Ramirez Garcia v. USCIS

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOSE ALBERTO RAMIREZ GARCIA, )

)

Plaintiff, )

)

VS. ) CIVIL ACTION NO.

)

UNITED STATES CITIZENSHIP AND ) 3:21-CV-2233-G

IMMIGRATION SERVICES, ET AL., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Before the court is the defendants’ Rule 12(b)(1) motion to dismiss for lack of

subject matter jurisdiction. See Defendants’ Motion to Dismiss Plaintiff’s Complaint

(“Motion to Dismiss”) (docket entry 4). For the reasons stated below, the motion is

granted.

I. BACKGROUND

A. Factual Background

This is an immigration case. The plaintiff, Jose Alberto Ramirez Garcia

(“Ramirez”), is “a native and citizen of Mexico[]” who “currently resides in Dallas,

Dallas County, Texas with his U.S. citizen wife and three U.S. citizen children.”

Plaintiff’s Complaint for Injunctive, Declaratory and Mandamus Relief

(“Complaint”) (docket entry 1) ¶ 2. The defendants include United States

Citizenship and Immigration Services (“USCIS”), Ur M. Jaddou, as Director of

USCIS, and Wilhelm F. Bierman, as USCIS Field Office Director (collectively, “the

defendants” or “the government”). See id. ¶¶ 3-5.

On or about September 16, 2019, Ramirez filed a Form I-485 application to

register permanent residence or adjust status, as well as a Form I-765 application for

employment authorization, with USCIS.1 See id. ¶¶ 16, 20 (citations omitted). Also

on or about September 16, 2019, Ramirez’s United States citizen wife, Magally

Lopez (“Lopez”), filed a Form I-130 petition to classify Ramirez as an “immediate

relative” of a United States citizen spouse “under 8 U.S.C. § 1154(a)(1)(A).” Id.

¶¶ 16-17 (citations omitted); see also id., Index of Exhibits to Plaintiff’s Original

Complaint (“Exhibits”), at 43-45 (USCIS receipts of Ramirez and Lopez’s submitted

forms).2

1 Ramirez filed his Form I-485 application to register permanent residence

or adjust status “pursuant to § 245(a) of the Immigration and Nationality Act

(‘INA’).” Puente v. Renaud, 3:21-CV-1103-B, 2021 WL 5326461, at *1 (N.D. Tex.

Nov. 15, 2021) (Boyle, J.) (citation omitted); see Complaint ¶¶ 8-12 (describing

applications for adjustment of status under § 245(a)). “The INA provides the

Attorney General discretion to adjust the status of an I-485 applicant if the applicant

‘was inspected and admitted or paroled into the United States’ and other conditions

for adjustment are met.” Puente, 2021 WL 5326461, at *1 (quoting 8 U.S.C.

§ 1255(a)).

2 When citing to the exhibits attached to Ramirez’s complaint, the court

(continued...)

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On August 31, 2020, the “[d]efendants issued [an] approval notice of Mr.

Ramirez’s I-765 application[.]” Id. ¶ 20 (citation omitted). Ramirez and Lopez then

“attended [an] interview on October 20, 2020,” that the “[d]efendants scheduled . . .

to consider and . . . adjudicate the merits of the I-130 petition and I-485

application.” Id. ¶¶ 21-22 (citation omitted). During this interview, an immigration

officer “inquired . . . into the details of Mr. Ramirez’s claimed entry to the United

States[,]” and Ramirez “recounted that he clearly remembered being nervous when

he entered the United States on foot with his friends, and that when he took an

hours-long bus ride from Laredo to Dallas, he remembered being forced to sit on the

only unoccupied seat on the bus, which happened to be right next to a smelly

bathroom.” Id. ¶ 22. Following this interview, the “[d]efendants request[ed] that

[Ramirez] appear” for a second interview on October 30, 2020. Id. ¶ 24 (citation

omitted); see also id., Exhibits, at 53 (notice of second interview, with “Reason for

Appointment” being given as “Complete I485 PROCESSING”). Ramirez attended

this second interview “[o]n October 30, 2020, . . . [and] answered questions

regarding his manner of entry under penalty of perjury.” Id. ¶ 25 (citation omitted).

Then, “[o]n December 8, 2020, Mr. Ramirez received the decision from Defendants

2(...continued)

uses the numbers attached to the complaint and attached exhibits by the electronic

filing system. In contrast, when citing to Ramirez’s complaint, the court cites to the

relevant paragraphs in the complaint.

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denying his I-485 application because he had not satisfied his burden of proving that

his last entry into the United States was procedurally regular[.]” Id. ¶ 26 (citation

omitted). In its decision, USCIS stated that Ramirez’s “affidavit and testimony at

the time of interview detail two vastly different admission scenarios[,]” and that,

“therefore, [Ramirez] ha[d] not presented a credible record of [his] claimed

admission into the United States.” Id., Exhibits, Decision of USCIS Regarding

Ramirez’s I-485 Application (“Denial of Ramirez’s I-485 Application”) at 57.

On January 2, 2021, Ramirez filed a Form I-290B notice of appeal or motion

with USCIS. See id. ¶ 27 (citation omitted). The “[d]efendants[] dismissed Mr.

Ramirez’s I-290B and affirmed the denial of his I-485 application[]” on April 6,

2021. Id. ¶ 28 (citation omitted). With respect to USCIS’s consideration of

Ramirez’s Form I-290B, the government avers that USCIS “believed that [Ramirez]

had provided two separate and contradictory explanations for his admission to the

United States in his sworn statement, which was taken during his second USCIS

interview and which Ramirez Garcia signed as true and correct, as the sworn

statement indicated both that he crossed the border on foot and that he crossed the

border on a bus.” Motion to Dismiss at 5 (citations omitted). In addition, “even

assuming Ramirez Garcia’s explanation was true,” USCIS “also found” that certain

elements of Ramirez’s purported admission to the United States were “unlikely[.]”

Id. (citation omitted). Based on these conclusions, “USCIS determined that Ramirez

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Garcia had not met his burden to demonstrate that his entry into the United States

was procedurally regular, nor had he provided any secondary evidence to support his

claim[,]” and, accordingly, USCIS “affirmed” its “original decision to deny his

application to adjust status[.]” Id. (citation omitted); see also Complaint ¶ 28

(describing “Defendants’ dismiss[al] [of] Mr. Ramirez’s I-290B”).

Then, on May 10, 2021, Ramirez filed a second Form I-290B, in support of

which Ramirez included the results of a polygraph examination that he undertook

following the denial of his first Form I-290B. Complaint ¶ 29 (citation omitted). On

July 14, 2021, the “[d]efendants . . . issu[ed] . . . a denial notice” regarding this

second Form I-290B. Id. ¶ 30 (citation omitted). In this second denial notice,

USCIS provided several reasons in support of its denial of Ramirez’s second Form

I-290B. Id. ¶ 31; see also Motion to Dismiss at 6-7 (describing USCIS’s denial of

Ramirez’s second Form I-290B). “First,” USCIS reasoned, Ramirez’s “motion was

untimely, as it was filed more than 150 days after his application for adjustment of

status was denied.” Motion to Dismiss at 6 (citation omitted); see Complaint

¶¶ 31-33 (citations omitted) (describing USCIS’s determination that Ramirez’s

motion was untimely and averring that this determination was in “blatant disregard

of its own agency policy[]”). “Second,” the government avers “USCIS would not

re-entertain the same grounds argued by Ramirez Garcia in his prior motion as part

of a new motion to reconsider, particularly as Ramirez Garcia’s principal evidence

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that his entry into the United States was procedurally regular was simply his own

statement that his entry into the United States was procedurally regular.” Motion to

Dismiss at 6 (citation omitted). Finally, USCIS concluded that, “although Ramirez

Garcia did present new evidence as required for a motion to reopen, the evidence ‘did

not constitute new and material facts, affidavits, or other documentary evidence,’ as

much of the evidence had already been provided to USCIS or constituted testimony

from Ramirez Garcia, his wife, and his counsel that had ‘low probative value’ or was

already included in Ramirez Garcia’s previous sworn statement.” Id. at 6-7 (citation

omitted); see Complaint ¶¶ 34-36 (describing USCIS’s conclusions regarding the

probative value and “evidentiary weight” of the evidence Ramirez submitted in

support of his second Form I-290B, as well as USCIS’s determination that Ramirez’s

“polygraph results [were] unreliable[]”) (citations omitted).

Removal proceedings were initiated against Ramirez on November 16, 2021,

when USCIS served Ramirez with a Notice to Appear (“NTA”). See Motion to

Dismiss at 8 n.3 (“USCIS served Ramirez Garcia on November 16, 2021, with a

Notice to Appear . . . initiating removal proceedings under 8 U.S.C. § 1229.”)

