Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Melendez v. Nielsen

United States District Court, S.D. Texas, Houston Division

May 9, 2018

OSCAR ERNESTO MELENDEZ, Plaintiff,
v.
KIRSTJEN M. NIELSEN, Secretary of Homeland Security, et al., Defendants.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE

         This case is before the Court on the Motion to Dismiss [Doc. # 10] filed by Defendants Kirstjen M. Nielsen, Secretary of the United States Department of Homeland Security, Lee F. Cissna, Director of the United States Citizenship and Immigration Services (“USCIS”), and Mark Seigl, Houston Field Office Director, USCIS. Defendants argue that the case should be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction.[1]Plaintiff Oscar Ernesto Melendez filed an Opposition [Doc. # 11], and Defendants filed a Reply [Doc. # 12]. Having reviewed the record, the applicable statutes, and the governing legal authorities, the Court grants the Motion to Dismiss.

         I. BACKGROUND

         Plaintiff is a citizen of El Salvador. He entered the United States on February 7, 2000, with a B1/B2 nonimmigrant visa. Plaintiff's visa expired on March 6, 2000, after which he remained in the United States without lawful status.

         On March 9, 2001, the Attorney General of the United States designated El Salvador under the Temporary Protected Status (“TPS”) program. TPS status prevents removal of an alien from the United States during the period of time the alien's home country is designated under the TPS program. See 8 U.S.C. § 1254a(a)(1)(A), (b)(1). Upon receiving TPS status, Plaintiff was deemed to be in lawful status. See 8 U.S.C. § 1254a(f)(4).

         On July 11, 2016, Plaintiff submitted a Form I-485 seeking to adjust his status to lawful permanent resident pursuant to 8 U.S.C. § 1255. On September 26, 2017, Plaintiff's application was denied because he had not maintained continuous lawful status since his entry into the United States.[2] See Decision, Exh. to Motion to Dismiss. Under certain conditions, an alien's status may be adjusted by the Attorney General, “in his discretion and under such regulations as he may prescribe, ” to that of an alien lawfully admitted for permanent residence. See 8 U.S.C. § 1255(a). Under regulations governing adjustments to status pursuant to § 1255(a), certain categories of aliens are ineligible for adjustment of status to that of a lawful permanent resident alien. See 8 C.F.R. § 245.1. One such category includes, with certain exceptions:

Any alien who files an application for adjustment of status on or after November 6, 1986, who has failed (other than through no fault of his or her own or for technical reasons) to maintain continuously a lawful status since entry into the United States . . ..

8 C.F.R. § 245.1(b)(6) (emphasis added). Plaintiff's entry into the United States in February 2000 was lawful, but his lawful status ended in March 2000 when his visa expired. His status became lawful again in March 2001 when he was granted TPS status.

         Although Plaintiff was given notice of his right to file a Form I-290B, Notice of Appeal or Motion, to challenge the denial of his Form I-485 application for adjusted status, Plaintiff failed to do so. As a result, the September 2017 Decision became final after thirty calendar days.

         On November 13, 2017, Plaintiff filed this Complaint for Declaratory and Injunctive Relief (“Complaint”) [Doc. # 1]. Plaintiff seeks a declaration that the final Decision to deny his Form I-485 application to adjust status pursuant to § 1255(a) was “arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.” See Complaint, ¶ 1. Plaintiff asks the Court to set aside the Decision and to order Defendants to reopen his Form I-485 application for adjusted status.

         Defendants filed their Motion to Dismiss, asserting that the Court lacks subject matter jurisdiction to review the Decision. The Motion to Dismiss has been fully briefed, and it is now ripe for decision.

         II. RULE 12(b)(1) MOTION TO DISMISS

          “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Smith v. Regional Transit Auth., 756 F.3d 340, 347 (5th Cir. 2014) (quoting Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005)). When the court's subject matter jurisdiction is challenged, the party asserting jurisdiction bears the burden of establishing it. See Alabama-Coushatta Tribe of Tex. v. U.S., 757 F.3d 484, 487 (5th Cir. 2014); Gilbert v. Donahou, 751 F.3d 303, 307 (5th Cir. 2014).

         This Court lacks subject matter jurisdiction pursuant to 8 U.S.C. § ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.