http://www.ca9.uscourts.gov/datastore/memoranda/2012/07/06/10-55367.pdf       FILED                               NOT FOR ...
Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.         Jesusa G. Curva appeals from the district court’s or...
Case 2:09-cv-06086-DDP-E Document 17   Filed 01/11/10 Page 1 of 17 Page ID #:281 1 2 3                                    ...
Case 2:09-cv-06086-DDP-E Document 17       Filed 01/11/10 Page 2 of 17 Page ID #:282 1   status and mandamus relief in the...
Case 2:09-cv-06086-DDP-E Document 17   Filed 01/11/10 Page 3 of 17 Page ID #:283 1           USCIS denied Plaintiff’s I-48...
Case 2:09-cv-06086-DDP-E Document 17   Filed 01/11/10 Page 4 of 17 Page ID #:284 1 2   II.   MOTION TO DISMISS: LACK OF SU...
Case 2:09-cv-06086-DDP-E Document 17   Filed 01/11/10 Page 5 of 17 Page ID #:285 1        B.   Discussion 2        Defenda...
Case 2:09-cv-06086-DDP-E Document 17   Filed 01/11/10 Page 6 of 17 Page ID #:286 1   Defendant argues that the Court is st...
Case 2:09-cv-06086-DDP-E Document 17   Filed 01/11/10 Page 7 of 17 Page ID #:287 1   for review filed with an appropriate ...
Case 2:09-cv-06086-DDP-E Document 17   Filed 01/11/10 Page 8 of 17 Page ID #:288 1   it divests the Court of subject matte...
Case 2:09-cv-06086-DDP-E Document 17    Filed 01/11/10 Page 9 of 17 Page ID #:289 1   III. MOTION TO DISMISS: FAILURE TO S...
Case 2:09-cv-06086-DDP-E Document 17    Filed 01/11/10 Page 10 of 17 Page ID #:290  1   is not disputed.      See Branch v...
Case 2:09-cv-06086-DDP-E Document 17   Filed 01/11/10 Page 11 of 17 Page ID #:291  1   construction of the statute.”      ...
Case 2:09-cv-06086-DDP-E Document 17   Filed 01/11/10 Page 12 of 17 Page ID #:292  1        B.   Legal Framework for Adjus...
Case 2:09-cv-06086-DDP-E Document 17   Filed 01/11/10 Page 13 of 17 Page ID #:293  1        C.    Discussion  2        The...
Case 2:09-cv-06086-DDP-E Document 17   Filed 01/11/10 Page 14 of 17 Page ID #:294  1   Comm’r, INS, U.S. Dep’t of Justice,...
Case 2:09-cv-06086-DDP-E Document 17    Filed 01/11/10 Page 15 of 17 Page ID #:295  1   used (‘status’ and ‘presence’) are...
Case 2:09-cv-06086-DDP-E Document 17    Filed 01/11/10 Page 16 of 17 Page ID #:296  1   the INA.4    Third, as described b...
Case 2:09-cv-06086-DDP-E Document 17   Filed 01/11/10 Page 17 of 17 Page ID #:297  1   Section 212(a)(9)(B)(ii) (Mar. 27, ...
