Martinez v. Cuccinelli ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JERED MARTINEZ, No. 2:20-cv-01432-JAM-DB 9 Plaintiff, 10 v. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 11 KENNETH T. CUCCINELLI, et al., 12 Defendant. 13 Jered Martinez is among the many individuals navigating the 14 morass of this country’s immigration laws. At present, he finds 15 himself caught between a law that allows certain visa holders to 16 seek an adjustment of status to lawful permanent resident 17 contingent upon their parent’s marriage to a United States 18 citizen, and a regulation that, in effect, prohibits that 19 adjustment of status if their parent married that citizen after 20 the visa holder’s eighteenth birthday. See 18 U.S.C. § 1255(a); 21 18 U.S.C. § 1255(d); 8 C.F.R. § 245.1(i). 22 Martinez challenges the latter regulation as unlawful and 23 contrary to 18 U.S.C. § 1255(d) and requests that the Court 24 enjoin the United States Citizenship and Immigration Services 25 (“USCIS”) from applying it to his application for adjustment of 26 status. See generally First Am. Compl. (“FAC”), ECF No. 9. 27 USCIS moves to dismiss the entirety of the suit for lack of 28 1 subject matter jurisdiction due to ongoing removal proceedings. 2 See generally Mot. to Dismiss (“Mot.”), ECF No. 12. 3 For the reasons set forth below, the Court GRANTS USCIS’s 4 motion.1 5 6 I. BACKGROUND 7 Martinez entered the United States on September 13, 2007, at 8 the age of nineteen, with a K-4 nonimmigrant visa. FAC ¶ 4. K-4 9 visas are issued to children, under the age of twenty-one, of K-3 10 nonimmigrant visa holders. FAC ¶ 2. K-3 visa holders are the 11 spouses of United States citizens who seek entry to the United 12 States while waiting for the approval of the spousal visa 13 petition that must be filed by their citizen spouse. Id. Once 14 in the United States, K-4 and K-3 visa holders may seek 15 adjustment of status to lawful permanent residents under 18 16 U.S.C. § 1255(a), subject to 18 U.S.C. § 1255(d)’s limitation 17 that adjustment is requested once the K-3 visa holder and the 18 citizen are married. Id. 19 Martinez’s mother married a United States citizen on April 20 20, 2006. FAC ¶ 5. On the day of their marriage, Martinez was 21 eighteen years old. Id. On July 17, 2019, Martinez sought 22 adjustment of status to lawful permanent resident. FAC ¶ 49. On 23 February 14, 2020, USCIS denied the adjustment pursuant to 8 24 C.F.R. § 245.1(i). FAC ¶¶ 6, 53. Per that regulation, a K-4 25 visa holder and applicant for adjustment of status must also be 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for December 8, 2020. 1 the beneficiary of an immediate relative visa petition filed by 2 their parent’s citizen spouse. FAC ¶ 7. That petition seeks to 3 classify the K-4 visa holder as an immediate relative stepchild. 4 Id. Martinez’s adjustment of status was denied because a visa 5 petition was never filed on his behalf. FAC ¶¶ 2, 51, 53. 6 Martinez’s stepfather did not file an immediate relative 7 visa petition because Martinez was eighteen on the day he married 8 Martinez’s mother. FAC ¶ 52. While a K-4 visa can be issued to 9 anyone under the age of twenty-one (regardless of their age at 10 the time of the marriage), an immediate relative visa petition 11 can only be filed on behalf of a stepchild where the citizen 12 stepparent married the biological parent prior to the stepchild’s 13 eighteenth birthday. FAC ¶ 8. In practice, this means a K-4 14 visa holder is not eligible for adjustment of status unless he 15 was younger than eighteen years old on the day his parent married 16 his citizen stepparent. FAC ¶ 9. 17 Under the law, Martinez was therefore a K-4 visa holder who 18 was ineligible to become a lawful permanent resident. As a 19 result of USCIS’s denial of his application for adjustment of 20 status, Martinez does not have a lawful immigration status. FAC 21 ¶ 14. On September 1, 2020, the Department of Homeland Security 22 (“DHS”) initiated removal proceedings against Martinez. FAC 23 ¶ 56. 24 25 II. OPINION 26 A. Legal Standard 27 A Rule 12(b)(1) motion to dismiss tests whether a complaint 28 alleges grounds for federal subject-matter jurisdiction. See 1 Fed. R. Civ. P. 12(b)(1). If the plaintiff lacks standing under 2 Article III of the United States Constitution, then the court 3 lacks subject-matter jurisdiction, and the case must be 4 dismissed. See Steel Co. v. Citizens for a Better Env’t, 523 5 U.S. 83, 101–02 (1998). Once a party has moved to dismiss for 6 lack of subject-matter jurisdiction under Rule 12(b)(1), the 7 opposing party bears the burden of establishing the court’s 8 jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 9 375, 377 (1994). 