JOHN R. TUNHEIM, District Judge.
This case concerns an ongoing struggle between Assaf Mhanna, a citizen and native of Lebanon, and United States immigration authorities over Mr. Mhanna's status in the United States. He brings this lawsuit with his spouse, Tammy Mhanna, who is a United States citizen. Because this Court does not have jurisdiction to hear the Mhannas' multiple claims, the Court will grant the defendants' motion to dismiss the case.
On February 1, 2010, plaintiffs/petitioners Assaf Mhanna and Tammy Mhanna (collectively, "plaintiffs") brought this action against the defendants/respondents United States Department of Homeland Security, Citizenship and Immigration Services ("USCIS"); Sharon Dooley, the Field Office Director of the St. Paul Field office of the USCIS; an unknown USCIS official identified as "RAH;" Alejandro Mayorkas, Director of USCIS; Janet Napolitano, Secretary of the Department of Homeland Security; Eric J. Holder, United States Attorney General; the U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement ("ICE"); and Scott Baniecke, Field Office Director of the ICE St. Paul Field Office (collectively, "defendants"). (Compl., Docket No. 1.) The case is now before the Court on defendants' response to United States Magistrate Judge Raymond L. Erickson's Order to Show Cause and defendants' motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim.
Assaf Mhanna ("Mhanna") is a citizen and native of Lebanon. (Compl. ¶ 5, Docket No. 1.) Tammy Mhanna is his spouse and a U.S. Citizen. (Id. ¶ 13.)
Mhanna was first paroled into the United States on or about December 8, 1998, at the Point of Entry in Nogales, Arizona. (Id. ¶ 16.) Upon Mhanna's inspection at entry, an officer of the Immigration and Naturalization Service
(Id.) Dayhoff's Form I-867A, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act, records Mhanna's sworn statement on December 8, 1998. (Id.) In relevant part, it states:
Mhanna reviewed and signed the record, indicating that it is "a full, true and correct record of [his] interrogation." (Id.)
On December 23, 1998, Mhanna had a credible-fear interview during which he was represented by counsel and assisted by an Arabic language interpreter. (Id.) The purpose of the interview was "to determine whether [Mhanna] ha[s] a fear of persecution or harm in [his] home country." (Id.) The Asylum Pre-Screening Officer who conducted the credible fear interview found that Mhanna's testimony was credible and that Mhanna had a credible basis for fear of persecution in his home country on account of religion and political opinion. (Id.) The officer found that Mhanna has "a significant possibility that he . . . could establish eligibility for asylum." (Id.) The officer's notes indicate that Mhanna offered the following information about his inspection on December 8, 1998:
(Id.)
The INS subsequently released Mhanna from detention and paroled him into the United States, and on December 15, 1999, Mhanna filed an application for asylum, withholding of removal, and relief under the Convention Against Torture. (Resp. to Dec. 2, 2009 Req. for Initial Evidence at 1, Mot. to Reopen & Reconsider Ex. 2, Engebretson Aff. Ex. E, Docket No. 4; In re Mouhanna,
In January 2002, an Immigration Judge ("IJ") held a hearing on Mhanna's application. (Jan. 31, 2002 Tr., Mot. to Reopen & Reconsider Ex. 3, Engebretson Aff. Ex. E, Docket No. 4.) Mhanna's attorney questioned him about the events of December 8, 1998:
(Id. at 15-18.) On cross-examination, Mhanna testified as follows:
(Id. at 30-31.)
On February 1, 2002, Immigration Judge ("IJ") Anna Ho issued a written order denying Mhanna's application for asylum, withholding of removal, and relief under the Convention Against Torture. (In re Mouhanna, Slip Op. at 29.) The IJ also sustained the government's charge under INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i)
(In re Mouhanna, Slip Op. at 23-24.) The IJ also found that Mhanna's testimony regarding his fear of persecution was not credible, and found that his fear of returning to Lebanon was not objectively reasonable. (Id. at 24-25.) Therefore, the IJ found that Mhanna had "failed to meet his burden that he has a well-founded fear of persecution. . ., failed to establish that it is more likely than not that his life or freedom would be threatened in Lebanon and that he has been subjected to "torture" as defined under [the Convention Against Torture]." (Id. at 28-29.)
Mhanna filed an appeal with the Board of Immigration Appeals ("BIA"). (See Mot. to Reopen & Reconsider Ex. 5, Engebretson Aff. Ex. E, Docket No. 4.) The BIA exercised its power to conduct a de novo review of the record, and dismissed his appeal, finding "that Mouhanna did not sustain his burden of demonstrating that he has a well-founded fear of future persecution in Lebanon[.]" See Mouhanna v. Ashcroft, 118 Fed. Appx. 232, 233 (9
Mhanna petitioned the United States Court of Appeals for the Ninth Circuit
In a memorandum disposition dated December 13, 2004, the Ninth Circuit denied the petition, finding that, even assuming Mhanna's testimony was credible, "[s]ubstantial evidence supports the BIA's finding that Mouhanna" was not eligible for asylum or other relief. Mouhanna, 118 Fed. Appx. at 233. The court noted that "Mouhanna was never personally confronted, threatened, or harmed as a result of his affiliation with the Difaa Shaabi," a civilian political branch of the Lebanese Forces. Id.
