MAGALLANES v. MAYORKAS (2025)

ORDER DENYING DEFENDANT'S MOTION TO DISMISS [DKT. 11] AND SETTING SCHEDULING CONFERENCE

RULING

Before the court is Defendant Kristi Noem's ¹ (“Defendant”) Motion to Dismiss Plaintiff's Complaint (“Motion”). Dkt. 11 (“Mot.”).² Plaintiff Romulo Magallanes (“Plaintiff”) opposes the Motion. Dkt. 21 (“Opp'n”).³ On November 20, 2024, the court found the Motion appropriate for resolution without oral argument and vacated the hearing set for November 22, 2024. Dkt. 28; see Fed. R. Civ. P. 78(b); Local Rule 7-15.

For the reasons set forth below, the court DENIES the Motion.

BACKGROUND

Plaintiff, a citizen of Venezuela, alleges he married Andrea Lynn Haley (“Haley”), a United States citizen, on July 14, 2008. Dkt. 1 (“Compl.”) ¶¶ 6-7. On July 26, 2008, Haley allegedly filed a Form I-130, Petition for Alien Relative, with the United States Citizenship and Immigration Services (“USCIS”), and Plaintiff filed a Form I-485, Application for Adjustment of Status, to adjust his status to that of a lawful permanent resident of the United States. Id. On February 12, 2009, USCIS approved Haley's purported I-130 petition and Plaintiff's I-485 petition, and granted Plaintiff lawful permanent resident (“LPR”) status on a conditional basis, restricting the validity of Plaintiff's status to two (2) years, pursuant to 8 U.S.C. § 1186a(a) (“§ 1186a(a)”). Compl. ¶ 8. On November 18, 2010, Plaintiff and Haley filed an allegedly joint Form I-751 Petition (“Form I-751”), requesting USCIS remove the conditional basis of Plaintiff's permanent resident status, id. ¶ 9, which USCIS granted on April 15, 2011, id. ¶ 10.

On June 20, 2019, Plaintiff applied for naturalization by filing a Form N-400 Application with USCIS. Id. at 13. On March 6, 2020, Plaintiff appeared for an interview on his naturalization application, at which time he revealed to USCIS, for the first time, that he had divorced Haley effective December 8, 2009—almost a full year before Plaintiff filed the allegedly joint Form I-751. Id. USCIS explained that, because Plaintiff and Haley were not married when they filed the Form I-751, it was approved in error because Plaintiff was not statutorily eligible for adjustment of status given his divorce. Id. at 15–16. USCIS further stated that, given his ineligibility to file the Form I-751, Plaintiff needed to “request a waiver of the joint filing requirement in writing.” Id. at 41.

On November 15, 2022, USCIS issued a Notice of Intent to Terminate Conditional Permanent Resident Status (“NOIT”), informing Plaintiff it intended to vacate its approval of and reopen Plaintiff's Form I-751, due to Plaintiff's revelation during his naturalization process that he and Haley were divorced before Plaintiff's conditional status was removed, and granting Plaintiff an opportunity to submit new evidence in support of his Application. Id. ¶ 11; Dkt. 29-1 (“CAR”) at 9; see 8 C.F.R. § 103.5(a)(5)(ii).

On August 13, 2024, USCIS issued a Decision whereby it denied Plaintiff's November 18, 2010 Form I-751 Petition, despite having granted it on April 15, 2011, because “[t]he fact that [Plaintiff] and Ms. Haley were already divorced prior to the filing of Form I-751, mean[t] that [Plaintiff was] not eligible for I-751 joint filing under the Act, and its approval was not proper.” CAR at 7, 9. The Decision stated

USCIS conducted an administrative investigation and USCIS Officers were able to speak to Ms. Haley by telephone. Ms. Haley verified her identity ․ On record, Ms. Haley disavowed knowing [Plaintiff], ever being married [to Plaintiff], and submitting any immigration paperwork for anyone. As such, USCIS finds that [Plaintiff's] marriage to Ms. Haley was a sham, entered solely for the purpose of circumventing immigration laws.

