Nama v. United States Citizenship and Immigration Services

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SUMAN R. NAMA, §

§

Plaintiff, §

§

v. § Civil Action No. 3:20-CV-3362-K

§

UNITED STATES CITIZENSHIP AND §

IMMIGRATION SERVICES, et al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants’ Motion to Dismiss Plaintiff’s First Amended

Complaint (the “Motion”) (Doc. No. 24). Plaintiff Suman R. Nama filed a response

in opposition (the “Response”) (Doc. No. 27) and Defendants filed a reply in support

of their Motion (the “Reply”) (Doc. No. 29). The Court has carefully considered the

Motion, the Response, the Reply, the applicable law, and the relevant portions of the

record. Because the Court lacks subject matter jurisdiction to review Plaintiff’s claims,

the Court GRANTS the Motion and dismisses this case without prejudice.

I. Background

Plaintiff Suman R. Nama (“Plaintiff”) filed this action against Defendants

United States Citizenship and Immigration Services (“USCIS”), Alejandro Mayorkas,

United States Secretary of Homeland Security, Ur Jaddou, Director of USCIS, Kathy

ORDER – PAGE 1

A. Baran, Director of USCIS California Service Center, Merrick Garland, Attorney

General of the United States, and Christopher Wray, Director of Federal Bureau of

Investigation (collectively, “Defendants”). See Am. Compl. (Doc. No. 22) at 1, ¶2 &

fn.1. Plaintiff seeks judicial review of the denial of his I- 485 Application to Register

Permanent Residence or Adjust Status (“I-485 Application”) under 8 U.S.C. §

1182(a)(6)(C)(i). See, e.g., id. at 7. Plaintiff alleges this Court has jurisdiction based

on federal question (28 U.S.C. § 1331), the United States as a defendant (28 U.S.C. §

1346), and the Administrative Procedures Act (the “APA”) (5 U.S.C. § 555(b), et seq.)

Id. at 2, ¶3.

An alien’s status may be adjusted to lawful permanent resident if the alien

applies to adjust his status, the alien is eligible to receive an immigrant visa and is

admissible as a permanent resident, and an immigrant visa must be immediately

available to the alien at the time he filed the application. 8 U.S.C. § 1255(a); 8 C.F.R.

§ 245.1; see also Am. Compl. at 4, ¶¶19-20. Plaintiff’s spouse, Jayanthi Nagabhirava

(“Plaintiff’s spouse”), is the beneficiary of an Employment Based Fifth Preference (EB-

5) immigrant visa petition. Id. at ¶15. As the spouse of a beneficiary of an immigrant

petition, Plaintiff filed an I-485 Application on December 6, 2018. Id. at 5, ¶26; see

also Pl.’s App. (Doc. No. 28) at 69. The status of Plaintiff’s spouse was adjusted to

lawful permanent resident on May 8, 2019. Am. Compl. at 4, ¶16.

ORDER – PAGE 2

On April 13, 2021, USCIS issued a Request for Evidence (the “RFE”) to Plaintiff

stating “[i]t appears that you are inadmissible to the United States . . . because you

sought to procure an immigration benefit by fraud or by concealing or misrepresenting

a material fact (immigration fraud or misrepresentation). You are not eligible to adjust

status unless USCIS waives the ground of inadmissibility.” Id. at 19; see also id. at 5,

¶27. USCIS specifically referenced “false information regarding [Plaintiff’s] education

and [work] experience” which he provided and of which he certified the truthfulness

for an I-140 Petition submitted on his behalf by his employer at the time. Id. at 18.

