ABUZEID et al v. NIELSEN et al

2020 | Cited 0 times | District of Columbia | December 22, 2020


Civil Action No. 18-382 (TJK) ADIL MOHAMED ABUZEID et al.,

Plaintiffs, v. CHAD L. WOLF et al.,


MEMORANDUM OPINION Dr. Adil Abuzeid, a citizen of the United Kingdom and Saudi Arabia, applied for adjustment of his status in this country to lawful permanent residency under the Immigration and Nationality Act, 8 U.S.C. § 1255. His applications were denied several times, and he and his wife now request that this Court review, and effectively reverse, those decisions. Defendants argue that this Court has no jurisdiction to do so because Section 1252(a)(2)(B)(i) commands . . any judgment regarding the granting of relief under section . . . Plaintiffs argue, to the contrary, that although ultimate exercise of discretion may be unreviewable, eligibility for that status

under 8 U.S.C. § 1182(e) is a question of law that this Court may review. The Court ultimately agrees with Defendants that Section 1252(a)(2)(B)(i) means what it says. Thus, for substantially the same reasons this Court explained in Verastegui v. Wolf, 468 F. Supp. 3d 94 (D.D.C. 2020), it finds that Section 1252(a)(2)(B)(i) bars judicial review of decisions denying Dr. adjustment of status applications and subject-matter jurisdiction.


Dr. Am. ¶ 1. He entered the United States in October 2001 as a nonimmigrant exchange visitor under 8 U.S.C. § 1101(a)(15)(J) to pursue graduate medical education. Id. ¶ 19 20. In June 2015, he filed an I-485 application for an adjustment of status to become a lawful permanent resident in connection with his pending employment-based visa petition, under regulations promulgated under 8 U.S.C. § 1255 of the Immigration and Nationality Act (INA). Am. Compl. ¶ 26. That decision is ultimately a discretionary one. See General may adjust the status of the alien to that of an alien lawfully admitted for permanent

residence if [the statutory elig ) (emphasis added).

In November 2017, United States Citizenship and Immigration Services (USCIS) denied his application because the agency found him inadmissible under 8 U.S.C. § 1182(e). 1

See Am. Compl. ¶¶ 72 113; ECF No. 10-8. That provision requires that to be eligible for lawful permanent resident status, those like Dr. Abuzeid who come to the United States to pursue graduate medical education resided and been physically present in the country of [their] nationality or [their] last residence for an aggregate of at least two years following departure from the United States 8 U.S.C. § 1182(e).

Plaintiffs filed this suit in February 2018. ECF No. 1. In July 2018, USCIS reopened its decision and i reason. See Am. Compl. ¶¶ 114 163; ECF No. 10-10. 2

Throughout the administrative process, Dr. Abuzeid argued that he met the requirements of 8 U.S.C. § 1182(e) through a series of trips

1 This statute codifies Section 212(e) of the INA. 2 In February 2018, Dr. Abuzeid also submitted a family-based adjustment of status application based on his marriage to a U.S. citizen, but that application was denied for the same reasons as his other applications. See Am. Compl. ¶¶ 164 173; ECF No. 10-11.

he took to the United Kingdom and Saudi Arabia from August 2007 to August 2012 after his - which he alleges yielded him a cumulative total of 806 days in these countries. See Am. Compl. ¶ 23. But USCIS concluded that under the statute he could not combine the time he spent in both nations to meet the two-year requirement; he had to rely only on his time in the United Kingdom. See ECF No. 10-10 at 5, 7; ECF No. 10-11 at 3. Further, USCIS determined, he had not submitted enough evidence to show that he had resided and been physically present in the United Kingdom during all the time he claimed. See ECF No. 10-8 at 5 7; ECF No. 10-10 at 5 9.

In October 2018, Plaintiffs filed their Amended Complaint, alleging denials of adjustment of status applications violated the Administrative Procedure

Act (APA), 5 U.S.C. § 701 et seq. and his due process rights under the Fifth Amendment. See Am. Compl. ¶¶ 182 193. Plaintiffs request that the Court (1) issue a declaratory judgment that s and denials unlawful, that he is eligible to apply for an adjustment of status to that of a lawful permanent

resident, and that his applications were meritorious and should be approved; and (2) order Defendants to approve his adjustment of status applications. See id. at 54 56.

