United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal Chief United States District Judge.
Canales Santa Maria has sued Kevin K. McAleenan, the Acting
Secretary of the United States Department of Homeland
Security; Lee Cissna, the Director of United States
Citizenship and Immigration Services; and Wallace L. Carroll,
the Citizen and Immigration Services Field Office Director
for Houston. (Docket Entry No. 1). Santa Maria alleges that
Citizenship and Immigration Services improperly dismissed her
status-adjustment application for lack of jurisdiction, in
violation of the Administrative Procedure Act. (Id.
at 2-4, 10-14). The defendants have moved to dismiss, arguing
that this court lacks subject-matter jurisdiction over Santa
Maria's action. Santa Maria responded, and the defendants
replied. (Docket Entry Nos. 9-11).
careful review of the complaint, motion, response, reply,
properly considered documents, and the applicable law, the
court dismisses the case, without prejudice, for lack of
subject-matter jurisdiction. The reasons are explained in
Maria is a native and citizen of Honduras. (Docket Entry No.
1 at 8). An immigration judge permitted Santa Maria to
voluntarily depart the United States in August 1998. (Docket
Entry No. 1-1 at 2). When she did not leave, the voluntary
departure became a removal order. (Id.). Because
Santa Maria received temporary protected status as a Honduras
national, (Docket Entry No. 1 at 8-9); 83 Fed. Reg. 26074
(June 5, 2018), she could not be removed, 8 U.S.C. §
1254a(a)(1)(A); 8 C.F.R. § 244.10(f)(2)(i).
and Immigration Services authorized Santa Maria to depart the
United States on advance parole, meaning that she could
return to seek an adjustment of status. Matter of Manohar
Rao Arrabally, 25 I. & N. Dec. 771, 777 (BIA 2012)
(“Advance parole can be requested from abroad or at a
port of entry, but typically it is sought by an alien who is
already inside the United States and who wants to leave
temporarily but fears that he will either be excluded as an
inadmissible alien upon return or be deemed to have abandoned
a pending application for an immigration benefit.”).
Santa Maria left the United States and returned in April
2016. (Docket Entry No. 1 at 9).
September 2017, Santa Maria filed an application with
Citizenship and Immigration Services to register permanent
residence or to adjust status. (Docket Entry No. 1-1 at 2).
In May 2018, Citizenship and Immigration Services
administratively closed her application because it lacked
jurisdiction. (Id.). The decision stated:
[Citizenship and Immigration Services] reviewed your
administrative file . . . and determined that an Immigration
Judge granted you voluntary departure on August 21, 1998.
Since you did not leave, this became an order of removal. It
does not appear that the removal proceedings against you have
been terminated. . . . Although you were paroled into the
United States on April 7, 2019, pursuant to Form I-512 issued
to you based on Temporary Protected Status (TPS), you are
considered upon return to be in the status you held at the
time of departure, in your case an alien with an outstanding
deportation order. . . .
Because [Citizenship and Immigration Services] lacks
jurisdiction to adjudicate your Form I-485, it is
administratively closed. However, this does not prevent you
from seeking adjustment before [the Executive Office for
(Id. at 2-3).
Maria sued the heads of the Department of Homeland Security
and of Citizenship and Immigration Services, arguing that the
decision to close her application for lack of jurisdiction
was arbitrary, capricious, or contrary to the law. (Docket
Entry No. 1 at 10 (citing 5 U.S.C. § 706(2)(A)). Santa
Maria alleges that she was an “arriving alien”
and that this status gave Citizenship and Immigration
Services jurisdiction over her application. (Id. at
defendants have moved to dismiss, arguing that the
Immigration Nationality Act strips the court of jurisdiction
over suits challenging removal orders and that Santa
Maria's action does “nothing more than”
challenge her removal order. (Docket Entry No. 9 at 5). Santa
Maria responded, conceding that the Act prevents “an
alien from attacking, or challenging the validity of, his or
her final order of removal in a federal district court,
” but arguing that her complaint is not
“inextricably linked” to her removal order
because she complied with the removal order when she left the
United States on advance parole, and because she challenges
Citizen and Immigration Service's jurisdictional
decision, not the removal order or the application merits.
(Docket Entry No. 10 at 2-6).
parties' arguments are examined below.