Yadina Rubi v. Secretary, U.S. Department of Homeland Security (DHS)

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 5, 2020
• Docket: 19-12254
• Status: Unpublished

Opinion

Case: 19-12254 Date Filed: 03/05/2020 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12254 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cv-20557-DPG

YADINA RUBI,

Plaintiff - Appellant,

versus

SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY (DHS) YESEIRA DIAZ, Miami Field Office Director, U.S. Citizenship and Immigration Services (USCIS),

Defendants - Appellees.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(March 5, 2020) Case: 19-12254 Date Filed: 03/05/2020 Page: 2 of 8

Before JORDAN, JILL PRYOR and NEWSOM, Circuit Judges.

PER CURIAM:

Yadina Rubi appeals the district court’s dismissal for failure to state a claim

of her complaint filed pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201

and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701. The district court

concluded that, under the plain language of 8 U.S.C. § 1255(c)(2), Rubi was

ineligible for an adjustment of immigration status because she failed to

continuously maintain lawful status in the United States. See 8 U.S.C.

§ 1255(c)(2). Rubi disagrees, arguing that adjustment of her immigration status

was not foreclosed because she maintained lawful immigration status since her

return to the United States under advance parole. After careful consideration, we

affirm the district court’s dismissal.

Rubi is a native and citizen of Honduras. She initially entered the United

States on a B-2 nonimmigrant visa; she remained beyond the end of her authorized

stay. More than four years later, Rubi’s employer filed an I-140 visa petition on

Rubi’s behalf with the United States Citizenship and Immigration Services

(“USCIS”). See id. §§ 1151(d), 1255(a); 8 C.F.R. § 245.2(a)(2). USCIS approved

the petition. About 18 months afterward, Rubi left the United States under a grant

2 Case: 19-12254 Date Filed: 03/05/2020 Page: 3 of 8

of pre-approved advance parole,1 returning eight days later. See 8 U.S.C.

§ 1182(d)(5); 8 C.F.R § 212.5(f)

While her parole status was still valid, Rubi filed an I-485 application for

adjustment of her immigration status from a nonimmigrant to that of a lawful

permanent resident. See 8 U.S.C. § 1255(a). Section 1255(a) provides that an

immigrant who “was inspected and admitted or paroled into the United States”

may have her status adjusted by the Attorney General, “in his discretion and under

such regulations as he may prescribe.” Id. A nonimmigrant must satisfy three

requirements before she is eligible for adjustment: she must (1) “make[] an

application for such adjustment,” (2) be “eligible to receive an immigrant visa and

[] admissible to the United States for permanent residence,” and (3) have an

immigrant visa “immediately available” when her application is filed. Id.

USCIS conceded that Rubi met all three requirements. But it deemed her

ineligible for adjustment of immigration status because she failed to maintain

lawful immigration status since her entry into the United States, thus implicating

§ 1225(c), which provides that adjustment of immigration status is not available to

1 Advance parole is “a mechanism by which a district director can, as a humanitarian measure, advise an alien who is in [the United States], but who knows or fears that he will be inadmissible if he leaves and tries to return, that he can leave with assurance that he will be paroled back into the United States upon return.” Assa’ad v. U.S. Att’y. Gen., 332 F.3d 1321, 1326–27 (11th Cir. 2003). When parole expires or is otherwise revoked, the nonimmigrant is subject to exclusion proceedings. 8 U.S.C. § 1182(d)(5)(A) (“parole . . . shall not be regarded as admission of the alien”); 8 C.F.R. § 212.5(e)(2) (upon termination of parole, the parolee “shall be restored to the status that he or she had at the time of parole”). 3 Case: 19-12254 Date Filed: 03/05/2020 Page: 4 of 8

an applicant “who . . . has failed (other than through no fault of his own or for

technical reasons) to maintain continuously lawful status since entry into the

United States.” Id. § 1255(c)(2). USCIS further determined that Rubi’s departure

from and re-entry into the United States under a grant of advance parole had no

bearing on her ineligibility given the time period of unlawful status between the

date she overstayed her visa and her departure under advance parole. See 8 C.F.R.

§ 245.1(d)(3) (“[T]he departure and subsequent reentry of an individual who has

not maintained a lawful immigration status on any previous entry into the United

States does not erase the bar to adjustment of status in [8 U.S.C. § 1255(c)(2)].”)

Rubi filed this action in the United States District Court for the Southern

District of Florida for judicial review of USCIS’s denial. USCIS moved to dismiss

the action, arguing that it properly determined that Rubi was not eligible for

immigration status adjustment. The district court agreed, reasoning that

§ 1255(c)(2) “requires that an individual maintain continuous lawful immigration

status since entry into the United States.” Doc. 21 at 6-7. 2 And because Rubi had

no lawful status from the date her B-2 visa expired until she departed the United

States on advance parole over five years later, she had not maintained continuous

lawful immigration status and thus was ineligible for adjustment of status. This

appeal followed.

2 “Doc. #” refers to the numbered entry on the district court’s docket. 4 Case: 19-12254 Date Filed: 03/05/2020 Page: 5 of 8

We review issues involving statutory interpretation de novo. Serrano v. U.S.

