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upholding USCIS's denial of adjustment of status for similarly-situated plaintiff
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CASE NO. 20-20875-CIV-ALTONAGA/Goodman
2020-06-15
Iraida Carolina DUQUE MENDEZ, et al., Plaintiffs, v. Ken CUCCINELLI, et al., Defendants.
Eduardo Rigoberto Soto, Coral Gables, FL, for Plaintiffs. Zakarij Neil Laux, US Attorney's Office, Miami, FL, for Defendants.
Eduardo Rigoberto Soto, Coral Gables, FL, for Plaintiffs.
Zakarij Neil Laux, US Attorney's Office, Miami, FL, for Defendants.
ORDER
CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court on Defendants’ Motion to Dismiss [ECF No. 20], filed on May 8, 2020. Plaintiffs, Iraida Carolina Duque Mendez ("Duque"), Erickson Renne Carrillo Florez, and Elia Cirabel Lopez Duque, filed a Response [ECF No. 25] to the Motion; to which Defendants filed a Reply [ECF No. 26]. The Court has carefully considered the Complaint [ECF No. 1], the parties’ written submissions, the record, and applicable law.
The Defendants are Ken Cuccinelli, Acting Director of United States Citizenship and Immigration Services ("USCIS"); and Kevin McAleenan, Secretary of the Department of Homeland Security ("DHS").
I. BACKGROUND
This action arises from the denial of Duque's I-485 application for adjustment of status. (See generally Compl.). Plaintiffs are natives and citizens of Venezuela. (See id. ¶¶ 1–3). On June 25, 2016, Duque and her husband, Erickson Renne Carrillo Florez, were admitted to the United States under Duque's B-1/B-2 visitor visa and were authorized to stay until December 24, 2016. (See id. ¶¶ 1–2, 14). Duque's daughter, Elia Cirabel Lopez Duque, was admitted to the United States on August 15, 2015 and was authorized to stay until February 15, 2016. (See id. ¶¶ 3, 14).
On September 21, 2016, Duque submitted Form I-589, Application for Asylum in the United States, to the USCIS, including her husband and daughter as derivative applicants. (See id. ¶ 15). On April 11, 2017, the USCIS approved Duque's application for an Employment Authorization Document for a two-year period. (See id. ¶¶ 17–18). Approximately two months later, Duque gained lawful employment as an administrative assistant at a law firm. (See id. ¶ 18).
On June 29, 2018, Duque's employer submitted an Application for Permanent Employment Certification (ETA Form 9098) to the Department of Labor on her behalf, which was approved. (See id. ¶¶ 19–20). Duque's employer subsequently submitted Form I-140, Immigrant Petition for Alien Worker, on October 10, 2018. (See id. ¶ 21). In conjunction with this submission, Duque submitted Form I-485, Application to Register Permanent Residence Status or Adjust Status. (See id. ¶ 22). Duque's husband and daughter also submitted Forms I-485 as derivative beneficiaries of Duque's application. (See id. ).
The USCIS approved Form I-140 on October 22, 2018. (See id. ¶ 23). On May 15, 2019, the USCIS issued Plaintiffs a Request for Initial Evidence ("RFE") requesting proof that Plaintiffs have "maintained [their] nonimmigrant status in the United States since [ ] [their] last lawful admission in to the United States." (Id. ¶ 24 (second alteration added; internal quotation marks omitted); see also id. , Ex. D [ECF No. 1-6] 1). Plaintiffs thereafter submitted a response to the RFE. (See Compl. ¶ 25).
The Court relies on the pagination generated by the electronic CM/ECF database, which appears in the headers of all court filings.
On July 2, 2019, the USCIS denied Duque's I-485 application for adjustment of status. (See id. ¶ 26). The decision stated:
A review of your application or USCIS records shows that after your last admission on June 25, 2016, you failed to maintain, continuously, a lawful status or otherwise violated the terms and conditions of your admission. Specifically, you failed to maintain continuous lawful presence from the end of your B-2 Visa (December 24, 2016) until the receipt date of your I-485 application (October 10, 2018).
In correspondence from this office dated May 15, 2019, you were requested to submit evidence of all lawful status of reemployment authorization granted to you from December 24, 2016 through October 10, 2018. The request for evidence also stated a pending asylum application does not confer lawful status for the purpose of this application.