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Curva v. USCIS (9th Cir 7-6-12) Distr Crt lakced jurisdiction over i-485

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Curva v. USCIS (9th Cir 7-6-12) Distr Crt lakced jurisdiction over i-485

  1. 1. http://www.ca9.uscourts.gov/datastore/memoranda/2012/07/06/10-55367.pdf FILED NOT FOR PUBLICATION JUL 06 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JESUSA G. CURVA, No. 10-55367 Plaintiff - Appellant, D.C. No. 2:09-cv-06086-DDP-E v. MEMORANDUM * THE UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES (CIS); F. GERARD HEINAUER, Director of CIS Nebraska Service Center; MICHAEL AYTES, Acting Deputy Director of CIS; JANET NAPOLITANO, Secretary of the Department of Homeland Security; ERIC H. HOLDER, Jr., Attorney General, Attorney General of the United States, Defendants - Appellees. Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding Submitted June 26, 2012 ** * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
  2. 2. Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges. Jesusa G. Curva appeals from the district court’s order granting summaryjudgment to the defendants. We review de novo the district court’s determinationregarding jurisdiction. Robinson v. United States, 586 F.3d 683, 685 (9th Cir.2009). The district court lacked jurisdiction over this action. The United StatesCitizenship and Immigration Services’ denial of Curva’s application to adjuststatus is nonfinal, and she has not exhausted her administrative remedies. SeeCabaccang v. U.S. Citizenship & Immigration Servs., 627 F.3d 1313, 1316-18 (9thCir. 2010). We therefore vacate the district court’s order of January 11, 2010, andremand with instructions to dismiss the action for lack of jurisdiction. VACATED and REMANDED with instructions. 2 10-55367
  3. 3. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 1 of 17 Page ID #:281 1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA1011 JESUSA G. CURVA, ) Case No. CV 09-06086 DDP (Ex) )12 Plaintiff, ) ORDER GRANTING IN PART AND ) DENYING IN PART DEFENDANT’S13 v. ) MOTION TO DISMISS AND DISMISSING ) THE COMPLAINT WITH PREJUDICE14 THE UNITED STATES ) PURSUANT TO FED. R. CIV. P. CITIZENSHIP & IMMIGRATION ) 12(b)(6)15 SERVICES ("CIS"); F. GERARD ) [Motion filed on November 25, HEINAUER, DIRECTOR OF CIS ) 2009]16 NEBRASKA SERVICE CENTER; ) MICHAEL AYTES, ACTING DEPUTY )17 DIRECTOR OF CIS; JANET ) NAPOLITANO, SECRETARY OF THE )18 DEPARTMENTOF HOMELAND ) SECURITY; ERIC HOLDER, JR., )19 ATTORNEY GENERAL OF THE ) UNITED STATES, )20 ) Defendants. )21 ___________________________ )22 On July 14, 2009, the United States Citizenship and23 Immigration Services (“UCSIS”) denied an I-485 Application to24 Adjust Status filed by the plaintiff Jesusa G. Curva (“Plaintiff”)25 on the grounds that she is “ineligible to adjust status under26 section 245(k) of the [Immigration and Nationality] Act.”27 (Certified Administrative Record (“CAR”) 3.) Plaintiff seeks a28 declaratory judgment that she remains eligible for adjustment of
  4. 4. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 2 of 17 Page ID #:282 1 status and mandamus relief in the form of an order compelling and 2 enjoining UCSIS to reopen and adjudicate her I-485 application, 3 assuming that she is eligible. 4 Defendants have filed a motion to dismiss the complaint, 5 arguing that the Court lacks subject matter jurisdiction and that 6 Plaintiff has failed to state a claim upon which relief can be 7 granted. After reviewing the papers submitted by the parties nd 8 hearing oral argument, the Court grants in part and denies in part 9 Defendants’ motion and adopts the following Order.10 The District Court did lack jurisdiction and should not have addressed the remainder.11 I. BACKGROUND12 Plaintiff, a registered nurse and native citizen of the13 Philippines, entered the United States as a B-2 non-immigrant on14 July 10, 2006, and was admitted for a period of six months until15 January 9, 2007. (Compl. ¶¶ 6, 14.)16 On August 18, 2006, prior to the expiration of her authorized17 stay, Plaintiff filed an I-485 Application to Adjust to Permanent18 Resident Status based on the I-140 Petition for Immigrant Worker19 concurrently filed on her behalf by Tri-City Regional Medical20 Center. (Id. ¶ 15.) The I-140 petition was denied, and, as a21 result, the I-485 application to adjust status was subsequently22 denied on June 15, 2007. (Id. ¶ 16.)23 A second I-140 petition was filed on Plaintiff’s behalf on24 July 30, 2007. (Id. ¶ 17.) On August 15, 2007, while the I-14025 petition was pending, Plaintiff filed a second I-485 application to26 adjust status. (Id. ¶ 18; CAR 1.) Plaintiff’s I-140 petition was27 approved on December 31, 2008. (Compl. ¶ 18.)28 2
