# Gao v. Nielsen

> District Court, E.D. New York · November 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10305178

## Case

- **Court:** District Court, E.D. New York
- **Decided:** November 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x

DENG GAO,

Plaintiff, MEMORANDUM & ORDER
19-CV-2447(EK)(LB)
-against-

CHAD F. WOLF, MARK KOUMANS, AND
THOMAS M. CIOPPA,

Defendants.

------------------------------------x

ERIC KOMITEE, United States District Judge:
Plaintiff Deng Gao brings this action under the
Administrative Procedure Act against various federal officials.1
He challenges the U.S. Citizenship and Immigration Services
(USCIS)’s denial of his I-485 application for an adjustment of
status to become a lawful permanent resident. Plaintiff seeks
an order overturning this decision and compelling Defendants to
grant the adjustment. Defendants move to dismiss for lack of
subject-matter jurisdiction under Rule 12(b)(1). Alternatively,
they seek dismissal for failure to state a claim on which relief
can be granted under Rule 12(b)(6), or for summary judgment
under Rule 56. As explained below, Defendants’ motion to

1 The named defendants are the Acting Secretary of the Department
of Homeland Security, the Acting Director of U.S. Citizenship and
Immigration Services (USCIS), and the Acting District Director of the
USCIS New York District Office.
dismiss under Rule 12(b)(1) is granted. Accordingly, the Court
does not reach their motions under Rules 12(b)(6) and 56.
Finally, Plaintiff’s request to transfer the action to the

Second Circuit Court of Appeals is denied because this action
was not timely filed.
I. Background
Plaintiff arrived at John F. Kennedy International
Airport from China without valid entry documents on March 4,
1996. The next day, he was issued a Form I-122 directing him to
appear before an Immigration Judge. Thereafter, Plaintiff
applied for asylum, claiming fear of persecution in China. The
Immigration Judge denied his asylum application and issued an
order of removal. On March 16, 1998, the Board of Immigration
Appeals (BIA) dismissed his appeal, making the removal order
final. Plaintiff moved to reopen his removal proceedings on

October 14, 2008, but BIA denied the motion as untimely.
Despite the removal order, Plaintiff remained in the
United States. In 2001, he married an American citizen. They
have two citizen children together, born in 2001 and 2003.
On July 1, 2016, Plaintiff’s wife filed a Form I-130
“Petition for an Alien Relative” to secure Plaintiff’s
eligibility for permanent-resident status. That same day,
Plaintiff filed the application at issue here: a Form I-485
application for an adjustment of status to permanent resident.
In connection with this application, immigration officials
interviewed Plaintiff on April 25, 2017 and September 28, 2017.
Thereafter, Plaintiff heard nothing for nearly two years despite

several requests for updates.
On April 26, 2019, Plaintiff, proceeding pro se,
commenced this action, seeking a writ of mandamus to compel the
USCIS to adjudicate his application. Weeks later, on June 5,
2019, USCIS issued a decision denying Plaintiff’s I-485
application. Compl. Ex A, ECF No. 26 (June 2019 Decision).
USCIS invoked two grounds for denial — one statutory, the other
discretionary. First, USCIS found that Plaintiff had “not
satisfied the inspected and admitted or paroled requirement for
adjustment of status under INA section 245(a).” Id. at 2. It
appears this finding was predicated on Plaintiff’s inability to
locate the I-94 form he received at JFK, which would have showed
he was paroled upon entry. See Defendants’ Motion Brief at 4,
ECF No. 30. Second, USCIS denied Plaintiff’s application as a

matter of discretion. In this part of the decision, USCIS
identified several adverse factors, including that Plaintiff
“blatantly disregarded [his] outstanding removal order,”
admittedly worked in the country without authorization, and
failed to identify all sources of his income or prove he paid
all taxes due in the years leading up to the decision. June
2019 Decision at 2-3. Defendants also acknowledged certain
factors favoring adjustment — specifically, Plaintiff’s family
ties — but accorded them “less weight” because they “were all
acquired” while Plaintiff “was subject to a final order of
removal.” Id. at 3.