USCIS also noted that Plaintiff’s claim his employer itself supplied the falsified

information was implausible. Id. USCIS requested Plaintiff submit an Application for

Waiver of Grounds of Inadmissibility (Form I-601) to waive this ground of

inadmissibility. Id. at 19. In responding to the RFE, Plaintiff disputed USCIS’s basis

for finding him inadmissible and submitted evidence in support of his response. Id. at

6, ¶30; see also id. at 21-28. Plaintiff did not, however, submit a Form I-601 for a waiver

of inadmissibility ground based on immigration fraud or misrepresentation. See id. On

October 8, 2021, USCIS issued its Decision denying Plaintiff’s I-485 Application

because he did not establish that he was not subject to inadmissibility for seeking to

obtain a benefit under the Immigration and Nationality Act (the “INA”) by fraud and

willful misrepresentation. Id. at 31. USCIS found Plaintiff’s evidence and testimony

ORDER – PAGE 3

submitted with his RFE response “does not overcome your inadmissibility.” Id. at 30-

34. USCIS also stated that because it found Plaintiff to be inadmissible and he did

not submit the available waiver of inadmissibility as USCIS requested, Plaintiff is “not

qualified to adjust status, and USCIS denies [his] Form I-485.” Id. at 33; see also 8

U.S.C. § 1255(a) & 8 C.F.R. § 245.1 (for adjustment to lawful permanent resident,

alien must apply to adjust status, must be eligible to receive an immigrant visa and be

admissible as a permanent resident, and immigrant visa must be immediately available

at time application is filed). No removal proceedings have been initiated against

Plaintiff to-date.

In his Amended Complaint, Plaintiff asserts, generally, that Defendants’ denial

of his application for adjustment of status is arbitrary and capricious, an abuse of

discretion, and not in accordance with the law. See, e.g., id. at 8, ¶¶39-41. Plaintiff asks

the Court to set this decision aside and enter a declaratory judgment that he is eligible

for adjustment of status to permanent resident and adjust his status accordingly. Id.

at ¶41; 9, ¶3. Plaintiff asks, in the alternative, that the Court enter a declaratory

judgment that Defendants violated Plaintiff’s due process rights by not allowing him

to apply for a waiver of inadmissibility after submitting his response and evidence to

the RFE. Id. at 9, ¶4. In response to Plaintiff’s Amended Complaint, Defendants filed

ORDER – PAGE 4

their Motion to Dismiss for lack of subject matter jurisdiction. That motion is ripe

and the Court addresses it herein.

II. Applicable Law

A. Federal Rule of Civil Procedure 12(b)(1)

A party may challenge the court’s subject matter jurisdiction to hear a case by

filing a motion pursuant to Federal Rule of Civil Procedure 12(b)(1). FED. R. CIV. P.

12(b)(1). A Rule 12(b)(1) motion may assert either a facial or factual challenge.

Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981). If the Rule 12(b)(1) motion

does not include evidence, that challenge is considered a facial attack on the court’s

subject matter jurisdiction. See id. “A ‘facial attack’ on the complaint requires the court

merely to look and see if plaintiff has sufficiently alleged a basis of subject matter

jurisdiction, and the allegations in his complaint are taken as true for the purposes of

the motion.” Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied,

449 U.S. 953 (1980).

“Federal courts are courts of limited jurisdiction.” Stockman v. Fed. Election

Comm’n, 138 F.3d 144, 151 (5th Cir. 1998). Federal courts “must presume that a suit

lies outside of this limited jurisdiction, and the burden of establishing federal

jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co.,

243 F.3d 912, 916 (5th Cir. 2001). A court properly dismisses a case for lack of subject

ORDER – PAGE 5

matter jurisdiction when it lacks the statutory or constitutional power to adjudicate

the case. Smith v. Reg’l Transit Auth., 756 F.3d 340, 347 (5th Cir. 2014) (quoting Krim

v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005)); see also Ramming v. United States,

281 F.3d 158, 161 (5th Cir. 2001) (court should grant a motion to dismiss for lack of

subject matter jurisdiction “only if it appears certain that the plaintiff cannot prove any

set of facts in support of [her] claim that would entitle plaintiff to relief.”).

B. Administrative Procedure Act

A court may review an agency action under the APA only where such action is

made reviewable by statute or is a “final agency action for which there is no other

adequate remedy in a court.” 5 U.S.C. § 704. Moreover, an agency action is not

subject to judicial review when the relevant statute precludes such review or when the

action “is committed to agency discretion by law.” 5 U.S.C. § 701(a)(1)-(2).

