United States District Court, D. Minnesota
Herbert L. R., Plaintiff,
Leslie Tritten, Kenneth Cuccinelli, and Kevin McAleenan, Defendants.
Prokosch, Prokosch Law LLC, Roseville, MN, for Plaintiff
Tweeten, United States Attorney's Office, Minneapolis,
MN, for Defendants Leslie Tritten, Kenneth Cuccinelli, and
OPINION AND ORDER
C. TOSTRUD UNITED STATES DISTRICT JUDGE
Herbert L.R. is a citizen of El Salvador who has lived in the
United States since 1999. Despite a removal order, he has
been able to remain in the country under temporary protected
status. In May 2017, Herbert filed an application with United
States Citizenship and Immigration Services
("USCIS") to adjust his immigration status to
become a lawful permanent resident. In February 2019, USCIS
administratively closed the processing of Herbert's
application and informed him that it did not have
jurisdiction to adjudicate his application. Herbert commenced
this case against Defendants to challenge that determination.
Defendants have moved to dismiss the case under Federal Rule
of Civil Procedure 12(b)(1), or alternatively Rule 12(b)(6).
Defendants' motion to dismiss will be granted because
there is not subject-matter jurisdiction over Herbert's
is a citizen of El Salvador who came to the United States on
or about June 8, 1999. Compl. ¶ 2 [ECF No. 1]. He
entered the United States near Eagle Pass, Texas, without
inspection and without a valid entry document. Id.
¶ 6; Tweeten Decl., Ex. A [ECF No. 14-1]. On that same
day, Herbert was given a notice to appear at a future
removability hearing before an immigration judge based on his
status as an individual entering the United States without
inspection. Compl. ¶ 7; Tweeten Decl., Ex. A;
see 8 U.S.C. § 1182(a)(6)(A)(i). However,
Herbert never received the subsequent notices of hearing that
were mailed to him using the address he provided to the
Department of Homeland Security, and he failed to appear for
his removability hearing on July 6, 2000. Compl. ¶ 7;
Tweeten Decl., Ex. C [ECF No. 14-3]. At the hearing, an
immigration judge ordered Herbert removed from the United
States. Tweeten Decl., Ex. B [ECF Nos. 14-2].
nonetheless remained in the United States and filed for and
received temporary protected status after El Salvador was
designated for the program on March 9, 2001, based on a
series of devastating earthquakes that prevented the safe
return of its nationals. Compl. ¶ 8; 66 Fed. Reg.
14214-01 (Mar. 9, 2001); see 8 U.S.C. §
1254a(a)(1). He maintained temporary protected status from
the designation date until its recent expiration on September
9, 2019. Compl. ¶ 8; 83 Fed. Reg. 2654-01 (Jan. 18,
January 7, 2008, Herbert submitted an 1-131 Application for
Travel in order to temporarily return to El Salvador. Tweeten
Decl., Ex. E [ECF No. 14-5]; see Compl. ¶ 9.
USCIS approved his application, and Herbert received
authorization for parole of an alien into the United States,
which permitted him to travel to El Salvador and be paroled
back into the United States when he returned on January 16,
2008. Compl. ¶ 9; Tweeten Decl., Ex. F [ECF No. 14-6].
Upon his return, he resumed temporary protected status.
Tweeten Decl., Ex. F. He has not traveled out of the country
since that time. Compl. ¶ 9.
October 4, 2016, Herbert filed a motion to reopen his removal
proceedings. See Tweeten Decl., Ex. C. An
immigration judge issued an order denying the motion on
November 15, 2016, finding that it was Herbert's
obligation to maintain a current mailing address with the
Department of Homeland Security, that removal was proper upon
his failure to appear at the July 2000 removal proceedings,
and that Herbert's circumstances at that time did not
merit a sua sponte reopening of removal proceedings.
Id. Herbert appealed, and the Board of Immigration
Appeals affirmed the decision. Tweeten Decl., Ex. D [ECF No.
22, 2017, Herbert's spouse, who is a citizen of the
United States, filed an 1-130 Petition for Alien Relative on
his behalf. Compl. ¶¶ 10-11; Tweeten Decl., Ex. G
[ECF No. 14-7]. Herbert also filed an 1-485 Application to
Register Permanent Residence or Adjust Status seeking to
become a lawful permanent resident based on the marriage.
See Tweeten Deck, Ex. H [ECF No. 14-8]. USCIS
approved the 1-130 petition on September 12, 2018; however,
it denied Herbert's application to adjust his status on
February 15, 2019. Compl. ¶¶ 11-12; Tweeten Decl.,
Exs. G, H. USCIS determined that it did not have jurisdiction
to adjudicate Herbert's application because he was
"a respondent in a removal proceeding" and was
"not an 'arriving alien.'" Tweeten Decl.,
Ex. H; see 8 C.F.R. §§ 245.2(a)(1),
1245.2(a)(1); Compl. ¶ 12. In its denial letter, USCIS
USCIS has jurisdiction to grant adjustment only if the
Immigration Judge does not have jurisdiction. See Title 8,
Code of Federal Regulations (8 CFR), sections 245.2(a) and
1245.2(a). The Immigration Judge has jurisdiction to grant or
deny a Form 1-485 in any case in which the applicant (other
than an "arriving alien") is a respondent in a
section 240 removal proceeding before the U.S. Department of
Justice, Executive Office for Immigration Review (EOIR).
USCIS reviewed your case file, and determined that you are
currently in proceedings before an Immigration Judge and a
final removal order was issued on July 11, 2000. It does not
appear that the removal proceedings against you have been
terminated. See 8 CFR section 245.1(c)(8)(ii).
Since you are a respondent in a removal proceeding, and you
are not an "arriving alien" only EOIR has
jurisdiction to grant or deny your Form 1-485. You must
submit your Form 1-485 to the Immigration Judge in EOIR
Tweeten Decl., Ex. H.
April 2019, Herbert initiated this action. See
Compl. He alleges that he qualifies as an "arriving
alien" based on his 2008 parole entry and that, as a
result, USCIS retains jurisdiction to adjudicate his
application.Id. ¶ 20; Mem. in Opp'n
at 6-13 [ECF No. 20]; see also Tweeten Decl., Ex. F.
Herbert contends that, because USCIS has jurisdiction over
his application, and not an immigration judge, his claim is
not inextricably linked to his removal order and, therefore,
this Court has subject-matter jurisdiction. Mem in Opp'n
at 17-19. He asserts that if adjustment applications were
linked to removal orders, "then no arriving alien with a
pending removal order would be able to adjust their status
through USCIS." Id. at 19. Here, Herbert seeks
a declaration that he is eligible to adjust his status
through USCIS to become a lawful permanent resident and ...