After receiving this decision, Plaintiff directed
USCIS to a document in its possession that indicated he was
inspected and paroled. See Compl. Ex. B. Specifically,
Plaintiff identified an “I-485 Adjudication Processing
Worksheet” from his September 28, 2017 interview. See id.
Ex. C. This document, written by the interviewing officer,
contained information that led USCIS to records showing
Plaintiff was inspected and paroled; it also contained a
handwritten notation, apparently by the interviewing officer,
stating that Plaintiff’s I-485 application “can be approved.”
Id. at 2.

In response to this discovery, USCIS withdrew its
decision and issued another decision on July 10, 2019. See
Administrative Record at 1-3, ECF No. 20-1 (July 2019 Decision).
The new decision was nearly identical to the previous one,
except that it removed reference to the statutory basis for
decision (inspection and parole). Id. This decision denied
Plaintiff’s application solely as a matter of discretion. Id.
at 1-2.
On July 24, 2019, Judge Kiyo Matsumoto granted
Plaintiff leave to amend his complaint so that he could “bring
alternative claims challenging USCIS’s decision.” Minute Entry

dated July 24, 2019. Plaintiff’s current counsel, John Rosario,
Esq., entered an appearance on February 5, 2020, ECF No. 23, and
the Court terminated prior counsel, ECF No. 25. On March 9,
2020, Mr. Rosario filed this complaint, which seeks an order
“set[ting] aside the Decision which denied Plaintiff’s I-485
application and to compel the issuance of a new one granting
plaintiff’s adjustment.” Compl. at 10. The case was
transferred to the undersigned on February 11, 2020.
II. Analysis
A. Applications for Adjustment of Status
The statute governing Plaintiff’s adjustment-of-status
application is 8 U.S.C. § 1255(a). That section provides:

[T]he status of an alien who was inspected and admitted or
paroled into the United States . . . may be adjusted by the
Attorney General, in his discretion and under such
regulations as he may prescribe, to that of an alien
lawfully admitted for permanent residence 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.

8 U.S.C. § 1255(a).

Under this provision, “[o]btaining . . . adjustment of
status . . . is a two-step process. First, an alien must prove
eligibility by showing that he meets the statutory eligibility
requirements. Second, assuming an alien satisfies the statutory
requirements, the Attorney General in his discretion decides
whether to grant or deny relief.” Rodrigues v. Gonzales, 451

F.3d 60, 62 (2d Cir. 2006) (internal citations omitted).
B. The Administrative Procedure Act
Plaintiff claims USCIS erred in finding him ineligible
at step one and misapplied its discretion at step two. He
brings these claims under the Administrative Procedure Act.
“[T]he ‘right of action’ in such cases is expressly created by
the [APA], which states that ‘final agency action for which
there is no other adequate remedy in a court [is] subject to
judicial review,’ 8 U.S.C. § 704, at the behest of ‘[a] person .
. . adversely affected or aggrieved by agency action, 8 U.S.C.
§ 702.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S.

221, 229 n.4 (1986).
These provisions, Sections 702 and 704, coexist with
Section 706 of the APA, which authorizes courts to set aside
agency action that is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). To prevail, Plaintiff must show that the agency
“relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the
product of agency expertise.” Karpova v. Snow, 497 F.3d 262,
267-68 (2d Cir. 2007) (quoting Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983)).
Although the complaint asserts two claims under the
APA, they both raise the same argument. Plaintiff claims that
the June 2019 decision was arbitrary because USCIS erred in
finding he was not inspected or paroled, and because it ignored
certain discretionary factors while relying too heavily on
others. Specifically, he claims USCIS failed to consider
equities favorable to him (not only his family ties, which the
decision acknowledged, but also his employment, length of
residence, and lack of any criminal record, which the decision