In May 2020, Defendants moved to dismiss for lack of subject-matter jurisdiction. In . . jurisdiction to 1252(a)(2)(B)(i). ECF No. 26-1. Plaintiffs assert, to the

Legal Standard

To survive a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, a plaintiff must prove by a preponderance of the evidence that the Court has jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). In evaluating such a motion, the Court must accept as true factual allegations in the complaint and draw all reasonable inferences in a . Ctr. for Biological Diversity v. Kempthorne, 498 F. Supp. 2d 293, 296 (D.D.C. 2007). Additionally er the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus , 974 F.2d 192, 197 (D.C. Cir. 1992).


Belhas v. , 515 F.3d 1279, 1282 (D.C. Cir. 2008). The § 1331, typically provides jurisdiction for suits brought under the APA or alleging constitutional

claims. , 456 F.3d 178, 184 85 (D.C. Cir. 2006). There are certain statutes, however, that prevent courts from exercising Section 1331 federal question jurisdiction over specific types of claims. See, e.g., Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 10 (2000) (Social Security and Medicare Act claims rely exclusively on 42 U.S.C. 405(g) jurisdiction). The INA is such a statute.

The relevant part of the INA, 8 U.S.C. § 1252(a)(2)(B), is titled 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

(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. 8 U.S.C. § 1252(a)(2)(B) (emphasis added). Subparagraph (D), which Congress added to the INA through the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, 3

is titled icial review of . . 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 a § 1252(a)(2)(D). And as

appropriate court of appeals . . . [is] the sole and exclusive means for judicial review of an order Id. § 1252(a)(5).

Congress expressly included decisions to deny relief under § 1255 within this jurisdiction-limiting provision -stripping language of § 1252(a)(2)(B),

courts of appeals not district courts retain a narrowly circumscribed jurisdiction to resolve constitutional claims or questions of law raised by aliens seeking discretionary relief, in the context of removal procee Lee v. U.S. Citizenship & Immigration Servs., 592 F.3d

3 judgment, decision, or action is made in removal proceedings 1252(a)(2)(B), to resolve a disagreement between some . . . circuits and district courts as to whether § 1252(a)(2)(B) applied outside the context of removal proceedings, given that the majority of the provisions within § 1252 seemingly concern removal orders Mejia Rodriguez v. U.S. of Homeland Sec., 562 F.3d 1137, 1142 n.13 (11th Cir. 2009).

612, 619 20 (4th Cir. 2010) (cleaned up); see Schroeck v. Gonzales, 429 F.3d 947, 950 51 (10th Cir. 2005) (describing the jurisdiction of courts of appeals).

This suit falls within this jurisdictional bar, as the Fourth Circuit held in the same circumstances in Lee. 592 F.3d at 619 Congress expressly included decisions to deny relief under § 1255 within this jurisdiction-limiting provision; therefore, the denial of an application for adjustment of status . . . is not amenable to judicial review. Dr. Abuzeid applied for adjustment of status several times under 8 U.S.C. § 1255. Am. Compl. ¶ 26. Each time, USCIS denied his applications because it found him inadmissible under 8 U.S.C. § 1182(e). See ECF No. 10-8 at 7; ECF No. 10-10 at 8; ECF No. 10-11 at 4. Plaintiffs brought this case to reverse those decisions. See Am. Compl. at 54 56. But Section 1252(a)(2)(B)(i) precludes district courts from reviewing . . . 1255 See Ayanbadejo v. Chertoff that we and the district court lack jurisdiction over determinations made with respect to an I 485 application for permanent resident status under § 1255. The district court thus correctly held that it lacked jurisdiction to review the denial of John s I 485 application. .

To be sure, subparagraph (D) permits judicial review of legal issues affecting the denial of adjustment of status. But that provision requires a plaintiff to raise those issues (1) directly in the court of appeals final order of removal. 8 U.S.C. §§ 1252(a)(2)(D), 1252(a)(5); Lee, 592 F.3d at 620; see McBrearty v. Perryman, 212 F.3d 985, 986 87 (7th Cir. 2000) (finding a suit challenging the denial of 1252(a)(2)(B)(i)] door- ead, by

filing this suit, Dr. Abuzeid has challenged his eligibility for adjustment of status under 8 U.S.C. § 1182(e) in a district court, and without removal proceedings pending.