On January 28, 2005, Tammy Mhanna filed an Immediate Relative Immigrant Visa Petition pursuant to INA § 201(b), 8 U.S.C. § 1151(b), naming Assaf Mhanna as the beneficiary. (See Engebretson Aff. Ex. B at 2, Docket No. 4; id. Ex. D.)
On March 4, 2005, Mhanna filed a motion with the BIA to reopen removal proceedings. (Resp'ts' Resp. to Pet'rs' Emergency Mot. for TRO & Prelim. Injunctive Relief from Immediate Deportation at 4, Docket No. 7.) See Mouhanna v. Gonzales, 234 Fed. Appx. 462 (9
On April 1, 2005, while the motion to reopen was pending, USCIS approved Tammy Mhanna's Immediate Relative Immigrant Visa Petition, filed pursuant to INA § 201(b), 8 U.S.C. § 1151(b). (Compl. ¶ 5, Docket No. 1.) The notice of approval stated that the visa petition had been approved, but cautioned that
(Engebretson Aff. Ex. D, Docket No. 4.)
On July 27, 2005, the BIA denied the "motion to reopen as untimely because it was not filed until more than one year after the BIA issued its final order of removal." Mouhanna, 234 Fed. Appx. at 462. Mhanna then filed with the Ninth Circuit a petition for review of the BIA order denying his motion to reopen. See id. In a memorandum disposition dated June 4, 2007, the Ninth Circuit denied the petition for review, holding that the BIA did not abuse its discretion in denying the motion. Id. The court concluded that Mhanna "failed to timely file his motion to reopen," and that he "did not show he was entitled to equitable tolling." Id. The court also noted that he "failed to present new and material evidence of changed conditions in Lebanon." Id.
On May 14, 2008, ICE issued Mhanna an Order of Supervision, directing that he participate in ICE's Intensive Supervision Appearance Program. (Engebretson Aff. Ex. F, Docket No. 4.) The order imposed various conditions on Mhanna and obligated him to report to ICE on a regular basis. (Id.)
On June 11, 2008, Mhanna filed a second motion with the BIA to reopen removal proceedings. Mouhanna v. Holder, 318 Fed. Appx. 509 (9th Cir. 2009). On October 27, 2008, the BIA issued an order denying the motion to reopen, finding that Mhanna failed to meet his burden of establishing a prima facie asylum claim to support reopening, and finding that the motion was "untimely and numerically barred." See id. at 509. Mhanna filed with the Ninth Circuit a petition for review of the BIA order denying the second motion, and in a memorandum disposition dated March 9, 2009, the Ninth Circuit denied the petition for review. Id. The Ninth Circuit held that the BIA did not abuse its discretion and noted that Mhanna's "motion to reopen to apply for asylum failed to present evidence of changed country conditions in Lebanon that is material to petitioner and his circumstances." Id. The Ninth Circuit added that "[t]he temporary stay of removal shall continue in effect until the issuance of the mandate." Id. Mhanna then filed a motion to stay the mandate, which the court denied on May 1, 2009. (Mouhanna v. Holder, No. 08-74692, Docket Nos. 10, 12 (9
On June 24, 2009, Mhanna filed another petition for review with the Ninth Circuit. In an order dated December 9, 2009, the court denied Mhanna's motion for a stay of removal pending review, citing Nken v. Holder, 129 S.Ct. 1749 (2009). Mouhanna v. Holder, No. 09-71937 (9
On December 18, 2009, Mhanna filed an "urgent motion for a stay of removal" with the Ninth Circuit. Mouhanna v. Holder, No. 09-71937 (9
On December 22, 2009, Mhanna filed an application for stay of deportation or removal with ICE. (Engebretson Aff. Ex. G, Docket No. 4.) On December 29, 2009, ICE denied the application. (Id.)
On October 28, 2009, the BIA issued Matter of Yauri, 25 I & N. Dec. 103 (BIA 2009). In that decision, the BIA "emphasize[d] that the existence of a final order of removal does
In response to Yauri, on November 13, 2009, Mhanna filed a Form I-485, applying to adjust his status to that of lawful permanent resident under INA § 245, based on his approved immediate relative petition. At that time he also filed a Form I-601 for a waiver of grounds of inadmissibility. (See Compl. ¶ 18, Docket No. 1.)
On December 8, 2009, USCIS filed a Request for Initial Evidence in support of Mhanna's application for adjustment of status. (See Mot. to Reopen & Reconsider Ex. 2, Engebretson Aff. Ex. E, Docket No. 4.) The request stated that USCIS was "unable to complete the processing" of Mhanna's application for adjustment of status without certain initial information. USCIS requested that Mhanna submit evidence of his lawful admission or parole into the United States, and a Form I-693 Report of Medical Examination and Vaccination Record.