III. Analysis

In their Motion, Defendants argue that the Court does not have subject matter

jurisdiction to review USCIS’s decision denying adjustment of Plaintiff’s status because

it is not a final agency action subject to judicial review. Defendants also argues the

Immigration and Nationality Act (the “INA”) stripped federal courts of jurisdiction to

review immigration decisions assigned to USCIS’s discretion by federal law, including

decisions on adjustment of status and waiver of inadmissibility. Finally, Defendants

ORDER – PAGE 6

argue the Court lacks jurisdiction under the APA, federal question (28 U.S.C. § 1331),

and United States as a defendant (28 U.S.C. § 1346) because the INA constrains

judicial review of discretionary immigration decisions.

In his Response, Plaintiff argues USCIS’s decision denying adjustment of his

status is a final agency action this Court can review because there is no additional

administrative action or remedy Plaintiff must or can take to seek further review. Still,

even if Plaintiff can renew his request to adjust status in removal proceedings, Plaintiff

asserts USCIS’s decision is nevertheless final because removal proceedings are

conducted by Immigration Courts (a Department of Justice agency), not USCIS which

is part of the Department Homeland Security; therefore, USCIS’s role has essentially

concluded. Plaintiff further argues that the INA does not strip this Court of jurisdiction

to review USCIS’s decision because its determination that Plaintiff is ineligible for

adjustment of status in this instance is not discretionary, it is a legal determination.

Plaintiff also states that “[a]t this point in time,” he “is not seeking review of the denial

of an I-601 [Application for Waiver of Grounds of Inadmissibility] because he never

filed a waiver application. Rather, he is seeking review of the legal determination that

he is inadmissible because such determination is not supported by substantial

evidence.” Resp. at 17.

ORDER – PAGE 7

In their Reply, Defendants contend that Plaintiff fails to establish that this

Court can exercise subject matter jurisdiction over his claims. Defendants re-urge their

arguments that USCIS’s decision is not subject to judicial review because it is not a

“final agency action” and is completely within USCIS’s discretion.

A. Not “Final Agency Action” Subject to Judicial Review

Under the APA, the Court may review only agency actions as provided by statute

and those actions which are “final . . . for which there is no other adequate remedy”.

See id. § 704. No direct appeal lies from the denial of an applicant’s request for

adjustment of status. 8 C.F.R. § 245.2(a)(5)(iii); see Cardoso v. Reno, 216 F.3d 512,

518 (5th Cir. 2000). Therefore, to establish this Court has subject matter jurisdiction,

Plaintiff must demonstrate this decision by USCIS is a “final agency action” subject to

judicial review.

“A court may review a final order of removal only if (1) the alien has exhausted

all administrative remedies available to the alien as of right, . . .” 8 U.S.C. § 1252(d)).

Therefore, “[a]s a matter of jurisdiction, courts may not review the administrative

decision of the [USCIS] unless the appellant has first exhausted ‘all administrative

remedies.’” Cardoso, 216 F.3d at 518 (quoting id.). The relevant federal regulation

unambiguously provides that an alien, whose application for permanent residence was

denied, “retains the right to renew his . . . application” in removal proceedings.

ORDER – PAGE 8

§ 245.2(a)(5)(iii). Pursuant to this regulatory language, the Fifth Circuit has

repeatedly held that an alien may not seek judicial review of the denial of an adjustment

of status application outside of the removal process. See Cardoso, 216 F.3d at 518

(citing id.); Velasquez v. Nielsen, 754 F. App’x 256, 260-61 (5th Cir. 2018) (pursuant to

holding in Cardoso, court had no jurisdiction to hear claim challenging denial of request

for adjustment of status because applicant “must instead wait to do so if and when

removal proceedings commenced.”); Maringo v. Mukasey, 281 F. App’x 365, 367-68 (5th

Cir. 2008). Plaintiff alleges in his Amended Complaint that the USCIS decision

denying his adjustment of status application is a final agency action as there is no

administrative appeal available and he has not other means to remedy his injury. Am.