(citation omitted); Appendix in Support of Motion to Dismiss (docket entry 5) at 4

(declaration of Section Chief for USCIS in Dallas, Texas, that “[o]n November 16,

2021, USCIS issued an NTA to . . . Ramirez”); Plaintiff’s Opposition to Defendants’

Motion to Dismiss (“Response to Motion to Dismiss”) (docket entry 7) at 2, 5

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(citations omitted) (averring that “Defendants have effectively issued a Notice To

Appear . . . against Mr. Ramirez,” and acknowledging “Defendants’ mailing a Notice

To Appear . . . to the Executive Office For Immigration Review” and “the issuance of

an NTA issued against Mr. Ramirez”); see Defendants’ Reply in Support of Their

Motion to Dismiss Plaintiff’s Complaint (“Reply in Support of Motion to Dismiss”)

(docket entry 9) at 1 (citations omitted) (stating that “removal proceedings” against

Ramirez “have already begun”); see also 8 U.S.C. § 1229(a) (under section entitled

“Initiation of removal proceedings[,]” describing a “Notice to appear”).3

B. Procedural History

Ramirez initiated this action on September 20, 2021, by filing a complaint

against the defendants in the Dallas Division of the United States District Court for

3 The court notes that Ramirez avers that the government has yet to

“read and comply with the regulations by actually filing the NTA with the proper

immigration court,” Response to Motion to Dismiss at 3 (citations omitted), and

that the government’s “submission of the Declaration of Joann Stewart is self-serving

and holds no evidentiary value because it is well-established that the administrative

agencies charged with administering the immigration laws of the United States do

not observe the mailbox rule[,]” id. at 5 (citations omitted). The court further notes

that Ramirez contends that “he is not currently in removal proceedings[.]” Id. at 7.

However, Ramirez does not deny that he has been served with an NTA. See id.

(emphasis added) (“Defendants’ multiple denials of [Ramirez’s] I-485 application . . .

constitutes [sic] final agency action which has resulted in the issuance of a NTA against

Mr. Ramirez.”). The court therefore concludes that removal proceedings against

Ramirez have been initiated. See Crane v. Napolitano, 3:12-CV-03247-O, 2013 WL

1744422, at *3 n.4 (N.D. Tex. Apr. 23, 2013) (O’Connor, J.) (citing 8 U.S.C.

§ 1229; 8 C.F.R. § 239.1) (“An NTA is a legal document that initiates removal

proceedings against an alien.”).

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the Northern District of Texas. See generally Complaint. In Ramirez’s complaint, he

“seeks judicial review of Defendants’ final decision to deny his Form I-485 . . .

because the basis of the denial . . . amounts to a new evidentiary rule . . . without

good cause in violation of the Administrative and Procedure Act . . . 5 U.S.C.

§ 706(2)(D); constitutes an arbitrary and capricious agency action that is also an

abuse of discretion and otherwise not in accordance with the law, in violation of the

APA, 5 U.S.C. § 706(2)(A) and denies Mr. Ramirez due process of law guaranteed by

the Fifth Amendment to the United States Constitution; and does not conform with

the applicable law, a duty owed to Mr. Ramirez that Defendants must perform, in

violation of 28 U.S.C. § 1361.” Id. ¶ 1; see also id. ¶¶ 45-61 (describing Ramirez’s

“First Cause of Action – Administrative Procedure Act[,]” “Second Cause of Action –

Administrative Procedure Act[,]” and “Third Cause of Action – Mandamus Act”).

The defendants filed a motion to dismiss for lack of jurisdiction on December

16, 2021. See Motion to Dismiss. Ramirez then filed a response to the defendants’

motion to dismiss on December 27, 2021. See Response to Motion to Dismiss. On

January 4, 2022, the defendants filed a reply in support of their motion to dismiss.

See Reply in Support of Motion to Dismiss. The defendants’ motion is therefore fully

briefed and ripe for determination.

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II. ANALYSIS

A. Legal Standard

Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life

Insurance Co. of America, 511 U.S. 375, 377 (1994); Owen Equipment and Erection Co. v.

Kroger, 437 U.S. 365, 374 (1978). A federal court may exercise jurisdiction over

cases only as expressly provided by the Constitution and laws of the United States.

See U.S. CONST. art. III §§ 1-2; see also Kokkonen, 511 U.S. at 377. Federal law gives

the federal district courts original jurisdiction over “all civil actions arising under the

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A party

seeking relief in a federal district court bears the burden of establishing the subject

matter jurisdiction of that court. United States v. Hays, 515 U.S. 737, 743 (1995);

McNutt v. General Motors Acceptance Corporation of Indiana, 298 U.S. 178, 189 (1936);

Langley v. Jackson State University, 14 F.3d 1070, 1073 (5th Cir.), cert. denied, 513 U.S.

811 (1994).

Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes the dismissal

of a case for lack of jurisdiction over the subject matter. See FED. R. CIV. P. 12(b)(1).

A motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction

must be considered by the court before any other challenge because “the court must

find jurisdiction before determining the validity of a claim.” Moran v. Saudi Arabia,

27 F.3d 169, 172 (5th Cir. 1994) (internal citation omitted); see also Ruhrgras AG v.

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Marathon Oil Co., 526 U.S. 574, 577 (1999) (“The requirement that jurisdiction be

established as a threshold matter . . . is inflexible and without exception”) (citation

and internal quotation marks omitted).

On a Rule 12(b)(1) motion, which “concerns the court’s ‘very power to hear

the case . . . [,] the trial court is free to weigh the evidence and satisfy itself as to the

existence of its power to hear the case.’” MDPhysicians & Associates, Inc. v. State Board

of Insurance, 957 F.2d 178, 181 (5th Cir.) (quoting Williamson v. Tucker, 645 F.2d

404, 413 (5th Cir.), cert. denied, 454 U.S. 897 (1981)), cert. denied, 506 U.S. 861

(1992). In ruling on a motion to dismiss under Rule 12(b)(1), the court may rely on:

“1) the complaint alone; 2) the complaint supplemented by undisputed facts; or 3)

the complaint supplemented by undisputed facts and the court’s resolution of

disputed facts.” MCG, Inc. v. Great Western Energy Corporation, 896 F.2d 170, 176

(5th Cir. 1990) (citing Williamson, 645 F.2d at 413). The court’s lack of subject

matter jurisdiction may be asserted at any time, either in the answer, or in the form

of a suggestion to the court prior to final judgment. 5B CHARLES ALAN WRIGHT &

ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1350 (3d. ed. 2004). A

Rule 12(b)(1) motion must be made prior to service of the responsive pleading. Id.

An untimely Rule 12(b)(1) motion will be treated as a suggestion that the court lacks

jurisdiction. Id. Federal Rule of Civil Procedure 12(h)(3) provides that “[i]f the

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court determines at any time that it lacks subject-matter jurisdiction, the court must

dismiss the action.” FED. R. CIV. P. 12(h)(3).

B. Application

The government avers that Ramirez “has not and cannot demonstrate that

there is subject-matter jurisdiction for this proceeding.” Motion to Dismiss at 1. In

support of this averment, the government makes three arguments: (1) “despite

Ramirez Garcia’s arguments to the contrary, USCIS’s decision to deny his

adjustment of status application is not a final agency action reviewable under the

APA, as he can renew his request for an adjustment of status during removal

proceedings[]”; (2) “Congress, via the Immigration and Nationality Act[4] . . . has

stripped the federal judiciary of jurisdiction to review immigration decisions left to

USCIS’s discretion by federal law – including adjustment of status applications[]”;

and (3) “while Ramirez Garcia attempts to assert jurisdiction under the APA, 28

U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1361 (mandamus), and 28

U.S.C. § 1651 (the All Writs Act), these statutes fail to support jurisdiction due to

the INA’s restriction of judicial review for discretionary immigration decisions.” Id.

(emphasis omitted). The court considers these three arguments below.

4 The court refers to the Immigration and Nationality Act as the “INA” in

this opinion.

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1. Whether USCIS’s Denial of Ramirez’s I-485 Application

is a Reviewable Final Agency Action

The government avers that an “[a]gency action is only reviewable under the

APA when it is final, meaning ‘there is no other adequate remedy in a court.’” Id. at

8 (quoting 5 U.S.C. § 704). The government further argues that “USCIS’s decision

to deny Ramirez Garcia’s application to adjust status is not a final agency decision, as

Ramirez Garcia can renew his request for an adjustment of status in removal

proceedings.” Id. (citations omitted).

In support of this argument, the government discusses the “detailed statutory

process for judicial review” that applies to “an alien’s claim to remain in the United

States.” Id. at 9. Per this process, “[i]f USCIS denies an application for adjustment

of status, nothing bars the alien from filing a new application with USCIS if the alien

still has not been placed in removal proceedings.” Id. (citing 8 C.F.R.

