# Bermudez v. Stulz

> District Court, S.D. Florida · July 31, 2020

URL: https://www.frixlaw.com/law-library/cases/10117882

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** July 31, 2020
- **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/10117882

## How later opinions describe it (automated extraction)

- holding that USCIS’s decision to reopen an H-1B petition transformed the initial denial into a non-final agency action under the APA
- concluding that the plaintiff could not evade the INA’s jurisdictional bar and that the APA did not provide an independent basis for jurisdiction for the court to review his denied application

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No.: 1:19-cv-25213-GAYLES

MARIO JOSE BERMUDEZ,

Plaintiff,

v.

ENID STULZ, Director of the U.S. Citizenship
and Immigration Services (“USCIS”) Hialeah
Field Office; and LINDA SWACINA, USCIS,
District Director,

Defendants.
________________________________________/

ORDER

THIS CAUSE comes before the Court on Defendants’ Motion to Dismiss (the “Motion”)
[ECF No. 24]. The Court has reviewed the Motion and the record and is otherwise fully advised.
For the following reasons, the Motion is granted.
I. BACKGROUND
Plaintiff is a native and citizen of Nicaragua who currently resides in Miami-Dade County,
Florida. [ECF No. 13]. Plaintiff was admitted to the United States on a visitor visa in September
1993, with authorization to remain in the United States until March 11, 1994. [ECF No. 23-1 at 2].
Plaintiff remained in the United States, without authorization, beyond March 11, 1994. Id.
On December 18, 2017, Plaintiff filed a Form I-485 application to adjust his status to that
of lawful permanent resident based on his marriage to a United States citizen (the “Application”).
[ECF No. 13]. On February 14, 2019, USCIS denied Plaintiff’s Application, finding that his 2004
conviction for possession of cocaine, later reduced to use or possession of drug paraphernalia,
made him inadmissible under 8 U.S.C. § 1182(a)(A)(i)(II). [ECF No. 23-1 at 5]. On December 19,
2019, Plaintiff filed this action challenging USCIS’ denial of his Application under the
Administrative Procedure Act (“APA”). Plaintiff contends that the denial was contrary to law
because, at the time of his conviction, Florida criminalized multiple substances that do not appear
on the federal controlled substances list such that he should not have been considered inadmissible
under § 1227(a)(2)(B)(i).1

On January 9, 2020, USCIS sua sponte reopened Plaintiff’s Application to reconsider its
decision. USCIS provided Plaintiff with an opportunity to submit additional evidence in support
of his Application and sent Plaintiff a Request for Evidence (“RFE”) asking for more information
on his 2004 conviction, to which Plaintiff responded. On February 25, 2020, USCIS again denied
Plaintiff’s Application.
This time, USCIS determined that Plaintiff failed to provide sufficient evidence as to the
nature and identity of the drug of the paraphernalia for which he was convicted, and therefore,
failed to meet his burden to demonstrate he is admissible into the United States. [ECF No. 23-1 at
10]. In addition, USCIS found that, even if he had established statutory eligibility for adjustment

of status, exercising discretion in Plaintiff’s favor was unwarranted due to his extensive criminal
history including eleven charges and nine criminal convictions between 1994 and 2012. Id. In its
February 25, 2020 decision, USCIS informed Plaintiff that he was no longer authorized to remain
in the United States and that USCIS may issue a Notice to Appear (“NTA”) and begin removal
proceedings if Plaintiff did not voluntarily leave the United States within 33 days.
On March 12, 2020, Plaintiff filed his Amended Complaint asking the Court to find that
(1) USCIS’ February 14, 2019 decision was arbitrary, capricious, and contrary to law (Counts I
and II) and (2) USCIS’ reopening and subsequent denial of Plaintiff’s Application is unlawful

1 Plaintiff also contends that the Florida statutes under which he was convicted are overbroad.
under the APA or, in the alternative, unconstitutional retaliation in violation of the First
Amendment (Counts III and IV).2 Plaintiff alleges that the Court has subject matter jurisdiction
over this action under 28 U.S.C. § 1331 (federal question) in combination with the APA.
Plaintiff did not depart the United States. Accordingly, on April 7, 2020, USCIS issued
him an NTA setting a hearing in immigration court on August 3, 2020.3 [23-1 at 1]. On April 21,

2020, USCIS filed the NTA with the immigration court and commenced removal proceedings. Id.4
On April 27, 2020, Defendants moved to dismiss arguing that the Court lacks subject
matter jurisdiction under the APA to review USCIS’ denial of Plaintiff’s Application.5 The Court
agrees.
II. LEGAL STANDARD
“Federal courts are courts of limited jurisdiction. They possess only that power authorized
by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
“A district court must have jurisdiction under at least one of the three types of subject-matter
jurisdiction: (1) jurisdiction pursuant to a specific statutory grant; (2) federal question jurisdiction

pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).” Butler
v. Morgan, 562 F. App’x 832, 834 (11th Cir. 2014) (citation omitted). “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.” Kokkonen, 511 U.S. at 377 (citations omitted).

