United States District Court, E.D. Virginia, Alexandria Division
ELLIS, III UNITED STATES DISTRICT JUGDE.
declaratory judgment and mandamus immigration case, the
parties do not dispute any substantive agency decision
resolving plaintiffs application for adjustment of status to
that of permanent resident because no such decision has yet
been made. Instead, the parties here dispute which entity
should make that decision-United States Citizenship &
Immigrations Services ("USCIS") at the Department
of Homeland Security or the Immigration Court at the
Department of Justice. Although the parties' essential
dispute is over which entity is the proper decisionmaker, the
manner in which that issue is presented in this case is
complicated by the remedies plaintiff seeks.
21, 2018, USCIS issued plaintiff a notice advising him that
USCIS had administratively closed its proceedings on
plaintiffs application for adjustment of status on the ground
that USCIS lacked jurisdiction to grant or deny plaintiffs
application. In support of its decision, USCIS explained in
the notice that the Immigration Court was vested with
exclusive jurisdiction to adjudicate plaintiffs adjustment
application pursuant to 8 C.F.R. § 1245.2(a)(1)(i)
because plaintiff (i) was a respondent in a removal
proceeding and (ii) was not an arriving alien. Rather than
pursuing substantive review of USCIS's decision,
plaintiff brought the instant action seeking (i) declaratory
judgment pursuant to the Declaratory Judgment
that plaintiff is an "arriving alien" within the
meaning of 8 C.F.R. § 1.2 and (ii) an order pursuant to
the Administrative Procedures Act and the Mandamus
compelling USCIS to adjudicate plaintiffs adjustment of
issue now is defendant's motion to dismiss the Complaint
for lack of subject matter jurisdiction pursuant to Rule
12(b)(1), Fed.R.Civ.P. In the motion, defendant argues that
pursuant to 8 C.F.R. § 1245.2(a)(1)(i), USCIS lacked
jurisdiction to adjudicate plaintiffs adjustment of status
application because plaintiff was not an "arriving
alien" when he was placed into removal proceedings.
Thus, according to defendant, (i) plaintiff lacks standing
with respect to Count 1 because a declaration that plaintiff
is presently an "arriving alien" would not redress
plaintiffs claimed injury, i.e. refusal by USCIS to
adjudicate plaintiffs application for adjustment of status,
and (ii) the relief sought in Count 2, i.e. ordering
USCIS to adjudicate plaintiffs application, is moot because
USCIS has adjudicated the application to the extent permitted
under the regulations.Defendant's motion has been fully
briefed and argued and is thus ripe for disposition. For the
reasons that follow, (i) plaintiff lacks standing with
respect to Count 1 because the relief plaintiff seeks would
not redress plaintiffs claimed injury and (ii) the relief
sought by plaintiff in Count 2 is moot.
a citizen and national of El Salvador, entered the United
States when he was ten years old, in or around November 2000.
Compl. ¶¶ 3, 6. On February 18, 2012, the Bureau of
Immigration and Customs Enforcement ("ICE")
initiated removal proceedings against plaintiff in the
Immigration Court located in Arlington, Virginia by issuing
plaintiff a Notice to Appear. Id. ¶13; Mem. of
Law in Supp. of Def.'s Mot to Dismiss, Ex. A, Dkt. 7-1
("DEX A"). The Notice to Appear alleged the
1. You are not a citizen or national of the United States;
2. You are a native of El Salvador and a citizen of El
3. You arrived in the United States at or near Unknown
Location; at or about unknown date.
4. You were not then admitted or paroled after inspection by
an Immigration Officer.
DEX A. Based on those allegations, ICE charged plaintiff with
being removable from the United States pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(i), "in that [he was] an alien
present in the United States without being admitted or
paroled, or who arrived in the United States at any time or
place other than as designated by the Attorney General."