  5. 5. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 3 of 17 Page ID #:283 1 USCIS denied Plaintiff’s I-485 application to adjust to a 2 lawful permanent resident status on July 14, 2009. USCIS indicated 3 that after her admission, she “failed to maintain, continuously, a 4 lawful status . . . .” (CAR 2.) “Specifically, [Plaintiff] 5 entered as a B-2 with an extension of stay valid until January 8, 6 2007,” but there exists no “record of an approved application to 7 extend or change [her] non-immigrant status.” (Id.) Although 8 Plaintiff received several work authorizations, “work authorization 9 does not grant [Plaintiff] lawful non-immigrant status.” (Id.)10 Ultimately, USCIS concluded that because Plaintiff was “out of11 status for 218 days at the time [she] filed her Form I-48512 Application to Adjust Status,” she was “ineligible to adjust under13 section 245(k) of the [Immigration and Nationality] Act.” (Id. at14 2-3.)15 On August 20, 2009, Plaintiff filed suit against Defendants,16 seeking a judicial declaration that she is, in fact, eligible to17 adjust status and an order that USCIS reopen and adjudicate her I-18 485 application. Defendants filed this motion to dismiss on19 November 25, 2009, arguing that the Court lacks jurisdiction and20 that Plaintiff has failed to state a claim.21 The Department of Homeland Security (“DHS”) has since22 initiated removal proceedings against Plaintiff on December 22,23 2009, by issuing a Notice to Appear before an immigration judge.24 (Reply, Ex. 3.)2526 ///27 ///28 /// 3
  6. 6. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 4 of 17 Page ID #:284 1 2 II. MOTION TO DISMISS: LACK OF SUBJECT MATTER JURISDICTION 3 A. Procedural Standard 4 Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party 5 may move to dismiss for lack of subject matter jurisdiction. Fed. 6 R. Civ. P. 12(b)(1). The burden of establishing jurisdiction rests 7 on the party asserting jurisdiction. Kokkonen v. Guardian Life 8 Ins. Co. of Am., 511 U.S. 375, 377 (1994). The Supreme Court has 9 “consistently held that if jurisdiction exists at the time an10 action is commenced, such jurisdiction may not be divested by11 subsequent events.” Freeport-McMoRan, Inc. v. K N Energy, Inc.,12 498 U.S. 426 428 (1991).113 Although the Administrative Procedure Act, 5 U.S.C. §§ 701-70614 (2006) (“APA”), does not provide an independent basis for subject15 matter jurisdiction, “a federal court has jurisdiction pursuant to16 28 U.S.C. § 1331 over challenges to federal agency action as claims17 arising under federal law, unless a statute expressly precludes18 review.” Gallo Cattle Co. v. U.S. Dept. of Agriculture, 159 F.3d19 1194, 1198 (9th Cir. 1998). Only “[a]gency action made reviewable20 by statute and final agency action for which there is no other21 adequate remedy in a court, are subject to judicial review.” 522 U.S.C. § 704. The default rule is that USCIS decisions are23 reviewable under the APA. Ana Int’l v. Way, 393 F.3d 886, 890 (9th24 Cir. 2004).225 1 It is therefore of no moment that removal proceedings were26 commenced after Plaintiff filed her complaint in this action.27 2 It is well-settled in the Ninth Circuit that a denial of an I-485 application constitutes final agency action, notwithstanding28 (continued...) 4
  7. 7. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 5 of 17 Page ID #:285 1 B. Discussion 2 Defendants assert that two separate jurisdiction-stripping 3 provisions deprive the Court of subject matter jurisdiction. First, 4 Defendant argues that the Court is stripped of jurisdiction by 8 5 U.S.C. § 1252(d)(1), which provides that “a final order of removal” 6 is only reviewable if “the alien has exhausted all administrative 7 remedies available to the alien as of right . . . .” Second, 8 Defendant argues that this Court is divested of jurisdiction to 9 review USCIS decisions concerning adjustment of status under 810 U.S.C. § 1255 by virtue of the Illegal Immigration Reform and11 Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 11012 Stat. 3009 (1996) (“IIRIRA”), codified in relevant part at13 Immigration and Nationality Act (“INA”) Section 242(a)(2)(B)(i) and14 (ii), and the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat.15 231, codified in relevant part at INA Section 242(a)(D). Second,1617 2 (...continued)18 