abandoned his lawful permanent resident status." (Id. )
On April 24, 2019, USCIS denied Wang's I-829 petition to remove his conditional status on the ground that he had abandoned his permanent resident status and waived his right to a hearing before an immigration judge. (FAC ¶ 22.) On May 28, 2019, Wang filed a Form I-290B Notice of Appeal or Motion to Re-open USCIS's denial of his I-829 petition. (Id. ) On November 15, 2019, USCIS denied Wang's motion and affirmed the denial of his I-829 petition. (Id. ; see also Notice of Decision (Mot. Exh. C, Dkt. No. 40-3).) USCIS indicated that the agency originally denied Wang's I-829 petition "due to Petitioner's abandonment of his conditional permanent resident status," that reopening of the petition was not warranted because Wang did not support his reopening request with "affidavits or documentary evidence as required by 8 C.F.R. § 103.5(a)(2)," and as a result, Wang's motion "[did] not meet the applicable requirements for a motion to reopen and will be dismissed. See 8 C.F.R. §§ 103.5(a)(2), (4)." (Notice of Decision.) As a derivative beneficiary, Wang's wife, Plaintiff Li, lost her CPR status as well. (FAC ¶ 22.)
On July 29, 2019, Wang filed this action under the Administrative Procedure Act ("APA"), the Immigration and Nationality Act ("INA"), and the Declaratory Judgment Act, asserting that he was coerced into signing the Form I-407 and that he did not voluntarily, willingly and affirmatively abandon his lawful permanent resident status. Wang also challenged the agency's decision not to commence removal proceedings against him. See Compl. Due to the expiration of his B-2 non-immigrant visa, Wang departed the United States in August 2019 and remains outside of the country. (FAC ¶ 23.)
Removal proceedings would allow Wang to challenge whether he voluntarily abandoned his CPR status.
Li has remained in the United States. On January 24, 2020, USCIS issued Li a Notice to Appear ("NTA") in immigration court to commence administrative removal proceedings. (FAC ¶ 23; see also NTA (Mot. Exh. D, Dkt. No. 40-4).) USCIS initiated proceedings against Li because she was a derivative beneficiary of Wang's I-829 petition and, because the agency denied Wang's I-829 petition based on his abandonment of his CPR status, Li's derivative CPR status "was terminated on April 24, 2019 because the principal conditional resident's Form I-829, Petition by Entrepreneur to Remove Conditions, was denied." (NTA.)
The FAC, filed on April 17, 2020, added Li as a plaintiff, asserting she was wrongly stripped of her conditional legal permanent resident status. (FAC ¶ 22.) She alleges that that "defendant's final action placing Plaintiff Li into removal proceedings pursuant to INA § 240 as a derivative spouse without the Petitioner, Plaintiff Wang, is a denial of due process[.]" (FAC, Prayer for Relief ¶ 3.)
Under the APA claim (first count), Plaintiffs assert that the "Defendants’ denial to place Plaintiff Wang in removal proceedings pursuant to INA § 240 is improper and reviewable under 5 U.S.C. § 702." (FAC ¶ 25.) Plaintiffs also ask the Court to determine that the Defendants’ decision that Wang voluntarily and knowingly abandoned his permanent resident status is arbitrary, capricious, and an abuse of discretion. (FAC ¶ 28.)
Under the INA claim (second count), Plaintiffs assert that "[i]n denying Plaintiffs’ I-829 petition due to abandonment of LPR status by Plaintiff Wang, and denying Plaintiff Wang's request to be put into proceedings pursuant to INA § 240 before an immigration judge, DHS acted contrary to statutory law, precedent decisions and policy memoranda." (FAC ¶ 34.)
Under the declaratory relief claim (third count), Plaintiffs assert "Plaintiff Wang is entitled to review of his denied Form I-829 in removal proceedings, which shall have the force and effect of a final judgment, in accordance with 28 U.S.C. § 2201(a)." (FAC ¶ 37.)
Plaintiffs seek the following relief: an order setting aside Defendants’ findings that Wang abandoned his lawful permanent residence status; that the Court find that Defendants’ refusal to put Wang in removal proceedings is arbitrary and capricious; that the Court find that Defendants’ action of putting Li in removal proceedings as a derivative spouse without Wang is a denial of due process; and other orders including allowing Wang to remain a lawful permanent resident while seeking review of his denied Form I-829, and ordering Defendants to issue a travel document so Wang can return to the United States to defend his right to remain a lawful permanent resident before an immigration judge. See FAC ¶ 38.