When Mhanna reported to ICE's office in Bloomington, Minnesota, on the morning of December 29, 2009, pursuant to the conditions of the May 14, 2008 order of supervision, he received a Notice of Revocation of Release, informing him that he "will be kept in the custody of U.S. Immigration and Customs Enforcement (ICE) at this time." (Engebretson Aff. Ex. G, Docket No. 4.) The notice stated, in relevant part:
(Id. at 1.) ICE took Mhanna into custody, and he was transported to the Ramsey County Jail. (Compl. ¶ 5, Docket No. 1.)
On January 8, 2010, Mhanna submitted various documents in response to the Request for Evidence. (Mot. to Reopen & Reconsider Ex. 2, Engebretson Aff. Ex. E, Docket No. 4.) Mhanna provided the requested medical records, evidence of his lawful parole into the United States, and a notice of approval relative to a Fourth Preference I-130 Petition filed by Mhanna's brother. (Id. at 1.) The cover letter also argues that Mhanna's "inadmissibility ground may be overcome (or does not exist) because any false claim to U.S. citizenship by Mr. Mhanna was timely retracted by his own volition." (Id. at 2.) The documents Mhanna submitted as evidence of his lawful parole included his I-213 Record of Deportable/Inadmissible Alien, the December 8, 1998 Record of Sworn Statement, and information from his credible-fear interview.
On January 14, 2010, Sharon V. Dooley, Field Office Director at the USCIS St. Paul Field Office, filed a notice of decision denying Mhanna's application to adjust status. (Engebretson Aff. Ex. B, Docket No. 4.) At the bottom of the notice is a notation stating, "Prepared By: RAH." (Id. at 1.) The decision states that Mhanna is excluded under INA § 212(a)(6)(C)(ii). (Id. at 2.) The decision also states that USCIS denied the Form I-601 application for waiver of inadmissibility. (Id.) It then states, "There is no appeal of this decision, but this denial is without prejudice to your ability to renew your application before an Immigration Judge." (Id.) The decision did not address Mhanna's timely retraction defense. (Compl. ¶ 27, Docket No. 1.)
Also on January 14, 2010, Dooley filed a notice of decision denying Mhanna's application for waiver of grounds of inadmissibility. (Engebretson Aff. Ex. B at 3, Docket No. 4.) The decision found that Mhanna was not eligible for waiver because the USCIS found that Mhanna "falsely represented [him]self to be a United States citizen to gain admission pursuant to INA section 212(a)(6)(C)(ii)." (Id. at 5.) The waiver "does not apply to inadmissibility under INA section 212(a)(6)(C)(ii). There are no forms of relief available for this ground of inadmissibility." (Id.) The notice of decision stated that Mhanna may appeal the decision denying the application for waiver, and that in order to do so Mhanna must file his notice of appeal within thirty days. (Id. at 3.)
On January 15, 2010, Mhanna's counsel contacted Dooley by email, indicating that they had not yet received the January 14 decisions, and requested an opportunity to discuss the case. (Engebretson Aff. Ex. E, Docket No. 4.) Mhanna's counsel raised the issue of timely retraction. Dooley replied by email, stating, "I recommend that your office file a Motion to Reopen or Reconsider once you receive the notice. . . . Upon receipt of the motion, we will do everything possible to resolve this matter expeditiously." (Id.)
On January 19, 2010, Mhanna filed a motion to Reopen/Reconsider his I-485 application for adjustment of status. (Engebretson Aff. Ex. E, Docket No. 4.) The cover letter noted that the January 14, 2010 decision denying the I-485 application "fails to acknowledge th[e] defense" of timely retraction. (Id. at 1.) The motion stated, in part, that "[t]he first attorney of record in these proceedings apparently missed the timely retraction argument, and this client should not be prejudiced by the acts of his previous and ineffective counsel." (Id. at 5.) Mhanna submitted excerpts from the transcript of the 2002 proceedings before the IJ, as well as the IJ's opinion. (Exs. 3-4, Engebretson Aff. Ex. E, Docket No. 4.)
On January 27, 2010, Dooley filed a notice of decision denying Mhanna's application to adjust status. (Engebretson Aff. Ex. A, Docket No. 4.) At the bottom of the notice is a notation stating, "Prepared By: RAH." (Id. at 1.) The decision cites relevant BIA case law and reviews the evidence in the record. The decision concludes:
(Engebretson Aff. Ex. A at 3, Docket No. 4.)