the fact that “an alien may challenge the denial of his adjustment19 application during deportation proceedings, which are then subject to administrative appeal and ultimately . . . review by the court20 of appeals.” Chan v. Reno, 113 F.3d 1068, 1071 (9th Cir. 1997); see also Tang v. Reno, 77 F.3d 1194, 1196 (9th Cir. 1996); Jaa v.21 United States INS, 779 F.2d 569, 571 (9th Cir. 1986). Defendants nonetheless argue that Chan is no longer binding in22 light of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, codified in relevant part at INA Section 242(a)(D), and that23 Plaintiff has failed to exhaust her administrative remedies. This argument is wholly unpersuasive because (1) Defendants have failed24 to articulate how the REAL ID Act would alter or affect the Ninth Circuit’s reasoning in Chan and (2) none of the cases cited by25 Defendants as recognizing Chan’s abrogation in light of the REAL ID Act even mentions Chan. See Kondrachuk v. USCIS, No. 08-cv-5476,26 2009 WL 1883720 (N.D. Cal. June 30, 2009); Ahmed v. Scharfen, No. 08-cv-1680, 2009 WL 55939 (N.D. Cal. Jan. 7, 2009); Lu v. Chertoff,27 No. 08-cv-3576, 2008 WL 4559747 (C.D. Cal. Oct. 7, 2008). The Ninth Circuit’s decision in Chan, 113 F.3d at 1071, is28 still binding, and, even if it were not, Defendants have failed to articulate why the Court should depart from its sound reasoning. 5
  8. 8. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 6 of 17 Page ID #:286 1 Defendant argues that the Court is stripped of jurisdiction by 8 2 U.S.C. § 1252(d)(1), which provides that 3 1. 8 U.S.C. § 1252(d)(1) 4 By its plain language, § 1252(d)(1) applies only to “review of 5 a final order of removal . . . .” 8 U.S.C. § 1252(d)(1). 6 Plaintiff does not seek review of a final order of removal; rather, 7 she seeks review of the denial of her application to adjust status. 8 In light of the “‘strong presumption in favor of judicial review of 9 administrative action’ governing the construction of jurisdiction-10 stripping provisions of IIRIRA,” the Court concludes that §11 1252(d)(1) does not eliminate jurisdiction here. ANA Int’l, Inc.12 v. Way, 393 F.3d 886, 891 (9th Cir. 2004) (quoting INS v. St. Cyr,13 533 U.S. 289, 298 (2001)).14 2. 8 U.S.C. §§ 1252(a)(2)(B) and (a)(2)(D)15 Alternatively, Defendants argue that 8 U.S.C. §§16 1252(a)(2)(B)(i) and (a)(2)(D) preclude judicial review of the17 USCIS decision.18 I-485 applications, such as the one at issue here, are decided19 under section 1255 of the INA. 8 U.S.C. § 1255. Under the heading20 “Denials of discretionary relief,” IIRIRA amends the INA to21 preclude judicial review of “any judgment regarding the granting of22 relief under” several enumerated sections of the INA, including23 section 1255. 8 U.S.C. § 1252(a)(2)(B)(i). The scope of IIRIRA’s24 jurisdiction-stripping provision was later restricted by the REAL25 ID Act, which provides that “[n]othing in [the INA] which limits or26 eliminates judicial review, shall be construed as precluding review27 of constitutional claims or questions of law raised upon a petition28 6
  9. 9. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 7 of 17 Page ID #:287 1 for review filed with an appropriate court of appeals.” 8 U.S.C. § 2 1252(a)(2)(D). 3 For the reasons set forth more fully by this Court in 4 Cabaccang v. USCIS, No. 2:07-cv-00574-DDP-E (C.D. Cal. June 15, 5 2009), section 1252 does not divest this Court of jurisdiction to 6 review Plaintiff’s claim. 7 The Ninth Circuit has interpreted § 1252(a)(2)(B)(i) as 8 stripping jurisdiction only with respect to discretionary USCIS 9 decisions made under the enumerated sections. See Montero-Martinez10 v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002). It is well11 settled that a determination concerning eligibility for adjustment12 under § 1255 is non-discretionary, see, e.g., Hernandez v.13 Ashcroft, 345 F.3d 824, 845 (9th Cir. 2003), and that, as a result,14 this Court retains jurisdiction to review such determinations. See15 Montero-Martinez, 277 F.3d at 1142, 1145 (holding that Congress16 “intended the word ‘judgment’ in § 1252(a)(2)(B)(i) to refer only17 to discretionary determinations” and that as a result, jurisdiction18 remains over “the purely legal and hence non-discretionary19 question” regarding eligibility for discretionary relief).20 Defendants argue, however, that Montero-Martinez is no longer21 good law because it “was decided before 8 U.S.C. § 1252(a)(2)(D)22 was enacted via the REAL ID Act” which “created a separate basis of23 review for non-discretionary judgments of the Attorney General.”24 (Reply 6:14-19.) While Defendants acknowledge that §25 1252(a)(2)(B)(i) standing alone does not “preclude[] this Court26 from having subject matter jurisdiction,” when “read together [with27 § 1252(a)(2)(D)] after being amended by IIRIRA and the Real ID Act”28 7