10 B. Analysis 11 Martinez argues USCIS’s decision to deny his application 12 for adjustment of status violates the Administrative Procedures 13 Act (“APA”), 5 U.S.C. § 701 et seq., by unlawfully and 14 unreasonably adhering to 8 C.F.R. § 245.1(i), an ultra vires 15 regulation. See FAC ¶¶ 58–66. Martinez asks the Court to 16 enjoin USCIS from applying 8 C.F.R. § 245.1(i) to his 17 application for adjustment of status and “to further adjudicate 18 his application under the correct legal standard.” FAC ¶ 11. 19 In addition, Martinez asks the Court to declare 8 C.F.R. 20 § 245.1(i) ultra vires and unlawful. Id. USCIS argues that the 21 Court does not have subject matter jurisdiction over this matter 22 because there is no final agency action on Martinez’s adjustment 23 of status application as removal proceedings are ongoing. See 24 generally Opp’n, ECF No. 13. 25 1. Claim I: APA Violation 26 The APA “permits a citizen suit against an agency when an 27 individual has suffered ‘a legal wrong because of agency action’ 28 or has been ‘adversely affected or aggrieved by agency action 1 within the meaning of a relevant statute.’” Rattlesnake Coal. 2 v. U.S. Env’t. Prot. Agency, 509 F.3d 1095, 1103 (9th Cir. 2007) 3 (quoting 5 U.S.C. § 702). However, a court must have 4 jurisdiction over an APA claim before reviewing its merit. 5 Cabaccang v. U.S. Citizenship & Immigr. Serv., 627 F.3d 1313, 6 1315 (9th Cir. 2010). Under the APA, agency action is subject 7 to judicial review only when it is either made reviewable by 8 statute or a “final” action “for which there is no other 9 adequate remedy in a court.” Id. (quoting 5 U.S.C. § 704). An 10 agency action is final when: (1) the agency reaches the end of 11 its decision-making process; and (2) the action determines the 12 rights and obligations of the parties or results in legal 13 consequences. Rattlesnake Coal., 509 F.3d at 1103. 14 No statute authorizes judicial review over denials of 15 status adjustment. Cabaccang, 627 F.3d at 1315. Thus, the 16 question before the Court is one that has already reached the 17 Ninth Circuit: Whether USCIS’s denial of status adjustment is a 18 final agency action for which there is no other adequate remedy 19 where removal proceedings are ongoing. The Ninth Circuit has 20 unambiguously answered: No. A district court may not hear an 21 alien’s challenge to the government’s denial of an application 22 to adjust status when removal proceedings are simultaneously 23 pending against the alien. Id. at 1314. 24 In Cabaccang, the plaintiffs entered the United States on 25 nonimmigrant visas and later filed applications for adjustment 26 of status. Id. at 1314. USCIS denied their applications and 27 subsequently dismissed their motions to reconsider. Id. at 28 1314–15. Before DHS initiated removal proceedings, the 1 plaintiffs filed suit in district court. Id. at 1315. After 2 some procedural back and forth, the district court reached the 3 plaintiffs’ substantive APA claim while removal proceedings were 4 ongoing. Cabaccang, 627 F.3d at 1315. The Ninth Circuit held 5 the district court lacked jurisdiction to do so. Id. at 1317. 6 The Ninth Circuit determined that the “imposition of an 7 obligation or the fixing of a legal relationship” had not 8 occurred. Id. at 1315. The plaintiffs still had “the 9 opportunity to fully develop their arguments before the 10 immigration judge” presiding over the removal proceedings. Id. 11 at 1316. And the immigration judge could revisit the status 12 adjustment and modify or reverse USCIS’s denial of the 13 application, regardless of USCIS’s prior determination. Id. at 14 1315–16. As a result, plaintiffs had not exhausted their 15 administrative remedies and USCIS’s decision to deny their 16 application for adjustment of status was not a final agency 17 action. Cabaccang, 627 F.3d at 1316. 