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Koesoemadinata v. McAleenan

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

September 16, 2019

Prasetya Koesoemadinata, Plaintiff,
v.
Kevin McAleenan, in his Capacity as Acting Secretary of the U.S. Department of Homeland Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Gray H. Miller Senior United States District Judge

         Pending before the court is a motion to dismiss filed b Kevin McAleenan, Acting Secretary of the Department of Homeland Security (“DHS”). Dkt. 9. Having considered the complaint on file, the motion, the response, and the applicable law, the court is of the opinion that the motion should be GRANTED.

         I. Background

         Plaintiff Prasetya Koesoemadinata, a native and citizen of Indonesia, filed an application to become a lawful permanent resident of the United States on February 26, 2016. Dkt. 1. On May 13, 2018, while the application was still pending, Koesoemadinata entered into a Pre-Trial Intervention Program Agreement with the County Attorney of Liberty County, Texas. Id. The agreement notes that Koesoemadinata was alleged to have committed three possession of controlled substance violations. Id. & Exs. However, under the agreement, the County Attorney agreed to defer prosecution of the alleged offenses until May 2, 2019, if Koesoemadinata followed and completed the terms of the pre-trial intervention program. Dkt. 1, Ex. 2. If Koesoemadinata successfully completed the terms, the County Attorney agreed to decline to prosecute at the conclusion of the agreement. Id. The term concluded on May 2, 2019, the Assistant County Attorney for Liberty County, Texas, moved to dismiss because Koesoemadinata successfully completed the program, and the court entered a judgment of dismissal. Dkt. 1, Ex. 3.

         In the interim, on February 26, 2019, the United States Citizenship and Immigration Services (“USCIS”) denied Koesoemadinata's application to register for permanent residence or adjust status (form I-485). Dkt. 1, Ex. 1. Koesoemadinata appealed that denial, and USCIS determined that Koesoemadinata's confession of guilt for the purposes of his pre-trial intervention program agreement was the same as a conviction for immigration purposes and rendered him inadmissible under the Immigration and Nationality Act § 212(a)(2)(A)(i)(II) and thus not qualified for adjustment of status. Id.

         Koesoemadinata filed his complaint in this court on May 28, 2019. Dkt. 1. He contends that the court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D), because his complaint raises a question of law and not discretion, and pursuant to § 447 of the Administrative Procedures Act. Id. He contends that a “conviction” for immigration purposes requires a confession of guilt and an imposition of some penalty or restraint of liberty by a judge, and he did not confess guilt in front of a judge before participating in the pre-trial diversion program. Id. He thus contends that USCIS erroneously concluded that he was inadmissible.[1]

         DHS moves for dismissal of Koesoemadinata's complaint, arguing that (1) the court does not have subject matter jurisdiction because he can reassert the alleged errors with regard to his application when USCIS files removal proceedings; (2) Koesoemadinata has thus also failed to exhaust administrative remedies; and (3) Koesoemadinata does not state a claim for which relief may be granted because his pretrial intervention agreement, which had to be approved by a judge as a matter of Texas law, qualifies as a “conviction” under the Immigration and Nationality Act. Dkt. 9.

         Koesoemadinata argues that the possibility of appealing his application during removal proceedings is closed to him unless and until USCIS initiates removal proceedings and, since he has no direct line of appeal with regard to denial of his status, he could be forever held in limbo. Dkt. 10. He contends that there was no judicial admission of guilt when he entered into the agreement and that if there was no approval by a judge it cannot constitute a “conviction” under the Immigration and Nationality Act. Id. He thus asks the court to reverse the decision denying his lawful permanent residence application. Id.

         II. Legal Standard

         Federal district courts are courts of limited jurisdiction and may only adjudicate claims if jurisdiction is conferred by statute. See Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir.1998). Under Federal Rule of Civil Procedure 12(b)(1), a claim is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the claim. Home Builders Ass'n, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The party asserting federal jurisdiction bears the burden of demonstrating that jurisdiction is proper. Stockman, 138 F.3d at 151.

         Koesoemadinata contends the court has jurisdiction under 8 U.S.C. § 1252(a)(2)(D) and § 557 of the Administrative Procedures Act. Section 1252(a)(2)(D) provides that subparagraphs (B) and (C) of §1252(a)(2) should not be construed to preclude “review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.” § 1252(a)(2)(D) (emphasis added). Subsections (A), (B), and (C) list specific types of claims for which judicial review is not allowed. See § 1252(a)(2)(A)-(C).

         Under 5 U.S.C. § 704, “[a]gency action[s] made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.” A court may set aside an agency determination if it finds the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). The court, however, must apply Chevron deference when considering questions implicating the agency's construction of the statute it administers. I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439 (1999) (citing Chevron U.S.A. Inc. v. Nat, Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778 (1984)).

         The U.S. Supreme Court has “recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations.'” Id. at 425 (quoting INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904 (1988)). In applying Chevron, the court must first determine whether “Congress has directly spoken to the precise question at issue” and, if not, the court must determine “whether the agency's interpretation is based on a permissible construction of the statute.” Chevron, 467 U.S. at 842-43. “If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.” Id. at 843-44. These regulations are “given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844. If the delegation is implicit rather than explicit, “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id.

         III. ...


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