  10. 10. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 8 of 17 Page ID #:288 1 it divests the Court of subject matter jurisdiction. (Reply 6:10- 2 14.) 3 The Court is not persuaded. Contrary to Defendant’s argument 4 that the REAL ID Act restricted the scope of judicial review 5 recognized in Montero-Martinez, the REAL ID Act’s amendments to § 6 1252(a)(2)(D) actually “expanded the scope of the [courts of 7 appeals] review under § 1252,” thereby “repealing all 8 jurisdictional bars to [courts of appeals’] review of final removal 9 orders other than those remaining in 8 U.S.C. § 1252 (in provisions10 other than (a)(2)(B) or (C)).” Sandoval-Lua v. Gonzales, 499 F.3d11 1121, 1126 (9th Cir. 2007). This conclusion is buttressed by the12 Ninth Circuit’s recent affirmation of Montero-Martinez’s holding.13 De Mercado v. Mukasey, 566 F.3d 810, 814 (9th Cir. 2009)14 (“Subsection B(i) does not deprive [the court] of jurisdiction over15 questions pertaining to a petitioner’s statutory eligibility” for16 discretionary immigration relief “because such questions are17 ‘purely legal and hence non-discretionary.’”) (quoting Montero-18 Martinez, 277 F.3d at 1144-45).319 Therefore, subject matter jurisdiction is not divested by §20 1252(a)(2)(B)(i) or § 1252(a)(2)(D).21222324 3 The Ninth Circuit’s holding in Hassan v. Chertoff, 543 F.3d25 564 (9th Cir. 2008), affirming the district court’s dismissal for lack of jurisdiction under § 1252(a)(2)(B)(i) does not suggest a26 contrary result. In Hassan “the government denied Hassan’s application for adjustment, in part, as a matter of discretion,”27 thereby depriving the district court of jurisdiction.” 543 F.3d at 566. Here, however, Plaintiff’s I-485 application was denied28 solely on the non-discretionary basis that Plaintiff was ineligible. 8
  11. 11. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 9 of 17 Page ID #:289 1 III. MOTION TO DISMISS: FAILURE TO STATE A CLAIM 2 A. Procedural Standard 3 1. Federal Rule of Civil Procedure 12(b)(6) 4 Pursuant to Federal Rule of Civil Procedure 12(b)(6), a 5 complaint is subject to dismissal when the plaintiffs allegations 6 fail to state a claim upon which relief can be granted. When 7 considering a 12(b)(6) motion to dismiss for failure to state a 8 claim, “all allegations of material fact are accepted as true and 9 should be construed in the light most favorable to [the]10 plaintiff.” Resnick v. Hayes, 213 F.3d 433, 447 (9th Cir. 2000).11 In Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), the12 Supreme Court explained that a court considering a 12(b)(6) motion13 should first “identify[] pleadings that, because they are no more14 than conclusions, are not entitled to the assumption of truth.”15 Id. Next, the court should identify the complaint’s “well-pleaded16 factual allegations, . . . assume their veracity and then determine17 whether they plausibly give rise to an entitlement to relief.”18 Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th19 Cir. 2009) (“In sum, for a complaint to survive a motion to20 dismiss, the non-conclusory factual content, and reasonable21 inferences from that content, must be plausibly suggestive of a22 claim entitling the plaintiff to relief” (internal quotation marks23 omitted)).24 As a general rule, the Court may not consider materials other25 than the facts alleged in the complaint when ruling on a motion to26 dismiss. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).27 The court may, however, consider materials outside of the complaint28 if the complaint references the materials, and their authenticity 9
