Akinmulero v. United States Attorney General

Opinion

4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 OLASEBIKAN AKINMULERO, Cause No. C20-1135RSL 8 Plaintiff, ORDER GRANTING 9 v. MOTION FOR 10 RECONSIDERATION AND DEPARTMENT OF HOMELAND DISMISSING CLAIMS 11 SECURITY, et al., 12 Defendants. 13

14 On January 23, 2023, plaintiff’s motion for summary judgment was granted in part and 15 the above-captioned matter was remanded to the United States Citizenship and Immigration 16 17 Services (“USCIS”) for further consideration of plaintiff’s adjustment of status application. 18 Defendants timely filed a motion for reconsideration (Dkt. # 73),1 and the Court requested 19 additional briefing (Dkt. # 77).2 Having reviewed the submissions of the parties, the Court finds 20 21 as follows: 22 23

23 1 Because defendants properly filed their motion for reconsideration under Local Civil Rule 7(h)(2), Federal Rule of Civil Procedure 60 does not pose a bar to the relief requested. 25 2 Defendants notified the Court that they had failed to properly serve the motion for 26 reconsideration on plaintiff, and the briefing schedule was reset. Plaintiff’s objection to this procedure (Dkt. # 78) is overruled. 27

28 ORDER GRANTING MOTION 1 There is a split in this district regarding whether 8 U.S.C. § 1252(a)(2)(B) precludes 2 judicial review of the denial of an adjustment of status application made under 8 U.S.C. § 1255 3 in the circumstances presented here. See Garcia v. USCIS, No. 3:22-cv-5984-BJR, Dkt. # 37 4 5 (W.D. Wash. Apr. 17, 2023); Hernandez v. USCIS, No. 2:22-cv-00904-MJP, Dkt. # 14 (W.D. 6 Wash. Nov. 30, 2022). As the Honorable Marsha J. Pechman, United States District Judge, 7 correctly points out, “[n]either the Supreme Court nor the Ninth Circuit has squarely addressed 8 9 whether Subparagraph (B) applies outside of removal proceedings.” Hernandez, Dkt. # 14 at 9. 10 However, the situation was discussed by the Supreme Court in Patel v. Garland, with the 11 majority noting that Congress had amended the statute to “expressly extend[] the jurisdictional 12 13 bar to judgments made outside of removal proceedings at the same time they preserved review 14 of legal and constitutional questions made within removal proceedings.” 142 S. Ct. 1614, 1626 15 (2022). Every Court of Appeals that has considered the issue has concluded that judicial review 16 17 of adjustment of status determinations made by USCIS outside of the removal context is barred. 18 Abuzeid v. Mayorkas, 62 F.4th 578 (D.C. Cir. 2023); Britkovyy v. Mayorkas, 60 F.4th 1024 (7th 19 Cir. 2023); Doe v. Sec’y, U.S. Dep’t of Homeland Sec., No. 22-11818, 2023 WL 2564856 (11th 20 21 Cir. Mar. 20, 2023). And the Ninth Circuit has assumed without discussion on at least four 22 occasions that the jurisdiction-stripping provision of subparagraph (B) applies outside of the 23 removal context. See Herrera v. Garland, No. 21-17052, 2022 WL 17101156 (9th Cir. Nov. 22, 23 25 2022); Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019); Gebhardt v. Nielsen, 879 F.3d 980 (9th 26 Cir. 2018); Hassan v. Chertoff, 593 F.3d 785 (9th Cir. 2010) (per curiam). 27

28 ORDER GRANTING MOTION 1 This interpretation is supported by the plain language of 8 U.S.C. § 1252(a)(2)(B), which 2 states: 3 Notwithstanding any other provision of law (statutory or nonstatutory) . . . , and 4 except as provided in subparagraph (D), and regardless of whether the judgment, 5 decision, or action is made in removal proceedings, no court shall have 6 jurisdiction to review—

7 (i) any judgment regarding the granting of relief under section . . . 1255 of 8 this title . . . . 9 10 (emphasis added). Section 1255 is the section of the statute under which plaintiff sought 11 adjustment of status, and “subparagraph (D) preserves review of legal and constitutional 12 questions only when raised in a petition for review of a final order of removal,” which is not the 13 14 situation presented here. Patel, 142 S. Ct. at 1626. Giving the ordinary meaning to the statutory 15 language results in the conclusion that the Court lacks the power to review any aspect of the 16 agency’s judgment regarding plaintiff’s adjustment of status application unless it falls within 17 18 subparagraph (D). Judge Pechman does not suggest an alternative construction of the italicized 19 language that would allow such review, instead focusing on “the presumption favoring judicial 20 review of administrative action” and § 1252’s title, “Judicial review of orders of removal.” 21 22 Hernandez, Dkt. # 14 at 11-12. The Supreme Court expressly rejected the first argument, Patel, 23 142 S. Ct. at 1627, and, while statutory titles and section headings “are tools available for the 23 resolution of a doubt about the meaning of a statute,” Porter v. Nussle, 534 U.S. 516, 528 25 26 27

28 ORDER GRANTING MOTION 1 (2002), they “cannot substitute for the operative text of the statute,” Fla. Dep’t of Revenue v. 2 Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008). 3

4 5 For all of the foregoing reasons, the Court finds that it lacks subject matter jurisdiction 6 over plaintiff’s claims. The motion for reconsideration is GRANTED, and this matter is 7 DISMISSED. 8 9 10 Dated this 24th day of April, 2023. 11

12 Robert S. Lasnik 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 23 25 26 27

28 ORDER GRANTING MOTION