Defendants now move to dismiss under Federal Rule of Civil Procedure ("Rule") 12(b)(1) for lack of subject matter jurisdiction, Rule 12(b)(6) for failure to state a claim, and Rule 12(b)(3) for improper venue or alternatively to transfer the action to the District of Hawaii. Because the Court is dismissing all claims under Rule 12(b)(1), it will not address the Rule 12(b)(6) motion or the venue motion.
II. LEGAL STANDARD
Under Rule 12(b)(1) a complaint may be dismissed for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). "Federal courts are required sua sponte to examine jurisdictional issues [ ]." Bernhardt v. County of Los Angeles , 279 F.3d 862, 868 (9th Cir. 2002) (internal quotation marks omitted); accord United States v. Hays , 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).
A challenge pursuant to Rule 12(b)(1) may be facial or factual. White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000). Where a defendant brings a facial attack on the district court's subject matter jurisdiction under Rule 12(b)(1) the court "assume[s] [plaintiff's] [factual] allegations to be true and draw[s] all reasonable inferences in his favor." Wolfe v. Strankman , 392 F.3d 358, 360 (9th Cir. 2004).
By contrast, in a factual attack the challenger disputes the "truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Wolfe , 392 F.3d at 362 (citing Safe Air For Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004) ).
III. DISCUSSION
A. Pursuant to 8 U.S.C. § 1252(g), the Court Lacks Jurisdiction to Review Defendants’ Decision to Not Commence Removal Proceedings Against Wang.
Plaintiffs assert that Defendants’ refusal to place Wang in removal proceedings is wrongful and reviewable by this court. See FAC ¶¶ 25, 34, 37, 38(2). Defendants argue that the Court lacks jurisdiction to review their decision regarding whether to place Wang in removal. Defendants’ Rule 12(b)(1) Motion is a facial attack, not a factual one, because there is no dispute as to the "truth of the allegations" in the FAC Safe Air For Everyone , 373 F.3d at 1039. Rather, the issue is whether the allegations in the FAC give this Court jurisdiction to review the decisions made by the Secretary. Wolfe , 392 F.3d at 362 (citing Safe Air For Everyone , 373 F.3d at 1039 ). Defendants contend that the Court lacks subject matter jurisdiction based on 8 U.S.C § 1252(g).
8 U.S.C. § 1252, entitled "Judicial Review of Orders of Removal," is part of the REAL ID Act, by which Congress sought to restrict an alien's challenge to removal proceedings to the Courts of Appeal. As relevant, § 1252(a)(5), entitled "Exclusive Means of Review," provides, "Notwithstanding any other provision of law ... a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e)." 8 U.S.C. § 1252(a)(5).
Section 1252(g), a jurisdiction-stripping provision entitled "Exclusive Jurisdiction," states:
Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 18, United States Code [ 28 U.S.C. § 2241 ], or any other habeas corpus provision, and [ 28 U.S.C. §§ 1361 and 1651 ], no court should 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 against any alien under this Act.
6 U.S.C. §§ 202, 251 transferred from the former Immigration and Naturalization Service ("INS") to the DHS authority over all functions that the INS previously carried out. Therefore, § 1252(g) ’s reference to "Attorney General" now means the Secretary of the Department Homeland Security. See Elgharib v. Napolitano , 600 F.3d 597, 606-7 (6th. Cir. 2010) (so noting).
8 U.S.C. § 1252(g) (emphasis added).
Section 1252(g) "applies only to three discrete actions that the [Secretary] may take: Her ‘decision or action’ to ‘commence proceedings, adjudicate cases , or execute removal orders.’ " Regents of the Univ. of Cal. v. United States Dept. of Homeland Sec. , 908 F.3d 476, 503 (9th Cir. 2018) (emphasis in original) (quoting Reno v. American-Arab Anti-Discrimination Comm. , 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ) (" AADC "). "It is this very decision to either ‘abandon the endeavor’ or to adjudicate it that Congress wished to preserve from judicial review." Barahona-Gomez v. Reno , 236 F.3d 1115, 1120 (9th Cir. 2001). Furthermore, the Ninth Circuit has "construe[d] § 1252(g), which removes our jurisdiction over ‘decisions ... to commence proceedings’ to include not only a decision in an individual case whether to commence, but also when to commence a proceeding." Jimenez-Angeles v. Ashcroft , 291 F.3d 594, 599 (9th Cir. 2002) (emphasis in original); see also Richards-Diaz v. Fasano , 233 F.3d 1160, 1165 (9th Cir. 2000) ("We are in no position to review the timing of the Attorney General's decision to ‘commence proceedings’ against petitioner."), vacated on other grounds by Fasano v. Richards-Diaz , 533 U.S. 945, 121 S.Ct. 2584, 150 L.Ed.2d 745 (2001).