In response, you stated that your asylum application receipt was dated prior to the expiration of you[r] B-2 Visa and you failed to maintain status through no fault of your own. You also provided evidence of continuous presence; however, as stated in the RFE, the pending asylum does not confer lawful status for the purpose of the I-485 application.
(Id. ¶ 27 (alteration added); see also Ex. D 10).
Plaintiffs initiated this action on February 27, 2020, challenging the USCIS's denial of Duque's adjustment application. (See generally Compl.). Plaintiffs allege as bases for subject matter jurisdiction 28 U.S.C. section 1331 (the federal question statute), 5 U.S.C. section 701 et seq. (the Administrative Procedure Act ("APA")), 28 U.S.C. section 2201 (the Declaratory Judgment Act), and 28 U.S.C. section 1361 (the Mandamus Act). (See id. ¶¶ 6–10).
The Declaratory Judgment Act does not independently confer subject matter jurisdiction upon the federal courts. See Borden v. Katzman , 881 F.2d 1035, 1037 (11th Cir. 1989) (citation omitted). The Court's conclusion in this Order that the denial of Duque's adjustment application is not a final agency action reviewable under the APA precludes jurisdiction under the federal question statute, the APA, and the Mandamus Act. See Gupta v. U.S. Atty. Gen. , 439 F. App'x 858, 860 (11th Cir. 2011).
According to Plaintiffs, Duque was eligible for adjustment of status because (1) she was in lawful immigration status at the time she filed her application (see id. ¶¶ 32–33, 35); or (2) she failed to maintain continuously a lawful status "through no fault of [her] own or for technical reasons" (id. ¶¶ 32, 34–35 (alteration added; italics omitted)). Plaintiffs request the Court (1) declare the USCIS's denial of Duque's application was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law under the APA (see id. ¶ 37); and (2) order the USCIS to "adjudicate" Duque's application "in a manner with [sic] the Court's declarations and legal determinations" (id. ¶ 38). Defendants move to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (See generally Mot.).
II. STANDARDS
A. Federal Rule of Civil Procedure 12(b)(1)
Subject matter jurisdiction must be established before a case can proceed on the merits. See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 93–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). This is because "[f]ederal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (alteration added). It is presumed that a federal court lacks jurisdiction in a case until the plaintiff demonstrates the court has jurisdiction over the subject matter. See id. (citing Turner v. Bank of N. Am. , 4 U.S. (4 Dall.) 8, 11, 1 L.Ed. 718 (1799) ; McNutt v. Gen. Motors Acceptance Corp. of Ind. , 298 U.S. 178, 182–83, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ). "[B]ecause a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure that jurisdiction exists over a case ...." Smith v. GTE Corp. , 236 F.3d 1292, 1299 (11th Cir. 2001) (alterations added; citations omitted).
A defendant may attack subject matter jurisdiction under Rule 12(b)(1) in two ways — a facial attack or factual attack. See Menchaca v. Chrysler Credit Corp. , 613 F.2d 507, 511 (5th Cir. 1980). A facial attack asserts a plaintiff has failed to allege a basis for subject matter jurisdiction in the complaint. See id. In a facial attack, the plaintiff's allegations are taken as true for the purposes of the motion, see id. ; and the plaintiff is afforded safeguards like those provided in challenging a Rule 12(b)(6) motion raising the failure to state a claim for relief, see Lawrence v. Dunbar , 919 F.2d 1525, 1529 (11th Cir. 1990) (citation omitted).
In contrast, a factual attack "challenges the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Menchaca , 613 F.2d at 511 (citation omitted). In a factual attack, courts are free to weigh the evidence to satisfy themselves they have the power to hear the case. See Lawrence , 919 F.2d at 1529 (citations omitted). No presumption of truth attaches to the plaintiff's allegations, and the existence of disputed material facts does not prevent the trial court from evaluating for itself the merits of the jurisdictional claim. See id. (citations omitted). Moreover, "[i]n the face of a factual challenge to subject matter jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists." OSI, Inc. v. United States , 285 F.3d 947, 951 (11th Cir. 2002) (alteration added; citations and footnote call number omitted).
