Sanchez Ramirez v. Attorney General of the United States

United States District Court

for the

Southern District of Florida

Juan Carlos Sanchez Ramirez, )

Plaintiff, )

)

v.

) Civil Action No. 20-22545-Civ-Scola

Attorney General of the United )

States, Willian Barr, and others )

Defendants. )

Order Granting Motion to Dismiss

Plaintiff Juan Carlos Sanchez Ramirez seeks review of the United States

Citizenship and Immigration Services’ decision, denying his I-485 application

for adjustment of immigration status. (Compl., ECF No. 1.) The Government

has filed a motion to dismiss Sanchez’s complaint, arguing (1) the Court lacks

subject-matter jurisdiction over Sanchez’s claims because Sanchez has not

exhausted his administrative remedies, or, alternatively, (2) Sanchez fails to

state a claim for which relief can be granted. (Defs.’ Mot., ECF No. 9.) Sanchez

counters the Court does have jurisdiction because the denial of his adjustment

application was final and, he maintains, he has stated a claim by alleging the

decision to deny his application was arbitrary and capricious. (Pl.’s Resp., ECF

No. 12.) The Government has replied, emphasizing its contention that

Sanchez’s pending asylum petition affords him the opportunity to resolve his

adjustment issue and, further, the agency’s decision was made in accordance

with the law. (Defs.’ Reply, ECF No. 14.) After review, the Court agrees with the

Government that the Court lacks subject-matter jurisdiction and therefore

grants the Government’s motion to dismiss (ECF No. 9) on that basis.

1. Background

This case arises from the denial of Sanchez’s I-485 application for

adjustment of status. (Compl. ¶¶ 1, 57.) Sanchez is a native and citizen of

Venezuela. (Id. ¶ 23.) He first entered the United States in February 2014, on

an F-1 nonimmigrant visa, with permission to remain in the county for the

duration of that nonimmigrant status. (Id. ¶ 45.) Some six months later,

Sanchez’s wife, in August 2014, filed an asylum application which included

him as a derivative. (Id. ¶ 46.) That application remains pending. (Id. ¶ 49.) At

some point, Sanchez’s nonimmigrant status terminated. (Id. ¶ 45.)

In the meantime, in July 2018, Metoma Corporation filed an I-140

petition for an alien worker under an EB3 classification on Sanchez’s behalf.

(Id. at Ex. E.) USCIS approved that application a few weeks later. (Id ¶ 49.)

Then, once a visa became available in the EB3 visa category, Sanchez filed his

I-485 application to adjust his status, in December 2018. (Id. ¶ 57.) In July

and September 2019, USCIS asked Sanchez to submit evidence showing that

he maintained his nonimmigrant status continuously, since his last lawful

admission, until the filing of his I-485. (Id. ¶¶ 58.) Sanchez responded to the

request, but his application was nonetheless denied, in October 2019. (Id. ¶¶

59–60.)

2. Legal Standard

The Federal Rules of Civil Procedure require the dismissal of a claim if a

court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1), (h)(3). The party

bringing the underlying claim bears the burden of establishing federal subject

matter jurisdiction. Sweet Pea Marine, Ltd. V. APJ Marine, Inc., 411 F.3d 1242,

1247 (11th Cir. 2005); Wallace v. Secretary, U.S. Dept. of Homeland Sec., 616

Fed. App’x 958, 959 (11th Cir. 2015). Attacks on subject matter jurisdiction

under Rule 12(b)(1) come in two forms: “facial attacks” and “factual attacks.”

Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). Facial

challenges to subject matter jurisdiction are based solely on the allegations in

the complaint. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271,

1279 (11th Cir. 2009). Factual attacks, on the other hand, challenge “the

existence of subject matter jurisdiction in fact, irrespective of the pleadings,”

and the court will consider “matters outside the pleadings, such as testimony

and affidavits.” Lawrence, 919 F.2d at 1529 (internal quotation marks omitted).

In the context of the Administrative Procedures Act, agency action is

subject to judicial review only when it is either (1) made reviewable by statute;

or (2) a “final” action “for which there is no other adequate remedy in a court.”

5 U.S.C. § 704. In other words, until an agency action or decision becomes

final, the APA does not provide a valid basis for subject-matter jurisdiction in a

district court. Ibarra v. Swacina, 628 F.3d 1269, 1269 (11th Cir. 2010) (quoting

Darby v. Cisneros, 509 U.S. 137, 146 (1993) (“The APA establishes judicial

review is not available until ‘an aggrieved party has exhausted all

administrative remedies expressly prescribed by statute or agency rule.’”).

3. Discussion

In arguing the Court has subject-matter jurisdiction over his case,

Sanchez points to “several courts” that “have held, without more, that the

district court has jurisdiction to review” a USCIS decision denying an

adjustment application. (Pl.’s Resp. at 4.) In support of its contrary contention,

that the Court lacks subject-matter jurisdiction, the Government argues

Sanchez’s still-pending asylum application will result, one way or another, in

the resolution of his adjustment issue. (Def.’s Mot. at 6.) In making this

argument, the Government relies on persuasive case law that is favorable to its

position. (Id. at 6–7; Def.’s Reply at 3–4.) While the Court recognizes the split of

authority on this issue, the Court nonetheless agrees with the Government that

Sanchez has not carried his burden of alleging the Court’s subject-matter

jurisdiction.

There is no Eleventh Circuit precedent directing a result here. In 2010,

the Eleventh Circuit pointedly declined to decide the issue. Ibarra, 628 F.3d at

1270 (“We do not . . . decide whether we have jurisdiction under the APA if the

alien has not yet been placed in removal proceedings.”) And, as noted recently,

“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.”