On February 1, 2010, the Mhannas filed a civil complaint against defendants in the United States District Court for the District of Minnesota. (Compl., Docket No. 1.) The complaint "challenges the U.S. Department of Homeland Security's decision to deny the Application for Adjustment of Status" for Mhanna. (Id. ¶ 1.) It alleges that "the Respondents have erred as a matter of fact and law by finding that Plaintiff Assaf Mhanna is barred from adjustment of status at this time pursuant to INA § 212(a)(6)(C)(ii) (false claim to U.S. Citizenship)." (Id. ¶ 4.) The complaint requests that this Court assume jurisdiction of the case, declare that defendants' actions are an arbitrary and capricious abuse of discretion, enter judgment declaring that defendants' finding that Mhanna is ineligible to adjust his status is unlawful and of no force and effect, find that defendant acted in an arbitrary and capricious manner, and compel defendants to act upon the application for adjustment of status in accordance with the appropriate and applicable laws and regulations. (Compl. at 11-12, Docket No. 1.)
Also on February 1, 2010, petitioners filed a Motion for Emergency Temporary Restraining Order and Request for Injunctive Relief. (Docket No. 2.) The motion requested that the Court "enter an emergency, temporary restraining order and preliminary injunction . . . enjoining Respondents from preventing Plaintiff Assaf Mhanna's release; releasing Plaintiff from physical custody pending the outcome of the instant action . . .; and declaring that the actions and/or decisions of the Department of Homeland Security Citizenship and Immigration Services and Department of Homeland Security Immigration and Customs Enforcement were in violation of law." (Id. at 1-2.) On February 16, 2010, the Court issued an order denying the motion, holding that the Court did not have jurisdiction to enjoin Mhanna's removal. Mhanna v. U.S. Dep't of Homeland Sec. Citizenship & Immigration Servs., Civ. No. 10-292, 2010 WL 584034, at *13 (D. Minn. Feb. 16, 2010).
On February 25, 2010, ICE removed Mhanna from the United States to his native Lebanon. (See Kuhn Decl. Ex. 1, Docket No. 22.) On March 19, 2010, United States Magistrate Judge Raymond L. Erickson issued an order to show cause why the Court should not grant Mhanna's petition for writ of habeas corpus. (Order, Docket No. 12.) On April 20, 2010, defendants filed a response to the order to show cause, and filed a motion to dismiss Mhanna's habeas claim as moot and to dismiss Mhanna's remaining claims for failure to state a claim and lack of subject matter jurisdiction. (Mot. to Dismiss Compl., Docket No. 24.)
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the Court's subject matter jurisdiction and requires the Court to examine whether it has authority to decide the claims. Uland v. City of Winsted, 570 F.Supp.2d 1114, 1117 (D. Minn. 2008). Under Article III, § 2, of the Constitution, federal courts cannot exercise judicial power unless there is an actual case or controversy. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006). The "case-or-controversy requirement is satisfied only where a plaintiff has standing. To have Article III standing, a plaintiff must adequately establish: (1) an injury in fact (i.e., a `concrete and particularized' invasion of a `legally protected interest'); (2) causation . . .; and (3) redressability[.]" Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269 (2008) (citation omitted).
In reviewing a complaint under a Rule 12(b)(6) motion to dismiss, the Court considers all facts alleged in the complaint as true, and construes the pleadings in a light most favorable to the non-moving party. See, e.g., Bhd. of Maint. of Way Employees v. Burlington N. Santa Fe R.R., 270 F.3d 637, 638 (8
"When considering . . . a motion to dismiss under Fed. R. Civ. P. 12(b)(6) . . ., the court generally must ignore materials outside the pleadings, but it may consider some materials that are part of the public record or do not contradict the complaint[.]" Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8
As alleged in his complaint, Mhanna seeks habeas relief under 28 U.S.C. § 2241 "as [Mhanna] is presently subject to immediate detention and custody under color of authority of the United States Government, and said custody is in violation of the Constitution, laws or treaties of the United States." (Compl. ¶ 3, Docket No. 1.) Mhanna claims that his "continued detention [pursuant to a final order of removal] causes direct injury to his US citizen family members who rely on him for their emotional well-being, and financial support." (Id. ¶ 13.) Defendants argue that the Court should dismiss Mhanna's habeas petition as moot because Mhanna has been removed to his native Lebanon pursuant to a final order of removal and is no longer in the custody of ICE.
A district court has jurisdiction over a habeas petitioner who is no longer in custody if the petitioner can show that he was in custody at the time that he filed the petition and that his release from detention has not rendered the habeas petition moot — that is, the petitioner can still demonstrate a case or controversy under Article III, § 2 of the Constitution. Spencer v. Kemna, 523 U.S. 1, 7 (1998); see also Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990) ("Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies."); Zalawadia v. Ashcroft, 371 F.3d 292, 297 (5
Mhanna argues that his habeas petition is not moot. Mhanna argues that he continues to suffer collateral consequences because he is barred from re-entering the United States based on the USCIS' finding of inadmissibility.
Assuming that Mhanna can maintain his habeas claim by demonstrating that he continues to suffer collateral consequences, the Court does not have jurisdiction to remedy those collateral consequences. The Court acknowledges Mhanna's cited case law as supporting the general proposition that a statutory bar on readmission constitutes a collateral consequence maintaining a live case or controversy. The cases cited by Mhanna, however, were published prior to 2005, when Congress passed the REAL ID Act.