December 11, 2012, the presiding Immigration Judge
administratively closed the removal proceedings against
plaintiff to allow him to apply for relief under the
Department of Homeland Security's Deferred Action for
Childhood Arrivals ("DACA") policy. Compl. ¶ 14.
USCIS approved plaintiff for deferred action under DACA.
Id. ¶ 15. Plaintiff has since successfully
renewed his grant of deferred action under DACA twice, and
plaintiffs current term of deferred action extends until
March 2021. Id; Mem. of Law in Supp. of Def.'s
Mot. to Dismiss, Ex. C, Dkt. 7-1. In February 2014, the
presiding Immigration Judge entered an order providing that
plaintiffs removal proceedings would remain administratively
closed. Mem. of Law in Supp. of Def.'s Mot. to Dismiss,
Ex. D, Dkt. 7-1. The Immigration Judge's order further
provided that if the parties desired "further action on
this matter, at any time hereafter, a written motion to
recalendar the case ... must be filed with the ...
Immigration Court." Id.
point after plaintiff received deferred action under DACA,
plaintiff applied to USCIS for advanced parole to allow him
to travel to El Salvador and return to the United States.
Compl. ¶ 16. USCIS approved plaintiffs application for
advanced parole on November 10, 2016. Id. ¶ 17
& Ex. 1. This grant of advance parole allowed plaintiff
to travel outside the United States on a single occasion
during the following forty-five days, or until December 25,
2016, and authorized officers of United States Customs and
Border Protection ("CBP") to parole plaintiff into
the United States upon his return. Id. Ex. 1. USCIS
also notified plaintiff that if CBP paroled plaintiff into
the United States, plaintiffs removal proceedings would
"generally continue to be deferred," and that
"deferral will continue until the date specified by
USCIS or [ICE] in [his] deferral notice or until the decision
to defer removal action in [his] case has been terminated,
whichever is earlier." Id.
travelled to El Salvador between November 18 and 21, 2016.
Id. ¶ 18. Upon plaintiffs return to the United
States at Dulles International Airport, a CBP officer paroled
him into the United States. Id. ¶ 19.
5, 2017, plaintiff filed an application with USCIS to adjust
his status to that of lawful permanent resident (Form 1-485).
Id. ¶ 21. USCIS interviewed plaintiff on the
adjustment of status application on March 16, 2018.
Id. ¶ 22. On June 21, 2018, USCIS issued
plaintiff a Notice of Administrative Closure notifying
plaintiff that USCIS was "administratively closing
[plaintiffs] application because USCIS does not have
jurisdiction to adjudicate" the application for
adjustment of status. Id. ¶ 23 & Ex. 3. The
Notice cited 8 C.F.R. §§ 245.2(a) and 1245.2(a) and
USCIS has jurisdiction to grant adjustment only if the
Immigration Judge does not have jurisdiction. [. . .] The
Immigration Judge has jurisdiction to grant or deny a Form
1-485 in any case in which the applicant (other than an
"arriving alien") is a respondent in a . . .
removal proceedings before the U.S. Department of Justice,
Executive Office for Immigration Review (EOIR).
Id. Ex. 3. Accordingly, USCIS advised plaintiff that
because plaintiff was "a respondent in a removal
proceeding" and was "not an 'arriving
alien' only EOIR has jurisdiction to grant or deny
[plaintiffs] Form 1-485." Id. USCIS further
directed plaintiff to "submit [his] Form 1-485 to the
Immigration Judge in EOIR proceedings." Id.
Count 1 of the Complaint, plaintiff seeks declaratory
judgment that plaintiff is an "arriving alien"
based on the fact that CBP paroled plaintiff into the United
States when plaintiff returned to the United States at Dulles
Airport on November 21, 2016. In other words, plaintiff does
not contend that he was an "arriving alien" when he
first entered the United States in or around November 2000 or
when plaintiff was placed in removal proceedings on February
18, 2012. Rather, plaintiff seeks to establish that he was an
"arriving alien" as of ...