BOLDT v. JADDOU (2023)

ORDER

Plaintiff Susan Boldt brings this suit under the Administrative Procedure Act (APA) seeking to set aside the denial by the United States Customs and Immigration Services (USCIS) of her application for an adjustment of status. Defendant Ur M. Jaddou, the Director of USCIS, moves to dismiss this action for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and alternatively, for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons stated herein, Defendant's Motion to Dismiss [8] is granted, and the complaint is dismissed without prejudice for lack of subject matter jurisdiction.

I. Background

The following factual allegations are taken from the operative complaint (Dkt. 1). Boldt is a citizen and national of Denmark, who resides with her spouse, Daniel Needham, a citizen and national of Australia, in Chicago, Illinois. Dkt. 1 at ¶¶ 41–42. Needham was employed by Morningstar, Inc. and had an L-1A nonimmigrant visa status. Id. at ¶¶ 16, 43. In 2015, Boldt obtained an L-2 nonimmigrant visa—a visa granted to spouses of those persons granted L-1 visas—from the U.S. Consulate in Copenhagen. Id. at ¶¶ 20, 44. Boldt traveled to and was admitted into the U.S. through her L-2 status. Id. at ¶ 44. On May 3, 2018, USCIS approved Boldt's application to extend her status as an L-2 spouse of Needham. Id. at ¶ 45. USCIS authorized Boldt to work as an L-2 nonimmigrant spouse from May 24, 2018 through May 1, 2020 Id. at ¶ 46.

On February 10, 2020, Boldt filed an application to extend her L- 2 status. Id. at ¶ 48. Between May 2, 2020 and June 9, 2021, Boldt was employed on a part-time and intermittent basis at the Chicago Athletic Club and at the Chicago School, Institute of Organizational Psychology. Id. at ¶ 49. On January 29, 2021, Needham filed a Form I-485 application for adjustment of status based on USCIS approving Morningstar, Inc.’s employment-based immigrant visa petition for him. Id. at ¶ 50. Boldt filed with USCIS a concurrent Form I-485 application for adjustment of status as a dependent spouse of Needham. Id. On her application, Boldt disclosed her employment with the Chicago Athletic Club and the Institute of Organizational Psychology. Id. at ¶ 51.

On October 26, 2021, USCIS requested additional information about Boldt's employment. Id. at ¶ 53. Boldt responded to USCIS's request on March 22, 2022. Id. at ¶ 54. She submitted documentation and an outline of her work schedule showing that she worked for the two organizations for 95 days in the aggregate, as well as W-2 forms and pay statements. Id. at ¶¶ 55–59.

On April 20, 2022, USCIS denied Boldt's application for adjustment of status. Id. at ¶ 60.¹ USCIS determined that Boldt had worked a total of 118 days for the Institute of Organizational Psychology without authorization from May 2, 2020 to August 27, 2020. Id. at ¶ 64. USCIS also concluded that she had worked a total of 149 days for the Chicago Athletic Club without authorization from October 20, 2020 to November 14, 2020, and from February 6, 2021 to June 8, 2021. Id. at ¶ 65. USCIS concluded that she was employed without authorization for more than 180 days. Id. at ¶¶ 66–67. This barred her requested adjustment of status under 8 U.S.C. §§ 1255(c) and 1255(k). Id. The USCIS decision states that it is not subject to further administrative appeal. Id. at ¶ 68.

II. Standard

Federal Rule of Civil Procedure 12(b)(1) permits the dismissal of complaints over which the court may not exercise subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). In evaluating a motion under Rule 12(b)(1), the court must first determine whether the defendants raise a factual or facial challenge to subject matter jurisdiction. See Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015). Here, Defendant argues for dismissal because Plaintiff's complaint fails to sufficiently allege a basis for subject matter jurisdiction, raising a facial challenge. See id. (“[A] facial challenge argues that the plaintiff has not sufficiently ‘alleged a basis of subject matter jurisdiction.’ ”). In this context courts “must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the plaintiff.” Id. When faced with a Rule 12(b)(1) motion, the plaintiff bears the burden of proving that the court has jurisdiction. See Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009); see also Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 617 (7th Cir. 2012) (“The party invoking federal jurisdiction bears the burden of demonstrating its existence.”).