The REAL ID Act, Pub L. No. 109-13, § 106(c), 119 Stat. 231, 310-11 (2005), and 8 U.S.C. § 1252 provide that "[n]otwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision,. . . 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 for removal entered or issued under any provision of this chapter." 8 U.S.C. § 1252(a)(5); Lang v. Napolitano, 596 F.3d 426, 428 (8
Mhanna's habeas claim challenges only the government's effort to remove him pursuant to a valid order of removal. See Mhanna, 2010 WL 584034, at *9. That is, Mhanna was in detention pursuant to a valid final order of removal and not pursuant to the USCIS' denial of the application for adjustment. (See Order of Supervision, Engebretson Aff. Ex. F, Docket No. 4; In re Mouhanna, No. A77393085, Slip Op. at 29, Mot. to Reopen & Reconsider Ex. 4, Engebretson Aff. Ex. E, Docket No. 4.)) Although the USCIS presumably would have released Mhanna if the USCIS granted his application for adjustment, Mhanna was in custody pursuant to the IJ's final order of removal. Cf. 28 U.S.C. § 2241(c)(3) ("The writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody
The Court notes that the REAL ID Act does not completely strip district courts of jurisdiction to hear habeas petitions from individuals subject to removal orders. The Court may review habeas claims challenging the administrative detention of an individual who is subject to a removal order. See Denis v. DHS/ICE of Buffalo, N.Y., 634 F.Supp.2d 338, 340-41 (W.D.N.Y. 2009) ("As this [habeas] petition [is] based only on petitioner's allegedly unlawful detention in DHS/ICE custody, and not on the removal order from which the detention flowed, the issue is whether Denis suffers from any `collateral consequences' of detention now that he has been deported and he is no longer `in custody' of DHS/ICE."). To the extent that the Court could construe Mhanna's request for relief as a reviewable habeas claim relating to his ICE detention, however, ICE's removal of Mhanna from the United States renders any such claim moot. See, e.g., Castillo v. Holder, No. 8:09CV324, 2010 WL 561030, at *1 (D. Neb. Feb 9, 2010) ("The [REAL ID] Act does not affect a district court's jurisdiction over habeas petitions challenging the detention associated with a removal order, but this aspect of Castillo's habeas case became moot when she was removed from the United States and released from detention." (citation omitted)); Louismar v. Holder, No. CA 09-0221, 2009 WL 2424445, at *2 (S.D. Ala. Aug. 6, 2009) ("Several district courts, in addition to this Court, have determined that once a § 2241 petitioner has been removed from the United States and deported to his native country his petition seeking release from detention and ICE custody becomes moot as there is no longer a live case or controversy as required under Art. 3, § 2, cl. 1." (internal quotation marks omitted)); cf. Ali. v. Cangemi, 419 F.3d 722, 724 (8
In sum, this Court does not have jurisdiction to review Mhanna's challenge to the removal order as advanced in his habeas claim, and to the extent that Mhanna seeks habeas relief relating to his ICE detention, that claim is moot. Accordingly, the Court grants defendants' motion to dismiss Mhanna's habeas petition.
Plaintiffs allege that the USCIS' denial of Mhanna's application for adjustment of status and finding that Mhanna is inadmissible violates a substantive due process right of Mhanna and his family to live together in the United States. (See Compl. ¶ 43, Docket No. 1.) Defendants argue that the Court should dismiss Mhanna's due process claims because Mhanna does not have a protected interest in receiving a discretionary benefit like adjustment to lawful permanent residence or in residing in the United States merely because his family members are United States citizens or lawful permanent residents. (Resp'ts' Resp. to the Order to Show Cause, Mot. to Dismiss the Pet. for Writ of Habeas Corpus as Moot, & Mot. to Dismiss Pet'rs' Compl. (hereinafter "Defs.' Mem.") at 12, Docket No. 25.) The Court agrees.