did not), and gave disproportionate weight to the fact he
remained in the country after his removal order became final.
C. Subject-Matter Jurisdiction
Defendants move to dismiss the complaint, claiming
that two provisions in the Immigration and Nationality Act
(INA), both codified at 8 U.S.C. § 1252, preclude this Court
from exercising jurisdiction. Plaintiff contends that the Court
has jurisdiction and argues, in the alternative, that the case
should be transferred to the U.S. Court of Appeals if this Court
finds jurisdiction is proper there. See Plaintiff’s Opposition
Brief at 18, ECF No. 28.
In reviewing Rule 12(b)(1) motions to dismiss for lack

of subject-matter jurisdiction, a court “must accept as true all
material factual allegations in the complaint,” but need not
draw inferences favorable to the party asserting jurisdiction.
J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d
Cir. 2004). “The party invoking federal jurisdiction bears the
burden of establishing” that jurisdiction exists, Lujan v. Defs.
of Wildlife, 504 U.S. 555, 561 (1992), and proof of jurisdiction
must be shown by a preponderance of the evidence, see, e.g.,
Augienello v. FDIC, 310 F. Supp. 2d 582, 587-88 (S.D.N.Y. 2004).
1. The Federal-Question Statute
Ordinarily, federal courts have jurisdiction over
claims under the APA. This jurisdiction stems from the federal-

question statute, 28 U.S.C. § 1331, rather than the APA itself.
See Bowen v. Massachusetts, 487 U.S. 879, 891 n.16 (1988) (“[I]t
is common ground that if review is proper under the APA, the
District Court ha[s] jurisdiction under 28 U.S.C. § 1331.”); see
also Sharkey v. Quarantillo, 541 F.3d 75, 84 (2d Cir. 2008)
(“Although the APA does not itself confer subject matter
jurisdiction, the Federal Question Statute confers jurisdiction
over a suit that arises under a right of action created by the
APA.”) (cleaned up).
But this jurisdiction is not unlimited. Section
701(a)(1) of the APA states that the APA review provisions do
not apply “to the extent that . . . [other] statutes preclude

judicial review.” 5 U.S.C. § 701(a)(1). Defendants point to
two such provisions in the INA: Section 1252(a)(2)(B), which
precludes review of “any judgment regarding the granting of
relief under . . . Section 1255” (adjustment of status to
permanent resident); and Section 1252(a)(5), which limits review
of removal orders to courts of appeal.
2. Jurisdiction Under Section 1252(a)(2)(B)
Section 1252(a)(2)(B), generally speaking, “eliminates
district court jurisdiction to review the denial of an I-485
adjustment of status application.” Ruiz v. Mukasey, 552 F.3d
269, 275 n.4 (2d Cir. 2009). This is because Section
1252(a)(2)(B)(i) provides that “no court shall have jurisdiction

to review . . . any judgment regarding the granting of relief
under section . . . 1255 of this title” (adjustment of status to
permanent resident). Id. (quoting 8 U.S.C. § 1252(a)(2)(B)(i)).
There is an exception, however, to this rule: Section
1252(a)(2)(B) “does not strip courts of jurisdiction to review
nondiscretionary decisions regarding an alien’s eligibility for
the relief specified in [Section] 1252(a)(2)(B)(i).” Sepulveda
v. Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005).
Nondiscretionary decisions are “purely legal” ones, such as
decisions that are “premised on the ground of statutory
ineligibility.” See id. at 63-64 (BIA’s finding that alien was
“ineligible to adjust status” because the visa petition was not

