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Herbert L. R. v. Tritten

United States District Court, D. Minnesota

October 18, 2019

Herbert L. R., Plaintiff,
Leslie Tritten, Kenneth Cuccinelli, and Kevin McAleenan, Defendants.[1]

          Marc Prokosch, Prokosch Law LLC, Roseville, MN, for Plaintiff Herbert L.R.

          Andrew Tweeten, United States Attorney's Office, Minneapolis, MN, for Defendants Leslie Tritten, Kenneth Cuccinelli, and Kevin McAleenan.



         Plaintiff 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 claim.


         Herbert 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].

         Herbert 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, 2018).

         On 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.

         On 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. 14-4].

         On May 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 explained:

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 proceedings.

Tweeten Decl., Ex. H.

         In 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.[2]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 ...

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