United States District Court, D. Nevada
ORDERGRANTINGMOTIONTO DISMISS (ECF NO. 11)
P. GORDON UNITED STATES DISTRICT JUDGE.
Jackielyn Perez files this action under the Administrative
Procedures Act (APA) to challenge the United States
Citizenship and Immigration Services' (USCIS) denial of
her motion to reopen the agency's denial of her
application to adjust her status. ECF No. 1. Perez contends
USCIS acted arbitrarily and capriciously in finding that she
had not established that her prior marriage was bona fide.
moves to dismiss, arguing that Perez has named the wrong
party because the Secretary of Homeland Security is the
proper defendant. Additionally, USCIS argues that even if
Perez amended to name the proper party, amendment would be
futile because the decision to deny her motion to reopen was
not arbitrary or capricious.
responds that she presented her marriage certificate and her
own testimony about her marriage, but she admits she was
unable to produce other proof that her first marriage was
bona fide. She contends she was unable to do so because of
abuse in that marriage. She asserts she did not have an
attorney before, and she should be given another opportunity
to present testimony and evidence to establish her first
marriage was bona fide. Perez disputes that her application
must be considered based on the initial petition regardless
of a change in circumstances. Finally, Perez requests leave
to amend to name the proper defendant.
reply, USCIS notes that since Perez filed the complaint,
removal proceedings have been initiated. USCIS contends Perez
must pursue her remedies in those proceedings, not in this
was admitted to the United States in 2008 as a non-immigrant
K-1 fiancée of a United States citizen, Denn Andrew
Dominguez Jose. Id. at 9. She filed an
application for adjustment of status. Id. However,
neither Perez nor Jose appeared for the interview that was
scheduled in August 2009, so the application was denied.
filed for divorce in 2010. Id. Perez later married
Akrhe Perez in February 2014 and filed a second application
for adjustment of status based on this second marriage.
Id. Perez and her second husband appeared for an
interview in January 2016. Id. The USCIS denied the
second application because K-1 visa holders cannot adjust
status except through their petitioning spouse (here, Jose).
Id. The USCIS found that Perez had provided a
marriage certificate, thus establishing the first marriage
was legal, but concluded that Perez had not presented
evidence that the marriage was bona fide or that she was the
victim of abuse by her first spouse. Id.
moved to reopen. Id. The USCIS denied the motion to
reopen. Id. The USCIS concluded that Perez had not
submitted any new evidence that was previously unavailable or
any evidence that the law was applied incorrectly.
filed the instant lawsuit under the APA on August 29, 2016.
After the motion to dismiss and Perez's response had been
filed, the Department of Homeland Security initiated removal
proceedings against Perez. ECF Nos. 11 (motion to dismiss
filed February 21, 2017); 14 (opposition filed April 7,
2017); 15-1 (notice to appear dated April 12, 2017).
the Department of Homeland Security has initiated removal
proceedings against Perez, I lack jurisdiction under the APA
to resolve her complaint. As explained in Cabaccang v.
U.S. Citizenship & Immigration Services, agency
action is subject to judicial review under the APA
“only when it is either: (1) made reviewable by
statute; or (2) a ‘final' action ‘for which
there is no other adequate remedy in a court.'” 627
F.3d 1313, 1315 (9th Cir. 2010) (quoting 5 U.S.C. §
704). “No statute authorizes judicial review over
denials of status adjustment, ” so the question is
whether the denial of Perez's application, and the
related motion to reopen, were final agency actions
“for which there [is] no other adequate remedy.”
Perez has another adequate remedy because the immigration
judge has “unfettered authority to modify or reverse
USCIS's denial of [her] application, regardless of
USCIS's prior determination.” Id. at 1316
(citing 8 C.F.R. §§ 1240.1(a)(1)(ii),
1245.2(a)(1)(i)). Consequently, Perez's application for
adjustment of status is not final because she can renew it in
the removal proceedings. Id. Additionally,
“the pendency of removal proceedings means [Perez]
ha[s] not exhausted [her] administrative remedies.”
Id. It does not matter that the removal proceedings
commenced after Perez filed this lawsuit. Id. at
1317 (“Regardless of whether the Cabaccangs'
removal proceedings began before this action, the pendency of
removal proceedings now means their claims are not ripe for
judicial review.”). Consequently, I dismiss this
complaint for lack of jurisdiction.