§ 103.2(b)(15)). If an “alien is later placed in removal proceedings, he may renew

the application to adjust status before the immigration judge[,]” and the government

contends that, “[i]f USCIS previously denied an adjustment application, USCIS’s

decision has no preclusive effect in the removal proceeding and does not limit the

immigration judge’s ability to reach a different determination and grant adjustment

of status.” Id. (citing 8 C.F.R. § 1245.2(a)(5)(ii)). “If the immigration judge denies

the adjustment application and orders the alien’s removal, the alien may appeal to

the Board of Immigration Appeals . . . as a matter of right[,]” id. at 9-10 (citing 8

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C.F.R. §§ 1003.1(b), 1003.3), and the government avers that, “[i]f the Board affirms

the immigration judge’s order of removal (and the order denying the adjustment of

status application), that order becomes administratively final for purposes of judicial

review[,]” id. at 10 (citing 8 U.S.C. § 1101(a)(47)(B)). The government further avers

that an “alien can then raise any colorable statutory and constitutional claims by

filing a timely petition for review in the court of appeals[,]” id. (citing 8 U.S.C.

§ 1252(a)(1)), and that, “[n]otwithstanding any other provision of law (statutory or

nonstatutory), . . . 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[,]” id. (emphasis in original) (quoting 8 U.S.C. § 1252(a)(5)). The

government argues that “courts have repeatedly held that there is no subject-matter

jurisdiction to review USCIS’s denial of an application for adjustment of status as

there is no final agency action yet within the meaning of the APA[,]” id. (citations

omitted), and that “[t]his principle applies even when removal proceedings have not

yet commenced, and even though they may never take place[,]” id. at 11 (citations

omitted). The government contends that, “[a]s Ramirez Garcia has not yet

exhausted his administrative remedies, the Court does not have subject-matter

jurisdiction over his claims.” Id. at 12 (citations omitted).

In response, Ramirez offers several arguments. First, Ramirez contends that

“Defendants’ [sic] denied Mr. Ramirez’s I-485 application three times on the same

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legal basis even though he filed additional secondary evidence every time[,]” and

that, “[c]onsequently, Defendants’ three denials of Mr. Ramirez’s I-485 application is

[sic] final agency action that is [sic] also ripe for judicial review because he has felt

the effects of the challenged agency action immediately and in a concrete way.”

Response to Motion to Dismiss at 2 (citing McNary v. Haitian Refugee Center, Inc., 498

U.S. 479, 483-84 (1991)). To that end, Ramirez avers that his “ability to provide for

his family through gainful means is at peril[,]” and that “the denial of Mr. Ramirez’s

I-485 application – the cause of action in the instant matter – effectively terminates

his ability to maintain lawful employment[,] [which] means that the denial of Mr.

Ramirez’s I-485 application automatically places him where he was previously (i.e.,

without legal presence and no valid work authorization).” Id. at 2, 3.

Ramirez also argues that “[t]he APA’s finality requirement does not focus on

whether Mr. Ramirez can apply for adjustment of status through a different

agency[,]” and that, instead, “finality under the APA focuses on what the agency did

(i.e., the agency action) that harmed Mr. Ramirez.” Id. at 6-7. Ramirez asserts that

“the challenged agency action has immediately affected Mr. Ramirez in an actual and

concrete way – his ability to maintain lawful employment solely depends on the

instant action and Defendants’ [sic] have effectively issued an NTA against Mr.

Ramirez[,]” which, Ramirez avers, “legal consequences flow from.” Id. at 2, 7.

Ramirez contends that, “[a]lthough he is not currently in removal proceedings, Mr.

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Ramirez facing this possibility is a legal consequence of the challenged agency

action.” Id. at 7. Ramirez additionally asserts that “the Court has jurisdiction over

Mr. Ramirez’s APA claims under 28 U.S.C. § 1331 because Defendants’ multiple

denials of his I-485 application on the legal basis that Mr. Ramirez was statutorily

ineligible to adjust status under 8 U.S.C. § 1255 constitutes final agency action

which has resulted in the issuance of a NTA against Mr. Ramirez.” Id.

Ramirez further argues that “[t]he Court may properly exercise federal

question jurisdiction under 28 U.S.C. § 1331 over Mr. Ramirez’s case given that the

challenged agency action (i.e., the denial of Mr. Ramirez’s I-485 application for

nondiscretionary reasons) constitutes final agency action for which there is no other

alternative adequate judicial remedy available to him until much later.” Id. at 5

(citation omitted). Ramirez relatedly asserts that “Mr. Ramirez does challenge final

agency action because there is no other court that he can bring the instant action to.”

Id. at 7. Ramirez avers that “there is no alternative, adequate judicial remedy

available to Mr. Ramirez because EOIR [the Executive Office for Immigration

Review] and the Board of Immigration Appeals . . . are administrative agencies that

lack jurisdiction to consider constitutional due process claims, which are the crux of

Mr. Ramirez’s causes of action.” Id. at 8 (citation omitted). Ramirez also avers that

“the Board only has jurisdiction to review an I-485 application denied by EOIR.” Id.

Ramirez asserts “that Defendants’ denial of his I-485 application on legal grounds is

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sufficiently final because the general existence that 8 U.S.C. § 1255 is the legal

mechanism to apply for relief from removal in proceedings is not a remedy available

‘as of right’ for exhaustion purposes [sic].”5 Id. at 9.

Finally, while Ramirez urges “the Court to apply ‘the strong presumption that

Congress intended judicial review of administrative action’ to the instant matter,” id.

at 1 (quoting Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670

(1986)), he also acknowledges that, “when Defendants finally read and comply with

the regulations by actually filing the NTA with the proper immigration court, Mr.

Ramirez will have to file a completely new I-485 application . . . in removal proceedings in

order to proceed with his I-485 application anew with an immigration judge[,]” id. at 3

(emphasis added) (citations omitted).

In reply, the government reiterates its argument that “USCIS’s decision is not

a final agency action since [Ramirez] can renew his request for an adjustment of

status in removal proceedings – which have already begun.” Reply in Support of

Motion to Dismiss at 1 (citations omitted). The government further asserts that

Ramirez’s “arguments ignore the multiple cases from other courts in this district and

the Fifth Circuit that have all determined there was no subject-matter jurisdiction

5 Separately, Ramirez contends that “[t]he APA’s finality requirement

does not focus on Mr. Ramirez’s actions[,]” and that “his ability to adjust status in

removal proceedings before a different agency is irrelevant when inquiring whether

the denial of his I-485 application marks the consummation of Defendants’ decision-

making process.” Id. at 6 (emphasis omitted).

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over claims challenging USCIS’s denial of an adjustment of status application,

because the ability to renew a request for an adjustment of status in removal

proceedings inherently means there is no final agency action within the meaning of

the APA.” Id. at 3-4 (citations omitted). The government avers that Ramirez “has

available administrative remedies to exhaust with respect to his adjustment of status

application[,]” and that Ramirez “himself notes that will [sic] have the opportunity

to renew his application before an immigration judge.” Id. at 5 (citing Response to

Motion to Dismiss at 3).

Having considered the parties’ arguments, as well as the relevant statutes and

case law, the court concludes that USCIS’s denial of Ramirez’s I-485 application does

not constitute a final agency action under the APA, and that Ramirez did not exhaust

his administrative remedies. Accordingly, the court concludes that it lacks subject

matter jurisdiction over Ramirez’s claims.

Under the APA, “[a] person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the meaning of a relevant

statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. A “reviewing court

shall . . . hold unlawful and set aside agency action, findings, and conclusions found

to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law[,] . . . [or] without observance of procedure required by law[.]” Id.

§ 706(2)(A), (D). “However, except where provided for by statute, judicial review is

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limited to ‘final agency action for which there is no other adequate remedy.’” Puente,

2021 WL 5326461, at *2 (quoting 5 U.S.C. § 704).

The court notes that, in general, “an I-485 applicant cannot appeal USCIS’s

denial of their adjustment-of-status application; however, the applicant does ‘retain[]

the right to renew his or her application’ in removal proceedings.” Id. at *3

(alteration in original) (quoting 8 C.F.R. § 245.2(a)(5)(ii)); see also Nama v. United

States Citizenship and Immigration Services, 3:20-CV-3362-K, 2022 WL 1189889, at *3

(N.D. Tex. Apr. 21, 2022) (Kinkeade, J.) (“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.”)

(quoting 8 C.F.R. § 245.2(a)(5)(ii)). Per the “regulatory language” that applies to

I-485 applicants, “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.” Nama, 2022 WL 1189889, at *3 (citing Velasquez v. Nielsen, 754 F.

App’x 256, 260-61 (5th Cir. 2018) (per curiam) (unpublished); Maringo v. Mukasey,

281 F. App’x 365, 367-68 (5th Cir. 2008) (per curiam) (unpublished); Cardoso v.

Reno, 216 F.3d 512, 518 (5th Cir. 2000)); see also Puente, 2021 WL 5326461, at *3

(citing Petrenko-Gunter v. Upchurch, 2006 WL 2852359, at *1 (5th Cir. 2006) (per

curiam) (unpublished); Cavena v. Renaud, 2021 WL 2716432, at *1 (N.D. Tex. June

30, 2021) (Kinkeade, J.); Judhani v. Holder, 2011 WL 1252661, at *5 (N.D. Tex.