2 Plaintiff also moved for partial summary judgment as to Count III. [ECF No. 14].
3 In response, Plaintiff moved for a temporary restraining order, asking the Court to enjoin USCIS from filing the
NTA with the immigration court and commencing removal proceedings. [ECF No. 20].
4 The NTA contains a date stamp for April 21, 2020. [ECF No. 23-1 at 1]. Plaintiff has supplemented the record by
filing a “printout” from the Executive Office for Immigration Review (“EOIR”) and argues that this document
somehow establishes that USCIS did not commence removal proceedings until May 5, 2020, after Defendant filed its
Motion to Dismiss. The document, however, reflects that the NTA was issued on April 7, 2020, received/filed by
EOIR on April 21, 2020, and entered into EOIR’s docketing system on May 5, 2020. [ECF No. 26-1].
5 In response to the Motion to Dismiss, Plaintiff relies primarily on the arguments he made in his Motion for
Temporary Restraining Order.
A motion to dismiss for lack of subject matter jurisdiction brought under Federal Rule of
Civil Procedure 12(b)(1) may present either a facial or a factual challenge to the complaint. See
McElmurray v. Consol. Gov’t, 501 F.3d 1244, 1251 (11th Cir. 2007). In a facial challenge, a court
is required only to determine if the plaintiff has “sufficiently alleged a basis for subject matter

jurisdiction.” Id. “As it does when considering a Rule 12(b)(6) motion to dismiss for failure to
state a claim, the court construes the complaint in the light most favorable to the plaintiff and
accepts all well-pled facts alleged by in the complaint as true.” Sinaltrainal v. Coca-Cola Co., 578
F.3d 1252, 1260 (11th Cir. 2009) (citing McElmurray, 501 F.3d at 1251), abrogated on other
grounds by Mohamad v. Palestinian Auth., 566 U.S. 449 (2012). The court can consider the
complaint as well as the attached exhibits. McElmurray., 501 F.3d at 1251.
By contrast, a factual attack “challenge[s] ‘the existence of subject matter jurisdiction in
fact, irrespective of the pleadings, and matters outside the pleadings . . . are considered.’”
McElmurray, 501 F.3d at 1251 (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.
1990)). In a factual attack, “no presumptive truthfulness attaches to [a] plaintiff’s allegations, and

the existence of disputed material facts will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims.” Williamson, 645 F.2d at 412–13 (quoting Mortensen v. First
Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). For both facial and factual attacks,
“[t]he burden for establishing federal subject matter jurisdiction rests with the party bringing the
claim.” Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005). Here,
Defendants raise a factual attack on subject matter jurisdiction arguing that the removal
proceedings—instituted after Plaintiff filed the Amended Complaint—strip this Court of
jurisdiction.
III. DISCUSSION
A. USCIS’ denial of Plaintiff’s Application is not a final agency action.
Under the APA, federal courts only have jurisdiction to review “final agency action.” 5
U.S.C. § 704. For an agency action to be final, “the action must mark the consummation of the

agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature.
And . . . the action must be one by which rights or obligations have been determined, or from
which legal consequences will flow.” U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. ---, 136
S. Ct. 1807, 1813 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). “The ‘core
question’ about finality ‘is whether the agency has completed its decisionmaking process, and
whether the result of that process is one that will directly affect the parties.’” Canal A Media
Holding, LLC v. United States Citizenship & Immigration Services, 19-11193, 2020 WL 3833071,
at *3 (11th Cir. July 8, 2020) (quoting Franklin v. Massachusetts, 505 U.S. 788, 797 (1992)).
“An adjustment of status decision is a final agency action when ‘there are no deportation
proceedings pending in which the decision might be reopened or challenged.’” Gupta v U.S. Att’y