Compl. at 3, ¶¶13-14. This is not correct. Plaintiff’s “administrative remedies include

the right to de novo review of [his] application to adjust status during [his] removal

proceedings[.]” Mendoza v. Wolf, Civ. Action No. H-20-2022, 2020 WL 7123166, at

*4 (S.D. Tex. Dec. 4, 2020). Therefore, until Plaintiff renews his request for status

adjustment in a removal proceeding, he “has not yet exhausted [his] administrative

remedies and this Court may not exercise jurisdiction.” Cardoso, 216 F.3d at 518.

Plaintiff argues that he “is maintaining lawful immigration status in the United

States”, so removal proceedings cannot be initiated against him and he cannot renew

any request to adjust his status. Resp. at 11. The record belies this assertion. In its

ORDER – PAGE 9

decision denying Plaintiff’s application, USCIS specifically stated that when Plaintiff

filed his application, he was “lawfully present in the United States”, but, notably, that

“period of authorized stay . . is due to expire soon.” Am. Compl. at 33 (emphasis added).

Further, if Plaintiff remains in the United States on or after his authorized stay expires,

USCIS warned that removal proceedings against him may begin. Id. Despite Plaintiff’s

representation to the contrary, he will be subject to removal proceedings at any time

after the expiration of his authorized stay. Plaintiff can certainly renew his request for

status adjustment at that time. Plaintiff has not exhausted his administrative remedies

because removal proceedings have not yet been initiated, therefore the USCIS decision

is not a “final agency action”. See id. at 11 (Plaintiff confirms “no removal proceedings

have been initiated against the Plaintiff.”).

Plaintiff also argues that. even if the decision is reviewable in removal

proceedings, USCIS (part of Department of Homeland Security) is separate from the

Immigration Courts (“administered by . . . a component of the U.S. Department of

Justice) which adjudicates removal proceedings, leaving Plaintiff with “no further

recourse before USCIS or any other component of the Department of Homeland

Security”. Resp. at 11. There is no simply basis in the law for the Court to determine

USCIS’s decision is a “final agency action” on this theory.

ORDER – PAGE 10

Plaintiff also argues the Court should not rely on Cardoso in determining this

Motion because “recent developments in jurisprudence make clear that Cardoso is no

longer good law.” Id. at 12. In support of this, Plaintiff cites Nolasco v. Crockett, 978

F.3d 955 (5th Cir. 2020) in which the Fifth Circuit withdrew its prior opinion, that

relied on Cardoso, and substituted a new opinion on panel rehearing. In the new

opinion, the Fifth Circuit noted it would not rely on Cardoso for its holding, explaining

the Supreme Court’s decision in Nasrallah v. Barr, — U.S.—, 140 S. Ct. 1683 (2020),

“may have partially abrogated portions of Cardoso”, although the panel declined to

expressly decide as much. Id. at 956 (emphasis added). The Court disagrees with

Plaintiff—Cardoso remains “good law” and is binding authority this Court must follow,

as other courts in this Circuit continue to do. See, e.g., Puente v. Renaud, Civ. Action

No. 3:21-CV-1103-B, 2021 WL 5326461 (N.D. Tex. Nov. 15, 2021)(Boyle, J.); Araujo

Perez v. Blinken, Civ. Action No. H-21-3143, 2021 WL 504 8201 (S.D. Tex. Nov. 1,

2021); Cavena v. Renaud, Civ. Action No. 3:20-CV-2801-K, 2020 WL 2716432 (N.D

Tex. June 30, 2021); Hernandez v. Garland, Civ. Action No. H-20-3089, 2021 WL

3810963 (S.D. Tex. May 19, 2021); S.L.V. v. Rosen, Case No. SA-21-0017-JKP, 2021

WL 243442 (W.D. Tex. Jan. 25, 2021); Mendoza v. Wolf, Civ. Action No. H-20-2022,

2020 WL 7123166, at *4 (S.D. Tex. Dec. 4, 2020).

ORDER – PAGE 11

In Nasrallah, the Supreme Court construed the statutory meaning of “final order

of removal” with respect to whether a court may review factual challenges to an order

under the international Convention Against Torture denying the immigrant relief from

removal. 140 S. Ct. at 1687-89. The removal proceedings against Nasrallah had been

fully adjudicated before an Immigration Judge and then appealed to the Board of

Immigration Appeals and the Court of Appeals for the Eleventh Circuit. Id. at 1688.

