United States District Court, S.D. Florida
ORDER GRANTING MOTION TO DISMISS
N. SCOLA, JR. UNITED STATES DISTRICT JUDGE
Areli Del Carmen Espinosa seeks review of the United States
Citizenship and Immigration Services'
(“USCIS”) decision to close her I-485
application. (Compl., ECF No. 1.) In response, the Defendants
maintain Espinosa's complaint should be dismissed for a
lack of subject-matter jurisdiction or, failing that, for her
failure to state a claim. (Defs.' Mot., ECF No. 9.)
Because the Court agrees that it lacks subject-matter
jurisdiction, it grants the Government's
motion (ECF No. 9) and dismisses
a native and citizen of El Salvador, entered the United
States, on December 29, 1992, “without
inspection.” (Compl. at ¶ 17.) Thereafter, in
April 1993, an immigration judge entered an order of
deportation, in absentia, against her. (Id. at
¶ 18.) That order of deportation, under Espinosa's
maiden name, remains in effect. (Id.; Defs.'
Mot. at 3-4). Espinosa was also placed in removal
proceedings, in 1998, under her married name and, by dint of
those proceedings, was granted voluntary departure in
February 1999. (Compl. at ¶¶ 21-22; Defs.' Mot.
at 4 n. 5.)
point, Espinosa does not specify when, she acquired Temporary
Protected Status by way of El Salvador's designation in
the Immigration Act of 1990. (Compl. at ¶ 19.) Espinosa
has retained this status through the filing of her complaint.
(Id. at ¶ 20.)
attaining Temporary Protected Status, Espinosa, on October 6,
2016, received authorization to leave the United States
temporarily and to then return to resume her protected
status. (Id. at ¶ 25 (“USCIS issued . . .
Espinosa an I-512L Authorization for Parole of an Alien into
the United States pursuant to her grant of TPS.”).) In
March 2017, Espinosa returned and “was paroled into the
United States” as provided by her previously authorized
advance parole, under 8 U.S.C. § 1182(d)(5).
(Id. at ¶ 26.)
Espinosa's application, the Board of Immigration Appeals
terminated her 1998 removal proceedings so that she could
pursue a status adjustment. (Id. at ¶ 27-28.)
Espinosa does not contest that this termination had no impact
on her 1993 order of deportation, which remains in effect.
(Defs.' Mot. at 4 n. 5.) On February 19, 2019, Espinosa
submitted an application for permission to reapply for
admission (Form I-212), in relation to her application to
adjust status (Form I-485), to the USCIS Hialeah Field
Office. (Compl. at ¶¶ 34-35.) Two days later, USCIS
issued a notice of administrative closure, closing
Espinosa's application for a lack of jurisdiction.
(Id. at ¶ 36.)
objects to USCIS's decision, complaining that it was
arbitrary, capricious, and an abuse of discretion under the
Administrative Procedures Act and violates her due process
rights under the Fifth Amendment.
heart of Espinosa's claims is her complaint that USCIS
improperly determined that she is not an “arriving
alien” as that term is defined by federal regulations.
This is the key to her insistence that the USCIS improperly
found it lacked jurisdiction to review her admission
application: for, if she is an arriving alien, she argues,
the USCIS, and not the immigration judge, has jurisdiction to
adjudicate her application for adjustment of status.
(Pl.'s Resp. at 1-2 (citing 8 C.F.R. § 1245.2(a)(1)
(except under certain circumstances, not applicable here, an
“immigration judge does not have jurisdiction to
adjudicate any application for adjustment of status filed by
[an] arriving alien.”)).) None of Espinosa's
factual allegations or the legal authorities she relies on,
however, support her contention that she ever attained the
designation of “arriving alien.” All of her
arguments, then, regarding the USCIS's alleged policy
change regarding its jurisdiction over arriving aliens with
temporary protected status are thoroughly unavailing.
Accordingly, the Court agrees with the Government that the
Court cannot exercise jurisdiction over Espinosa's case.
forth in the Immigration and Nationality Act,
“[n]otwithstanding any other provision of law . . . a
petition for review filed with an appropriate court of
appeals . . . shall be the sole and exclusive means for
judicial review of an order of removal entered or issued
under any provision of this chapter.” 8 U.S.C. §
1252(a)(5). Further, the INA precludes the district courts
from hearing, with certain exceptions not applicable here,
“any cause or claim by . . . any alien arising from the
decision . . . to commence proceedings, adjudicate cases, or
execute removal orders against any alien under this
chapter.” 8 U.S.C. § 1252(g). In sum, the INA
prevents district courts from granting relief in actions like
this one that directly or indirectly challenge final orders
of removal. Singh v. United States Citizenship &
Immigration Services, 878 F.3d 441, 445 (2d Cir. 2017),
as amended (Jan. 9, 2018) (“the term
‘judicial review of an order of removal,' as used
in Section 1252(a)(5), encompasses both ‘direct'
and ‘indirect' challenges to removal
orders”). Where a plaintiff seeks relief that, if
granted, would invalidate a removal order, the district court
lacks subject matter jurisdiction and the claim must proceed
through the channels prescribed by Congress, ending in a
petition for review in the proper court of appeals.
See, e.g., Duron v. Johnson, 898
F.3d 644, 646 (5th Cir. 2018), cert. denied, 139
S.Ct. 1179 (2019) (affirming a district court's dismissal
for lack of jurisdiction where the complaint challenged the
validity of an alien's deportation order).
Espinosa is subject to a deportation order, entered more than
two decades ago. Her complaint is, at best, an indirect
attack on that order. Indeed, her claims here are
“inextricably linked” to her removal order
because USCIS “administratively closed [her]
application based on the removal order.”
Santa Maria v. McAleenan, CV H-18-3996, 2019 WL
2120725, at *3 (S.D. Tex. May 15, 2019) (emphasis added).
Indeed, if the Court were to determine that USCIS has
jurisdiction to adjudicate Espinosa's application for
adjustment, and USCIS were to then grant that application,
Espinosa's deportation would necessarily be nullified. To
be sure, USCIS and the immigration judge do not have
concurrent jurisdiction over status adjustment applications.
Singh, 878 F.3d at 446. And since “the purpose
of this action is to shift jurisdiction from the tribunal
that has ordered [the plaintiff] removed and to render the
removal order ineffective, ” it is precluded by 8
U.S.C. § 1252(a)(5). Id. The Court thus
dismisses Espinosa's case for a lack of subject-matter
jurisdiction under Rule 12(b)(1).
Court also denies both Espinosa's motion
for leave to present supplemental briefing (ECF No.
22) and the Government's motion to strike
Espinosa's notice (ECF No. 24). Finally,
the Court directs the Clerk to close this
case and denies any other pending motions as