Id. at 8-9. The Decision further stated Plaintiff's conditional permanent resident status was being terminated as of that date, and the Decision was final and not subject to agency appeal, but that Plaintiff could “request review of this determination in removal proceedings before an Immigration Judge.” Id. at 11. Also on August 13, 2024, USCIS issued a Notice to Appear in removal proceedings and charged Plaintiff as removable pursuant to 8 U.S.C. § 1182(a)(1)(D)(i), based on the alleged termination of his conditional permanent residence status. See CAR at 3.

Plaintiff seeks declaratory relief under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq., alleging the reopening of his Form I-751 Petition exceeds the USCIS's authority in violation of 5 U.S.C. §§ 702 and 706(2), and violated his due process rights under the Fifth Amendment. Compl. ¶¶ 17–27. USCIS moves to dismiss the Complaint for: (1) lack of subject-matter jurisdiction, pursuant to Rule 12(b)(1); and (2) failure to state a claim for relief, pursuant to Rule 12(b)(6). Mot. at 14–18.

MOTION TO DISMISS UNDER RULE 12(b)(1)

I. Legal Standard

Federal courts are courts of “limited jurisdiction,” possessing “only that power authorized by the Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); U.S. Const. art. III, § 2, cl. 1. “It is to be presumed that a cause lies outside [of federal courts’] limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673 (citations omitted); Sopcak v. N. Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995). A challenge to subject matter jurisdiction “can be either facial, confining the inquiry to allegations in the complaint, or factual, permitting the court to look beyond the complaint.” Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003). Therefore, when considering a motion under Rule 12(b)(1), the court is not restricted to the face of the pleadings, but may review evidence, such as declarations and testimony, to resolve any factual disputes concerning the existence of jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).

II. Discussion

“Under the APA, agency action is subject to judicial review 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.’ ” Cabaccang v. U.S. Citizenship & Immigr. Serv., 627 F.3d 1313, 1315 (9th Cir. 2010) (quoting 5 U.S.C. § 704). Defendant moves to dismiss the Complaint on the grounds there was no “final action” by the agency. Mot. at 14–15; see also Dkt. 35 (“Resp.”) at 14. Defendant states “USCIS reopened its decision to remove the conditions on Plaintiff's permanent residence,” “terminated Plaintiff's conditional permanent residence, and ․ placed him in removal proceedings.” Mot. at 7–8. According to Defendant, “Plaintiff's being in removal proceedings ․ renders USCIS’ action non-final, and thus not yet reviewable.” Id. at 8 (citing Cabaccang, 627 F.3d at 1315).⁴

Plaintiff counters he does not seek review of USCIS's decision to deny him conditional residence status, but is challenging USCIS's authority to reopen his Form I-751 Petition in the first instance. Opp'n at 32. Plaintiff further contends the “final action” rule does not apply because it is well-settled that immigration judges lack jurisdiction to rule upon the constitutionality of regulations, which would preclude the immigration judge from reviewing the procedural issues raised in the Complaint. Id. (“While removal proceedings will certainly provide Plaintiff the opportunity to challenge the substantive basis for termination, it will not allow Plaintiff the opportunity to challenge USCIS's authority to terminate [Plaintiff's lawful personal residence status].”) (emphasis in original). According to Plaintiff, because the immigration judge cannot rule on these issues, the agency decision, thus, is final and this court has jurisdiction over Plaintiff's claims.

The central issue of this action is not whether Plaintiff's permanent resident status should be revoked and Plaintiff removed from the United States based on his repeated alleged misrepresentations of his marital status, but whether USCIS has the authority to reopen and deny Plaintiff's Form I-751 Petition thirteen years after granting it, even if it was granted under false pretenses. Notably, Defendant does not address Plaintiff's argument regarding the immigration judge's lack of authority to consider Plaintiff's challenges to 8 C.F.R. § 103.5(a)(5)(ii). See Dkt. 23 (“Reply”); Resp.