Based on § 1252(g) and the cases applying it, the Court has no jurisdiction to review the Defendants’ decision to not commence removal proceedings against Wang.
Plaintiffs do not dispute that § 1252(g) generally bars judicial review of the Defendants’ discretionary decisions of whether to institute removal proceedings, and instead argues that the claim here arises under an "exception" to 8 U.S.C. § 1252(g), specifically 28 U.S.C. § 1361. This argument fails.
28 U.S.C. § 1361 is the Mandamus Act. It states that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. Plaintiffs argue that pursuant to 8 U.S.C. § 1186b(c)(3) and federal regulations, Defendants have a mandatory duty to place alien entrepreneurs like Wang, whose I-829 petitions were denied, in removal proceedings. See 8 U.S.C. § 1186b(c)(3) ("Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a proceeding to remove the alien."); see also 8 C.F.R. § 216.6(d)(2) ("If, after initial review or after the interview, USCIS denies the [I-829] petition, USCIS will provide written notice to the investor of the decision and the reason(s) therefore, and shall issue a notice to appear. [ ] No appeal shall lie from this decision; however, the investor may seek review of the decision in removal proceedings."). Under Plaintiffs’ view, because Wang received his now-terminated permanent resident status as an alien entrepreneur, Defendants owe him a mandatory duty to place him in removal proceedings (which would allow him to challenge the termination of his permanent residence status), and this duty can be enforced through the Mandamus Act.
But Plaintiffs point to no case interpreting § 1252(g) as having a Mandamus Act exception, and the Court does not read it as having one. Section 1252(g) says no court has jurisdiction to hear any claim arising from the decision to commence proceedings "notwithstanding any other provision of law" including "[ 28 U.S.C. § 1361, the Mandamus Act] ..." 8 U.S.C. § 1252(g) (emphasis added). The word "notwithstanding" means § 1252(g) strips jurisdiction even if other provisions of law might otherwise have provided it. Thus, there is no Mandamus Act an exception to the jurisdiction-stripping effect of § 1252(g). It might be said that § 1252(g) is an exception to the Mandamus Act, placing beyond judicial review an Agency's failure to perform a mandatory duty that might otherwise be reviewable under the Mandamus Act.
Plaintiffs also make a cursory argument that the Court has jurisdiction because their "claim also involves a deprivation of the right to due process in proceedings, a right protected by the Constitution of the United States." Opp'n 6:15-17. This argument fails. First, Plaintiffs bring only three statutory claims and no constitutional claim, so to the extent they suggest that a constitutional claim automatically triggers this Court's jurisdiction despite § 1252(g), they have not pled such a claim. But second, and more fatal, "Congress may withdraw constitutional questions from the district court's subject-matter jurisdiction" Elgharib v. Napolitano , 600 F.3d 597, 604 (6th Cir. 2010) (holding that "the Constitution qualifies as ‘any other provision of law (statutory or nonstatutory)’ under all subsections of § 1252," such that " § 1252(g) deprives the district court of subject-matter jurisdiction over Elgharib's constitutional challenge to her final order of removal."). Thus, even if Li amends her complaint to state a Constitutional claim, § 1252(g) would bar this Court from hearing it.
For the foregoing reasons, the Court lacks jurisdiction over Plaintiffs’ claims insofar as they seek judicial review of the Defendants’ decision to not commence removal proceedings against Wang.
B. The Court Lacks Subject Matter Jurisdiction Over This Action Because Li Is Currently In Removal Proceedings.
"Congress has clearly provided that all claims – whether statutory or constitutional – that ‘arise from’ immigration removal proceedings can only be brought through the petition for review process in the federal courts of appeals." J.E.F.M v. Lynch , 837 F.3d 1026, 1029 (9th Cir. 2016) (citing 8 U.S.C. § 1252(a) and 1252(b)(9) ). Congress explained that 8 U.S.C. § 1252(b)(9) mandated that " ‘judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States ... shall be available only in review of a final order ...’ " Id. at 1031. This means that 8 U.S.C § 1252(b)(9) "swallows up virtually all claims that are tied to removal proceedings." Id. ; see also Aguilar v. ICE , 510 F.3d 1, 9 (1st Cir. 2007). Further, "when a claim by an alien, however it is framed, challenges the procedure and substance of an agency determination that is ‘inextricably linked’ to the order of removal, it is prohibited by section 1252(a)(5)." Martinez v. Napolitano , 704 F.3d 620, 623 (9th Cir. 2012). Where removal proceedings are pending, "the crucial consideration [ ] is that the IJ may completely wipe away USCIS's prior decision. Consequently, USCIS's denial of [plaintiffs’] applications is not yet final, and the district court lacked jurisdiction under the APA." Cabaccang v. USCIS , 627 F.3d 1313, 1316 (9th Cir. 2010).