  12. 12. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 10 of 17 Page ID #:290 1 is not disputed. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 2 1994), overruled on other grounds by Galbraith v. County of Santa 3 Clara, 307 F.3d 1119 (9th Cir. 2002) (on a motion to dismiss, 4 courts may properly review “documents whose contents are alleged in 5 the complaint and whose authenticity no party questions, but which 6 are not physically attached to the plaintiffs pleading”). 7 2. APA 8 Defendants’ finding that Plaintiff is ineligible for 9 adjustment of status can only be overturned if it is “arbitrary, 10 capricious, an abuse of discretion, or otherwise not in accordance 11 with law.” 5 U.S.C. § 706(2)(A); City of Sausalito v. O’Neill, 386 12 F.3d 1186, 1206 (9th Cir. 2004). “When reviewing an agency’s 13 statutory interpretation under the APA’s ‘not in accordance with 14 law’ standard, see 5 U.S.C. § 706(2)(A), . . . [the Ninth Circuit] 15 adhere[s] to the familiar two-step test of Chevron.” Nw. Envtl. 16 Advocates v. United States Envtl. Prot. Agency, 537 F.3d 1006, 1014 17 (9th Cir. 2008) (quoting Holland v. Nat’l Mining Ass’n, 309 F.3d 18 808, 815 (D.C. Cir. 2002) (internal quotation marks omitted)). 19 Agencies are afforded Chevron deference in interpreting the 20 statutes they are charged with enforcing. Az. State Bd. for 21 Charter Schs. v. U.S. Dep’t of Educ., 464 F.3d 1003, 1006-07 (9th 22 Cir. 2006). Therefore, the court must “look first to the statutory 23 text to see whether Congress has spoken directly to the question at 24 hand.” Id. at 1006 (internal quotation marks and citation 25 omitted). If Congress has spoken clearly, “that is the end of the 26 matter,” and the plain language controls.” Id. On the other hand, 27 if the statutory text is ambiguous, the court must “defer to the 28 agency’s interpretation if it is based on a permissible 10
  13. 13. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 11 of 17 Page ID #:291 1 construction of the statute.” Id. at 1006-07 (internal quotation 2 marks and citation omitted). 3 The interpretations at issue here are regulations, memoranda 4 interpreting regulations, and the non-appealable agency decision 5 underlying this case. While “[i]nterpretations such as those in 6 opinion letters– like interpretations contained in policy 7 statements, agency manuals, and enforcement guidelines” do not 8 normally warrant Chevron-style deference,” Christensen v. Harris 9 County, 529 U.S. 576, 587 (2000), they may warrant such deference 10 under certain circumstances. Barnhart v. Wilson, 535 U.S. 212, 222 11 (2002). “The fair measure of deference to an agency administering 12 its own statute has been understood to vary with circumstances, and 13 courts have looked to the degree of the agency’s care, its 14 consistency, formality, and relative expertness, and to the 15 persuasiveness of the agency’s position.” Id. at 1007 (quoting 16 United States v. Mead Corp., 533 U.S. 218, 228 (2001) (footnotes 17 omitted)). “To the extent an agency ‘interpret[ed] its own 18 regulation, even if through an informal process, its interpretation 19 of an ambiguous regulation is controlling . . . unless ‘plainly 20 erroneous or inconsistent with the regulation.’” Love Korean Church 21 v. Chertoff, 549 F.3d 749, 754 (9th Cir. 2008) (quoting Bassiri v. 22 Xerox Corp., 463 F.3d 927, 930 (9th Cir. 2006)). Even where an 23 agency interpretation is not entitled to Chevron deference, a court 24 will defer to it to the extent it has the “power to persuade.” 25 Mead, 533 U.S. at 234-35 (internal citations omitted); cf. Padash 26 v. I.N.S., 458 F.3d 1161, 1168 n.6 (9th Cir. 2004). 27 28 11
  14. 14. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 12 of 17 Page ID #:292 1 B. Legal Framework for Adjustment of Status 2 Section 245(a) of the INA, codified at 8 U.S.C. § 1255(a), 3 provides that a lawfully admitted alien may apply to adjust her 4 status to that of a lawful permanent resident. An applicant is 5 ineligible for adjustment of status if she falls into one of the 6 categories listed in § 1255 (c). Under § 1255 (c)(2), an alien 7 “who is in unlawful immigration status on the date of filing the 8 application for adjustment of status or who has failed (other than 9 through no fault of his own or for technical reasons) to maintain 10 continuously a lawful status since entry into the United States” is 11 ineligible for adjustment of status. Sections (c)(7) and (c)(8) 12 render ineligible “any alien who seeks adjustment of status to that 13 of an immigrant under section 1153(b) of this title and is not in 14 lawful nonimmigrant status” and “any alien who was employed while 15 the alien was an unauthorized alien . . . or who has otherwise 16 violated the terms of a nonimmigrant visa.” 17 These bars to adjustment of status does not apply, however, if the 18 applicant satisfies the requirements of § 1255(K). 19 Subsection (k) provides a 180-day grace period for certain 20 employment-based applicants who would otherwise be ineligible for 21 adjustment of status under subsection (c). The 180-day exception 22 applies, in relevant part, to an alien who, subsequent to a “lawful 23 admission has not, for an aggregate period exceeding 180 days . . . 24 failed to maintain continuously, a lawful status.” 8 U.S.C. § 25 1255(k)(2). In other words, an alien whose lawful status has 26 expired may seek protection under § 1255(k)’s grace period if the 27 duration of her expired lawful status does not exceed 180 days. 28 12