It is well-settled that immigration judges cannot rule on the constitutionality of agency regulations. E.g., Romero v. Immigr. & Naturalization Serv., 39 F.3d 977, 980 (9th Cir. 1994) (quoting with approval the statement: “an immigration judge, or any quasi-judicial officer, has no authority to question the constitutionality of a regulation that he is bound to uphold”); Servin-Espinoza v. Ashcroft, 309 F.3d 1193, 1196 (9th Cir. 2002) (noting the Bureau of Immigration Appeals dismissed an appeal because it lacked “jurisdiction to rule on the constitutionality of the Immigration and Nationality Act [“INA”] and the regulations [it] administer[ed]”); Peters v. Barr, 954 F.3d 1238, 1242 (9th Cir. 2020) (“The [immigration judge] refused to address [plaintiff's] challenge to the validity of the regulation on the ground that immigration judges lack jurisdiction to resolve such challenges.”).

Because the immigration judge lacks the power to consider whether 8 C.F.R. § 103.5(a)(5)(ii) grants the USCIS the authority to reopen and deny Plaintiff's Form I-751 Petition, Plaintiff's claims are not precluded by the APA. The court, therefore, DENIES the Motion on this basis.

MOTION TO DISMISS UNDER RULE 12(b)(6)

I. Legal Standard

Under Rule 12(b)(6), a party may file a motion to dismiss a complaint for “failure to state a claim upon which relief can be granted.” The purpose of Rule 12(b)(6) is to enable defendants to challenge the legal sufficiency of the claims asserted in a complaint. Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987). A district court properly dismisses a claim under Rule 12(b)(6) if the complaint fails to allege sufficient facts “to state a cognizable legal theory or fails to allege sufficient factual support for its legal theories.” Caltex Plastics, Inc. v. Lockheed Martin Corp, 824 F.3d 1156, 1159 (9th Cir. 2016).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter ․ to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citations omitted).

“Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (cleaned up). “Determining whether a complaint states a plausible claim for relief is ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ ” Ebner v. Fresh, Inc., 838 F.3d 958, 963 (9th Cir. 2016) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937).

When evaluating a complaint under Rule 12(b)(6), the court “must accept all well-pleaded material facts as true and draw all reasonable inferences in favor of the plaintiff.” Caltex, 824 F.3d at 1159. Legal conclusions, however, “are not entitled to the assumption of truth” and “must be supported by factual allegations.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. The court need not accept as true allegations that contradict matters properly subject to judicial notice or established by exhibits attached to the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended on other grounds, 275 F.3d 1187 (9th Cir. 2001). “Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Id.

II. Discussion

Defendant moves to dismiss the Complaint on the grounds that USCIS may reopen a prior decision and reissue the decision in an unfavorable manner under 8 C.F.R. § 103.5 (“§ 103.5”),⁵ without any temporal limit. Mot. at 17. Plaintiff responds USCIS’ actions, purportedly reopening and denying his Form I-751 Petition, were unlawful because, once the conditional basis is removed, LPR status can only be revoked involuntarily by (1) rescission proceedings pursuant to 8 U.S.C. § 1256(a) (“§ 1256(a)”) or (2) removal proceedings pursuant to 8 U.S.C. § 1229(a) (“§ 1229(a)”)—and not by reopening a petition that was decided more than eleven years earlier and reversing the favorable determination that had already been finalized. Opp'n at 12–14. The court agrees with Plaintiff.

Congress established a comprehensive scheme for reconsidering and revoking a grant of LPR status in §§ 1256(a) and 1229(a). Section 1256(a) states:

If, at any time within five years after the status of a person has been adjusted under [8 U.S.C. §§ 1255 or 1259] or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person․

8 U.S.C. § 1256(a) (emphasis added).

This provision establishes a five-year statute of limitations, and “[a]fter five years, the alien's status is unassailable.” Fulgencio v. Immigr. & Naturalization Serv., 573 F.2d 596, 598 (9th Cir. 1978) (citation omitted). USCIS granted Plaintiff LPR status on a conditional basis on February 12, 2009, and removed the conditional basis when it granted his Form I-571 Petition on April 15, 2011. Compl. ¶¶ 8–10. As more than five years have passed since Plaintiff was granted LPR status, his status cannot be rescinded under § 1256(a). See Fulgencio, 573 F.2d at 598.