The denial of discretionary relief — including the denial of an adjustment of status to lawful permanent resident — cannot violate a substantive interest protected by the Due Process clause. Hanggi v. Holder, 563 F.3d 378, 384 (8
The Court next turns to whether it has jurisdiction to review Mhanna's remaining claims. On November 13, 2009, after the USCIS approved Tammy Mhanna's Immediate Relative Immigrant Visa Petition under INA § 201(b) and 8 U.S.C. § 1155(b), Mhanna filed a Form I-485 as an arriving alien applying to adjust his status to that of a lawful permanent resident. Mhanna also filed a Form I-601 application for waiver of grounds of inadmissibility. (Compl. ¶ 18, Docket No. 1); see 8 C.F.R. §§ 245.2(a)(1) and 1245.2(1)(ii) (providing that the USCIS has jurisdiction to adjudicate an arriving alien's adjustment of status); Matter of Yauri, 25 I & N. Dec. at 107 ("[T]he existence of a final order of removal does
Mhanna challenges two aspects of the USCIS' decision. First, Mhanna alleges that the USCIS erred by denying his I-485 application for adjustment of status. (See, e.g. Compl. ¶ 1, Docket No. 1 ("This action challenges the US Department of Homeland Security's decision to deny the Application for Adjustment of Status for the otherwise eligible applicant, Assaf Mhanna."); id. ¶ 14 (alleging that Mhanna "is eligible for adjustment of status . . . and he should have been, or should now be, afforded adjustment of status"); Pls.' Mem. at 7, Docket No. 30). Second and relatedly, Mhanna claims that he timely retracted his statement that he was a United States citizen and the USCIS erred by concluding that he was inadmissible under INA § 212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii), and statutorily ineligible for adjustment. (See, e.g., Compl. ¶ 7, Docket No. 1 ("Defendants have erred as a matter of fact and law by finding that [Mhanna] is barred from adjustment of status at this time pursuant to INA §212(a)(6)(C)(ii) (false claim to US Citizenship)."); id. ¶ 13 ("The Defendants did not deny [Mhanna's] Application for Adjustment of Status as a matter of discretion. Instead, the Defendants determined [Mhanna] was inadmissible and thus not eligible for Adjustment of Status under INA § 212(a)(6)(C)(ii)."); id. ¶ 29; Pls.' Mem. at 2, Docket No. 30 ("The denial of [Mhanna's] Application for Adjustment of Status based on the [USCIS'] finding that he did not timely retract any misrepresentation or false claim to US Citizenship is unlawful and contrary to controlling law."); see generally id. at 11-16.) Mhanna argues that the propriety of the USCIS' inadmissibility determination remains a justiciable issue — even though he has been removed — because if "Mhanna were to seek an Immigrant Visa through consular processing, the [USCIS'] erroneous finding of inadmissibility under INA § 212(a)(6)(C)(ii) forever bars Mhanna from obtaining an immigrant visa." (Pls. Mem. at 18-19.)
Mhanna asks the Court to assume jurisdiction of his case; declare that the USCIS' "actions are an arbitrary and capricious abuse of discretion;" "[e]nter Judgment declaring that [the USCIS'] finding that [Mhanna] is ineligible to adjust his status . . . is unlawful, null and void, and of no force and effect;" find that the USCIS "failed to act in accordance with the law . . . and reached a decision unwarranted by the facts of this case;" "[c]ompel [the USCIS] . . . to perform [its] duty to act upon the Application for Adjustment of Status owed to the Plaintiffs;" and grant any other relief that the Court deems appropriate. (Compl. at 11-12, Docket No. 1.)
The Attorney General, "in his discretion and under such regulations as he may prescribe," may adjust the status of an eligible alien present in the United States if (1) the alien has been "admitted or paroled into the United States;" (2) the alien has applied for adjustment of status to lawful permanent residence; (3) the alien is eligible to receive an immigrant visa and is admissible to the United States; and (4) an immigrant visa is immediately available to the alien at the time he filed his application. INA § 245(a), 8 U.S.C. § 1255(a). An alien is inadmissible if "by fraud or willfully misrepresenting a material fact, [the alien] seeks to procure . . . admission into the United States or [any] other benefit under [the INA]." 8 U.S.C. § 1182(a)(6)(C)(i). An alien is also inadmissible if he or she "falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit." Id. § 1182(a)(6)(C)(ii).
The Attorney General may waive the inadmissibility of an alien who is deemed inadmissible pursuant to 8 U.S.C. § 1182(a)(6)(C)(i) because he or she entered the country based on fraud or misrepresentation of a material fact. See 8 U.S.C. § 1182(a)(6)(C)(iii). "The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) . . . in the case of an immigrant who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission . . . of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien[.]" 8 U.S.C. § 1182(i). The INA does not permit the USCIS to grant a waiver to an alien who is deemed inadmissible under clause (ii) for falsely representing himself to be a United States citizen.
Mhanna contends that the Court has subject matter jurisdiction over his claims "pursuant to 28 USC § 1331 Federal Question Jurisdiction; 28 USC § 2201, the Declaratory Judgment Act; 5 USC § 702, the Administrative Procedures Act[;] 28 USC § 1361, regarding an action to compel an office of the United States to perform his duty; [and] 8 USC § 1329, of the Immigration and Nationality Act, as amended providing for jurisdiction of this Court over actions arising under said Act[.]" (Pls.' Mem. at 18, Docket No. 30.)