Here, Li is currently in removal proceedings. Li's Notice to Appear clearly states "[your] status was terminated on April 24, 2019 because the principal conditional resident's Form I-829, Petition by Entrepreneur to Remove Conditions, was denied[ ]," and her hearing is May 6, 2021. (NTA at 1.) This plainly shows that Plaintiffs’ claims are "inextricably linked" to Li's removal proceedings, and are therefore "prohibited by section 1252(a)(5)." Martinez , 704 F.3d at 623.
Finally, that USDHS might have decided to commence removal against Li after a Local Rule 7-3 conference regarding the filing of an Amended Complaint does not change this analysis because the Court is "in no position to review the timing of the Attorney General's decision to ‘commence proceedings.’ " Richards-Diaz , 233 F.3d at 1165. Therefore, because Li is in removal proceedings and this case is inextricably linked with that order of removal, this Court lacks subject matter jurisdiction over the claims herein.
C. Plaintiffs Have An Administrative Remedy Available Through Plaintiff Li's Removal Proceeding.
"Where relief is available from an administrative agency, the plaintiff is ordinarily required to pursue that avenue of redress before proceeding to the courts; and until that recourse is exhausted, suit is premature and must be dismissed." Reiter v. Cooper , 507 U.S. 258, 269, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993). In the immigration context, the pendency of removal proceedings means the applicant has not exhausted their administrative remedies and the case must be dismissed. See Cabaccang , 627 F.3d at 1316.
Here, Li is in removal proceedings in which she may challenge USCIS's denial of Wang's I-829 petition. In Hui Ran Mu v. Barr , 936 F.3d 929 (9th Cir. 2019), the Ninth Circuit held that "[d]erivative beneficiaries of an alien entrepreneur in the immigrant investor system (EB-5 program), who receive conditional legal permanent resident [ ] status, are entitled to the same review rights in removal proceedings as the alien entrepreneur. 8 C.F.R § 216.6(d)(2). Thus, in removal proceedings, an immigration judge's [ ] failure to review denial of an I-829 petition (even though the alien is a beneficiary of the petition) is error." Mu , 936 F.3d at 930. In Mu , the daughter of an alien entrepreneur sought to challenge the denial of her father's I-829 petition so that she could apply for a voluntary departure. See Id. at 935. The Board of Immigration Appeals ("BIA") found that "under 8 C.F.R. § 216.6(d)(2), only the principal petitioner (Mu's father) may seek review of the denial of the I-829 petition before an IJ," and that therefore the daughter lacked standing to do so. Id. at 932. In reversing, the Ninth Circuit looked at the plain language of the statute, 8 U.S.C. § 1186b(c)(3)(D), which provides that, " ‘Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a proceeding to remove the alien.’ " Id. at 933 (adding emphasis and construing 8 U.S.C. § 1186b(c)(3)(D) ).
Likewise here, Li is a derivative beneficiary of alien entrepreneur Wang who received his CPR status under the EB-5 program. (FAC ¶ 17; Reply at 8.) Li is "any alien whose permanent resident status was terminated," so pursuant to Mu and 8 U.S.C. § 1186b(c)(3)(D), Li can present evidence in her removal proceedings to challenge USCIS's denial of Wang's (and thus her own) I-829 petition. Li contends that because she was not present in Hawaii at the time of Wang's interactions with CBP Agent Kim, she cannot speak to the situation that led to Wang losing his I-829 petition, but this does not mean she has no ability to present evidence on those circumstances. Once the administrative remedies are exhausted, and the immigration judge has issued a final order, Plaintiffs’ may appeal to the Board of Immigration Appeals, and then if needed, seek judicial review by petitioning the Court of Appeals, not the District Court. See 8 U.S.C. §§ 1252(a)(1); (5); (b)(9) ; see also Khoshfahm v. Holder , 655 F.3d 1147 (9th Cir. 2011) (the Ninth Circuit reviewed whether or not an alien abandoned his lawful permanent resident status in petition for review). And, because removal proceedings are pending, the Court lacks jurisdiction over this action and it must be dismissed.
IV. CONCLUSION
For the foregoing reasons the Court GRANTS Defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Plaintiffs’ First Amended Complaint is DISMISSED WITHOUT PREJUDICE .
Because these jurisdictional defects cannot be cured by amendment, this action is DISMISSED WITHOUT LEAVE TO AMEND.
Defendants are ordered to file a Proposed Judgment within 5 days of the issuance of this Order. Thereafter, Plaintiffs shall have 5 days to object to the form of Judgment.
The January 29, 2021 Scheduling Conference is vacated.