1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FREDI TOMAS DE JESUS, No. 1:20-cv-01200-NONE-SKO 12 Plaintiff, 13 v. ORDER GRANTING UNOPPOSED MOTION TO DISMISS AND DIRECTING THE CLERK 14 ALEJANDRO MAYORKAS, et al., OF COURT TO SUBSTITUTE ALEJANDRO MAYORKAS IN AS THE DEFENDANT IN 15 Defendants. THIS ACTION IN PLACE OF CHAD D. WOLF 16 (Doc. No. 7) 17 18 On August 25, 2020, plaintiff Fredi Tomas De Jesus filed the complaint commencing this 19 lawsuit, seeking review of the denial of his application for adjustment of status pursuant to § 245 20 of the Immigration and Nationality Act, 8 U.S.C. § 1255. (Doc. No. 1.) On October 25, 2020, 21 defendants Chad D. Wolf, the former Acting Secretary of the Department of Homeland Security,1 22 and Lynn Q. Feldman, Director of the Fresno field office of the United States Citizenship and 23 Immigration Services, moved to dismiss this action. (Doc. No. 7.) Plaintiff failed to respond to 24 25
26 1 Alejandro Mayorkas was sworn in as Secretary of the Department of Homeland Security on February 2, 2021. The Clerk of the Court is directed to substitute Alejandro Mayorkas in as the 27 defendant in this action in place of named defendant Wolf. See Fed. R. Civ. P. 25(d) (when public officer ceases to hold office, “[t]he officer’s successor is automatically substituted as a 28 1 the motion to dismiss or to otherwise communicate with the court since the filing of his complaint 2 in this action. For the reasons set forth below, defendants’ motion to dismiss will be granted. 3 BACKGROUND 4 Plaintiff’s complaint (Doc. No. 1) alleges as follows. Plaintiff first entered the United 5 States without inspection in March or April of 1998, when he was 15 years old. (Id. at 4.) 6 Plaintiff remained in the United States for over three years before returning to Mexico in October 7 of 2001. (Id. at 7.) Plaintiff then entered the United States a second time in March of 2002 by 8 crossing the border without admission or parole by an immigration officer. (Id. at 5, 8.) 9 Thereafter, he received a V-visa, and departed and returned to the United States without 10 interview, admission, or parole on two more occasions. (Id. at 5, 7, 8.) 11 On July 28, 2018, plaintiff filed an Application for Adjustment of Status to Lawful 12 Permanent Residence based on a marriage to a U.S. citizen. (Id. at 5–6.) The application was 13 denied on April 15, 2019 because plaintiff was found inadmissible under Immigration and 14 Nationality Act § 212(a)(9)(C)(i)(I); 8 U.S.C. § 1182(a)(9)(C)(i)(I). (Id. at 5, Ex. A.)2 15 Next, plaintiff filed a motion to reconsider/reopen with USCIS (Form I-290B). (Id. at 5) 16 The motion was denied on August 6, 2019 on the same grounds. (Id.) In this action plaintiff 17 seeks review of the denial of his application. 18 SUBJECT-MATTER JURISDICTION 19 Although not by defendants in their pending motion, the court will address its subject- 20 matter jurisdiction over this action sua sponte. See Snell v. Cleveland, Inc., 316 F.3d 822, 826 21 (9th Cir. 2002) (citing Fed. R. Civ. P. 12(h)(3)). The complaint’s jurisdictional statement (Doc. 22 No. 1 at 2) states that the court has subject-matter jurisdiction over this action, in part, under 5 23 U.S.C. § 701, which falls within the Administrative Procedure Act. Under 5 U.S.C. § 704, courts 24 may review a “final agency action for which there is no other adequate remedy in a court[.]” 25 Final determinations of applications for adjustment of status made by the United States 26 Citizenship and Immigration Services (“USCIS”) may be reviewed under that statute. See 27 Mamigonian v. Biggs, 710 F.3d 936, 941–42 (9th Cir. 2013) (where an alien sought adjustment-