Removal proceedings under 8 U.S.C. § 1229(a) are more formal than rescission proceedings and are governed by additional, extensive procedural requirements and protections, which include the right to examine evidence, the right to cross-examine witnesses, and imposing on the government the burden to establish deportability by clear and convincing evidence. See generally 8 U.S.C. § 1229a (“§ 1229a”). “Unless otherwise specified in [the INA], a proceeding under [§ 1229a] shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.” § 1229a(a)(3).

Courts have long acknowledged the five-year statute of limitations serves as a firm limit for rescinding permanent resident status via § 1256(a), including for misrepresentations made during the application process, and that a permanent resident's status must be challenged through removal proceedings under § 1229, thereafter. See Fulgencio, 573 F.2d at 598; Asika v. Ashcroft, 362 F.3d 264, 268 (4th Cir. 2004) (noting § 1256(a) “establishes a five-year statute of limitations on the Attorney General's power to rescind erroneously granted adjustments of status”) (collecting cases).

“[A]n agency may not confer power upon itself” or “exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted into law.” Gorbach v. Reno, 219 F.3d 1087, 1092–93 (9th Cir. 2000) (cleaned up). Thus, an agency may not “expand [its] powers of reconsideration without a solid foundation in the language of the statute.” Civil Aeronautics Bd. v. Delta Air Lines, Inc., 367 U.S. 316, 334, 81 S.Ct. 1611, 6 L.Ed.2d 869 (1961); see also Gorbach, 219 F.3d at 1099 (“An executive department cannot simply decide, without express statutory authorization, to create an internal executive procedure to deprive people of [valuable] rights without even going to court.”).

USCIS cannot reopen and deny Plaintiff's I-751 Petition under § 103.5 to effect by regulation what Congress has not granted USCIS the statutory power to do (i.e., to rescind the removal of the conditional basis and terminate Plaintiff's LPR status after the five-year statute of limitations of § 1256(a) has expired). See Gorbach, 219 F.3d at 1090 (holding Attorney General's new regulations for administrative denaturalization exceeded powers granted in the “established and carefully constructed scheme” established by Congress and were invalid); see also Qatanani v. Att'y Gen. of U.S., 144 F.4th 485, 491 (3d Cir. July 15, 2025) (holding Board of Immigration Appeals “exceeded its authority when it attempted to undo [plaintiff's] adjustment to LPR status by using an agency regulation in a manner inconsistent with the procedures set out by Congress in the INA”).

Defendant argues § 1186a(b) grants USCIS the statutory authority to reopen and deny the I-751 Petition, and terminate Plaintiff's LPR status. Mot. at 17. According to Defendant, “where a marriage was terminated prior to the second anniversary of the noncitizen's having obtained conditional permanent residence,” § 1186a(b) requires USCIS to “ ‘terminate the permanent resident status of the [noncitizen] as of the date of the determination.’ ” Id. (quoting 8 U.S.C. § 1186a(b)(1)).

Defendant, however, omits and ignores key language from the statute. The full text of § 1186a(b)(1) states:

(b) Termination of status if finding that qualifying marriage improper.

(1) In general. In the case of an alien with permanent resident status on a conditional basis under subsection (a), if the Secretary of Homeland Security [“Secretary”] determines, before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence, that–

(A) the qualifying marriage–

(i) was entered into for the purpose of procuring an alien's admission as an immigrant, or

(ii) has been judicially annulled or terminated, other than through the death of a spouse;

(B) a fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition under [8 U.S.C. § 1154(a)] or subsection (d) or (p) of [8 U.S.C. § 1184] with respect to the alien;

the [Secretary] shall so notify the parties involved and ․ shall terminate the permanent resident status of the alien (or aliens) involved as of the date of the determination.

