# Zarrabian v. United States Citizenship & Immigration Services

> District Court, S.D. California · March 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10087278

## Case

- **Court:** District Court, S.D. California
- **Decided:** March 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10087278

## How later opinions describe it (automated extraction)

- holding that, under Patel, § 1252(a)(2)(B) strips federal courts of 4 ||jurisdiction to review factual findings made by USCIS, even when those factual 5 findings are erroneous
- holding that, under 11 || Patel, the circuit court couldn’t review a challenge to the sufficiency of facts which 12 ||the Board of Immigration Appeals relied on in dismissing an appeal of the denial 13 status adjustment

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 HOOMAN ZARRABIAN, et al., Case No.: 21-cv-1962-LAB-MDD

12 Plaintiffs,
ORDER:
13 v.
1) GRANTING MOTION TO
14 UNITED STATES CITIZENSHIP
DISMISS, [Dkt. 11]; and
AND IMMIGRATION SERVICES,
15
et al.,
2) DENYING MOTION FOR
16
Defendants. SUMMARY JUDGMENT AS
17 MOOT, [Dkt. 10].
18
19 Plaintiffs Hooman Zarrabian and Bahar Bandegan (collectively, “Plaintiffs”)
20 are asylum seekers from Iran. After U.S. Citizenship and Immigration Services
21 (“USCIS”) denied their applications for adjustment of status, they brought this suit
22 challenging that decision. They named the following Defendants: USCIS;
23 Alejandro Mayorkas, Secretary of Homeland Security; and Terri Robinson,
24 Director of the National Benefits Center. Plaintiffs moved for summary judgment
25 and Defendants moved for cross-summary judgment and to dismiss the
26 Complaint for lack of jurisdiction. Having considered the parties’ submissions and
27 the relevant law, the Court GRANTS Defendants’ motion to dismiss and DENIES
28 AS MOOT Plaintiffs’ motion for summary judgment.
1 I. BACKGROUND
2 Hooman Zarrabian arrived in the United States on a B2 visitor visa on
3 April 14, 2017. (Dkt. 12, Joint Statement of Undisputed Facts (“JSUF”) at 1). His
4 nonimmigrant lawful status expired on October 13, 2017. (Id.). Bahar Bandegan,
5 Zarrabian’s spouse, arrived in the United States on February 27, 2017, also on a
6 B2 visitor visa. (Id.) Her visa expired on August 26, 2017. (Id. at 2).
7 On October 3, 2017, Plaintiffs applied for asylum, which enabled them to
8 lawfully remain in the United States. (Id. at 2–3). Zarrabian’s employer then filed
9 an I-140 Petition for Alien Worker on December 5, 2019. (Id. at 2). After USCIS
10 approved Zarrabian’s I-140 application, both Plaintiffs filed for adjustment of their
11 residency status. (Id. at 2–3). Bandegan’s application was dependent on that of
12 her spouse. (Id.)
13 On May 21, 2021, USCIS denied Plaintiffs’ adjustment applications under
14 8 U.S.C. § 1255 on the grounds that Zarrabian failed to maintain a continuous
15 lawful status since his admission to the United States. (Id.). On June 21, 2021,
16 Plaintiffs appealed the denial of their applications. (Id.). USCIS denied their
17 appeals in September 2021, and Plaintiffs commenced this action on
18 November 18, 2021. (Id.; Dkt. 1).
19 II. LEGAL STANDARD
20 Federal courts are courts of limited jurisdiction and may only hear a claim
21 when authorized to do so by the Constitution or statute. See Bender v.
22 Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986); Gould v. Mut. Life Ins. Co.
23 of N.Y., 790 F.2d 769, 774 (9th Cir. 1986); U.S. Const. art. III, § 2. Federal courts
24 have original jurisdiction over cases in which a federal question exists, or when
25 complete diversity of citizenship exists and the amount in controversy exceeds
26 $75,000. 28 U.S.C. §§ 1331–32. A court can’t reach the merits of a dispute until
27 it confirms its own subject matter jurisdiction. Steel Co. v. Citizens for a Better
28 Env’t, 523 U.S. 83, 93–94 (1998). The allegations of the complaint control whether
1 a suit “arises under” federal law for purposes of 28 U.S.C. § 1331. “Where the
2 complaint . . . seeks recovery directly under the Constitution or laws of the United
3 States, the federal court . . . must entertain the suit.” United States v. Morros, 268
4 F.3d 695, 699–700 (9th Cir. 2001).
5 A motion to dismiss for lack of subject matter jurisdiction is governed by
6 Federal Rule of Civil Procedure 12(b)(1). When considering a Rule 12(b)(1)
7 motion, the Court isn’t restricted to the face of the pleadings and may review any
8 evidence, such as declarations and testimony, to resolve any factual disputes
9 concerning the existence of jurisdiction. See McCarthy v. United States, 850 F.2d
10 558, 560 (9th Cir. 1988). On a Rule 12(b)(1) motion, the party asserting jurisdiction
11 bears the burden of proof. See Ass’n of Am. Med. Coll. v. United States, 217 F.3d
12 770, 778–79 (9th Cir. 2000).
13 III. DISCUSSION
14 Defendants argue this Court lacks subject matter jurisdiction because
15 8 U.S.C. § 1252(a)(2)(B)(i) bars judicial review of challenges to a denial of status