28 1 of-status review from USCIS after marrying American citizen, “for a court to hear a case like this 2 pursuant to the APA, there must be ‘final agency action for which there is no other adequate 3 remedy in a court’” (quoting 5 U.S.C. § 704)). 4 Here, plaintiff alleges he exhausted his administrative remedies and that defendants 5 “issued a final decision, denying Plaintiff’s application for Adjustment of Status.” (Doc. No. 1 at 6 3.) Attached to plaintiff’s complaint are letters from the USCIS to plaintiff, stating that it had 7 denied his application for an adjustment of status and his motion for reconsideration thereof. (Id. 8 at 17–35.) Given this preliminary review, it appears that the USCIS’s action was final for present 9 purposes. Defendants do not argue otherwise. 10 LEGAL STANDARDS 11 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 12 sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal 13 “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged 14 under a cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th 15 Cir. 2019) (citation omitted). A plaintiff is required to allege “enough facts to state a claim to 16 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 17 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 18 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 19 556 U.S. 662, 678 (2009). 20 In resolving a Rule 12(b)(6) motion, “[a]ll allegations of material fact are taken as true 21 and construed in the light most favorable to the nonmoving party.” Naruto v. Slater, 888 F.3d 22 418, 421 (9th Cir. 2018) (citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 23 2001)). However, the court need not accept as true allegations that are “merely conclusory, 24 unwarranted deductions of fact, or unreasonable inferences.” Sprewell, 266 F.3d at 988 (citations 25 omitted). Nor must the court “assume the truth of legal conclusions cast in the form of factual 26 allegations.” Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008) (citation 27 omitted). 28 ///// 1 DISCUSSION 2 A. Statutory Background 3 This case primarily concerns the construction of §§ 9(B) and 9(C). As noted above, 4 plaintiff was determined to be inadmissible under § 9(C). As relevant here, and as explained in 5 more detail below, aliens who are unlawfully present in the United States for more than one year, 6 and who then enter the country again without being admitted, are inadmissible. § 9(C)(i)(I). 7 Subparagraph (B) provides an exception to the definition of “unlawfully present” for certain 8 minors.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FREDI TOMAS DE JESUS, No. 1:20-cv-01200-NONE-SKO 12 Plaintiff, 13 v. ORDER GRANTING UNOPPOSED MOTION TO DISMISS AND DIRECTING THE CLERK 14 ALEJANDRO MAYORKAS, et al., OF COURT TO SUBSTITUTE ALEJANDRO MAYORKAS IN AS THE DEFENDANT IN 15 Defendants. THIS ACTION IN PLACE OF CHAD D. WOLF 16 (Doc. No. 7) 17 18 On August 25, 2020, plaintiff Fredi Tomas De Jesus filed the complaint commencing this 19 lawsuit, seeking review of the denial of his application for adjustment of status pursuant to § 245 20 of the Immigration and Nationality Act, 8 U.S.C. § 1255. (Doc. No. 1.) On October 25, 2020, 21 defendants Chad D. Wolf, the former Acting Secretary of the Department of Homeland Security,1 22 and Lynn Q. Feldman, Director of the Fresno field office of the United States Citizenship and 23 Immigration Services, moved to dismiss this action. (Doc. No. 7.) Plaintiff failed to respond to 24 25
26 1 Alejandro Mayorkas was sworn in as Secretary of the Department of Homeland Security on February 2, 2021. The Clerk of the Court is directed to substitute Alejandro Mayorkas in as the 27 defendant in this action in place of named defendant Wolf. See Fed. R. Civ. P. 25(d) (when public officer ceases to hold office, “[t]he officer’s successor is automatically substituted as a 28 1 the motion to dismiss or to otherwise communicate with the court since the filing of his complaint 2 in this action. For the reasons set forth below, defendants’ motion to dismiss will be granted. 3 BACKGROUND 4 Plaintiff’s complaint (Doc. No. 1) alleges as follows. Plaintiff first entered the United 5 States without inspection in March or April of 1998, when he was 15 years old. (Id. at 4.) 6 Plaintiff remained in the United States for over three years before returning to Mexico in October 7 of 2001. (Id. at 7.) Plaintiff then entered the United States a second time in March of 2002 by 8 crossing the border without admission or parole by an immigration officer. (Id. at 5, 8.) 