8 U.S.C. § 1186a(b)(1) (italics added).

Section 1186a(b)(1), on its face, only authorizes the Secretary to terminate an alien's LPR status, based on the annulment or termination of the qualifying marriage, if the Secretary determines the marriage is improper “before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence.” Id. § 1186a(b)(1)(A)(ii). This subsection does not grant the Secretary open-ended authority to terminate LPR status, years after the Secretary makes a favorable determination under subsection (c)(3) and removes the conditional basis of the parties. Instead, it allows the Secretary to terminate an alien's permanent resident status if the Secretary finds grounds for termination within the two-year window, before the alien's petition is heard or even filed.⁶ As USCIS approved Plaintiff's I-485 petition and granted Plaintiff LPR status on a conditional basis on February 12, 2009, Compl. ¶ 8, USCIS could only terminate Plaintiff's LPR status under § 1186a(b) if it had determined the qualifying marriage had been terminated on or before February 12, 2011. Defendant's argument, thus, fails.

Accordingly, the court finds USCIS’ actions purportedly reopening and denying Plaintiff's I-751 Petition exceeded its statutory authority and were invalid.

CONCLUSION

For the foregoing reasons, the court DENIES the Motion. The court SETS a scheduling conference for October 10, 2025, at 1:00 p.m. and ORDERS the parties to file an amended Joint Rule 26(f) Report, including all applicable trial and pretrial dates, on or before September 19, 2025.

IT IS SO ORDERED.

FOOTNOTES

1.   Kristi Noem takes the place of her predecessor in public office as Defendant, pursuant to Federal Rule of Civil Procedure (“Rule”) 25(d). The Clerk need not update the CM/ECF docket to reflect the substitution at this time, and the court refers to Defendant as named in the Complaint.

2.   The court cites documents by the page numbers added by the court's CM/ECF system, rather than any page numbers that appear within the documents natively.

3.   Per the court's Scheduling and Trial Order, the court approved additional briefing for the Motion. Dkt. 27 at 4. The court refers to this briefing as Plaintiff's “Opening Brief” (Dkt. 33), Defendant's “Responding Brief” (Dkt. 35), Plaintiff's “Reply Brief” (Dkt. 36), and Defendant's “Sur-Reply Brief” (Dkt. 37). In addition, Defendant filed a Certified Administrative Record (“CAR”) in this case, Dkt. 29-1, and Plaintiff filed a Notice of Supplemental Authority (“Notice”), Dkt. 39.

4.   In Cabaccang, the Ninth Circuit held district courts lack jurisdiction to consider an alien's challenge to USCIS's denial of an application to adjust status when removal proceedings are simultaneously pending against the alien. Cabaccang, 627 F.3d at 1314.

5.   The full text of § 103.5(a)(5)(ii) reads:Service motion with decision that may be unfavorable to affected party. When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision, and the new decision may be unfavorable to the affected party, the officer shall give the affected party 30 days after service of the motion to submit a brief. The officer may extend the time period for good cause shown. If the affected party does not wish to submit a brief, the affected party may waive the 30–day period.8 C.F.R. § 103.5(a)(5)(ii).

6.   Absent subsection (b)(1)(A), the Secretary would have no statutory authority to terminate an alien's LPR status before the entire two-year process was completed—even if the marriage was proven to be improper. See 8 U.S.C. § 1186a(d)(2) (“[T]he petition under subsection (c)(1)(A) must be filed during the 90-day period before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence.”), (d)(3) (“The interview under subsection (c)(1)(B) shall be conducted within 90 days after the date of submitting a petition under subsection (c)(1)(A)․”), (c)(3) (“In general ․ the Secretary of Homeland Security shall make a determination, within 90 days of the date of the interview, as to whether the facts and information described in subsection (d)(1) and alleged in the petition are true with respect to the qualifying marriage.”), (c)(3)(C) (“If the Secretary of Homeland Security determines that such facts and information are not true, the Secretary of Homeland Security shall so notify the parties involved and, subject to subparagraph (D), shall terminate the permanent resident status of an alien spouse or an alien son or daughter as of the date of the determination.”).

FERNANDO L. AENLLE-ROCHA, United States District Judge