III. Analysis

In this case Boldt sought an adjustment of status—a process by which a foreign national who has been admitted to the country may become a lawful resident—pursuant to 8 U.S.C. § 1255. Defendant argues that this Court lacks jurisdiction because 8 U.S.C. § 1252(a)(2)(B)(i) bars judicial review. The Court agrees with Defendant that subject matter jurisdiction is lacking in this case.

A. Section 1252 of the INA

The Immigration and Nationality Act (INA) provides for judicial review but also specifies matters not subject to judicial review. 8 U.S.C. § 1252. Relevant here, “no court shall have jurisdiction to review any judgment regarding the granting of relief under section ․ 1255 of this title.” 8 U.S.C. § 1252(a)(2)(B)(i).

The plain language of § 1252 bars this Court from reviewing USCIS's decision denying Boldt's application. See Patel v. Garland, ––– U.S. ––––, 142 S.Ct. 1614, 1621, 212 L.Ed.2d 685 (2022) (“Section 1252(a)(2)(B)(i) strips courts of jurisdiction to review ‘any judgment regarding the granting of relief’ under § 1255.”); Bultasa Buddhist Temple of Chi. v. Nielsen, 878 F.3d 570, 573 (7th Cir. 2017) (“the statute strips the courts of jurisdiction to review a decision made on an application under that section.”); Subhan v. Ashcroft, 383 F.3d 591, 594 (7th Cir. 2004) (“[w]hen a request for an adjustment of status is denied there is no judicial review because the denial is one of the discretionary orders made nonreviewable by § 1252(a)(2)(B).”).

Boldt responds that: (1) USCIS's decision was not a discretionary determination immune from judicial review because the decision turned on a misapplication of law that prevented it from exercising its discretion; (2) Patel v. Garland does not foreclose judicial review; and (3) the Seventh Circuit's decision in Iddir v. INS, 301 F.3d 492 (7th Cir. 2002), supports a finding that jurisdiction is proper in this court.

Boldt first argues that USCIS misapplied § 1255 in concluding that Boldt engaged in employment on the days she was not working for any employer. According to Boldt, USCIS misapplied the statute, so its decision was not discretionary. To support her argument, Boldt cites Munoz – Pacheco v. Holder, 673 F.3d 741, 745 (7th Cir. 2012). However, there, the plaintiff was in removal proceedings and filed with the court of appeals a petition for review, which is expressly permitted under 8 U.S.C. § 1252(a)(2)(D). Boldt is not in removal proceedings. Dkt. 1 at ¶ 69. She does not argue that she can file a petition under § 1252(a)(2)(D) in this court. Nor could she.²

Next Boldt contends that the Supreme Court's decision in Patel v. Garland does not foreclose judicial review here. In Patel, the Supreme Court explained that the provision in § 1252(a)(2)(B)(i) extends to “judgments ‘of whatever kind’ under § 1255, not just discretionary judgments or the last-in-time judgment.” 142 S.Ct. at 1622. Patel clarified that Section 1252(a)(2)(B)(i) “prohibits review of any judgment regarding the granting of relief under § 1255 and the other enumerated provisions.” Id. (emphasis in original). Id. Boldt notes that some of the language Defendants relies on in Patel was dicta and that Boldt is not in removal proceedings. However Boldt fails to cite any controlling precedent requiring a different result in her case.

Indeed recent decisions from district courts in this circuit, including one applying Patel, have concluded that the court lacks jurisdiction in a case like this. See Sodhi v. Wolf, No. 20-cv-04059, 2021 WL 7179276 (N.D. Ill. Sept. 24, 2021) (dismissing case for lack of subject matter jurisdiction); Elhayboubi v. Mayorkas, No. 19 C 7659, 2021 WL 872946, at *3 (N.D. Ill. Mar. 8, 2021) (finding court lacked jurisdiction to review plaintiff's application for adjustment of status); Walsh v. Mayorkas, No. 20-cv-000509, 2022 WL 17357729 at *1 (N.D. Ill. Dec. 1, 2022) (discussing Patel and finding jurisdiction lacking to review the denial of plaintiff's Form I-485 application for an adjustment of status); Davidson v. Mayorkas, 599 F. Supp. 3d 767, 773 (W.D. Wis. 2022) (noting that “every district court in the Seventh Circuit faced with a claim of legal error in a discretionary immigration decision has dismissed the claim for lack of jurisdiction”).

