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Jigneshi J. Jariwala v. Janet Napolitano


April 4, 2011


The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California


(re: docket # 12)

Plaintiff Jigneshi Jariwala ("Plaintiff") brings suit to compel the United States Citizenship and Immigration Services ("USCIS") to accept jurisdiction and adjudicate his application for 19 adjustment of status to lawful permanent resident. Defendants move to dismiss for lack of subject 20 matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Plaintiff has not filed an opposition.

Pursuant to Local Civil Rule 7-1(b), the Court concludes that this motion is appropriate for 22 determination without oral argument and vacates the April 7, 2011 motion hearing. For the reasons 23 discussed below, Defendants' motion to dismiss is GRANTED WITHOUT PREJUDICE. 24

I. BACKGROUND Plaintiff, a native citizen of India, applied for asylum on October 13, 1992. The application was denied and an order to show cause ("OSC") as to why he should not be deported for entering 27 the United States without inspection was issued on March 9, 1994. Compl. ¶ 11. Plaintiff also 28 filed a second application with the asylum office under the name of Jingesh Mehta. Id. at ¶ 15. An OSC in connection with the Mehta file was issued on November 17, 1994. Id. 3

Judge ("IJ") issued an order of deportation. Id. at ¶ 13. Plaintiff also failed to appear for an April 6 ¶ 15 n.1.

were consolidated and remanded to the Board of Immigration Appeals ("Board") for consideration 10 of actions necessary for clarification of Plaintiff's identity. Id. In the Mehta case, the Board concluded that Jingesh Mehta was the Plaintiff's true identity, denied reopening of the proceedings, and upheld the IJ's finding of deportation. Id. at ¶ 18. The Board also denied Plaintiff's motion to 13 reconsider. Id. In the Jariwala case, the Board terminated proceedings as moot in light of the 14 determination in the Mehta case regarding Plaintiff's true identity. Id. at ¶ 20. Petitions for review 15 were again filed in both cases. The petition in the Jariwala case was voluntarily dismissed, while 16 the petition in the Mehta case was denied by the Ninth Circuit on October 8, 2010.

U.S. citizen the following year. Id. Plaintiff twice filed an application for adjustment of status to 20 lawful permanent resident with the USCIS based upon his marriage to a U.S. citizen. Id. at ¶ 28. Plaintiff had been placed in deportation proceedings. See Exh. D, attached to Compl.

mandating USCIS to accept jurisdiction and adjudicate Plaintiff's application for adjustment of 25 status. Defendants have moved to dismiss for lack of jurisdiction.

under 28 U.S.C. § 1331. Califano v. Sanders, 430 U.S. 99, 107 (1977). Rule 12(b)(1) of the Plaintiff did not respond to either OSC. After Plaintiff failed to appear for a November 20, 1995 hearing on the merits of his asylum application regarding the Jariwala file, the Immigration 25, 1996 hearing regarding the Mehta file, and was likewise ordered deported in absentia. Id. at

Plaintiff filed petitions for review with the Ninth Circuit. Id. at ¶¶ 16-17. These petitions

During this time, Plaintiff married his wife Angelina Jariwala in 1997. Id. at. ¶ 2. Angelina Jariwala was a permanent resident of the United States at the time of their marriage, but became a USCIC, however, responded that it lacked jurisdiction over the adjustment application because Plaintiff filed his complaint on September 28, 2010 requesting an order from this Court


Except where statutes divest courts of jurisdiction, agency action is judicially reviewable Federal Rules of Civil Procedure requires dismissal of a complaint if the court lacks subject matter 2 jurisdiction. On a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the 3 party asserting jurisdiction has the burden of establishing that subject matter jurisdiction is proper.

199, 201 (9th Cir.1989).

unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). Unless specified by statute, only 8 a final agency action is subject to judicial review. 5 U.S.C. § 704; W. Radio Services Co. v. U.S. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); St. Clair v. City of Chico, 880 F.2d

The Administrative Procedure Act (APA) allows a court to "compel agency action Forest Serv., 578 F.3d 1116, 1122 (9th Cir. 2009) cert. denied, 130 S. Ct. 2402 (U.S. 2010).


Plaintiff claims that Defendants' refusal to adjudicate his adjustment of status application is arbitrary, an abuse of discretion, and not in accordance with the law. Defendants have moved to 13 dismiss Plaintiff's complaint for lack of subject matter jurisdiction. Defendant argues that Plaintiff's failure to exhaust his available remedies deprives this Court of jurisdiction. Plaintiff did 15 not file an opposition to Defendants' motion to dismiss.