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Mar. 9, 2011), report and rec. adopted, 3:10-CV-1256-B, 2011 WL 1252605 (N.D.

Tex. Mar. 31, 2011) (Boyle, J.)) (“Though Cardoso evaluated the exhaustion of

remedies requirement under 8 U.S.C. § 1252(d) (1999), courts in the Fifth Circuit

have since applied Cardoso’s exhaustion principles to challenges of USCIS denials of

adjustment applications brought under the APA.”). Courts within the Fifth Circuit

that have considered challenges to USCIS denials of I-485 applications have thus

concluded that such denials do not constitute final agency actions that are subject to

judicial review under the APA, given that applicants can renew their applications

during removal proceedings. See, e.g., Maringo, 281 Fed. App’x at 367-68 (citations

omitted) (“Maringo is also precluded from seeking review of the district director’s

decision because he has failed to exhaust his administrative remedies. Pursuant to 8

C.F.R. § 245.2(a)(5)(ii), an alien who is denied adjustment of status by the district

director may renew his adjustment of status application upon commencement of

removal proceedings, which constitutes a further mechanism for judicial review.”);

Vargas v. United States Department of Homeland Security, CV B: 13-21, 2014 WL

12673693, at *11 (S.D. Tex. Jan. 7, 2014) (citation omitted) (“[F]or purposes of the

APA, the denial of the I-485 application – in the procedural posture occupied by

Mejia Vargas – is not a final agency action.”), report and rec. adopted sub nom., CV

B-13-021, 2014 WL 12673694 (S.D. Tex. Jan. 31, 2014).

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Here, Ramirez “seeks judicial review of Defendants’ final decision to deny his

Form I-485[.]” Complaint ¶ 1. Despite his arguments to the contrary, Ramirez

“retains the right to renew his . . . application” during removal proceedings. 8 C.F.R.

§ 245.2(a)(5)(ii); see Cardoso, 216 F.3d at 518 (noting, with respect to an applicant’s

“request for adjustment of status,” that the applicant “may . . . renew her request

upon the commencement of removal proceedings.”) (citations omitted); Nama, 2022

WL 1189889, at *3 (“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.”) (quoting 8 C.F.R.

§ 245.2(a)(5)(ii)); Puente, 2021 WL 5326461, at *3 (“Generally, an I-485 applicant

cannot appeal USCIS’s denial of their adjustment-of-status application; however, the

applicant does ‘retain[] the right to renew his or her application’ in removal

proceedings.”) (quoting 8 C.F.R. § 245.2(a)(5)(ii)). Therefore, the court concludes

that Ramirez has not exhausted his administrative remedies, and that USCIS’s denial

of Ramirez’s I-485 application does not constitute a final agency action subject to

judicial review under the APA. Accordingly, the court further concludes that it does

not have subject matter jurisdiction over Ramirez’s claims. See Nama, 2022 WL

1189889, at *5 (“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 . . . [a]ccordingly, this decision of USCIS is

- 20 -

not a final agency action subject to judicial review and the Court may not exercise

subject matter jurisdiction over Plaintiff’s claims.”) (citations and internal quotation

marks omitted); Puente, 2021 WL 5326461, at *4 (“[T]he Court concludes that,

because Puente may renew her application if and when removal proceedings are

initiated, USCIS’s denial of Puente’s adjustment application was not a final agency

action under the APA; therefore, Puente has not exhausted her administrative

remedies. Accordingly, the Court lacks subject-matter jurisdiction over Puente’s

claim.”).

The court is unpersuaded by Ramirez’s arguments as to why USCIS’s denial of

his I-485 application constitutes a final agency action subject to judicial review under

the APA. First, while Ramirez contends that “Defendants’ three denials of Mr.

Ramirez’s I-485 application is [sic] final agency action that is [sic] also ripe for

judicial review because he has felt the effects of the challenged agency action

immediately and in a concrete way[,]” the court is not aware of, and Ramirez does

not identify, any precedent that suggests that a USCIS denial of an I-485 application

should be subject to judicial review under the APA, despite an applicant’s ability to

renew their application during removal proceedings, because “the effects” of the

denial were felt “immediately and in a concrete way” by the applicant. Response to

Motion to Dismiss at 2 (citation omitted). The court thus declines to grant judicial

review in the instant case based on the effects of USCIS’s denial of Ramirez’s I-485

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application. See generally Puente, 2021 WL 5326461, at *3-4 (assessing whether

Puente “exhausted her administrative remedies” and concluding that “because Puente

may renew her application if and when removal proceedings are initiated, USCIS’s

denial of Puente’s adjustment application was not a final agency action under the

APA[]” without discussing the extent to which the effects of USCIS’s denial were felt

by the applicant).

Second, with regard to Ramirez’s arguments that “[t]he APA’s finality

requirement does not focus on whether Mr. Ramirez can apply for adjustment of

status through a different agency[,]” and that, instead, “finality under the APA

focuses on what the agency did . . . that harmed Mr. Ramirez[,]” the court is not

aware of, and Ramirez does not identify, any precedent that supports this argument.

Response to Motion to Dismiss at 6-7; see also id. at 7 (“Mr. Ramirez does challenge

final agency action because there is no other court that he can bring the instant

action to.”). Therefore, “[t]here is simply no basis in the law for the [c]ourt to

determine USCIS’s decision is a ‘final agency action’ on this theory.” Nama, 2022

WL 1189889, at *4 (rejecting the plaintiff’s argument that “even if the decision is

reviewable in removal proceedings, USCIS . . . is separate from the Immigration

Courts . . . which adjudicates removal proceedings, leaving Plaintiff with ‘no further

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

Security[.]’”) (citation omitted).

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Third, regarding Ramirez’s assertion that “[t]he Court may properly exercise

federal question jurisdiction under 28 U.S.C. § 1331 over Mr. Ramirez’s case given

that the challenged agency action . . . constitutes final agency action for which there

is no other alternative adequate judicial remedy available to him until much later[,]”

Response to Motion to Dismiss at 5 (citation omitted), the Fifth Circuit has noted

that it previously “held that [an applicant] could not challenge [an] immigration

judge’s decision to deny her request for adjustment of status in the federal district

court, but must instead wait to do so if and when removal proceedings were commenced[,]”

Velasquez, 754 F. App’x at 261 (emphasis added) (citing Cardoso, 216 F.3d at 517-

18). The court thus concludes that the time between USCIS’s denial of Ramirez’s

I-485 application and his opportunity to renew his application during removal

proceedings does not affect the court’s determination as to USCIS’s denial not being

subject to judicial review under the APA.

Finally, Ramirez’s averments as to the lack of an “alternative, adequate judicial

remedy[,]” Response to Motion to Dismiss at 8, are unavailing in light of the Fifth

Circuit case law that confirms that I-485 applicants like Ramirez may renew their

applications during removal proceedings. See Cardoso, 216 F.3d at 518; Nama, 2022

WL 1189889, at *3; Puente, 2021 WL 5326461, at *3. Such case law also makes

clear that, “[g]enerally, an I-485 applicant cannot appeal USCIS’s denial of their

adjustment-of-status application[.]” Puente, 2021 WL 5326461, at *3 (citing 8

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C.F.R. § 245.2(a)(5)(ii)); see also Velasquez, 754 F. App’x at 260-61 (“Our precedent

makes clear that the district courts do not have jurisdiction to review a denial of

adjustment of status, regardless of whether that denial is based on discretionary

factors, and regardless of whether it comes in the context of removal proceedings.”).

Based on the foregoing, the court concludes that USCIS’s denial of Ramirez’s

I-485 application does not constitute a final agency action under the APA, and that

Ramirez did not exhaust his administrative remedies. Accordingly, the court

concludes that it lacks subject matter jurisdiction over Ramirez’s claims.

2. The Immigration & Nationality Act & Subject Matter Jurisdiction

Assuming arguendo that USCIS’s denial of Ramirez’s I-485 application does

constitute a final agency action subject to judicial review under the APA, the court

turns to the government’s argument that the INA strips jurisdiction over Ramirez’s

claims.

The government argues that “the INA repeatedly states that USCIS decisions

like those at issue[] in this case are left to the agency’s discretion and are not subject

to judicial review,” and that, accordingly, “the Court does not have subject-matter

jurisdiction over Ramirez Garcia’s claims.” Motion to Dismiss at 12-13 (citations

omitted). More specifically, the government asserts that “[i]n the INA, Congress

explicitly barred judicial review of USCIS’s determinations regarding an application

for an adjustment of status[.]” Id. at 13 (citing 8 U.S.C. § 1252(a)(2)(B)(i)). In

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addition, the government contends that, “[i]n cases involving challenges to these

adjustment of status decisions under 8 U.S.C. § 1255(a), both the Fifth Circuit and

courts in this district have repeatedly held that USCIS’s discretionary decisions of

adjustment of status applications are non-reviewable under 8 U.S.C.