As the Fifth Circuit itself identified but declined to decide, Nasrallah may have

impacted Cardoso, but only in part; it certainly did not overturn the entire opinion

making it bad law as Plaintiff intimates. Nolasco, 978 F.3d at 956 (panel noted

Nasrallah “may have partially abrogated portions of Cardoso” but declined to express an

opinion) (emphasis added). Cardoso, initially filed as a class action, involved three

appellants contending they were entitled to legal permanent resident status, but each

with distinct factual backgrounds. Cardoso, 216 F.3d at 513-14. It is highly doubtful

that the portion of Cardoso on which this Court relies was impacted by the Supreme

Court’s decision. But see Cardoso, 216 F.3d at 516 (first of three appellants, Florentina

Cardoso, was subject to removal order, sought an adjustment of her status to avoid

removal, and then appealed the denial of her status adjustment). Just as Plaintiff in

the instant case, the third Cardoso appellant, Aurora Moran, held an immigrant visa

then applied for adjustment of status to permanent resident, which was denied. Id. at

ORDER – PAGE 12

514. Like Plaintiff, Moran “never faced a removal order” and removal proceedings had

not been initiated, and she challenged only the denial of her adjustment of status. Id.

at 517. The Fifth Circuit quickly disposed of Moran’s appeal, holding jurisdiction did

not exist for the court to review her claims. Id. at 518. Because she could renew her

request during removal proceedings, Moran had not yet exhausted her administrative

remedies. Id. This Court finds Cardoso, at least on these specific facts, remains good

law.

Finally, Plaintiff contends this case is more akin to Melendez v. McAleenan, 928

F.3d 425 (5th Cir.), cert. denied, — U.S. —, 140 S. Ct. 561 (2019) and Nolasco v. Crockett,

978 F.3d 955 (5th Cir. 2020) in which those courts found jurisdiction existed to review

adjustment of status decisions. Those cases are easily distinguishable from this case.

In both Melendez and Nolasco, the immigrants had been granted Temporary Protected

Status (“TSP”), which permitted them to be lawfully present in the United States for

a period of time until that status is withdrawn. See generally id. Plaintiff has not been

granted TSP status. Although Josue Nolasco and Oscar Melendez both challenged the

denial of their requests for adjustment of status, the denial of those requests involved

a purely “legal interpretation of statutory provisions that govern TSP and adjustment

of status”. Nolasco, 978 F.3d at 957; Melendez, 928 F.3d at 426-27. In both cases, the

decisions denying status adjustment were based solely on findings the applicant was

ORDER – PAGE 13

statutorily ineligible for being unlawfully present in the United States before securing

TSP status. Nolasco, 978 F.3d at 957; Melendez, 928 F.3d at 426-27. Those are not the

facts before this Court.

The record here clearly establishes that USCIS’s finding of ineligibility turned

on disputed facts. In its RFE, USCIS found Plaintiff ineligible to adjust status “based

on misrepresentations and the fraudulent documentation” he provided in a prior visa

petition filed by his former employer. Am. Compl. at 18. USCIS specifically noted

Plaintiff’s testimony refuting that he made any misrepresentations or provided false

documentation, but it found his explanations implausible. See id. Plaintiff contested

this finding and submitted his own evidence in rebuttal in his response to the RFE. Id.

at 21-28. In its decision, USCIS denied Plaintiff’s I-485 Application to adjust status

because USCIS found from these disputed facts that he was inadmissible for having sought

an INA benefit by fraud or willfully misrepresenting a material fact. Id. at 31. USCIS

stated that it considered Plaintiff’s evidence, addressing each item in turn and noting

its findings as to each. Id. at 32-33. USCIS also recited the arguments made by

Plaintiff’s counsel in the RFE and the reason USCIS found them unpersuasive. Id. at

31. USCIS nevertheless found the evidence “does not overcome [Plaintiff’s]

inadmissibility” and denied his I-485 Application. Id. at 33.