  15. 15. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 13 of 17 Page ID #:293 1 C. Discussion 2 The question presented here is what constitutes “a lawful 3 status” for purposes of § 1255(k). While Plaintiff’s first I-485 4 application was pending, she received “a period of stay authorized 5 by the Attorney General” and would therefore only become 6 “unlawfully present” for purposes of removal upon denial of her 7 application. See 8 U.S.C. 1182(a)(9)(B)(ii). The parties dispute 8 whether this “period of stay authorized by the Attorney General” 9 also granted Plaintiff “a lawful status,” thereby exempting those 10 days from counting toward § 1255(k)’s 180-day grace period. 11 Plaintiff contends that the only reasonable interpretation of 12 § 1255(k)(2)(a) is that it requires an applicant for adjustment of 13 status to maintain one of many possible lawful status, and that one 14 such status is a “period of stay authorized by the Attorney 15 General” pursuant to § 1182(a)(9)(B). In Plaintiff’s case, this 16 was the period of time during which her first I-485 application was 17 pending. Under Plaintiff’s calculation, she therefore accrued only 18 sixty-one days toward the 180-day grace period, rather than the 218 19 counted by USCIS. 20 In support of this argument, Plaintiff cites a policy 21 memorandum issued on March 3, 2000, by the Immigration and 22 Naturalization Service (“INS”) Office of Field Operations, which 23 provided that an applicant for an extension of stay or a change of 24 status whose application has been pending longer than 120 days 25 would be considered in a “period of stay Authorized by the Attorney 26 General” and would therefore avoid accruing any time of “unlawful 27 presence” during the pendency of the application. Memorandum to 28 Regional Directors from Michael A. Pearson, Executive Assoc. 13
  16. 16. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 14 of 17 Page ID #:294 1 Comm’r, INS, U.S. Dep’t of Justice, Period of Stay Authorized by 2 the Attorney General After 120-day Tolling Period for Purposes of 3 Section 212(a)(9)(B) of the Immigration and Nationality Act (Mar. 4 3, 2000), reprinted in 77 Interpreter Releases 316, 317 (2000) (the 5 “Pearson Memo”), at 2. Plaintiff argues that USCIS’s 6 interpretation of the term “lawful status” in its denial of 7 Plaintiff’s I-485 application is inconsistent with its 8 interpretation of the term “unlawful presence” articulated in the 9 Pearson Memo for purposes of establishing a three or ten year re- 10 entry ban under 8 U.S.C. § 1182(a)(9)(B). 11 Defendants, on the other hand, argue that the Pearson Memo 12 “dealt solely with the issue of staying the period of unlawful 13 presence for removability . . . and with no other portion of the 14 INA.” (Mot. 21:18-20.) Unlike “unlawful presence” discussed in 8 15 U.S.C. § 1182(a)(9)(B)(ii), the definition of “lawful status” 16 contemplated by § 1255(k) merely encompasses those statuses 17 specifically enumerated in 8 C.F.R. § 245.1(d)(1). This regulation 18 defines the term “lawful immigration status” for purposes of 8 19 U.S.C. § 1255(c)(2) as lawful permanent resident status, non- 20 immigration status, or refugee, asylee, or parole status. 8 C.F.R. 21 § 245.1(d)(1). 22 Plaintiff’s argument is unavailing. As this Court has 23 previously noted, the INA “does not plainly require coextensive 24 construction [of §§ 1182(a)(9)(B) and 1255(k)] and, as a result 25 [leaves] room for agency interpretation.” Cabaccang, No. 2:07-cv- 26 00574-DDP-EX, at 25-26 (emphasis in original). To the contrary, 27 “the definition of ‘lawful presence’ provided in § 1182(a)(9)(B) is 28 expressly ‘[f]or the purposes of this paragraph,’” and “the terms 14
