United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller Senior United States District Judge
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.
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.
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.
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.
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.
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.
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.
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 §
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)).
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