According to the APA, "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704 (alteration added). In contrast, "[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. (alteration added). The Eleventh Circuit has held federal jurisdiction is lacking under Rule 12(b)(1) when the administrative action at issue is not final within the meaning of section 704. See LabMD, Inc. v. F.T.C. , 776 F.3d 1275, 1278 (11th Cir. 2015). Some other courts have evaluated the issue whether there is a final agency action under the APA as a merits question under Rule 12(b)(6). See Jama v. Dep't of Homeland Sec. , 760 F.3d 490, 494 & n.4 (6th Cir. 2014) (holding dismissal under Rule 12(b)(1) was improper because the district court had jurisdiction over the plaintiff's APA claims pursuant to the federal question statute, 28 U.S.C. section 1331, and stating the APA's "final agency requirement" instead should be considered under Rule 12(b)(6) in examining whether the complaint states a claim for relief). Defendants challenge subject matter jurisdiction under Rule 12(b)(1), and consistent with the Eleventh Circuit's mandate, the Court agrees with Defendants that the question is jurisdictional.
B. Federal Rule of Civil Procedure 12(b)(6)
"To survive a motion to dismiss [under Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (alteration added; quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Although this pleading standard "does not require ‘detailed factual allegations,’ ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (alteration added; quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (alteration added; citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).
To meet this "plausibility standard," a plaintiff must "plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937 (alteration added; citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss." Sinaltrainal v. Coca-Cola Co. , 578 F.3d 1252, 1261 (11th Cir. 2009) (citation omitted), abrogated on other grounds by Mohamad v. Palestinian Auth. , 566 U.S. 449, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012).
When considering a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1369 (11th Cir. 1997) (citing SEC v. ESM Grp., Inc. , 835 F.2d 270, 272 (11th Cir. 1988) ).
C. Administrative Procedure Act
To prevail on an APA claim, a plaintiff must establish the agency's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" 5 U.S.C. § 706(2)(A) (alteration added); see also Salmeron-Salmeron v. Spivey , 926 F.3d 1283, 1286 (11th Cir. 2019). "This standard ‘provides the reviewing court with very limited discretion to reverse an agency decision, and is exceedingly deferential,’ especially ‘in the field of immigration.’ " Diamond Miami Corp. v. USCIS , No. 18-24411-Civ, 2019 WL 4954807, at *2 (S.D. Fla. Oct. 8, 2019) (quoting Mathews v. USCIS , 458 F. App'x 831, 833 (11th Cir. 2012) ). "The court's role is to ensure that the agency came to a rational conclusion, not to conduct its own investigation and substitute its own judgment for the administrative agency's decision." Defenders of Wildlife v. U.S. Dep't of Navy , 733 F.3d 1106, 1115 (11th Cir. 2013) (internal quotation marks and citation omitted).
When reviewing an agency's interpretation of a statute, courts are confronted with two questions. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). A court must "first ask whether congressional intent is clear[.]" Wilderness Watch & Pub. Emps. for Envtl. Responsibility v. Mainella , 375 F.3d 1085, 1091 (11th Cir. 2004) (alteration added; citation omitted). If Congress's intent is clear and unambiguous, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron , 467 U.S. at 842–43, 104 S.Ct. 2778 (footnote call number omitted); see also United States v. Steele , 147 F.3d 1316, 1318 (11th Cir. 1998) ("Where the language Congress chose to express its intent is clear and unambiguous, that is as far as we go to ascertain its intent because we must presume that Congress said what it meant and meant what it said." (citation omitted)).
If the statute is silent or ambiguous regarding a specific issue, then the court must ask "whether the agency's answer is based on a permissible construction of the statute." Chevron , 467 U.S. at 843, 104 S.Ct. 2778 (footnote call number omitted). The agency's construction "governs if it is a reasonable interpretation of the statute — not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts." Entergy Corp. v. Riverkeeper, Inc. , 556 U.S. 208, 218, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009) (emphasis, citation, and footnote call number omitted). At a minimum, the court gives "an agency interpretation deference under Skidmore v. Swift & Co. corresponding to the ‘thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’ " Martin v. Soc. Sec. Admin., Comm'r , 903 F.3d 1154, 1159 (11th Cir. 2018) (alteration added; footnote call number omitted; quoting Skidmore , 323 U.S. at 140, 65 S.Ct. 161 ).
See Skidmore v. Swift & Co. , 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944).
III. DISCUSSION
Defendants argue (1) the Court lacks subject matter jurisdiction because the USCIS's denial of Duque's adjustment application is not a final decision reviewable by the Court under the APA; and (2) Plaintiffs fail to state a claim for relief because the USCIS's decision was not arbitrary, capricious, an abuse of discretion, or contrary to law. (See generally Mot.). The Court addresses both arguments.