“properly filed” within meaning of 8 C.F.R. § 245.10(a)(2)(i)
(2002) was nondiscretionary action subject to judicial review).
Accordingly, courts “have jurisdiction to review whether [an
Immigration Judge] correctly determined that [an] alien was
eligible for . . . adjustment of status,” but not an Immigration
Judge’s “discretionary determinations concerning . . .
adjustment of status.” Rodriguez, 451 F.3d at 62.
Given that USCIS withdrew the nondiscretionary denial
after the parole record was located, Plaintiff’s application
was, in the end, denied entirely as a matter of discretion. The
July 2019 decision states that “[y]our application is hereby
denied as a matter of discretion,” and that “you have failed to

demonstrate that your application for adjustment of status
merits a favorable exercise of discretion.” July 2019 Decision
at 1-2. The underlying analysis, which weighed favorable and
negative factors, id., did not rest on Plaintiff’s statutory
eligibility under Section 1255. Cf. Mariuta v. Gonzales, 411
F.3d 361, 365 (2d Cir. 2005) (adjustment-of-status denial was
discretionary because the decision did not rely on any of the
statutory prerequisites to obtaining an adjustment and
acknowledged that the petitioner appeared eligible for such
relief). Accordingly, while this Court recognizes the
significant human issues at stake in cases of this nature, it
simply lacks jurisdiction to review USCIS’s denial of
Plaintiff’s application. See Cruz-Miguel v. Holder, 650 F.3d

189, 193 (2d Cir. 2011) (“Federal courts lack jurisdiction to
review a discretionary denial of adjustment of status.”); cf.
Pan v. Whitaker, 351 F. Supp. 3d 246, 251 (E.D.N.Y. 2019)
(Section 1252(a)(2)(B) precluded jurisdiction over adjustment-
of-status application where “USCIS invoked both statutory and
discretionary grounds for its decision,” because the
“immigration judge . . . invoked [the alien’s] statutory
violation as well as determined that the ‘positive equity is not
sufficiently meritorious to outweigh the negative equities,”
making “his decision . . . at least partially discretionary”).
Plaintiff points to Section 1252(a)(2)(D), which

provides that “nothing in subchapter (B) . . . shall be
construed as precluding review of constitutional claims or
questions of law raised upon a petition for review filed with an
appropriate court of appeals in accordance with this section.”
8 U.S.C. § 1252(a)(2)(D). Plaintiff does not raise a
constitutional claim in his complaint, however, and even if he
did, the only appropriate forum for that claim would be the
“court of appeals,” as the statute makes clear. See Shabaj v.
Holder, 718 F.3d 48, 52 (2d Cir. 2013) (“[P]etitions for review
raising constitutional claims or questions of law must be filed
in the appropriate court of appeals.”). Accordingly, this Court
lacks subject-matter jurisdiction.
3. Jurisdiction Under Section 1252(a)(5)

A second provision in Section 1252 also precludes this
Court’s review. Section 1252(a)(5) provides that “a petition
for review filed with an appropriate court of appeals in
accordance with this section shall be the sole and exclusive
means for judicial review of an order of removal . . . .”
8 U.S.C. § 1252(a)(5). The Second Circuit has held that this
preclusion applies not only to direct challenges to removal
orders, but also to “indirect challenge[s].” Delgado v.
Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011). In determining
whether a claim levels an indirect challenge to a removal order,
the question “turn[s] on the substance of the relief that a
plaintiff is seeking.” Id. Section 1252(a)(5) “removes

jurisdiction from the district courts over any challenge of the
denial of an application for status adjustment of a party who is
already subject to a removal order, if the relief requested in
the challenge would invalidate the [removal] order . . . .”
Freire v. U.S. Dep’t of Homeland Sec., 711 F. App’x 58, 59 (2d
Cir. 2018) (summary order) (finding district court lacked
jurisdiction “to review an administrative denial of [the
petitioner’s] application for an adjustment of status that, if
it had been granted, would have allowed him to reside
permanently in the United States and would thereby invalidate
the removal order”).