Plaintiffs try to avoid the preclusive scope of Section 1252(a)(2)(B)(i) by inviting the Court to consider adjustment of status applications [ ] ultimate exercise of discretion may be unreviewable, the issue of eligibility is a question Opp. at 6. Although the D.C. Circuit has not considered this question, there is some caselaw in this jurisdiction and beyond supporting that general proposition. See, e.g., Ravulapalli v. Napolitano, 773 F. Supp. 2d 41, 50 51 (D.D.C. 2011). 4

But for several reasons, the Court is not persuaded, and another decision in this jurisdiction is in accord. See Djodeir v. Mayorkas, 657 F. Supp. 2d 22 (D.D.C. 2009).

To begin with, eligibility did not turn solely on questions of law. In part, they were grounded s that Dr. Abuzeid had failed to produce enough been United Kingdom for the time he asserted. ECF No. 10-8 at 4 7; see also ECF No. 10-10 at 4 9. Thus, it does not appear that even if USCIS had permitted Dr. Abuzeid to count all the time he claimed

4 Most of the cases cited by Plaintiffs are inapposite. In both Portillo-Rendon v. Holder, 662 F.3d 815 (7th Cir. 2011) and Martinez v. Mukasey petitions for review raising what they argued were nondiscretionary questions of law were filed in courts of appeals and in connection with removal proceedings under subparagraph (D); these cases say nothing about a jurisdiction under Section 1252(a)(2)(B)(i). The same is true of Lagandaon v. Ashcroft, 383 F.3d 983 (9th Cir. 2004), Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003), and Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166 (9th Cir. 2003), although these cases predate enactment of subparagraph (D) through the REAL ID Act. And William v. Gonzalez, 499 F.3d 329 (4th Cir. 2007) jurisdiction either; indeed, three years later that Circuit decided Lee without so much as mentioning it.

toward the 2-year requirement, it would have found him eligible for an adjustment of status. That distinguishes this case from for example Verastegui, in which the parties agreed that al findings upon which the

two denials were based [were] and [the] case [was]

of status request[s] 468 F. Supp. 3d at 96.

But even assuming the entire issue of eligibility was a question of law on which s of his adjustment of status applications turned, that would still not render its judgments reviewable by this Court.

First, the key parts of the statutory text do judgments from the reasoning behind them. Congress barred judicial review of any

judgment not merely some judgments regarding the granting of relief under section . . . 1255 1252(a)(2)(B)(i) (emphasis added). And as the Supreme Court has explained,

ed to the Attorney General Kucana v. Holder, 558 U.S. 233, 246 (2010); see Adjustment of status, addressed in Section 1255, is one such form of relief. See 8 U.S.C. § 12 [T]he Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence . . . . Thus, because the relief Dr. Abuzeid sought Kucana, 558 U.S. at 246 47, this Court may not pick out some judgments regarding th that relief and recharacterize them as nondiscretionary based on the reasoning behind them.

Second, another part of the statute reinforces the conclusion that it lacks subject matter-jurisdiction. If pure question[s] as Plaintiffs suggest, Kucana, 558 U.S. at 248. Instead, Congress enacted subparagraph (D) through the Real ID Act,

. . 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 1252(a)(2)(D). Thus, this passage of an adjustment of status is by a petition for review to the court of appeals, as opposed to a district court. Lee, 592 F.3d at 621.

Third, as the Fourth Circuit also observed in Lee, this interpretation of the statute is consistent with common sense. A id. at 620. The relief Plaintiffs request here bears that out. ty wrong as a matter of law applications were unlawful, and to order USCIS to approve them. See Am. Compl. at 56. But these denials are inescapably granting of relief under section . . . 1255 which Congress made unreviewable by this Court. 8 U.S.C. § 1252(a)(2)(B)(i).


For all the above reasons, the Court lacks subject-matter jurisdiction and will grant motion. A separate order will issue.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: December 22, 2020

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