Mhanna argues that the Court "has jurisdiction to review the [USCIS'] finding of inadmissibility
Mhanna filed his I-485 application for adjustment of status pursuant to 8 U.S.C. § 1255(a), which states:
8 U.S.C. § 1255(a) (emphasis added); see also 8 C.F.R. § 245.2(a)(1) ("USCIS has jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 [C.F.R. §] 1245.2(a)(1)."). 8 U.S.C. § 1252(a)(2)(B) provides:
8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added); Kucana v. Holder, ___ U.S. ___, 130 S.Ct. 827, 831 (2010) (holding that § 1252(a)(2)(B) precludes judicial review of determinations by the Attorney General that are made discretionary by statute, but not those that are made discretionary by regulation). Because the USCIS' denial of an application for adjustment of status is discretionary, this Court does not have jurisdiction to review that decision. See Lang, 596 F.3d at 428 n.1 ("Congress has barred judicial review of the denial of adjustment of status, even if made in removal proceedings, except for review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals." (internal quotation marks omitted)); Guled v. Mukasey, 515 F.3d 872, 880 (8th
Cir. 2008) (holding that the court did not have jurisdiction to review an Immigration Judge's "discretionary determination" denying an application for cancellation of removal). As this Court noted in its order denying plaintiffs' motion for a temporary restraining order, "Even if a court were to agree with the Mhannas that USCIS's determination that Mhanna is ineligible to receive adjustment of status is erroneous, Congress has nonetheless given the Attorney General discretion to determine whether to grant an application for adjustment of status." Mhanna, 2010 WL 584034, at *12. Accordingly, the Court grants defendants' motion to dismiss for lack of subject matter jurisdiction to the extent that Mhanna asks the Court to grant the application for adjustment or to review the USCIS' discretionary decision to deny the application for adjustment.
Federal courts, however, may review non-discretionary, legal determinations, such as a conclusion that an alien is statutorily ineligible for adjustment because he is inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii). See Guled, 515 F.3d at 880 ("We may review the non-discretionary determinations underlying [an agency's discretionary] decision, such as the predicate legal question whether the IJ properly applied the law to the facts in determining an individual's eligibility."). Thus, 8 U.S.C. § 1252(a)(2)(B) would not foreclose judicial review of the USCIS determination that Mhanna is statutorily inadmissible because he made a material misrepresentation about his citizenship. See United States ex rel. Vaso v. Chertoff, No. 09-1988, 2010 WL 746393, at *4 (3d Cir. Mar. 5, 2010) ("The determination that an alien is statutorily inadmissible is a nondiscretionary, legal determination, for which § 1252 does not foreclose review.") As discussed below, however, the Court concludes that it does not have jurisdiction to review the USCIS' nondiscretionary legal determination that Mhanna is statutorily ineligible for adjustment because he is inadmissible.
Despite defendants' concession — without citing case law
Section 1252(a)(2)(D) provides that although courts do not have jurisdiction to review discretionary determinations under § 1252(a)(2)(B), "[n]othing in subparagraph (B) . . . 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
Mhanna argues that the Court has jurisdiction under the APA to review certain agency determinations outlined in 8 U.S.C. § 1252. (Pls. Mem. at 7, Docket No. 30.) The APA provides that "[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. Under the APA, the Court has jurisdiction to review an agency decision if the agency action is final, the action adversely affects the party seeking review, and the agency's decision is non-discretionary. See 5 U.S.C. §§ 702, 704 ("Agency action made reviewable by statute and final agency action for which there is not other adequate remedy in a court are subject to judicial review."). The Court "shall decide all relevant questions of law," and "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." 5 U.S.C. § 706 (2)(A).
The APA "is not a jurisdiction-conferring statute." Trudeau v. FTC, 456 F.3d 178, 183 (D.C. Cir. 2006). "Rather, the jurisdictional source for an action under the APA is the `federal question' statute[, 28 U.S.C. § 1331], which grants the district court `original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States, and thereby confer[s] jurisdiction on federal courts to review agency action." Lee v. U.S. Citizenship & Immigration Servs., 592 F.3d 612, 619 (4
Mhanna contends that he was adversely affected by the USCIS' legal determination that he is statutorily ineligible for adjustment of status because he is inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii). (Pls.' Mem. at 7-10, Docket No. 30.) Mhanna argues that "[n]otwithstanding the restrictions on judicial review of certain agency determinations set forth at 8 USC § 1252, APA jurisdiction is supported when the agency's action is final, the action adversely affects the party seeking review, and the agency's decision is non-discretionary," such as the USCIS' inadmissibility determination under 8 U.S.C. § 1182(a)(6)(C)(ii). The Court disagrees.
The Supreme Court has "read the APA as embodying a basic presumption of judicial review," see Lincoln v. Vigil, 508 U.S. 182, 190 (1993) (internal quotation marks omitted), but the APA's provisions do not apply where "statutes preclude judicial review." 5 U.S.C. § 701(a)(1). Here, the Court must consider "whether the INA precludes review of [Mhanna's] claim under the APA." See Lee, 592 F.3d at 619.