18 The facts before the Court are analogous. Martinez was 19 denied adjustment of status; he filed the instant lawsuit; DHS 20 initiated removal proceedings; those removal proceedings are 21 ongoing. As in Cabaccang, Martinez “presently [has] the ability 22 to reopen [his] application to adjust status during the pending 23 removal proceedings.” Id. at 1216–17. “Until [he has] 24 exhausted this available administrative remedy, the [Court] 25 cannot hear [his APA] claim.” Id. at 1217. Anything else would 26 violate the rule that, where relief is available from an 27 administrative agency, the plaintiff should pursue it before 28 proceeding to the courts. Id. at 1316. “[U]ntil that recourse 1 is exhausted, suit is premature and must be dismissed.” Id. 2 The Court, at this stage, does not have jurisdiction to do 3 what Martinez asks of it. The Court cannot enjoin USCIS from 4 applying 8 C.F.R. § 245.1(i) to his application for adjustment 5 of status and independently adjudicate his application under 6 other legal standards. See FAC ¶ 11. With removal proceedings 7 ongoing, Martinez must ask this of his immigration judge. See 8 Cabaccang, 627 F.3d at 1316 (“The [immigration judge] has 9 unfettered authority to modify or reverse USCIS’s denial of the 10 [status] applications, regardless of USCIS’s prior 11 determination.”) (citing 8 C.F.R. §§ 1240.1(a)(1)(ii), 12 1245.2(a)(1)(i)). 13 Accordingly, Martinez’s First Cause of Action for violation 14 of the APA is dismissed for lack of jurisdiction. 15 2. Claim II: Ultra Vires 16 Martinez also request that the Court declare 8 C.F.R. 17 § 245.1(i) ultra vires and unlawful. See FAC ¶¶ 11, 64–66. In 18 support of this request, Martinez relies on Akram v. Holder, 721 19 F.3d 853 (7th Cir. 2013) and Cen v. Att’y Gen. of the United 20 States, 825 F.3d 177 (3d Cir. 2016). At first glance, these 21 cases appear to support his argument—both the Seventh and Third 22 Circuits found 8 C.F.R. § 245.1(i) invalid and “manifestly 23 contrary” to United States immigration laws. See Cen 825 F.3d at 24 190; Akram, 721 F.3d at 864. However, these cases are 25 procedurally unhelpful to Martinez. Both support the conclusion 26 that the Court does not have subject matter jurisdiction over 27 this matter so long as Martinez has administrative remedies to 28 pursue. 1 The plaintiffs in Cen and Akram found themselves in the same 2 position as Martinez today. Both were K-4 visa holders unable to 3 adjust their status to lawful permanent residents simply because 4 they were eighteen or older on the day a biological parent 5 married a United States citizen. See Cen 825 F.3d at 185; Akram, 6 721 F.3d at 856–58. In Cen, the plaintiff challenged the 7 regulation and the denial of her application for adjustment of 8 status in district court. Cen 825 F.3d at 185. But ongoing 9 removal proceedings “created a new administrative remedy for [the 10 plaintiff] to pursue,” so “the [district court] lost subject 11 matter jurisdiction and [the] complaint was voluntarily 12 dismissed.” Id. Instead, the plaintiff “duly” appeared before 13 an immigration judge and then the Board of Immigration Appeals 14 (“BIA”). Id. The BIA held it did not have the authority to 15 declare the regulation invalid. Id. The plaintiff’s petition to 16 the Third Circuit followed. Id. Akram’s procedural route was 17 identical: (1) immigration court, (2) BIA, (3) Seventh Circuit. 18 Akram, 721 F.3d at 858. 19 The language from the Third Circuit is clear. The district 20 court automatically lost subject matter jurisdiction over the 21 plaintiff’s challenge to 8 C.F.R. § 245.1(i) as soon as DHS 22 initiated removal proceedings. See Cen 825 F.3d at 185. After 23 the district court case was dismissed, the plaintiff duly 24 appeared before an immigration judge and then appealed to the 25 BIA. Id. In other words, the plaintiff’s challenge to both the 26 denial of her application for adjustment of status and her 27 challenge to the regulation were properly redirected to 28 immigration court. Just as in Cen and Akram, unless and until ene nn nnn en ne non nnn nn ne nn I NO OE IIE EO EE 1 Martinez has pursued all administrative remedies, the Court does 2 not have jurisdiction over this challenge to 8 C.F.R. § 245.1(1) 3 as ultra vires. A ruling on the regulation’s validity by the 4 Court, at this stage, would impermissibly interfere with the 5 ongoing administrative proceedings. See Sun v. Ashcroft, 370 6 F.3d 932, 944 (9th Cir. 2004) (requiring full administrative 7 exhaustion gives the agency an opportunity to fully address the 8 issue to the benefit of all parties and the courts). 9 Accordingly, Martinez’s Second Cause of Action challenging 10 8 C.F.R. § 245.1(1) as ultra vires is dismissed for lack of 11 jurisdiction. 12 13 Til. ORDER 14 For the reasons set forth above, the Court lacks subject 15 | matter jurisdiction over this matter. Accordingly, Defendant’s 16 | Motion to Dismiss is GRANTED and the case is DISMISSED WITHOUT 17 PREJUDICE. 18 IT IS SO ORDERED. 19 Dated: January 25, 2021 20 kA 21 Geren aaa pebrsacr 00k 22 23 24 25 26 27 28