It is also well-settled that the APA cannot confer jurisdiction in this case. See 5 U.S.C. § 701(a)(1)–(2) (“This chapter applies ․ except to the extent that-- (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.”); Bultasa, 878 F.3d at 573 (“Appellants cannot avoid the jurisdictional bar established by 8 U.S.C. § 1252 simply by raising a claim under that section of the APA.”); see also Elhayboubi, 2021 WL 872946, at *4.

Finally, the Court does not agree that Iddir supports Boldt's position. Boldt maintains that Iddir conflicts with the Seventh Circuit's decision fifteen years later in Bultasa, 878 F.3d 570. However in Iddir the Seventh Circuit reasoned that the INS's delay in responding to visa lottery applications was not a decision or judgment as contemplated by § 1252(a)(2)(B)(i). The Court noted that because the plaintiffs never had their applications heard, the subsequent denial was not a judgment nor a discretionary decision precluding review. Here, Boldt's application was reviewed and a determination made by USCIS. Boldt's case is not within the ambit of Iddir.

The other cases Boldt relies on are not persuasive. Both Rivera-Durmaz, 456 F. Supp. 2d 943 (N.D. Ill. 2006) and Habeeb v. Mayorkas, No. 20-cv-04132, 2021 WL 4477829 (N.D. Ill. Sept. 30, 2021) pre-date Patel, and in both, the court dismissed the case because plaintiffs failed to exhaust their administrative remedies.³

Therefore Boldt has not met her burden to show jurisdiction in this Court is proper.

B. The APA

Defendant argues in the alternative that there was no final agency action under the APA. The Court is dismissing for lack of subject matter jurisdiction, however for completeness, the Court briefly addresses this argument.

“As the Seventh Circuit and other courts in this District have repeatedly held, the denial of an application to adjust immigration status is ‘not a final agency action where the applicant can seek the same adjustment in removal proceedings.’ ” Walsh, 2022 WL 17357729, at *5; McBrearty v. Perryman, 212 F.3d 985, 986-87 (7th Cir. 2000) (holding that plaintiffs’ suit was premature as they could obtain review of the district director's decision by the BIA if and when the immigration service institutes removal proceedings). Boldt's argument that McBrearty is abrogated by U.S. Army Corp. of Eng'rs v. Hawkes Co., 578 U.S. 590, 136 S.Ct. 1807, 195 L.Ed.2d 77 (2016) and Sackett v. EPA, 566 U.S. 120, 132 S.Ct. 1367, 182 L.Ed.2d 367 (2012) is not convincing. Neither case mentioned McBreaty, and both cases dealt with the Clean Water Act. As the Supreme Court recently noted, there is a circuit split on this issue, see Patel, 142 S. Ct. at 1627, but Boldt does not cite authority that McBrearty has been overruled. Thus, the Court agrees with Defendant on this issue as well.

IV. Conclusion

For the stated reasons, Defendant's Motion to Dismiss [8] is granted. Plaintiff's complaint is dismissed for lack of subject matter jurisdiction. Civil case terminated.

FOOTNOTES

1.   A foreign national in the U.S. who “continues in or accepts unauthorized employment prior to filing an application for adjustment of status” is precluded from adjusting status to lawful permanent resident. Id. at ¶ 35; 8 U.S.C. § 1255(c)(8). A foreign national who otherwise qualifies for adjustment of status based on an approved employment-based immigrant visa petition remains eligible for adjustment of status as long as the individual, subsequent to a lawful admission to the United States, “has not, for an aggregate period exceeding 180 days ․ engaged in unauthorized employment.” Id. at ¶ 37; 8 U.S.C. § 1255(k)(2).

2.   In an attempt to frame the issue as a question of law for this Court for review, Boldt contends that USCIS, in denying her application, improperly relied on a July 14, 2008 policy memorandum that was issued without the notice and comment procedures required by the APA. However questions of law are precluded from review in this Court and is a matter left to the Court of Appeals. See 8 U.S.C. § 1252(a)(2)(D).

3.   The other out-of-circuit cases Boldt relies on are inapplicable as they concern a petition for review of removal proceedings filed in a court of appeals. See Succar v. Ashcroft, 394 F.3d 8, 19-20 (1st. Cir. 2005); Sepulveda v. Gonzales, 407 F.3d 59 (2d. Cir. 2005); Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003); Pilica v. Ashcroft, 388 F.3d 941 (6th Cir. 2004).

MARY M. ROWLAND, United States District Judge