§ 1252(a)(2)(B)(i).” Id. at 13-14 (citations omitted). The government further

contends that “8 U.S.C. § 1252(a)(2)(B)(i) also explicitly precludes judicial review

over Ramirez Garcia’s claims under either the mandamus statute (28 U.S.C. § 1361)

or the All Writs Act (28 U.S.C. § 1651), two other asserted grounds for jurisdiction

in this case.” Id. at 14 (citations omitted).

The government contends that “questions of fact – as opposed to legal

conclusions or questions of law – are not subject to review.” Id. at 13. The

government relatedly argues that “USCIS’s denial of Ramirez Garcia’s application for

adjustment of status was based on a question of fact – that is, whether Ramirez

Garcia was admitted to the United States in the manner he claimed he was – and

thus entirely discretionary.” Id. at 15. The government avers that “USCIS’s

December 2, 2020 decision letter stated[] [that] Ramirez Garcia’s ‘affidavit and

testimony at the time of interview detail two vastly different admission scenarios;

therefore, you have not presented a credible record of your claimed admission into

the United States[,]’” and that “Ramirez Garcia’s challenges to USCIS’s denial of his

adjustment of status application amounts [sic] to a disagreement with how USCIS

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weighed the facts of his case, not USCIS’s legal conclusions.” Id. (citations omitted).

The government asserts that “USCIS used its discretion pursuant to 8 U.S.C.

§ 1255(a) to determine that Ramirez Garcia’s explanations as how he was admitted

into the United States were not credible, and therefore did not demonstrate that his

entry to the United States was procedurally regular such that he had established that

he had been inspected and admitted into the country.” Id. Based on this, the

government argues, “USCIS denied [Ramirez’s] Form I-485 application[,]” and “8

U.S.C. § 1252(a)(2)(B)(i) bars judicial review of such discretionary denials.” Id.

In response, Ramirez “opposes Defendants’ Motion To Dismiss Plaintiff’s

Complaint because jurisdiction exists over the instant matter pursuant to 28 U.S.C.

§ 1331 (federal questions jurisdiction) and 28 U.S.C. § 1361 (mandamus

jurisdiction)[]” and avers that he seeks to “challenge[] the legal standards Defendants

applied in denying his I-485 application on the grounds that he was statutorily

ineligible for adjustment of status under 8 U.S.C. § 1255(a).” Response to Motion to

Dismiss at 1, 2 (citation omitted). Ramirez also avers that “the denial of Mr.

Ramirez’s I-485 application [was] for nondiscretionary reasons[.]” Id. at 5 (citation

omitted).

In addition, Ramirez argues that “Defendants misinterpret § 1252 as applying

to all actions arising from the Immigration and Nationality Act . . . which is simply

incorrect and not supported by the law[,]” and that “if an action does not arise from,

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or is remotely or attenuated connected [sic] to, the removal proceedings of the

plaintiff, then 8 U.S.C. § 1252 does not apply.” Id. at 4 (citations omitted). To that

end, Ramirez avers that he “does challenge final agency action that he cannot bring

before any other federal court for judicial review of the instant action because it did

not arise from removal proceedings.” Id. at 8 (emphasis omitted) (citing McNary,

498 U.S. at 486; Duron v. Johnson, 898 F.3d 644, 647 (5th Cir. 2018), cert. denied, __

U.S. __, 139 S.Ct. 1179 (2019)). Ramirez relatedly “maintains that he does not have

the right to ask the federal government to place him in removal proceedings much

less ask EOIR to file the NTA[]” and “contends that the instant matter is remotely

connected to the removal of Mr. Ramirez since the challenged agency action has

nothing to do with removal proceedings.” Id. at 9 (citing Duron, 898 F.3d at 647).

Ramirez further “argues that Defendants . . . misconstrue the law in terms of the

application of the exhaustion of administrative remedies requirement under 8 U.S.C.

§ 1252(d), which only applies in the context of removal proceedings as discussed

previously such that the remedy Defendants contend is available to Mr. Ramirez ‘as

of right’ is simply not true.” Id. at 8 (citing Omari v. Holder, 562 F.3d 314, 318-19

(5th Cir. 2009)). “In this case,” Ramirez contends, “no remedy is available ‘as of

right’ to Mr. Ramirez, within the meaning of § 1252(d), because he cannot bring the

causes of actions he complains of – Defendants’ denial of his I-485 application – since

the Board lacks jurisdiction over such denials.” Id. at 9 (citation omitted).

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In reply, the government reiterates its argument that “as part of the

Immigration and Nationality Act . . . Congress has explicitly barred courts from

reviewing USCIS’s discretionary decisions regarding adjustment of status

applications.” Reply in Support of Motion to Dismiss at 2 (citing 8 U.S.C.

§§ 1252(a)(2)(B)(i), 1255(a); Ayanbadejo v. Chertoff, 517 F.3d 273, 276-77 (5th Cir.

2008) (per curiam)). The government further asserts that Ramirez’s “arguments . . .

ignore both the plain language of 8 U.S.C. § 1252 and the actual dispute in this

case.” Id. at 5. The government avers that, “[d]espite Ramirez Garcia’s limited

attempts to argue otherwise, the fact remains that USCIS inherently has discretion

under federal law to approve or deny an adjustment of status application, and it

exercised this discretion when denying Ramirez Garcia’s application[,]” and that,

“[a]ccordingly, Ramirez Garcia’s claims are statutorily barred by the APA and the

INA.” Id. (citations omitted). The government also contends that “[t]he recent

Puente case decided by another court in this district provides a helpful framework to

distinguish between USCIS’s discretionary and nondiscretionary decisions regarding

adjustment of status applications[,]” and that the “analysis from Puente applies to this

instant case.” Id. at 6, 7. More specifically, the government argues that “Ramirez

Garcia asserts that USCIS’s denial was completely based on a legal determination

that he was ineligible to adjust his status, and thus it was a nondiscretionary decision

subject to judicial review[,]” but that “as Ramirez Garcia himself explains, he kept

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submitting evidence to USCIS ‘to prove his procedurally regular entry’ to the United

States[,]” and, “thus, there was clearly a critical factual dispute at issue regarding his

application: how exactly Ramirez Garcia entered the country.” Id. at 7 (citations

omitted). “Just as in Puente,” the government asserts, “Ramirez Garcia’s application

was not denied because his entrance to the United States rendered him ineligible for

adjustment of status, but the denial was instead based on USCIS’s factual

determination that Ramirez Garcia did not arrive in the United States in the manner

he described.” Id. (citing Puente, 2021 WL 5326461, at *5). The government

contends that “[t]he real issue in this case is not how USCIS applied the legal

standards to determine Ramirez Garcia’s eligibility, but rather . . . a factual

dispute[,]” id., and that “Ramirez Garcia does not agree with how the agency weighed

his evidence, but ‘to say that . . . USCIS improperly weighed evidence is to say that

. . . [it] abused its discretion to review the evidence, but an abuse of discretion

remains an exercise of discretion all the same[,]’” id. at 7-8 (alteration in original)

(quoting Puente, 2021 WL 5326461, at *6).

Having considered the parties’ arguments, as well as the evidence cited therein

and relevant statutes and case law, the court concludes that it is barred from

reviewing USCIS’s denial of Ramirez’s I-485 application by 8 U.S.C.

§ 1252(a)(2)(B)(i).

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Under 8 U.S.C. § 1255(a), “[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[.]” 8 U.S.C. § 1252(a)(2)(B)(i)

in turn provides that, “[n]otwithstanding any other provision of law (statutory or

nonstatutory) . . . and except as provided in subparagraph (D), and regardless of

whether the judgment, decision, or action is made in removal proceedings, no court

shall have jurisdiction to review . . . any judgment regarding the granting of relief

under . . . [8 U.S.C. §] 1255 [adjustment of status of nonimmigrant to that of person

admitted for permanent residence] of this title[.]” “Interpreting these statu[t]es, the

Fifth Circuit has held that § 1252(a)(2)(B)(i) precludes judicial review of ‘certain

discretionary immigration decisions,’ but ‘nondiscretionary decisions, such as

statutory interpretation and other pure legal task[s]’ may still be reviewed.” Puente,

2021 WL 5326461, at *4 (quoting Nolasco v. Crockett, 978 F.3d 955, 957 (5th Cir.

2020)); see Melendez v. McAleenan, 928 F.3d 425, 426 (5th Cir.) (“Section

1252(a)(2)(B)(i) strips federal courts of jurisdiction to review ‘any judgment

regarding the granting of relief under,’ among others, Section 1255, which is the

statute applicable to an adjustment of status.”), cert. denied, __ U.S. __, 140 S.Ct. 561

(2019)); Ayanbadejo, 517 F.3d at 277 (“[A]ll judgments regarding relief under § 1255,

including reviews of I-485 applications, are specifically categorized as discretionary

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and non-reviewable by § 1252(a)(2)(B)(i)”). “Therefore, the issue presented is

whether [Ramirez] seeks review of discretionary decisions made unreviewable by

§ 1252(a)(2)(B).” Puente, 2021 WL 5326461, at *4.