As discussed above, the INA strips courts of jurisdiction to review discretionary agency decisions such as the denial of adjustment of status "[n]otwithstanding any other provision of law (statutory or nonstatutory), . . . 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 section . . . [1255 of this title]." 8 U.S.C. § 1252(a)(2)(B). "[T]he language `regardless of whether the judgment, decision, or action is made in removal proceedings' makes clear that the jurisdictional limitations imposed by § 1252(a)(2)(B) also apply to review of agency decisions made outside of the removal context." Lee, 592 F.3d at 619.
To the extent that Mhanna challenges only the USCIS' legal determination of statutory ineligibility, the INA precludes the Court from exercising jurisdiction over Mhanna's APA claims. Section 1252(a)(2)(D) carves out an exception to the jurisdiction-stripping language of § 1252(a)(B) whereby "courts of appeal [retain] a narrowly circumscribed jurisdiction to resolve constitutional claims or questions of law raised by aliens seeking discretionary relief." Lee, 592 F.3d at 620 (citing Higuit v. Gonzales, 433 F.3d 417, 419 (4
The Court agrees with the Fourth Circuit's holding in Lee v. United States Citizenship & Immigration Services, that despite raising an apparent question of law — that is, whether the USCIS properly applied the timely-retraction law to the facts of the case — "§ 1252(a)(2)(D) does not give [Mhanna] a jurisdictional bootstrap into district court. The express language of the statute requires [Mhanna] to raise any constitutional or legal questions upon a petition for review filed with an appropriate court of appeals." 592 F.3d at 620 (internal quotation marks omitted). In Lee, the plaintiff, an alien and Korean national, brought an action in federal district court against the defendant USCIS under the APA challenging the USCIS' denial of his application for adjustment of status on the basis that plaintiff was statutorily ineligible for adjustment. Id. The district court dismissed the case for lack of jurisdiction, and the plaintiff appealed. The Fourth Circuit, citing the Eighth Circuit case Abdelwahab v. Frazier, 578 F.3d 817, concluded "that the district court did not have jurisdiction to entertain [the plaintiff's] challenge to the [USCIS'] eligibility determination and subsequent denial of adjustment of status," and that § 1252(a)(2)(D) "specifically provides that the exclusive means of judicial review of a legal issue related to the denial of an adjustment of status is by a petition for review to the court of appeals." Lee, 592 F.3d at 621.
In light of the INA's application "[n]otwithstanding any other provision of law (statutory or nonstatutory), . . . except as provided in subparagraph (D)," 8 U.S.C. § 1252(a)(2)(B), and the APA's limited application where "statutes preclude judicial review," 5 U.S.C. § 701(a)(1), the Court concludes that the INA precludes this Court's exercise of subject matter jurisdiction over Mhanna's claims under 28 U.S.C. § 1331 and the APA. See generally Lee, 592 F.3d at 618-621. Accordingly, the Court grants defendants' motion to dismiss Mhanna's complaint.
Mhanna also contends that the Court has jurisdiction under 8 U.S.C. § 1329 and the Declaratory Judgment Act, 28 U.S.C. § 2201 to review the USCIS' eligibility determination. Although the Court concludes that the INA precludes the Court from reviewing Mhanna's claims, the Court also notes that Mhanna's other jurisdiction grounds do not affirmatively grant the Court subject matter jurisdiction in these circumstances.
8 U.S.C. § 1329 provides: "The district courts of the United States shall have jurisdiction of all causes, civil and criminal,
In addition, 28 U.S.C. § 2201, the Declaratory Judgment Act "enlarges the range of remedies available in federal courts but does not confer jurisdiction." See Patel v. Chertoff, No. 4:06CV01207, 2007 WL 1223553, at * 2 (E.D. Mo. Apr. 24, 2007) (citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950)). Thus, the Declaratory Judgment Act does not provide independent, affirmative jurisdictional grounds on which to review Mhanna's claims.
In sum, the Court grants defendants' motion to dismiss Mhanna's habeas petition because the Court does not have jurisdiction to review a habeas petition challenging a final order of removal and because Mhanna's removal to Lebanon otherwise renders the habeas petition moot. The Court also grants defendants' motion to dismiss Mhanna's remaining claims. Mhanna has not pleaded a plausible claim to relief for substantive due process violations, and this Court does not have subject matter jurisdiction to review the USCIS' discretionary denial of the I-485 Application for Adjustment of Status or the underlying legal determinations of statutory ineligibility. Accordingly, the Court dismisses plaintiffs' action with prejudice.
The habeas jurisdiction of the district courts have been greatly restricted in recent years in regard to immigration matters, mostly as a result of the actions of the Congress. In this case, the Court has very carefully examined in detail every claim raised by the plaintiffs to determine whether jurisdiction exists in this Court. The Court is surely mindful of, and sympathetic to, the significant impact these proceedings have had on the plaintiffs' family. But after an exhaustive review, it is quite clear to the Court that it simply has no jurisdiction to provide any of the avenues of relief that are sought. Without jurisdiction, the Court cannot provide a remedy to Assaf and Tammy Mhanna in this case. For that reason, the case is dismissed.
Based on the foregoing and all the files, records, and proceedings herein,