Gen., 439 F. App’x 858, 860 (11th Cir. 2011) (quoting Ibarra v. Swacina, 628 F.3d 1269, 1270
(11th Cir. 2010)). However, where removal proceedings are pending, the denial of an application
to adjust status is not final action because the relevant regulation “allows an alien to ‘renew his or
her application in [removal] proceedings[,]’” and “[o]nce 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.’” Ibarra, 628 F.3d at 1270
(quoting 8 C.F.R § 245.2(a)(5)(ii), 8 C.F.R. § 1245.2(a)(1)). Here, Plaintiff is currently in removal
proceedings and therefore “[t]he decision on [his] adjustment of status is not yet final.” Id. As a
result, the Court has no jurisdiction to hear Plaintiff’s claims.6
B. Discretionary Review
The Court notes that even if USCIS had not commenced removal proceedings, this Court

would not have jurisdiction to review USCIS’ discretionary denial of Plaintiff’s Application. It is
well-settled that courts lack jurisdiction to review agency decisions that are based on an agency’s
discretionary authority. See § 1252(a)(2)(B)(ii) (“no court shall have jurisdiction to review . . . any
other decision or action of the Attorney General or the Secretary of Homeland Security the
authority for which is specified under this subchapter to be in the discretion of the Attorney General
or the Secretary of Homeland Security”); see also Brown v. U.S. Att’y Gen., 187 F. App’x. 934,
936 n.2 (11th Cir. 2006) (stating that the court lacked jurisdiction to review “factual and
discretionary determinations denying [the plaintiff] adjustment of status”) (citing § 1252(a)(2)(B));
Zheng v. Chertoff, No. 807-CV-1749-T-23MSS, 2008 WL 2229671, at *5 (M.D. Fla. May 28,
2008), aff’d sub nom. Zheng v. Gonzales, 297 F. App’x 917 (11th Cir. 2008) (concluding that the

plaintiff could not evade the INA’s jurisdictional bar and that the APA did not provide an
independent basis for jurisdiction for the court to review his denied application). While Plaintiff
argues that the second denial is void,7 the Eleventh Circuit recently made clear that such intentional

6 In his Motion for Temporary Restraining Order, Plaintiff argues that the Court should enjoin USCIS from instituting
removal proceedings. The Court has no jurisdiction to review a decision to commence removal proceedings. See 8
U.S.C. § 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
against any alien . . .”).
7 Plaintiff cites to Doctors Nursing & Rehab. Ctr. v. Sebilus, 613 F.3d 672, 680 (7th Cir. 2010) for the proposition that
a district court retains jurisdiction even after an agency reopens administrative proceedings. Doctors Nursing & Rehab
Ctr., however, dealt with a federal statute regulating administrative decisions by the Commissioner of Social Security
which delineate certain procedures that must be followed before the Commissioner may reopen proceedings. “The
core reasoning of Doctors Nursing & Rehabilitation Center is confined to Social Security appeals regulated by Section
405(g). Congress has not made a similar law that forbids [USCIS] from reopening proceedings after a lawsuit for
judicial review has commenced.” Utah Life Real Estate Group, LLC v. United States Citizenship and Immigration
Service, 259 F. Supp. 3d 1294, 1298 (D. Utah 2017) (holding that USCIS’s decision to reopen an H-1B petition
transformed the initial denial into a non-final agency action under the APA).
attempts to “plead around” jurisdictional bounds cannot save plaintiffs because “it is the facts and
substance of the claims alleged, not the jurisdictional labels attached, that ultimately determine
whether a court can hear a claim.” DeRoy v. Carnival Corp., 963 F.3d 1302, 1311 (11th Cir. 2020).
Therefore, the Court must “look beyond the labels to the underlying facts of the complaint to
evaluate jurisdiction.” Jd. at 1310. The underlying facts of the Amended Complaint in this case
clearly demonstrate that Plaintiff challenges USCIS’ discretionary denial of his Application,
which, as stated above, the Court lacks jurisdiction to entertain. Accordingly, the Court must
dismiss the Amended Complaint for lack of jurisdiction under Rule 12(b)(1).
IV. CONCLUSION
Based on the foregoing, it is ORDERED AND ADJUDGED that
1) Defendants’ Motion to Dismiss [ECF No. 24] is GRANTED;
2) The Amended Complaint is DISMISSED without prejudice;
3) All pending motions are DENIED as moot; and
4) The case shall be CLOSED.
DONE AND ORDERED in Chambers in Miami, Florida, this 31st day of July, 2020.

Df
DLA
UNITED STATES DIS T JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10117882. Public record. Not legal advice.