Here, Ramirez sought to adjust his status to that of a lawful permanent

resident through an I-485 application in accordance with 8 U.S.C. § 1255(a). See

Complaint ¶¶ 16, 18. USCIS denied Ramirez’s application on December 2, 2020,

and in doing so stated that the reason for its denial was that Ramirez “ha[d] not

established that [he] w[as] inspected and admitted or inspected and paroled into the

United States.” Id., Exhibits, Denial of Ramirez’s I-485 Application at 56. USCIS

elaborated that Ramirez had “indicated on [his] Form 1-485 that [his] last entry into

the United States was at Laredo, TX on or about 2000[,]” but that “there are no

Department of Homeland Security (DHS) records to support [his] claim.” Id.,

Exhibits, Denial of Ramirez’s I-485 Application at 57. USCIS further wrote that

Ramirez, “submitted an affidavit stating [he] w[as] given voluntary departure on June

10, 1999 back to Mexico, . . . returned to the United States by entering at the Port of

Entry in Laredo, Texas by boarding a U.S. bound bus early in the morning[,]” and

that, “at the time of entry the Border Patrol Officer did not request to see

immigration documents and waved the bus through the port of entry.” Id. “In

contrast,” USCIS stated, “according to [Ramirez’s] testimony during the course of

[his] interview, [he] stated [he] w[as] with a friend . . . in Mexico, who was heading

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home back to the United States[,]” and that, per Ramirez’s testimony, Ramirez and

the friend “showed up at the bridge[,] [t]wo white males asked where [they] were . . .

going[,]” the “friend . . . said, ‘[h]ome[,]’ [t]he white male officer asked [Ramirez’s]

friend . . . ‘[a]re they with you[,]’” the friend “said, ‘[y]es[,]’” and “[t]hen . . . the

officers waved [Ramirez] through.” Id. USCIS wrote in its denial that Ramirez’s

“affidavit and testimony at the time of interview detail two vastly different admission

scenarios[,]” and that, “therefore, [Ramirez] ha[d] not presented a credible record of

[his] claimed admission into the United States.” Id. “Because [Ramirez] ha[d] not

established that [he] w[as] inspected and admitted or inspected and paroled, or that

[he] [was] exempt from that requirement,” USCIS stated that Ramirez was “ineligible

to adjust status in the United States.” Id.

The court concurs with the government’s argument that Ramirez’s application

resembles the application that was considered in Puente. There, “[i]n 2019 . . .

Puente filed an I-485 Application to Register Permanent Residence or Adjust Status

. . . pursuant to § 245(a) of the Immigration and Nationality Act[.]” Puente, 2021

WL 5326461, at *1 (citation omitted). “In or about January 2021, USCIS denied

Puente’s application on the ground that she was ineligible for adjustment of status

because ‘she was not inspected and admitted upon entry to the United States.’” Id.

at *2 (citation omitted). After considering this application, the Puente court stated

that “Puente’s application . . . was denied on an eligibility ground.” Id. at *5

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(citation omitted). More specifically, it observed that USCIS’s denial of Puente’s

application stated, “[b]ecause you have not proven that you were inspected and

admitted or paroled, or that you are exempt from that requirement, you are ineligible

to adjust status in the United States.” Id. (citation omitted). Similarly, in USCIS’s

denial of Ramirez’s I-485 application, it wrote to Ramirez that, “[b]ecause you have

not established that you were inspected and admitted or inspected and paroled, or

that you are exempt from that requirement, you are ineligible to adjust status in the

United States.” Complaint, Exhibits, Denial of Ramirez’s I-485 Application at 57.

In Puente, the court noted that “USCIS’s denial letter, attached to Puente’s

complaint, states: ‘In your case, the basic facts are in dispute. The record does not

include sufficient evidence that you were inspected, admitted or paroled to the

United States.’” 2021 WL 5326461, at *5 (citation omitted). Likewise, in the

instant case, USCIS considered “an affidavit” that Ramirez submitted, in addition to

his “testimony during the course of [his] interview,” before concluding that Ramirez’s

“affidavit and testimony at the time of interview detail two vastly different admission

scenarios[.]” Complaint, Exhibits, Denial of Ramirez’s I-485 Application at 57.

Based on this conclusion, USCIS stated that Ramirez “ha[d] not presented a credible

record of [his] claimed admission into the United States.” Id. Similar to the facts

before the Puente court, “USCIS’s denial [of Ramirez’s I-485 application] was based

on its factual determination that [Ramirez] did not arrive in the United States in the

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manner [he] described.” Puente, 2021 WL 5326461, at *5 (citation omitted). The

court agrees with the Puente court’s conclusion that “[r]eviewing this determination is

not the sort of ‘pure legal task’ the Fifth Circuit has found reviewable.” Id. (quoting

Nolasco, 978 F.3d at 957); see also id. at *6 (quoting Ayanbadejo, 517 F.3d at 277)

(“Like USCIS’s determination that the Ayanbadejo plaintiff did not have a bona fide

marriage, USCIS’s determination here that Puente was not inspected and admitted or

paroled into the United States is a ‘judgment regarding the granting of relief under

. . . section 1255,’ which the Court has no jurisdiction to review.”).

Ramirez’s arguments to the contrary are unavailing. First, Ramirez’s assertion

that he is only “challeng[ing] the legal standards Defendants applied in denying his

I-485 application[,]” Response to Motion to Dismiss at 2 (citation omitted), is

unpersuasive because the Fifth Circuit has made clear that “Section 1252(a)(2)(B)(i)

explicitly places ‘any judgment regarding the granting of relief under . . . section

1255,’ which provides the statutory authority for I-485 applications, in th[e] category

of discretionary decisions that no courts have jurisdiction to review[,]” Ayanbadejo,

517 F.3d at 277. See also Puente, 2021 WL 5326461, at *4 (concluding, after

considering the plaintiff’s contention “that she seeks review of only legal

determinations,” as well as USCIS’s averment that “Puente’s challenges ‘amount to a

disagreement with how USCIS weighed the facts of her case,’” that “Puente seeks

review of only discretionary assessments of fact.”). In addition, Ramirez’s contention

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that, “if an action does not arise from, or is remotely or attenuated connected [sic] to,

the removal proceedings of the plaintiff, then 8 U.S.C. § 1252 does not apply[,]”

Response to Motion to Dismiss at 4 (citation omitted), is unsupported by the plain

language of 8 U.S.C. § 1252(a)(2)(B) and Fifth Circuit case law. See 8 U.S.C.

§ 1252(a)(2)(B) (emphasis added) (“[n]otwithstanding any other provision of law . . .

and except as provided in subparagraph (D) [excepting certain legal claims filed with

courts of appeals in accordance with statutory guidelines], and regardless of whether the

judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction

to review . . . any judgment regarding the granting of relief under section . . . 1255 of

this title[]”); Nama, 2022 WL 1189889, at *6 (citing Ayanbadejo, 517 F.3d at 277)

(concluding, in a “case [that] does not involve removal proceedings[,]” that the court

was “without jurisdiction to review the discretionary decision of USCIS to deny

Plaintiff’s application to adjust his status”); Puente, 2021 WL 5326461, at *2, *6

(citation omitted) (stating, in a case in which “[t]o date, no removal proceedings have

been initiated[,]” that, “because USCIS’s determination was discretionary, the Court

is barred from reviewing it by § 1252(a)(2)(B).”).6 Therefore, the court concludes

6 The court further notes the Supreme Court’s recent decision in Patel v.

Garland, __ U.S. __, 142 S.Ct. 1614 (2022). In Patel, the Supreme Court considered

“how far th[e] bar” set by Congress on “judicial review of the Attorney General’s

decisions denying discretionary relief from removal . . . extends – specifically, whether

it precludes judicial review of factual findings that underlie a denial of relief.” Id. at

1618. Turning to the aforementioned statutory bar, the Supreme Court stated that

(continued...)

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that it is barred from reviewing USCIS’s denial of Ramirez’s I-485 application by 8

U.S.C. § 1252(a)(2)(B)(i) and lacks jurisdiction over Ramirez’s claims.7 See Nama,

6(...continued)

“Congress has sharply circumscribed judicial review of the discretionary-relief

process[]” before discussing what “Title 8 U.S.C. § 1252(a)(2)(B) provides[.]” Id. at

1619. In seeking “to resolve the conflict[]” regarding “a split among the courts of

appeals as to the scope of § 1252(a)(2)(B)(i)[,]” the Supreme Court assessed

arguments from the government, Patel, and amicus curiae. Id. at 1621.