9 Thereafter, he received a V-visa, and departed and returned to the United States without 10 interview, admission, or parole on two more occasions. (Id. at 5, 7, 8.) 11 On July 28, 2018, plaintiff filed an Application for Adjustment of Status to Lawful 12 Permanent Residence based on a marriage to a U.S. citizen. (Id. at 5–6.) The application was 13 denied on April 15, 2019 because plaintiff was found inadmissible under Immigration and 14 Nationality Act § 212(a)(9)(C)(i)(I); 8 U.S.C. § 1182(a)(9)(C)(i)(I). (Id. at 5, Ex. A.)2 15 Next, plaintiff filed a motion to reconsider/reopen with USCIS (Form I-290B). (Id. at 5) 16 The motion was denied on August 6, 2019 on the same grounds. (Id.) In this action plaintiff 17 seeks review of the denial of his application. 18 SUBJECT-MATTER JURISDICTION 19 Although not by defendants in their pending motion, the court will address its subject- 20 matter jurisdiction over this action sua sponte. See Snell v. Cleveland, Inc., 316 F.3d 822, 826 21 (9th Cir. 2002) (citing Fed. R. Civ. P. 12(h)(3)). The complaint’s jurisdictional statement (Doc. 22 No. 1 at 2) states that the court has subject-matter jurisdiction over this action, in part, under 5 23 U.S.C. § 701, which falls within the Administrative Procedure Act. Under 5 U.S.C. § 704, courts 24 may review a “final agency action for which there is no other adequate remedy in a court[.]” 25 Final determinations of applications for adjustment of status made by the United States 26 Citizenship and Immigration Services (“USCIS”) may be reviewed under that statute. See 27 Mamigonian v. Biggs, 710 F.3d 936, 941–42 (9th Cir. 2013) (where an alien sought adjustment-
28 1 of-status review from USCIS after marrying American citizen, “for a court to hear a case like this 2 pursuant to the APA, there must be ‘final agency action for which there is no other adequate 3 remedy in a court’” (quoting 5 U.S.C. § 704)). 4 Here, plaintiff alleges he exhausted his administrative remedies and that defendants 5 “issued a final decision, denying Plaintiff’s application for Adjustment of Status.” (Doc. No. 1 at 6 3.) Attached to plaintiff’s complaint are letters from the USCIS to plaintiff, stating that it had 7 denied his application for an adjustment of status and his motion for reconsideration thereof. (Id. 8 at 17–35.) Given this preliminary review, it appears that the USCIS’s action was final for present 9 purposes. Defendants do not argue otherwise. 10 LEGAL STANDARDS 11 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 12 sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal 13 “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged 14 under a cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th 15 Cir. 2019) (citation omitted). A plaintiff is required to allege “enough facts to state a claim to 16 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 17 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 18 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 19 556 U.S. 662, 678 (2009). 20 In resolving a Rule 12(b)(6) motion, “[a]ll allegations of material fact are taken as true 21 and construed in the light most favorable to the nonmoving party.” Naruto v. Slater, 888 F.3d 22 418, 421 (9th Cir. 2018) (citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 23 2001)). However, the court need not accept as true allegations that are “merely conclusory, 24 unwarranted deductions of fact, or unreasonable inferences.” Sprewell, 266 F.3d at 988 (citations 25 omitted). Nor must the court “assume the truth of legal conclusions cast in the form of factual 26 allegations.” Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008) (citation 27 omitted). 28 ///// 1 DISCUSSION 2 A. Statutory Background 3 This case primarily concerns the construction of §§ 9(B) and 9(C). As noted above, 4 plaintiff was determined to be inadmissible under § 9(C). As relevant here, and as explained in 5 more detail below, aliens who are unlawfully present in the United States for more than one year, 6 and who then enter the country again without being admitted, are inadmissible. § 9(C)(i)(I). 