A. Subject Matter Jurisdiction
Defendants contend Plaintiffs have not availed themselves of all administrative remedies because Duque may still challenge the USCIS's denial of her adjustment application in removal proceedings if her asylum application is denied. (See Mot. 6–7). As stated, the APA authorizes judicial review of "final agency action for which there is no other adequate remedy in a court[.]" 5 U.S.C. § 704 (alteration added). Judicial review is not available until "an aggrieved party has exhausted all administrative remedies expressly prescribed by statute or agency rule[.]" Darby v. Cisneros , 509 U.S. 137, 146, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993) (alteration added). "[T]he agency action is [then] ‘final for the purpose of this section’ and therefore ‘subject to judicial review’ ...." Id. (alterations added; quoting 5 U.S.C. § 704 ).
"The regulation regarding the USCIS's denial of an application for adjustment of status allows an alien ‘to renew his or her application in [removal] proceedings.’ " Ibarra v. Swacina , 628 F.3d 1269, 1269–70 (11th Cir. 2010) (alteration in original; quoting 8 C.F.R. § 245.2(a)(5)(ii) ). "Once an alien is placed in removal proceedings, ‘the immigration judge hearing the proceeding has exclusive jurisdiction to adjudicate any application for adjustment of status the alien may file.’ " Id. at 1270 (quoting 8 C.F.R. § 1245.2(a)(1) ).
In Ibarra , the Eleventh Circuit affirmed the dismissal of the plaintiff's complaint challenging the denial of her I-485 application where the plaintiff conceded she was renewing her application in removal proceedings, which had been initiated against her. See id. The court explicitly declined to "decide whether [it] ha[s] jurisdiction under the APA if the alien has not yet been placed in removal proceedings." Id. at 1270 n.2 (alterations added).
The Court notes federal courts of appeals are split on the question whether an alien has exhausted all administrative remedies on the denial of an adjustment application when the alien has not yet been placed in removal proceedings. Compare Nolasco v. Crockett , 958 F.3d 384, 387 (5th Cir. 2020) (holding the district court lacked jurisdiction over the plaintiff's challenge to the denial of his adjustment application because the challenge had not been exhausted in removal proceedings, where removal proceedings had not been initiated against the plaintiff), and McBrearty v. Perryman , 212 F.3d 985, 987 (7th Cir. 2000) ("The [plaintiffs’] suit was premature, since, as the plaintiffs acknowledge, they could obtain review of the district director's decision [denying adjustment of status] by the Board of Immigration Appeals if and when the immigration service institutes removal (i.e., deportation) proceedings against them." (alterations added; citations omitted)), with Cabaccang v. USCIS , 627 F.3d 1313, 1317 (9th Cir. 2010) ("Without a pending removal proceeding, a denial of status adjustment is final because there is no appeal to a superior administrative authority." (citations omitted)), and Pinho v. Gonzales , 432 F.3d 193, 202 (3d Cir. 2005) (holding an adjustment-of-status "decision is final where there are no deportation proceedings pending in which the decision might be reopened or challenged").
Relying on Ibarra and Nolasco , Defendants maintain the Court lacks jurisdiction to review the adjustment decision even though removal proceedings have not yet been initiated against Plaintiffs. (See Mot. 7). Defendants note "[i]n Ibarra , the plaintiff was not yet in removal proceedings when the district court dismissed her case for lack of jurisdiction, but the Eleventh Circuit nonetheless affirmed that dismissal." (Id. (alteration added)); see also Somboonmee v. Holder , No. 3:10-cv-167, 2011 WL 3625674, at *4 (N.D. Fla. July 18, 2011), report and recommendation adopted , 2011 WL 3611401 (N.D. Fla. Aug. 17, 2011) ("The plaintiff in Ibarra was in removal proceedings at the time of the Eleventh Circuit's decision, although she was not yet in removal proceedings at the time her case was before the lower court. Clearly, then, the initiation of removal proceedings during the pendency of her case did not affect the outcome." (internal citation and footnote call number omitted)). And Defendants assert Nolasco provides "persuasive" authority for their position Duque has not exhausted her challenge to the USCIS's decision because "she will have the opportunity to do [so] in removal proceedings if and when they are initiated." (Mot. 7 (alteration added)). The Court agrees with Defendants that Plaintiffs have not exhausted all administrative remedies.