  17. 17. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 15 of 17 Page ID #:295 1 used (‘status’ and ‘presence’) are different, which supports a 2 construction of different meanings.” Cabaccang, No. 2:07-cv-00574- 3 DDP-EX, at 26. 4 It is therefore appropriate to defer to the agency’s 5 interpretation of “a lawful status” as set forth in a memorandum 6 issued July 14, 2008. Memorandum to Field Leadership from Donald 7 Neufeld, Acting Associate Dir. of Domestic Operations, 8 Applicability of Section 245(k) [8 U.S.C. § 1255(k)] to Certain 9 Employment-Based Adjustment of Status Applications filed under 10 Section 245(a) [8 U.S.C. § 1255(a)] of the Immigration and 11 Nationality Act (July 14, 2008) (the “Neufeld Memo”). In the 12 Neufeld Memo, USCIS explained that “a properly filed adjustment of 13 status application, in and of itself, does not accord lawful 14 status,” and that therefore, “the period during which an alien has 15 a pending . . . adjustment of status application does not 16 constitute, in and of itself, a period in which the alien is in a 17 lawful ‘status’” for purposes of § 1255(k)’s 180-day grace period. 18 Id. at 6. 19 Plaintiff argues that the Court should not defer to the 20 Neufeld Memo because (1) it is contrary to the plain language of § 21 1255(k), (2) it conflicts with the Pearson Memo, and (3) it is 22 internally inconsistent. Not so. First, Court has previously 23 ruled that the phrase “a lawful status” as set forth in § 1255(k) 24 is not “unambiguously clear” and that “[a]s a result, there is room 25 for USCIS interpretation.” Cabaccang, No. 2:07-cv-00574-DDP-EX, at 26 22. Second, the Court is not convinced that the Neufeld Memo 27 conflicts with the Pearson Memo, which dealt only with the 28 definition of “unlawful presence” contained in another section of 15
  18. 18. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 16 of 17 Page ID #:296 1 the INA.4 Third, as described below, the Neufeld Memo is not 2 irrational or internally inconsistent. 3 The Neufeld Memo provides that if an alien properly files an 4 I-485 application that is later granted, the days in which the 5 application was pending will not be considered out of “lawful 6 status” and will not count toward the 180-day grace period. 7 However, where such an application is denied, the alien will not be 8 considered to have been in “lawful status” merely by virtue of the 9 pending I-485 application. Neufeld Memo, at 5-6. The Court is 10 cognizant of the concern that this interpretation places an alien 11 who has filed an I-485 application between the Scylla of abandoning 12 her application and the Charybdis of failing to maintain a lawful 13 status.5 However, the Neufeld Memo reflects a legitimate policy 14 goal of avoiding a loophole in which an alien could forever avoid 15 being considered in an unlawful status by continuously filing I-485 16 applications. USCIS has expressed its goal of curbing the serial 17 filing of applications by aliens in an attempt to prolong their 18 presence in the United States. See Memorandum for Thomas Cook from 19 Janice Podolny, Interpretation of “Period of Stay Authorized by the 20 Attorney General” in Determining “Unlawful Presence” under INA 21 4 USCIS has previously clarified that it interprets “unlawful 22 presence” under 8 U.S.C. § 1182(a)(9)(B)(ii) differently from the terms “lawful status” or “authorized status” found elsewhere in the 23 INA, which, as noted above, is not precluded by the language of the INA. See Memorandum for Thomas Cook from Janice Podolny, 24 Interpretation of “Period of Stay Authorized by the Attorney 25 General” in Determining “Unlawful Presence” under INA Section 212(a)(9)(B)(ii) (Mar. 27, 2003) (the “Podolny Memo”). 26 5 USCIS requires an alien seeking adjustment of status to 27 remain in the United States or abandon her application. See Memorandum from Thomas Cook, INS Acting Assistant Comm’r, Office of 28 Programs, Travel After Filing a Request for a Change of Nonimmigrant Status (June 18, 2001). 16
  19. 19. Case 2:09-cv-06086-DDP-E Document 17 Filed 01/11/10 Page 17 of 17 Page ID #:297 1 Section 212(a)(9)(B)(ii) (Mar. 27, 2003) (the “Podolny Memo”). 2 Although Plaintiff has argued why other policy choices might be 3 preferable to those outlined in the Neufeld Memo, that is not 4 sufficient to justify overturning USCIS’s policy judgments made 5 pursuant to its authority, granted by Congress, to implement the 6 immigration laws. 7 Therefore, because USCIS’s interpretation of “a lawful status” 8 under § 1255(k) was reasonable as a matter of law, Plaintiff has 9 failed to state a claim upon which relief can be granted. 10 /// 11 /// 12 /// 13 IV. CONCLUSION 14 For the foregoing reasons, the Court grants in part and denies 15 in part Defendants’ motion and dismisses the complaint with 16 prejudice. 17 18 IT IS SO ORDERED. 19 20 21 Dated: January 11, 2010 DEAN D. PREGERSON 22 United States District Judge 23 24 25 26 27 28 17

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