ORDER – PAGE 14

Under applicable and binding law of this Circuit, Plaintiff “has not yet exhausted

his administrative remedies” because he may renew his request “upon the

commencement of removal proceedings.” Cardoso, 216 F.3d at 518; accord Maringo v.

Mukasey, 281 F. App’x 365, 367-68 (5th Cir. 2008); Judhani v. Holder, Civ. Action No.

3:10-CV-1256-B, 2011 WL 1252661, at *2 (N.D. Tex. Mar. 9, 2011), adopting report

and recommendation, 2011 WL 1252605 (Mar. 31, 2011)(Boyle, J.) (applying Cardoso,

court lacked jurisdiction under APA to review USCIS denial of request for adjustment

of status because it was not final agency action “and another adequate remedy is

available to them through the removal proceedings.”). Accordingly, this decision of

USCIS is not a “final agency action” subject to judicial review and the Court may not

exercise subject matter jurisdiction over Plaintiff’s claims.

B. Discretionary Decision Not Subject to the Court’s Review

Even if the decision were a “final agency action,” which it is not, the Court finds

that it lacks subject jurisdiction over USCIS’ decision for another reason. Section

1255(a) specifically states that adjustment of status decision are made by the Attorney

General “in his discretion”. 8 U.S.C. § 1255(a). Section 1252(a)(2)(B) explicitly strips

courts of jurisdiction to review a “decision or action of the Attorney General or the

Secretary of Homeland Security . . . for which is specified under this subchapter to be

in the discretion of the Attorney General or the Secretary of Homeland Security . . . .”

ORDER – PAGE 15

Id. §1252(a)(2)(B)(ii). A court “is precluded from reviewing those decisions ‘specified

in the statute’ to be discretionary.” Ayanbadejo v. Chertoff, 517 F.3d 273, 276 (5th Cir.

2008) (quoting Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005)).

Plaintiff argues § 1252(a)(2)(B) does not strip the Court of jurisdiction and

USCIS’s determination was purely a legal determination, not discretionary, so the

Court can review it. See Resp. at 14 & 16. Plaintiff cites the Court to several cases

from other Courts of Appeals in support of his argument that determining eligibility

for adjustment of status is a legal question and in no way discretionary. Id. at 14-16.

Of the three Fifth Circuit cases Plaintiff cites, none are helpful and are, instead, wholly

inapposite. First, in Mireles-Valdez v. Ashcroft, the Government agreed that “the decision

at issue—Mireles-Valdez was not statutorily eligible for cancellation of removal because

he did not satisfy the presence requirement—is nondiscretionary.” 349 F.3d 213, 215

(5th Cir. 2003). In addition to the parties’ agreement that the decision was

nondiscretionary, the case involved a removal proceeding which, as the Court noted in

Section A above, has not been initiated in this case. Next, in Gonzalez-Torres v. I.N.S.,

the Fifth Circuit addressed a determination by the Board of Immigration Appeals that

the applicants failed to establish their eligibility for suspension of deportation with a

showing of seven years’ continuous presence in the United States, a statutory

requirement. 213 F.3d 899, 901 (5th Cir. 2000). The Fifth Circuit found this specific

ORDER – PAGE 16

decision was a nondiscretionary determination subject to judicial review as it “involves

application of the law to factual determinations”. Id. at 901 (emphasis added) (citing

Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir. 1997)). The Fifth Circuit specifically

noted prior case law in which the court found that this very decision as to the

continuous physical presence element was not a discretionary determination and,

therefore, the applicable statute “did not divest the court of its jurisdiction.” Id. at n.3

(citing Moosa v. INS, 171 F.3d 994, 1012 (5th Cir. 1999)). The same cannot be said

for the case before this Court—this case does not involve removal proceedings and

there is no binding case law that this determination denying adjustment of status under

these facts is not discretionary. Finally, Plaintiff cites to Omagah v. Ashcroft in which

the Fifth Circuit held the court had jurisdiction to review the Attorney General’s

determination of the alien’s “good moral character”. 288 F.3d 254, 259 (5th Cir.