According to Plaintiffs, no further administrative remedies are available — the USCIS's regulations do not provide an avenue for appeal of the decision, nor is the option to file a motion to reopen or reconsider the decision a prerequisite to exhausting administrative remedies. (See Resp. 7). Yet, Plaintiffs offer no substantive response to Defendants’ point that the regulations allow Plaintiffs to challenge the denial of Duque's adjustment application in removal proceedings — if and when they are initiated.
Plaintiffs state they "cannot appeal to the immigration court directly" and no removal proceedings have been initiated against them (id. ), but they fail to address Defendants’ argument that it is immaterial whether removal proceedings have been initiated for purposes of exhaustion of administrative remedies. As Defendants note, Plaintiffs "do not attempt to distinguish Ibarra or Nolasco ; they don't even mention them." (Reply 2). Nor do Plaintiffs cite any other relevant authority.
Plaintiffs assert although the regulations "permit review of an alien's eligibility for [a]djustment of [s]tatus by an immigration judge[ ] if they are placed into removal proceedings after the denial of their [a]djustment of [s]tatus [application], these regulations are inapplicable to the circumstances regarding Plaintiff's [sic] applications because Plaintiffs would be forced to resubmit their I-485 [applications] in court, effectively prejudicing their argument." (Resp. 7 (alterations added; emphasis omitted)). This contention fails to persuade, as Plaintiffs do not explain why having to "resubmit" their adjustment applications (and the purported "prejudic[e]" that would cause) means the regulations do not apply to their circumstances. (Id. (alteration added)).
The pendency of Duque's asylum application strengthens Defendants’ position. In Pinho , the court noted "even if the possibility of renewing an adjustment application in future deportation proceedings were thought to cast doubt on the finality of [the] decision, this case falls into one of the categories in which the interests of the individual weigh heavily against requiring administrative exhaustion, namely, circumstances in which an indefinite timeframe for administrative action[ ] results in prejudice to the individual who must await that action." 432 F.3d at 202 (alterations added; internal quotation marks and citations omitted). These concerns are not present here, as Duque's pending asylum application makes the possibility of removal proceedings more certain.
As Defendants point out, Duque's asylum application will necessarily resolve Plaintiffs’ challenge to the denial of her application for adjustment of status — if Duque's "asylum application is approved, her newfound asylee status would provide [her] with a separate basis to seek adjustment and this action would be effectively rendered moot[;]" and "[i]f her asylum application is denied, she will be placed in removal proceedings and will be able to challenge, de novo , [the] USCIS's denial of her adjustment application[.]" (Mot. 6 (alterations added)). Plaintiffs, as the parties asserting jurisdiction, have failed to meet their burden of demonstrating the USCIS's decision is reviewable by the Court. See Kokkonen , 511 U.S. at 377, 114 S.Ct. 1673 ("It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]" (alteration added; internal citations omitted)).
In another attempt to assert jurisdiction, "Plaintiffs devote three whole pages of their Response to an argument that this case does not involve a discretionary decision relegated to the Attorney General, which would otherwise preclude this Court's review under 8 U.S.C. [section] 1252(a)(2)(B)(ii)." (Reply 3; see also Resp. 8–10). This argument does not alter the Court's conclusion Plaintiffs have failed to show the USCIS's decision is a final agency action reviewable under the APA.
B. Failure to State a Claim
In the alternative, Defendants argue Plaintiffs are not entitled to relief because the USCIS's denial of Duque's adjustment application was not arbitrary, capricious, an abuse of discretion, or contrary to law. (See Mot. 7–17). Under 8 U.S.C. section 1255(a), an alien's status may be adjusted to that of a lawful permanent resident if "(1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed." Id. § 1255(a). Section 1255(c)(2) disqualifies from status adjustment an alien "who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States[.]" Id. 8 § 1255(c)(2) (alteration added).
Section 1255(c)(2) also disqualifies an alien "who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status[,]" 8 U.S.C. § 1255(c)(2) (alteration added); but this bar to adjustment is "not at issue here" (Mot. 9 n.2).
In denying Duque's adjustment application, the USCIS determined she failed to maintain continuously a lawful status since entry into the United States, namely from the expiration of her B-2 visa on December 24, 2016 until the submission of her I-485 application on October 10, 2018. (See Compl. ¶ 27; see also Ex. D 10). The denial letter specifically noted "a pending asylum application does not confer lawful status for the purpose of this application." (Compl. ¶ 27; see also Ex. D 10).
