The opinion
United States District Court
for the
Southern District of Florida
Areli Del Carmen Espinosa, Plaintiff )
)
v.
)
Linda Swacina, Miami District ) Civil Action No. 19-21315-Civ-Scola
Director, U.S. Citizenship and )
Immigration Services and others, )
Defendants. )
Order Granting Motion to Dismiss
Plaintiff Areli Del Carmen Espinosa seeks review of the United States
Citizenship and Immigration Services’ (“USCIS”) decision to close her I-485
application. (Compl., ECF No. 1.) In response, the Defendants maintain
Espinosa’s complaint should be dismissed for a lack of subject-matter
jurisdiction or, failing that, for her failure to state a claim. (Defs.’ Mot., ECF No.
9.) Because the Court agrees that it lacks subject-matter jurisdiction, it grants
the Government’s motion (ECF No. 9) and dismisses Espinosa’s complaint.
1. Background1
Espinosa, a native and citizen of El Salvador, entered the United States,
on December 29, 1992, “without inspection.” (Compl. at ¶ 17.) Thereafter, in
April 1993, an immigration judge entered an order of deportation, in absentia,
against her. (Id. at ¶ 18.) That order of deportation, under Espinosa’s maiden
name, remains in effect. (Id.; Defs.’ Mot. at 3–4). Espinosa was also placed in
removal proceedings, in 1998, under her married name and, by dint of those
proceedings, was granted voluntary departure in February 1999. (Compl. at ¶¶
21–22; Defs.’ Mot. at 4 n. 5.)
At some point, Espinosa does not specify when, she acquired Temporary
Protected Status by way of El Salvador’s designation in the Immigration Act of
1990. (Compl. at ¶ 19.) Espinosa has retained this status through the filing of
her complaint. (Id. at ¶ 20.)
After attaining Temporary Protected Status, Espinosa, on October 6,
2016, received authorization to leave the United States temporarily and to then
return to resume her protected status. (Id. at ¶ 25 (“USCIS issued . . . Espinosa
an I-512L Authorization for Parole of an Alien into the United States pursuant
to her grant of TPS.”).) In March 2017, Espinosa returned and “was paroled
1 The Court accepts Espinosa’s factual allegations as true for the purposes of evaluating the
Defendants’ motion to dismiss. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364,
1369 (11th Cir. 1997).
into the United States” as provided by her previously authorized advance
parole, under 8 U.S.C. § 1182(d)(5). (Id. at ¶ 26.)
Upon Espinosa’s application, the Board of Immigration Appeals
terminated her 1998 removal proceedings so that she could pursue a status
adjustment. (Id. at ¶ 27–28.) Espinosa does not contest that this termination
had no impact on her 1993 order of deportation, which remains in effect.
(Defs.’ Mot. at 4 n. 5.) On February 19, 2019, Espinosa submitted an
application for permission to reapply for admission (Form I-212), in relation to
her application to adjust status (Form I-485), to the USCIS Hialeah Field Office.
(Compl. at ¶¶ 34–35.) Two days later, USCIS issued a notice of administrative
closure, closing Espinosa’s application for a lack of jurisdiction. (Id. at ¶ 36.)
Espinosa objects to USCIS’s decision, complaining that it was arbitrary,
capricious, and an abuse of discretion under the Administrative Procedures Act
and violates her due process rights under the Fifth Amendment.
2. Analysis
At the heart of Espinosa’s claims is her complaint that USCIS improperly
determined that she is not an “arriving alien” as that term is defined by federal
regulations. This is the key to her insistence that the USCIS improperly found
it lacked jurisdiction to review her admission application: for, if she is an
arriving alien, she argues, the USCIS, and not the immigration judge, has
jurisdiction to adjudicate her application for adjustment of status. (Pl.’s Resp.
at 1–2 (citing 8 C.F.R. § 1245.2(a)(1) (except under certain circumstances, not
applicable here, an “immigration judge does not have jurisdiction to adjudicate
any application for adjustment of status filed by [an] arriving alien.”)).) None of
Espinosa’s factual allegations or the legal authorities she relies on, however,
support her contention that she ever attained the designation of “arriving
alien.” All of her arguments, then, regarding the USCIS’s alleged policy change
regarding its jurisdiction over arriving aliens with temporary protected status
are thoroughly unavailing. Accordingly, the Court agrees with the Government
that the Court cannot exercise jurisdiction over Espinosa’s case.