Duque Mendez v. Cuccinelli, 467 F. Supp. 3d 1249, 1257 (S.D. Fla. 2020)

(Altonaga, J.) (comparing various circuit cases). In urging the Court to find

jurisdiction, Sanchez relies on several cases from outside this circuit. The

Court finds many of them, however, unpersuasive because either they fail to

directly address the jurisdictional issue or they involve key allegations that are

absent here.

For example, Sanchez relies on Tang v. Reno to support jurisdiction. 77

F.3d 1194 (9th Cir. 1996). But, in Tang, this specific issue was not even raised,

never mind addressed. Cabaccang v. U.S. Citizenship & Immigration Services,

627 F.3d 1313, 1317 (9th Cir. 2010) (“[T]he jurisdictional issue was never

raised in Tang.”). And further, in Tang, the court pointedly concluded that no

appeal whatsoever was possible from the decision of which the plaintiffs sought

review. Tang, 77 F.3d at 1196 (“No appeal was possible from that decision.”).

Here, in contrast, Sanchez has made no showing that further review is

impossible. And, finally, in Tang, the plaintiffs there sought to challenge the

“promulgation and enforcement” of an Immigration and Naturalization Service

regulation, rather than an adjustment decision itself. Id. at 1195. The Court,

therefore, discerns nothing in Tang that would persuade the Court that it has

jurisdiction in this case.

Jaa v. U.S. I.N.S., another Ninth Circuit case, is similarly unavailing. 779

F.2d 569 (9th Cir. 1986). “In Jaa, removal proceedings were already complete

and a deportation order had issued.” Cabaccang, 627 F.3d at 1317. The Court

agrees “this distinction is crucial.” Id. Because removal proceedings in Jaa had

already been completed, with a deportation order issuing, any possibility of

further review was demonstrably foreclosed. Id. (“Without a pending removal

proceeding, a denial of status adjustment is final because there is no appeal to

a superior administrative authority.”) Again, here, Sanchez has not made a

similar showing of impossibility.

Sanchez further relies on a third Ninth Circuit opinion to support

jurisdiction. In that case, Chan v. Reno, the court relied on Tang and Jaa to

sustain its conclusion that the district court had jurisdiction over the plaintiffs’

challenges to the INS’s denial of their status-adjustment applications. 113 F.3d

1068, 1071 (9th Cir. 1997). There is no indication, however, in Chan, regarding

the feasibility or likelihood that the plaintiffs there would be able to resolve

their adjustment issue through further agency action.

The Court finds this factual wrinkle critical. Here, Sanchez has a pending

asylum application. This application “will necessarily resolve” Sanchez’s

“challenge to the denial of h[is] application for adjustment of status”: if his

“asylum application is approved, h[is] newfound asylee status would provide

[him] with a separate basis to seek adjustment and this action would be

effectively rendered moot,” or, if his “asylum application is denied, []he will be

placed in removal proceedings and will be able to challenge, de novo, the

USCIS’s denial of h[is] adjustment application.” Duque, 467 F. Supp. 3d at

1258 (cleaned up). Sanchez is not in a position where he must simply “await

deportation proceedings that the agency may or may not choose to institute.”

Pinho v. Gonzales, 432 F.3d 193, 201 (3d Cir. 2005) (emphasis added).

Although Sanchez argues, in his response, that there has been an “extreme

delay” in the agency’s processing of his asylum application, he supplies no

allegations or evidence showing that resolution of his adjustment is, in fact,

unlikely or remote. Indeed, Sanchez has failed to present any allegations, or

even argument, that he will be foreclosed from “receiv[ing] the same or nearly

identical relief” through his asylum application. Canal A Media Holding, LLC v.

United States Citizenship & Immigration Services, 964 F.3d 1250, 1256 (11th

Cir. 2020) (emphasis in original) (concluding that because the plaintiff

definitively lacked any further opportunity for review whatsoever, the agency’s

denial of the plaintiff’s application was final). Accordingly, the Court finds

Sanchez has failed to meet his burden of alleging subject-matter jurisdiction in

this case. See Nolasco v. Crockett, 958 F.3d 384, 387 (5th Cir. 2020), opinion

withdrawn and superseded on reh'g on other grounds, 978 F.3d 955 (5th Cir.

2020) (“[F]ederal courts lack jurisdiction over challenges to the denial of aliens’

applications for LPR status unless and until the challenge has been exhausted

in removal proceedings.”); Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir. 2000)

(noting that, although the plaintiff could “not directly appeal the immigration

judge’s denial of her request for adjustment of status, she may, nevertheless,

renew her request upon the commencement of removal proceedings” and,

therefore “ha[d] not yet exhausted her administrative remedies,” thus

preventing the court from exercising jurisdiction); McBrearty v. Perryman, 212

F.3d 985, 987 (7th Cir. 2000) (finding the plaintiffs’ suit “premature, since, as

the plaintiffs acknowledge[d], they could obtain review of the district director’s

decision by the Board of Immigration Appeals if and when the immigration

service institutes removal... proceedings against them”).

4. Conclusion

For the foregoing reasons, the Court grants the Government’s motion to

dismiss (ECF No. 9) based on a lack of subject-matter jurisdiction. Because the

Court dismisses this case for a lack of jurisdiction, (1) it declines to address the

merits of Sanchez’s claims; and (2) the dismissal of Sanchez’s case with

without prejudice, subject to refiling once Sanchez has exhausted his

administrative remedies.

The Clerk is directed to close this case. Any other pending motions are

denied as moot.

Done and ordered in Miami, Florida, on February 5, 2021.

{= N. Scola, Jr.

United States District Judge