"Where Congress specifically mandates, exhaustion is required. But where Congress has not clearly required exhaustion, sound judicial discretion governs." See Cassirer v. Kingdom of (1992)). If an exhaustion statute explicitly limits subject matter jurisdiction, failure to exhaust 21 administrative remedies is a bar to federal subject matter jurisdiction. See McBride Cotton & 22

Cattle Corp. v. Veneman, 290 F.3d 973, 979 (9th Cir. 2002). The federal statute regarding 23 adjustment and change of an immigrant's status states that a court may review a final order of 24 removal only if "the alien has exhausted all administrative remedies available to the alien as of 25 right." See 8 U.S.C. § 1252(d)(1). Further, "[i]n the case of any alien who has been placed in 26 deportation proceedings or removal proceedings (other than as an arriving alien), the immigration 27 judge hearing the proceeding has exclusive jurisdiction to adjudicate any application for adjustment 28 of status the alien may file." See 8 C.F.R. § 1245.2(a)(1)(I).

A. Exhaustion of Administrative Remedies under 8 U.S.C. § 1252 17

Spain, 616 F.3d 1019, 1034 (9th Cir. 2010) (citing McCarthy v. Madigan, 503 U.S. 140, 144 20 adjustment of status because Plaintiff's deportation proceedings remain pending. The Board of Plaintiff's "true identity." In the Mehta case, a valid order of removal remains, and is binding upon Plaintiff. Furthermore, the adjustment of status that Plaintiff seeks is inextricably linked to the 6 removal order. Indeed, a successful adjustment of status would result in the invalidation of the IJ's 7 removal order. See Morales-Izquierdo v. Dep't of Homeland Sec., 600 F.3d 1076, 1082-83 (9th

In these circumstances, Plaintiff's request for adjustment of status should be before an IJ.

As Defendants suggest, Plaintiff may file a motion to reopen with the Board of Immigration

Appeals to renew his adjustment application for de novo consideration before an IJ. Defs.' Mot. to Dismiss at 7. Indeed, Plaintiff states in his complaint that this is one of the avenues which he is 13 currently pursuing. Compl. ¶ 9. With this alternative form of relief available, Plaintiff has not 14 exhausted all administrative remedies available as required by 8 U.S.C. § 1252(d)(1).

The APA permits judicial review of a final agency action "for which there is no other adequate remedy in a court." See 5 U.S.C. § 704. "When an aggrieved party has exhausted all 18 administrative remedies expressly prescribed by statute or agency rule, the agency action is 'final 19 for the purposes of [the APA]' and therefore 'subject to judicial review.'" See Darby v. Cisneros, 509 U.S. 137, 146 (1993). Therefore, the issue here is whether at the time this action was filed 21 there had been a final agency action for which Plaintiff had no other adequate remedy. As detailed 22 above, Plaintiff does have an adequate alternative remedy. See 8 CFR 1245.2(a)(1) (providing IJ 23 with jurisdiction to adjudicate adjustment of status when alien has been placed in removal or 24 deportation proceedings).

potentially obtain de novo review before an IJ, the order for removal is not yet final. The Ninth Circuit has recently held that a district court lacks jurisdiction under the APA when de novo review 28 before an IJ is available, as it is here. See Cabaccang v. U.S. Citizenship & Immigration Servs.,

Here, USCIS properly determined that it lacked jurisdiction over Plaintiff's application for Immigration Appeals only terminated the Jariwala case because it found that Jingesh Mehta was Cir. 2010).

B. Judicial Review under the APA

Since Plaintiff may, and apparently has, filed a motion to reopen with the Board and may 627 F.3d 1313, 1316 (9th Cir. 2010) (no final agency action when aliens had the right to renew 2 their applications to adjust status before the immigration judge and would have "an opportunity to 3 fully develop their arguments before the immigration judge"). In addition, the Ninth Circuit 4 concluded that the pendency of removal proceedings meant that the aliens had not exhausted their 5 administrative remedies. Id. at 1316-17 ("Until they have exhausted this available administrative 6 remedy [seeking adjustment of status before an IJ], the district court cannot hear their claim."). 7

Therefore, the Court does not have jurisdiction under the APA.*fn1


Accordingly, as Plaintiff has not exhausted his available remedies, Defendants' motion to dismiss is GRANTED WITHOUT PREJUDICE. The April 7, 2011 motion hearing is vacated.

The Clerk shall close the file.


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