As set forth in the Immigration and Nationality Act, “[n]otwithstanding
any other provision of law . . . a petition for review filed with an appropriate
court of appeals . . . shall be the sole and exclusive means for judicial review of
an order of removal entered or issued under any provision of this chapter.” 8
U.S.C. § 1252(a)(5). Further, the INA precludes the district courts from hearing,
with certain exceptions not applicable here, “any cause or claim by . . . any
alien arising from the decision . . . to commence proceedings, adjudicate cases,
or execute removal orders against any alien under this chapter.” 8 U.S.C. §
1252(g). In sum, the INA prevents district courts from granting relief in actions
like this one that directly or indirectly challenge final orders of removal. Singh
v. United States Citizenship & Immigration Services, 878 F.3d 441, 445 (2d Cir.
2017), as amended (Jan. 9, 2018) (“the term ‘judicial review of an order of
removal,’ as used in Section 1252(a)(5), encompasses both ‘direct’ and ‘indirect’
challenges to removal orders”). Where a plaintiff seeks relief that, if granted,
would invalidate a removal order, the district court lacks subject matter
jurisdiction and the claim must proceed through the channels prescribed by
Congress, ending in a petition for review in the proper court of appeals. See,
e.g., Duron v. Johnson, 898 F.3d 644, 646 (5th Cir. 2018), cert. denied, 139 S.
Ct. 1179 (2019) (affirming a district court’s dismissal for lack of jurisdiction
where the complaint challenged the validity of an alien’s deportation order).
Here, Espinosa is subject to a deportation order, entered more than two
decades ago. Her complaint is, at best, an indirect attack on that order. Indeed,
her claims here are “inextricably linked” to her removal order because USCIS
“administratively closed [her] application based on the removal order.” Santa
Maria v. McAleenan, CV H-18-3996, 2019 WL 2120725, at *3 (S.D. Tex. May
15, 2019) (emphasis added). Indeed, if the Court were to determine that USCIS
has jurisdiction to adjudicate Espinosa’s application for adjustment, and
USCIS were to then grant that application, Espinosa’s deportation would
necessarily be nullified. To be sure, USCIS and the immigration judge do not
have concurrent jurisdiction over status adjustment applications. Singh, 878
F.3d at 446. And since “the purpose of this action is to shift jurisdiction from
the tribunal that has ordered [the plaintiff] removed and to render the removal
order ineffective,” it is precluded by 8 U.S.C. § 1252(a)(5). Id. The Court thus
dismisses Espinosa’s case for a lack of subject-matter jurisdiction under Rule
12(b)(1).2
The Court also denies both Espinosa’s motion for leave to present
supplemental briefing (ECF No. 22) and the Government’s motion to strike
Espinosa’s notice (ECF No. 24). Finally, the Court directs the Clerk to close
2 The Court notes that even if did have jurisdiction, it would in any event conclude that
Espinosa, as set forth above, has failed to state a claim because she has not presented facts or
legal support establishing that she is an “arriving alien.” See Gonzalez v. Mayorkas, 1:13-CV-
1230, 2014 WL 585863, at *5 (E.D. Va. Feb. 12, 2014), aff’d sub nom. Gonzalez v. Zannotti, 585
Fed. App’x 130 (4th Cir. 2014) (noting that the plaintiff’s illegal entry in 1984 “controlled his
status” and “an alien cannot be both inadmissible as having entered without inspection and at
the same time an arriving alien” and therefore concluding that an alien’s being granted TPS
and thereafter being paroled cannot “erase his original entry without inspection, nor . . .
convert his status to that of an arriving alien”).
this case and denies any other pending motions as moot.
Done and ordered, at Miami, Florida, on December 6, 2019.
[<< N. Scola, Jr.
United States District Judge