# Ramirez Garcia v. USCIS

> District Court, N.D. Texas · August 12, 2022

URL: https://www.frixlaw.com/law-library/cases/10451765

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** August 12, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10451765

## How later opinions describe it (automated extraction)

- 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.”

## Opinion text

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...)
- 2 -
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.
- 3 -
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.
- 11 -
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).
- 16 -
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

- 21 -
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).

- 22 -
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

- 23 -
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

- 24 -
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

- 25 -
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,

- 26 -
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).

- 27 -
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

- 28 -
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).

- 29 -
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

- 30 -
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

- 31 -
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

- 32 -
(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

- 33 -
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

- 34 -
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...)
- 35 -
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...)
- 43 -
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.”).
- 44 -
SO ORDERED.
August 12, 2022.
Ci of BX JL
A. < □ FISH
Senior United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10451765. Public record. Not legal advice.