The Supreme Court determined that “[a]micus’ interpretation is the only one

that fits § 1252(a)(2)(B)(i)’s text and context[,]” and that “[t]he provision does not

restrict itself to certain kinds of decisions[]”: “[r]ather, it prohibits review of any

judgment regarding the granting of relief under § 1255 and the other enumerated

provisions.” Id. at 1622 (emphasis in original). “Thus, § 1252(a)(2)(B)(i)

encompasses not just ‘the granting of relief’ but also any judgment relating to the

granting of relief[,] [which] plainly includes factual findings.” Id. (emphasis in

original). The Supreme Court went on to consider one of its earlier decisions,

Nasrallah v. Barr, 590 U. S. __, 140 S.Ct. 1683 (2020), and stated that it “adhere[d]

to th[e] view today[,]” expressed in Nasrallah, that “a noncitizen ‘may not bring a

factual challenge to orders denying discretionary relief, including . . . adjustment of

status.’” Id. at 1623 (quoting Nasrallah, 140 S.Ct. at 1694). While the Supreme

Court also acknowledged that “[t]he reviewability of [certain] decisions[,]” i.e.,

“USCIS denials of discretionary relief[,] . . . is not before us, and we do not decide

it[,]” it also noted that “it is possible that Congress did, in fact, intend to close that

door.” Id. at 1626. The Supreme Court concluded that “the text and context of

§ 1252(a)(2)(B)(i) – which is, after all, a jurisdiction-stripping statute – clearly

indicate that judicial review of fact determinations is precluded in the

discretionary-relief context.” Id. at 1627.

While the Supreme Court did “not decide” on the “reviewability” of the type

of decision at issue in the instant case, its analysis and conclusion support the court’s

application of 8 U.S.C. § 1252(a)(2)(B)(i). Id. at 1626; see also Bertrand v. Garland,

36 F.4th 627, 631 n.4 (5th Cir. 2022) (quoting Patel, __ U.S. __, 142 S.Ct. at 1618,

1622-23) (“The Supreme Court has recently emphasized the ‘very limited role’ for

courts of appeals in reviewing the Attorney General’s discretionary-relief decisions.”).

7 The Fifth Circuit’s recent decision in Duarte v. Mayorkas, 27 F.4th 1044

(continued...)

- 36 -

7(...continued)

(5th Cir. 2022), does not alter this conclusion. There, the Fifth Circuit considered a

situation in which a group of immigrants who were ordered to be deported from the

United States were granted Temporary Protected Status and, “later . . . ‘advance

parole’ documents . . . that authorized them to temporarily travel abroad.” Id. at

1048. After the group of immigrants returned to the United States, they filed I-485

applications, and “USCIS administratively closed the Appellants’ cases, finding that

it lacked jurisdiction because, notwithstanding their recent readmittance to the

country, the Appellants were not ‘arriving aliens’ within the meaning of the relevant

regulations.” Id. The group of immigrants “each brought suit in federal district court

challenging USCIS’s decision as arbitrary and capricious[,]” and, after judges in three

of four cases “concluded that [they] lacked jurisdiction to hear the challenge because

the Appellants were indirectly attacking their respective deportation orders[,]” the

Fifth Circuit “h[e]ld that the Appellants’ claims are not indirect challenges to their

deportation orders[]” and reversed “the district courts that dismissed the Appellants’

cases for lack of subject matter jurisdiction.” Id. at 1048-49.

The Fifth Circuit in Duarte primarily considered 8 U.S.C. §§ 1252(a)(5),

(b)(9), and (g), rather than 8 U.S.C. § 1252(a)(2)(B)(i), which applies in this case.

See id. at 1050-52, 1054-57 (discussing the “provisions of 8 U.S.C. § 1252 at issue

here, [including] § 1252(a)(5) and (b)(9)[]”). Further, while the Fifth Circuit

“conclude[d] that the district courts erred by determining that they lacked

jurisdiction over the Appellants’ claims[]” “because the relief the Appellants seek

would not directly or indirectly invalidate their deportation orders and they have no

other ready avenue of obtaining judicial review,” id. at 1057, in contrast Ramirez

“retains the right to renew his . . . application in proceedings under 8 CFR part

240[,]” 8 C.F.R. § 245.2(a)(5)(iii). See also Nama, 2022 WL 1189889, at *3 (“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.”) (quoting 8 C.F.R. § 245.2(a)(5)(iii)). In addition, while the

Fifth Circuit did not assess 8 U.S.C. § 1252(a)(2)(B)(i) to the same extent it

analyzed other provisions of 8 U.S.C. § 1252, the court notes the Fifth Circuit’s

discussion of one of its previous holdings that “8 U.S.C. § 1252(a)(2)(B)(i) ‘applies

only to discretionary decisions.’” Duarte, 27 F.4th at 1055 (quoting Melendez, 928

F.3d at 426). Given that the instant case concerns a discretionary decision, the court

concludes that Duarte does not alter the court’s determination as to the applicability

of 8 U.S.C. § 1252(a)(2)(B)(i). See Ayanbadejo, 517 F.3d at 277 (citation omitted)

(continued...)

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2022 WL 1189889, at *6 (citing 8 U.S.C. § 1255(a); Ayanbadejo, 517 F.3d at 277)

(“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 . . . [b]ased on the clear law, this Court is without

jurisdiction to review the discretionary decision of USCIS to deny Plaintiff’s

application to adjust his status (i.e., an I-485 application).”).

3. Whether Ramirez has Identified an Alternative Basis

for Subject Matter Jurisdiction

Having determined that USCIS’s denial of Ramirez’s I-485 application does

not constitute a final agency action under the APA that is subject to judicial review,

and that the court is also barred from reviewing USCIS’s decision by 8 U.S.C.

§ 1252(a)(2)(B)(i), the court turns to the question of whether Ramirez has identified

a viable, alternative source on which jurisdiction can be based. More specifically, the

court considers Ramirez’s assertion that “[t]his Court has jurisdiction pursuant to 28

U.S.C. § 1331 (federal question jurisdiction[)]; 28 U.S.C. § 1651 (the All Writs Act);

and 28 U.S.C. § 1361 (jurisdiction over mandamus actions).” Complaint ¶ 6.

The government argues that “none of those statutes – 28 U.S.C. § 1331

(federal question jurisdiction), 28 U.S.C. § 1361 (the mandamus statute), and 28

7(...continued)

(“The law makes clear that we and the district court lack jurisdiction over

determinations made with respect to an I-485 application for permanent resident

status under § 1255.”).

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U.S.C. § 1651 (the All Writs Act) – provide an independent basis for jurisdiction in

this case.” Motion to Dismiss at 16. The government reiterates its averment that

“the INA explicitly bars judicial review of USCIS’s decisions on adjustment of status

applications under either the mandamus statute or the All Writs Act, and its general

preclusion of judicial review also means that ‘the Court cannot exercise federal

question jurisdiction.’” Id. (citations omitted). The government further asserts that

“the mandamus statute does not apply as ‘mandamus is not available to review the

discretionary acts of officials,’ and as described above, USCIS’s denial of Ramirez

Garcia’s application was a discretionary act.” Id. (quoting Giddings v. Chandler, 979

F.2d 1104, 1108 (5th Cir. 1992)). “In addition,” the government contends, “neither

the All Writs Act nor Section 1331 . . . provide an independent basis for

subject-matter jurisdiction absent some additional authority waiving sovereign

immunity, such as the APA.” Id. (citations omitted).

In response, Ramirez argues that “subject-matter jurisdiction exists over the

causes of action Mr. Ramirez complains of[,]” and that, “[i]n particular, the Court

has federal question jurisdiction under 28 U.S.C. § 1331 over Mr. Ramirez’s first and

second claims, which he asserts pursuant to the APA . . . [and] mandamus

jurisdiction under 28 U.S.C. § 1361 over Mr. Ramirez’s third claim.” Response to

Motion to Dismiss at 9-10. Ramirez contends that “the Court has federal question

jurisdiction over Mr. Ramirez’s APA claim which centers on Defendants’

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interpretation and application of 8 C.F.R. § 103.2(b)(2).” Id. at 2 (citation omitted).

As is discussed previously, Ramirez also avers that “[t]he Court may properly exercise

federal question jurisdiction under 28 U.S.C. § 1331 over Mr. Ramirez’s case given

that the challenged agency action . . . constitutes final agency action for which there

is no other alternative adequate judicial remedy available to him until much later.”

Id. at 5 (citation omitted). Ramirez does not mention the All Writs Act or assert that

it provides subject matter jurisdiction in his response to the government’s motion to

dismiss. See generally id.

In reply, the government argues that “neither 28 U.S.C. § 1331 nor 28 U.S.C.

