United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE
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.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.
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.
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).
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. 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.
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.
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
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
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).
Court lacks subject matter jurisdiction pursuant to 8 U.S.C.