Att’y Gen., 655 F.3d 1260, 1264 (11th Cir. 2011). Under the APA, a court may

review an agency’s interpretation of a statute and set aside an agency action or

conclusion that was arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with the law. 5 U.S.C. § 706; see also Serrano, 655 F.3d at 1264

(“Courts may, under the Administrative Procedure Act, review an agency’s

interpretation of a statute.”). When reviewing an agency’s construction of a

statute, we first look to “whether Congress has directly spoken to the precise

question at issue.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.

837, 842 (1984). “If the ‘language at issue has a plain and unambiguous meaning

with regard to the particular dispute in the case,’ and ‘the statutory scheme is

coherent and consistent,’ the inquiry is over.” Warshauer v. Solis, 577 F.3d 1330,

1335 (11th Cir. 2009).

We also review the district court’s grant of a motion to dismiss de novo, and

in doing so, we view all allegations in the complaint as true and construe them in

the light most favorable to the plaintiff. Perez v. U.S. Bureau of Citizenship and

Immigration Servs., 774 F.3d 960, 964 (11th Cir. 2014).

Adjustment of immigration status under 8 U.S.C § 1255 is unavailable to an

immigrant “who . . . has failed (other than through no fault of his own or for

technical reasons) to maintain continuously lawful status since entry into the

5 Case: 19-12254 Date Filed: 03/05/2020 Page: 6 of 8

United States.” 8 U.S.C. § 1255(c)(2). Rubi contends that she is not ineligible

under this provision because the statute does not specify what entry should be

considered. In her view, she satisfied § 1255(c)(2) by maintaining lawful status

since she was paroled into the United States and thus is eligible for adjustment of

her immigration status. We disagree.

The language of § 1255(c)(2) is unambiguous. It requires that

an individual maintain continuous lawful immigration status after entry into the

United States. 8 U.S.C § 1255(c)(2); see also Duron v. Stul (Duron II), 724 F.

App’x 791, 792 (11th Cir. 2018) (“Although [plaintiff] departed and was

subsequently paroled back into the United States … this did not cure his failure to

maintain lawful status in the United States since his arrival in 1997.”). Because

she had not maintained lawful immigration status from the time her visa expired

until her departure from the United States on advance parole, Rubi failed to satisfy

this requirement. This renders her ineligible for adjustment of status under § 1255.

Like the district court, we find Duron v. Swacina, No. 16-CV-21525-JLK,

2016 WL 7217176 (S.D. Fla. Dec. 12, 2016), aff’d sub nom., Duron II, 724 F.

App’x 791, instructive here. There, Duron, a citizen of Honduras, entered the

United States without inspection. Id. at *1. Just over a year later, he was granted

Temporary Protected Status (“TPS”). He then departed and reentered the United

States under a grant of parole and subsequently filed an application to adjust his

6 Case: 19-12254 Date Filed: 03/05/2020 Page: 7 of 8

status to lawful permanent resident as the spouse of a lawful permanent resident.

Id. USCIS denied his application because he was unlawfully present in the United

States from his entry into the United States until his grant of TPS. Id. at *2–3.

Like Duron, Rubi’s prior instance of unlawful status bars her from

adjustment of her immigration status. In both instances, the applicant was in the

United States without lawful immigration status before filing the application for

adjustment of status. See 8 U.S.C. § 1255(c)(2). And just as Duron’s grant of TPS

did not cure his period of unlawful status, Rubi’s advance parole cannot cure hers.

Rubi argues that the instant case is materially different from Duron because

(1) Duron was not in a valid parolee status when he filed his application for

adjustment, (2) Duron initially entered the United States without inspection, and

(3) Duron’s argument turned on whether being granted TPS status pursuant to 8

U.S.C § 1254a(f)(4) constituted maintaining a lawful immigration status for the

purpose of adjustment of status. None of these arguments distinguishes Duron

from this case because these differences are unrelated to Duron’s holding: that a

period of unlawful status bars adjustment of immigration status under 8 U.S.C

§ 1255 and a later period of lawful status does not overcome this eligibility bar.

Rubi’s period of unlawful status is not cured by her parole and later reentry

into the United States and, therefore, she cannot overcome § 1255(c)(2)’s bar to

adjustment of immigration status. USCIS thus properly determined that she was

7 Case: 19-12254 Date Filed: 03/05/2020 Page: 8 of 8

statutorily ineligible to adjust status. Further, because Rubi was statutorily

ineligible to adjust her status, USCIS’s decision was not arbitrary or capricious

under the APA. Accordingly, we affirm the district court’s dismissal of Rubi’s

complaint.3

AFFIRMED.

3 The district court also determined that the government’s motion could be granted on an alternative ground: USCIS’s decision that 8 U.S.C. § 1255(c)(2)’s limitation on continuous lawful status since entry into the United States included Rubi’s first entry was reasonable and entitled to deference. Because we conclude that Rubi is statutorily ineligible to adjust her immigration status, we need not reach this ground for dismissal. 8