Defendants maintain the USCIS's decision finding Duque ineligible for adjustment under both statutory bars was in accordance with the law. (See Mot. 7–17). As to the first bar, Defendants assert Duque was in unlawful immigration status at the time she submitted her adjustment application. (See id. 10–11). For purposes of section 1255(c)(2),
the term "lawful immigration status" will only describe the immigration status of an individual who is:
(i) In lawful permanent resident status;
(ii) An alien admitted to the United States in nonimmigrant status as defined in section 101(a)(15) of the Act, whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of this chapter;
(iii) In refugee status under section 207 of the Act, such status not having been revoked;
(iv) In asylee status under section 208 of the Act, such status not having been revoked;
(v) In parole status which has not expired, been revoked or terminated; or
(vi) Eligible for the benefits of Public Law 101–238 (the Immigration Nursing Relief Act of 1989) and files an application for adjustment of status on or before October 17, 1991.
8 C.F.R. § 245.1(d)(1) (emphasis added).
According to Defendants, Duque "was none of the above at the time she submitted her adjustment application" because her "visitor visa had expired" and "[b]eing an asylum seeker is not one of the six exclusive grounds defined as ‘lawful immigration status[.]’ " (Mot. 10 (alterations added; emphasis in original)). Defendants note " ‘[i]n asylee status’ refers to persons whose asylum applications have been granted and not revoked" and "does not refer to asylum seekers" like Duque. (Id. 10 n.4 (alteration added)); see also Kavafoglu v. Nielsen , No. 4:18-cv-3512, 2019 WL 172865, at *3 (S.D. Tex. Jan. 11, 2019) (finding the plaintiffs did not have lawful immigration status on the date they submitted their application for adjustment of status because "the plaintiffs[’] mere filing of [an] [asylum] application, without more, did not create or establish any new, ‘lawful’ status on their behalf" (alterations added; citation omitted)).
Plaintiffs offer nothing in response to this argument except the assertion that USCIS policy "classifie[s] [a]djustment of [s]tatus applicants with pending asylum applications as being in legal immigration status pursuant to 8 C.F.R. [section] 245.1(d)(iv)." (Resp. 11 (alterations added)). This runs counter to Defendants’ proffered definition of asylee status. Plaintiffs do not explain why the Court should reject Defendants’ reasonable interpretation of what constitutes unlawful immigration status under section 1255(c)(2).
As to the second bar, Defendants contend Duque failed to continuously maintain lawful immigration status since she entered the United States, and she has not shown the failure was through no fault of her own or for technical reasons. (See Mot. 11–15). As stated, section 1255(c)(2) makes ineligible for adjustment an alien "who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States[.]" 8 U.S.C. § 1255(c)(2) (alteration added). The regulations provide that "[t]he parenthetical phrase other than through no fault of his or her own or for technical reasons" refers to, in pertinent part, "[a] technical violation resulting from inaction of [the USCIS] (as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and [the USCIS] has not yet acted on that request)." 8 C.F.R. § 245.1(d)(2)(ii) (alterations added).
Plaintiffs do not argue Duque falls under any other subsection of section 245.1(d)(2). (See generally Compl.; Resp.).
According to Defendants, Duque's asylum application was not a "request to maintain status" under 8 C.F.R. section 245.1(d)(2)(ii). (Mot. 12 (emphasis omitted)). Defendants state this language refers to a request to preserve a person's existing nonimmigrant status, explaining that Duque did not request to extend her B-1/B-2 visitor visa and "the act of applying for asylum does not have the effect of extending nonimmigrant status" under longstanding USCIS policy. (Id. 13 (emphasis omitted)). Defendants also note the statutory and regulatory scheme for extending, changing, or maintaining nonimmigrant status does not include submitting an application for asylum. (See id. 14–15).
Defendants’ interpretation is entitled to deference. Under the no fault/technical reasons exception, "a technical violation occurs when the USCIS fails to timely act on a request to maintain or extend an existing status. " Kavafoglu , 2019 WL 172865, at *4 (emphasis added; citation omitted). Here, as in Kavafoglu , "[P]laintiffs did not seek to maintain a ‘lawful’ status during the pendency of their asylum application. Instead, they sought to utilize their status as asylum seekers to bridge the divide between their expired visitor status and that of a [lawful permanent resident]." Id. (alterations added).