7 Subparagraph (B) provides an exception to the definition of “unlawfully present” for certain 8 minors. § 9(B)(iii). The central claim raised in plaintiff’s complaint is whether the exception for 9 minors set forth in subparagraph (B) applies to plaintiff, given that he was determined to be 10 inadmissible under subparagraph (C). 11 Sections 9(B) and (C) provide as follows: 12 (B) Aliens unlawfully present 13 (i) In general 14 Any alien (other than an alien lawfully admitted for permanent residence) who-- 15 [was unlawfully present in the United States in 16 certain circumstances] 17 is inadmissible. 18 (ii) Construction of unlawful presence 19 For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present 20 in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the 21 United States without being admitted or paroled. 22 (iii) Exceptions 23 (I) Minors 24 No period of time in which an alien is under 18 years of age shall be taken into account in determining the 25 period of unlawful presence in the United States under clause (i).[3] 26 * * * 27
28 1 (v) Waiver 2 The Attorney General has sole discretion to waive clause (i) [in irrelevant circumstances]. 3 (C) Aliens unlawfully present after previous immigration violations 4 (i) In general 5 Any alien who-- 6 (I) has been unlawfully present in the United States 7 for an aggregate period of more than 1 year, . . . 8 and who enters or attempts to reenter the United States without being admitted is inadmissible. 9 10 8 U.S.C. § 1182(a)(9) (certain paragraph breaks omitted) (emphases added). 11 B. Analysis 12 Defendant argues § 9(C)(i) controls here because plaintiff was unlawfully present for 13 more than one year given that he admits in his complaint filed in this action that he entered this 14 country without inspection in March or April 1998 at the age of 15 and left voluntarily three years 15 later in October 2001. Plaintiff then “reenter[ed] the United States without being admitted” under 16 § 9(C)(i) when he reentered the United States without inspection in early 2002. 17 Plaintiff alleges in the complaint that he was not “unlawfully present” for much of the 18 time between his arrival in 1998 and his departure in October 2001, because he did not reach the 19 age of majority (18) until May 4, 2001. (Doc. No. 1 at 7.) In advancing this claim, plaintiff 20 contends that the minor exception set forth in § 9(B) applies to the period of time he was in the 21 United States from March or April 1998 through May 4, 2001, when he turned 18. (Id. at 11–13.) 22 The undersigned addressed and ultimately rejected a materially identical argument in 23 Fierros v. Mayorkas, No. 1:19-cv-01515-NONE-SKO, 2021 WL 3540218, at *3 (E.D. Cal. Aug. 24 11, 2021).4 The court incorporates that ruling herein and adopts the same reasoning again. In 25 sum, the minor exception set forth in § 9(B) does not extend to § 9(C). Therefore, the complaint 26 ///// 27 4 The parties agree that this case and Fierros are related cases under the standards of Local Rule 28 1 | in this case fails to advance any valid basis for reversing the denial of plaintiff's application for 2 | adjustment of status. Defendants’ motion to dismiss will therefore be granted. 3 Because plaintiff did not respond to the motion to dismiss and has not set forth any basis 4 | upon which the court could find that leave to amend would be anything other than futile, leave to 5 | amend will not be granted. 6 CONCLUSION 7 Accordingly, 8 1. The Clerk of the Court is directed to substitute defendant Wolf with “Alejandro 9 Mayorkas, Secretary of the Department of Homeland Security”; 10 2. Defendants’ motion to dismiss (Doc. No. 7) is granted; and 11 3. The Clerk of Court is directed to assign a district judge to this matter for the purposes 12 of closure and then to CLOSE THIS CASE. 13 | IT IS SO ORDERED. si □ Dated: _ October 15, 2021 Y L ah yt" 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28