16 adjustment under § 1255. (Dkt. 11 at 3–5) (citing § 1252(a)(2)(B)(i)). Defendants
17 are correct. The statute provides, in relevant part, “regardless of whether the
18 judgment, decision, or action is made in removal proceedings, no court shall have
19 jurisdiction to review . . . any judgment regarding the granting of relief under
20 section . . . 1255.” § 1252(a)(2)(B). In support of their argument, Defendants cite
21 a recent Supreme Court decision, Patel v. Garland, 142 S. Ct. 1614 (2022).
22 (Dkt. 11 at 3–4). In Patel, the Court considered whether § 1252(a)(2)(B)(i) barred
23 judicial review of USCIS’s factual determinations made when considering a
24 foreign national’s eligibility for adjustment of residency status. Patel, 142 S. Ct.
25 at 1622–23. The Supreme Court took an expansive view of the phrase “any
26 judgment” and held that § 1252(a)(2)(B)(i) barred judicial review of “judgments of
27 whatever kind under § 1255, not just discretionary judgments or the last-in-time
28 judgment.” Id. at 1622.
1 Here, Plaintiffs seek review of USCIS’s denials of their applications for
2 status adjustment under § 1255. (Dkt. 13 at 4–5, 7). Section 1255 is clearly
3 enumerated in § 1252(a)(2)(B)’s jurisdiction-stripping provision. Plaintiffs argue
4 Patel is distinguishable because its facts related to a discretionary decision made
5 by an immigration judge during removal proceedings, while the decision Plaintiffs
6 challenge was made outside of removal proceedings and by USCIS, not an
7 immigration judge. (Dkt. 13 at 4).
8 However, the fact that the challenged decision was made by USCIS outside
9 of removal proceedings doesn’t meaningfully distinguish this case from Patel.
10 While Plaintiffs are correct that Patel addressed a factual determination made in
11 removal proceedings, § 1252(a)(2)(B)’s plain text indicates that the subsection
12 strips courts of jurisdiction “regardless of whether the judgment, decision, or action
13 is made in removal proceedings.” § 1252(a)(2)(B). Other courts have held
14 § 1252(a)(2)(B) deprives them of jurisdiction to review decisions outside the
15 removal context. See, e.g., Ihekwoaba v. Garland, SA-21-CV-1192-OLG, 2022
16 WL 18832231, at *1 (W.D. Tex. Nov. 29, 2022) (applying § 1252(a)(2)(B)’s
17 jurisdiction-stripping provision to a decision made by USCIS in a non-removal
18 context); Kithongo v. Garland, 33 F.4th 451, 455 (7th Cir. 2022) (holding federal
19 courts lack jurisdiction to review an immigration judge’s decision to deny an
20 application for adjustment of status under § 1255); see also Britkovyy v.
21 Mayorkas, 21-3160, 2023 WL 2059090, at *3 (7th Cir. Feb. 17, 2023) (“Because
22 § 1255, which governs adjustment-of-status applications, is listed in
23 § 1252(a)(2)(B)(i), a noncitizen can receive judicial review of a denial of
24 adjustment of status only through a petition for review from a final order of
25 removal, and even then, only for constitutional claims or questions of law.”).
26 The statute’s text also isn’t limited to judgments, decisions, or actions by an
27 immigration judge. See § 1252(a)(2)(B). Other courts applying Patel have held
28 § 1252(a)(2)(B) strips federal courts of jurisdiction over decisions made in a
1 ||variety of contexts, regardless of whether the decision was made by an
2 ||immigration judge. See, e.g., Rivera Vega v. Garland, 39 F.4th 1146, 1153
3 || (9th Cir. 2022) (holding that, under Patel, § 1252(a)(2)(B) strips federal courts of
4 ||jurisdiction to review factual findings made by USCIS, even when those factual
5 findings are erroneous); Martinez v. Clark, 36 F.4th 1219, 1227 (9th Cir. 2022)
6 ||(holding Patel’s broad reading of § 1252(a)(2)(B) bars federal courts from
7 ||reviewing discretionary judgments made at mandatory detention hearings under
8 ||§ 1226(c), and that matters of governmental grace, such as adjustment of status
9 ||and cancellation of removal relief are also discretionary judgments not subject to
10 ||review); Moreno v. Garland, 51 F.4th 40, 45 (1st Cir. 2022) (holding that, under
11 || Patel, the circuit court couldn’t review a challenge to the sufficiency of facts which
12 ||the Board of Immigration Appeals relied on in dismissing an appeal of the denial
13 status adjustment).
14 Under Patel, the USCIS decision Plaintiffs challenge is the type of decision
15 ||that § 1252(a)(2)(B)(i) bars the Court from reviewing. The Court finds it lacks
16 ||subject matter jurisdiction to review USCIS’s denial of Plaintiffs’ applications for
17 adjustment of status.
18 ||IV. CONCLUSION
19 The Court GRANTS Defendants’ motion to dismiss for lack of jurisdiction.
20 || Plaintiffs’ pending motion for summary judgment is DENIED AS MOOT. The Clerk
21 Court is ordered to terminate the case.
22 IT IS SO ORDERED.
23 ||Dated: March 6, 2023
24 ‘aug AZ, WY
25 Hon. Larry Alan Burns
26 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10087278. Public record. Not legal advice.