Plaintiffs fail to cast doubt on Defendants’ reasonable interpretation of the no fault/technical reasons exception. Plaintiffs assert they "qualify for this exception by virtue of the asylum application they submitted on September 16, 2016, prior to the expiration of the[ir] nonimmigrant, B1/B2 status," and "the [DHS] has not taken action on this pending application." (Resp. 13 (alterations added)). Plaintiffs rely on statutory language construing an alien's "unlawful presence in the United States" and a Board of Immigration Appeals ("BIA") decision relating to this exception. (Id. 13–15 (internal quotation marks omitted)).
Plaintiffs’ arguments fail to persuade. Plaintiffs appear to rely on 8 U.S.C. section 1182(a)(9)(B)(iii)(II) — although it is misquoted and cited incorrectly in their brief — in support of their interpretation of section 1255(c)(2). Section 1182(a)(9)(B)(iii)(II) provides "[n]o period of time in which an alien has a bona fide application for asylum pending under section 1158 of this title shall be taken into account in determining the period of unlawful presence in the United States under clause (i) ...." 8 U.S.C. § 1182(a)(9)(B)(iii)(II) (alterations added). Plaintiffs ignore the distinction between unlawful presence and unlawful status , where section 1255(c)(2) disqualifies from adjustment those who fail "to maintain continuously a lawful status since entry into the United States[.]" 8 U.S.C. § 1255(c)(2) (alteration and emphasis added); see also Chaudhry v. Holder , 705 F.3d 289, 292 (7th Cir. 2013) (rejecting use of section 1182(a)(9)(B) to interpret "lawful status" under section 1255 and stating "unlawful presence and unlawful status are distinct concepts in the argot of immigration specialists. It is entirely possible for aliens to be lawfully present ... even though their lawful status has expired." (alteration added; citations omitted)).
Plaintiffs’ reliance on the BIA decision, In re L-K- , 23 I. & N. Dec. 677 (BIA 2004), is also misplaced. (See Resp. 15). Plaintiffs assert "[t]he pivotal question in L-K- [wa]s whether [the alien's] failure to maintain status was for ‘technical reasons’ by virtue of the pendency of her asylum application that had been file[d] while she was in nonimmigrant status." (Id. (alterations added)). Plaintiffs state the BIA "concluded [the alien] was ineligible for adjustment of status because [the] DHS had acted upon her request for asylum prior to her application for adjustment of status, effectively ... eliminating the ‘technical reasons’ argument." (Id. (alterations added)); see also L-K- , 23 I. & N. Dec. at 681 ("Once the DHS acted on the [alien's] asylum application by referring it to the [i]mmigration [c]ourt, the [alien] could not be considered out of status ‘for technical reasons.’ " (alterations added)). According to Plaintiffs, this holding means Plaintiffs cannot "be considered out of status" until the DHS "acts on [ ] Plaintiffs [sic] asylum application[.]" (Resp. 15 (alterations added)).
L-K- is inapposite. As an initial matter, Plaintiffs are incorrect in their characterization of the "pivotal question" in L-K-. ( Id. ). The BIA explicitly declined to decide whether an alien's failure to maintain lawful status is for technical reasons where the DHS has not yet ruled on the alien's asylum application. See L-K- , 23 I. & N. Dec. at 679 ("The DHS argues ... the language of the regulation implies that the request must relate to the particular status the applicant already possesses and wishes to ‘maintain.’ The DHS also contends that when a different status, such as asylum status, is requested, any lapse of the initial status is not one ‘resulting from’ the DHS's action or inaction with regard to that other status. We do not reach either argument and express no opinion thereon." (alteration added; footnote call number omitted)). And L-K- ’s holding does not support Plaintiffs’ position. As Defendants aptly observe, " L-K- ’s holding that the ‘technical violation’ exception is not applicable once [the] USCIS acts on an asylum application does not equate to a holding that the exception is applicable before it acts." (Reply 4–5 (alteration added; emphasis in original)). In sum, the allegations in Plaintiffs’ Complaint do not demonstrate the USCIS's denial of Duque's adjustment application was arbitrary, capricious, an abuse of discretion, or contrary to law. Therefore, even assuming the Court has subject matter jurisdiction, Plaintiffs are not entitled to relief.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss [ECF No. 20] is GRANTED . Plaintiffs’ Complaint [ECF No. 1] is DISMISSED without prejudice. The Clerk of Court is directed to CLOSE this case, and any pending motions are DENIED as moot.
DONE AND ORDERED in Miami, Florida, this 15th day of June, 2020.