2002). But, as Plaintiff himself points out, the determination at issue in that case was

subject to judicial review “because the statute classifies it as nondiscretionary.” Id.

That is clearly not what the statutory language provides in the case before this Court.

The Court is not persuaded by any of Plaintiff’s arguments that USCIS’s

decision denying his I-485 application for adjustment of status was not discretionary

and is subject to judicial review. See id. §1255(a). Based on the clear law, this Court

is without jurisdiction to review the discretionary decision of USCIS to deny Plaintiff’s

ORDER – PAGE 17

application to adjust his status (i.e., an I-485 application). See Ayanbadejo, 517 F.3d at

277.

It is unclear if Plaintiff is still asserting his alternative claim regarding an

application for waiver of inadmissibility. See Resp. at 17. Regardless, that decision too

is committed to the discretion of the Attorney General under the plain language of the

statute. 8 U.S.C. § 1882(i). Further, § 1882(i) divests courts of jurisdiction to review

those decisions. Id. A decision by USCIS regarding waiver is also discretionary and

specifically exempted from judicial review, and there is no basis in the law to find

otherwise. See § 1882(i). Accordingly, the Court is precluded from reviewing Plaintiff’s

claim based on an Application for Waiver of Inadmissibility (Form I-601). See

Ayanbadejo, 517 F.3d at 276 (5th Cir. 2008).

C. Conclusion

The APA permits judicial review of a “final agency action for which there is no

other adequate remedy in a court,” 8 U.S.C. § 704, “except to the extent that—(1)

statutes preclude judicial review; or (2) agency action is committed to agency discretion

by law,” § 701(a). Bennett v. Spear, 520 U.S. 154, 175 (1997); accord Bian v. Clinton,

605 F.3d 249, 255 (5th Cir. 2010). The decision by USCIS to deny Plaintiff’s I-485

Application to adjust his status is not a final decision. Even so, the clear statutory

language places determinations of adjustment of status and waiver of ineligibility

ORDER – PAGE 18

within the discretion of the Attorney General or the Secretary of Homeland Security

and also divests courts of jurisdiction to review those decisions. §§1182(i),

1252(a)(2)(B), 1255(a). Therefore, the Court does not have subject matter jurisdiction

under the APA over Plaintiff’s claims. The Court likewise does not have subject matter

jurisdiction under 28 U.S.C. § 1331, federal question, because the statutes specifically

divest courts of jurisdiction to review these discretionary determinations. §§1182(i),

1252(a)(2)(B). Plaintiff also alleges the Court has subject matter jurisdiction under §

1346 because the United States is a defendant. However, just as with § 1331, this

statute does not confer jurisdiction on this Court to hear Plaintiff’s claims where the

unambiguous statutory language of §§ 1882(i) and 1252(a)(2)(B) strip courts of

jurisdiction to review these discretionary decisions. Finally, although not entirely clear

from the Amended Complaint if alleged, the Declaratory Judgment Act as is not “an

independent basis for subject matter jurisdiction.” Cf. Parveen v. McAleenan, 410 F.

Supp. 3d 809, 815 (S.D. Tex. 2019). Plaintiff fails to identify another basis for this

Court’s subject matter jurisdiction over his claims. See St. Paul Reinsurance Co. v.

Greenburg, 134 F.3d 1250, 1253 (5th Cir. 1998) (party seeking the federal forum bears

the burden of establishing subject matter jurisdiction). Accordingly, the Court

concludes it is without subject matter jurisdiction to review Plaintiff’s claims and must

dismiss this case in its entirety against all Defendants. See also FED. R. CIV. P. 12(h)(3).

ORDER – PAGE 19

IW. Conclusion

The Court GRANTS Defendants’ Motion to Dismiss Plaintiffs First Amended

Complaint. Plaintiff's claims are dismissed without prejudice as the Court lacks

subject matter jurisdiction to review these claims.

SO ORDERED.

Signed April 20", 2022.

ED KINKEADE

UNITED STATES DISTRICT JUDGE

ORDER — PAGE 20