§ 1361 provide a basis for jurisdiction in this action given USCIS’s discretionary

actions and the INA’s bar on judicial review.” Reply in Support of Motion to

Dismiss at 2 (citations omitted). The government restates its contentions that “the

APA is inapplicable where ‘statutes preclude judicial review; or agency action is

committed to agency discretion by law[,]’ . . . [t]he INA explicitly bars judicial review

of USCIS’s decisions on adjustment of status application[,]” and, because “USCIS’s

decisions on these applications are also committed to the agency’s discretion by

law[,] . . . [t]hus, the APA cannot provide jurisdiction in this case, as needed for the

required waiver of sovereign immunity for the Court to have jurisdiction under 28

U.S.C. § 1331.” Id. at 8-9 (citations omitted). Further, the government avers that

“the general preclusion of judicial review under the INA also means that ‘the Court

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cannot exercise federal question jurisdiction[,]’” and that “[a]s a result, the

invocation of 28 U.S.C. § 1331 does not provide jurisdiction over Ramirez Garcia’s

claims, either on its own or in connection with the APA.” Id. at 9 (citation omitted).

In addition, the government asserts that “[t]he plain language of the INA states that

28 U.S.C. § 1361 does not provide jurisdiction to review USCIS’s decisions under 8

U.S.C. § 1255.” Id. (citing 8 U.S.C. § 1252(a)(2)(B)(i)). Because “USCIS’s denial of

Ramirez Garcia’s application was a discretionary decision, and the mandamus statute

does not apply ‘to review the discretionary acts of officials[,]’” the government argues

that “28 U.S.C. § 1361 also fails to provide jurisdiction for Ramirez Garcia’s claims.”

Id. (quoting Giddings, 979 F.2d at 1108).

Having considered the parties’ arguments, as well as the relevant statutes and

case law, the court concludes that none of the statutes cited by Ramirez provides the

court with jurisdiction over his claims.

With respect to federal question jurisdiction, courts “do[] not have subject

matter jurisdiction under 28 U.S.C. § 1331[]” in this context “because the statutes

specifically divest courts of jurisdiction to review these discretionary determinations.”

Nama, 2022 WL 1189889, at *6 (citing 8 U.S.C. §§ 1182(i), 1252(a)(2)(B)); see 8

U.S.C. § 1252(a)(2)(B) (emphasis added) (“Notwithstanding any other provision of law

(statutory or nonstatutory), . . . and except as provided in subparagraph (D), . . . no

court shall have jurisdiction to review . . . any judgment regarding the granting of

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relief under section . . . 1255 of this title[]”) (emphasis added). In addition, as to the

All Writs Act, the court notes that, “[a]lthough the Supreme Court has held that the

All Writs Act may authorize a court to issue commands ‘as may be necessary or

appropriate to effectuate and prevent the frustration of orders it has previously issued

in its exercise of jurisdiction otherwise obtained,’ . . . almost 200 years of Supreme

Court precedent establishes that the Act . . . cannot serve as an independent basis of

jurisdiction.” Texas v. Real Parties In Interest, 259 F.3d 387, 392 (5th Cir. 2001)

(emphasis in original) (citations omitted), cert. denied, Umphrey v. Texas, 534 U.S.

1115 (2002). “Accordingly,” the Fifth Circuit “has similarly held that ‘section

1651(a) is not an independent grant of jurisdiction.’” Id. (quoting In re McBryde, 117

F.3d 208, 220 (5th Cir. 1997), cert. denied, Judicial Council of Fifth Judicial Circuit v.

McBryde, 524 U.S. 937 (1998)). Finally, regarding mandamus jurisdiction, Congress

provided in 8 U.S.C. § 1252(a)(2)(B) that, “[n]otwithstanding any other provision of

law . . . including section 2241 of Title 28, or . . . section[] 1361 [the mandamus

statute] . . . of such title, . . . no court shall have jurisdiction to review . . . any

judgment regarding the granting of relief under section . . . 1255 of this title[.]”

Moreover, “mandamus is not available to review the discretionary acts of officials.”

Giddings, 979 F.2d at 1108 (citing Green v. Heckler, 742 F.2d 237, 241 (5th Cir.

1984)).

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With regard to the instant case, the court concurs with the Puente court, which

considered a plaintiff’s complaint that “cite[d] to, as alternative bases of jurisdiction,

. . . 28 U.S.C. § 1651 . . . 28 U.S.C. § 1361 . . . and 28 U.S.C. § 1331[.]” Puente,

2021 WL 5326461, at *6. “First . . . the All Writs Act [does not] provide an

independent basis for subject matter jurisdiction.” Id. (quoting Parveen v. McAleenan,

410 F. Supp. 3d 809, 815 (S.D. Tex. Oct. 18, 2019)).8 “Second, the mandamus

statute does not apply because ‘mandamus is not available to review the discretionary

acts of officials,’ and as explained above, [Ramirez] challenges only USCIS’s

discretionary determinations.” Id. (quoting Giddings, 979 F.2d at 1108). “And third,

the Court cannot exercise federal question jurisdiction because, as explained above,

§ 1252(a)[(2)](B)(i) precludes judicial review.” Id. (citing Parveen, 410 F. Supp. 3d at

816). Therefore, the court concludes that none of the statutes cited by Ramirez

provide the court with jurisdiction over his claims.9

8 Moreover, because Ramirez fails to respond to the government’s

arguments regarding the inapplicability of the All Writs Act in this case, see generally

Response to Motion to Dismiss, the court concludes that this issue has been waived

or abandoned, see Arkansas v. Wilmington Trust National Association, No. 3:18-CV-

1481-L, 2020 WL 1249570, at *5 (N.D. Tex. Mar. 16, 2020) (Lindsay, J.) (“Failure

of a party to respond to arguments raised in a motion to dismiss constitutes waiver or

abandonment of that issue at the district court level.”) (citing Black v. North Panola

School District, 461 F.3d 584, 588 n.1 (5th Cir. 2006); Kellam v. Services, No. 12-352,

2013 WL 12093753, at *3 (N.D. Tex. May 31, 2013) (Solis, J.), aff’d sub nom.,

Kellam v. Metrocare Services, 560 F. App’x 360 (5th Cir. 2014) (per curiam)

(unpublished)).

9 The court notes that Ramirez avers that USCIS’s denial of his I-485 was

(continued...)

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III. CONCLUSION

For the reasons stated above, the government’s Rule 12(b)(1) motion to

dismiss is GRANTED. A judgment of dismissal without prejudice will be entered

separately.

9(...continued)

a violation of the Due Process Clause of the Fifth Amendment. Complaint ¶ 1.

However, Ramirez does not assert a due process claim. See id. ¶¶ 45-61 (detailing

three claims for relief, including “First Cause of Action – Administrative Procedure

Act (Violation of Notice and Comment Provision)[,]” “Second Cause of Action –

Administrative Procedure Act (Arbitrary and Capricious)[,]” and “Third Cause of

Action – Mandamus Act (Agency Decision Unwarranted by Facts)”). Assuming

arguendo that Ramirez is attempting to assert a due process claim, the court arguably

“has subject matter jurisdiction over Plaintiff’s Fifth Amendment due process claim

because it involves a question arising under the United States Constitution.”

Vasylchenko v. United States Citizenship & Immigration Services, No. 3:21-CV-2815-S,

2022 WL 2953018, at *3 (N.D. Tex. July 25, 2022) (Scholer, J.) (citing 28 U.S.C. §

1331). However, “[t]he Fifth Circuit has held that adjustment of status and interests

related to these proceedings are not protected liberty interests that can support a due

process claim.” Id. (citing Mendias-Mendoza v. Sessions, 877 F.3d 223, 228 (5th Cir.

2017); Nyika v. Holder, 571 F. App’x 351, 352 (5th Cir. 2014) (per curiam)

(unpublished); Ohiri v. Gonzalez, 233 F. App’x 354, 356 (5th Cir. 2007) (per curiam)

(unpublished)); see also Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004)(per

curiam) (citation omitted) (“[T]he failure to receive relief that is purely discretionary

in nature does not amount to a deprivation of a liberty interest.”). Moreover, given

that Ramirez has failed to exhaust his administrative remedies, to the extent that

Ramirez attempts to assert a due process claim, the court dismisses such a claim.

Vasylchenko, 2022 WL 2953018, at *3; see 8 U.S.C. § 1252(a)(2)(D) (emphasis

added) (“Nothing in subparagraph (B) or (C), or in any other provision of this

chapter (other than this section) which limits or eliminates judicial review, 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.”); Jefferally v. Barr, No. CV H-19-1244, 2019 WL 3935977, at *2 (S.D. Tex.

Aug. 20, 2019) (citation omitted) (“Subject-matter jurisdiction over constitutional

claims and questions of law must be exhausted in the Board of Immigration Appeals

before filing a federal court challenge.”).

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SO ORDERED.

August 12, 2022.

Ci of BX JL

A. < □ FISH

Senior United States District Judge

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