Here, Plaintiff seeks an order vacating the denial of
his I-485 application and compelling USCIS to grant his
adjustment to lawful-permanent-resident status. Compl. at 10.
“The practical effect of changing Plaintiff’s status to that of
a legal permanent resident would be to void the removal order.”
See Noor v. Homan, 17-cv-1558, 2018 WL 1313233, at *4 (E.D.N.Y.
Feb. 27, 2018). This Court, therefore, lacks jurisdiction to
award such relief. See id. (holding that the court “lacks
jurisdiction” because the plaintiff’s “request [for an
adjustment of status], in effect, challenges a removal order”);
Delgado, 643 F.3d at 55 (district courts lack jurisdiction to
review denials of I-212 applications because they are “a

necessary prerequisite” to gaining lawful-permanent-resident
status, which would render any removal order “invalid”) (citing
Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076,
1082-83 (9th Cir. 2010)). Because Section 1252(a)(5) channels
this relief to the “appropriate court of appeals,” this claim
should have been filed there.2

2 Even if these statutes do not “preclude judicial review” here, this
appears to be the type of action that is committed to agency discretion by
law anyway. See 5 U.S.C. § 701(a)(2) (“This chapter applies, according to
D. Transfer to the Second Circuit Court of Appeals
As explained above, the only court that might have had
jurisdiction over this action is the Second Circuit Court of
Appeals, which may review removal orders, see 8 U.S.C.

§ 1252(a)(5), and resolve “constitutional claims” or “questions
of law” (had Plaintiff raised any), see 8 U.S.C.
§ 1252(a)(2)(D).
Ordinarily, when a court finds “there is a want of
jurisdiction, the court shall, if it is in the interest of
justice, transfer such action” to a court where the action
should have been filed. See 28 U.S.C. § 1631. But courts may
do so only if the action “could have been brought” in the
intended court “at the time it was filed” in the wrong court.
Id.; see also De Ping Wang v. Dep’t of Homeland Sec., 484 F.3d
615, 617-18 (2d Cir. 2007) (transfer under Section 1631 is not

permitted where Plaintiff’s claim was not timely filed). As
Plaintiff seeks review of a removal order, he should have filed
his petition in the Court of Appeals within thirty days after
the order became final. See 8 U.S.C. § 1252(b)(1) (“With
respect to review of an order of removal under subsection
(a)(1). . . [t]he petition for review must be filed not later
than 30 days after the date of the final order of removal.”).

the provisions thereof, except to the extent that . . . agency action is
committed to agency discretion by law.”).
Plaintiff’s removal order became final on March 16, 1998, when
the BIA dismissed his appeal. Because this predated enactment
of the current statute (the “REAL ID Act”), Plaintiff had thirty

days from the new statute’s effective date to file a petition in
the Court of Appeals. See Ruiz-Martinez v. Mukasey, 516 F.3d
102, 116 (2d Cir. 2008). This grace period ended on June 10,
2005, thirty days after the Act’s May 11, 2005 enactment. Id.
at 119. Plaintiff commenced this action on April 26, 2019,
nearly fourteen years after his time to file a petition expired.
Accordingly, Plaintiff’s request to transfer this action to the
Second Circuit is denied. Cf. Hu v. Holder, No. 11-cv-4747,
2012 WL 2619185, at *1 (E.D.N.Y. June 25, 2012) (dismissing
action under Section 1252(a)(5) and refusing to transfer it as
untimely for the same reasons).
* * * * *

In reaching this decision, the Court recognizes the
impact on the life of the Plaintiff and his family members.
These considerations cannot, however, override the applicable
statutes. This Court lacks the power to reach a different
conclusion.
III. Conclusion
For these reasons, Defendants’ motion to dismiss for
lack of subject-matter jurisdiction is granted. Accordingly,
the Court does not reach their motions under Rules 12(b)(6) and
56. Plaintiff’s request to transfer the case to the Second
Circuit Court of Appeals is denied because this action was
untimely filed.

SO ORDERED.

s/ Eric Komitee_______ ___
ERIC KOMITEE
United States District Judge

Dated: November 16, 2020
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305178. Public record. Not legal advice.