Ferreira v. Mayorkas

Background

Daniel Gomes Ferreira challenged decisions by the Department of Homeland Security and United States Citizenship and Immigration Services (USCIS). He alleged that USCIS incorrectly or arbitrarily denied two applications to extend his B-2 visitor status, his application to adjust status to lawful permanent resident, and four motions to reopen or reconsider the adjustment-of-status denial. He sought declaratory relief and review under the Administrative Procedure Act (APA).

Ferreira entered the United States on September 19, 2017, with a B-2 visa authorizing a stay through March 18, 2018. He timely filed his first application to extend that status on March 7, 2018, and filed a second extension application on September 18, 2018. He later filed an employment-based immigrant petition and an application to adjust status. USCIS approved the immigrant petition but denied both visitor-status extensions and later denied the adjustment-of-status application because Ferreira had not continuously maintained lawful status. USCIS also denied or dismissed his later motions concerning that denial.

Ferreira moved for summary judgment. The defendants opposed his motion and filed a cross-motion for summary judgment. Ferreira did not oppose the defendants’ motion or file a reply.

Rulings

The court concluded that it lacked jurisdiction to review USCIS’s denial of Ferreira’s adjustment-of-status application and the related motions. It relied on 8 U.S.C. § 1252(a)(2)(B)(i), which bars judicial review of judgments concerning adjustment of status under 8 U.S.C. § 1255. The court also stated that Ferreira conceded this jurisdictional argument by failing to oppose the defendants’ cross-motion.

The court reviewed the denials of Ferreira’s two I-539 visitor-status extension applications under the APA’s arbitrary-and-capricious standard. It found that USCIS gave rational reasons for its decisions and considered substantial evidence. For the first application, USCIS found that Ferreira had not shown that he intended to remain only temporarily and found an employment letter from Sakai Engenharia unpersuasive. For the second application, USCIS found that Ferreira had failed to maintain lawful status after his B-2 visa expired. The court rejected Ferreira’s generalized claim that USCIS failed to consider relevant evidence.

The court did not evaluate whether USCIS’s delay in deciding the I-539 applications independently violated the APA because Ferreira did not make that argument. It also found that a passing reference in the complaint to APA section 706(2)(D), concerning required agency procedures, did not adequately notify the defendants of a separate claim. Alternatively, the court found that the argument was conclusory and unsupported.

The court rejected Ferreira’s procedural-due-process argument because he had not properly pleaded that claim and could not raise it for the first time in a summary-judgment motion. Even if the complaint were construed to include the claim, the court found that Ferreira had not shown a constitutionally protected liberty or property interest or identified evidence that USCIS failed to consider.

Disposition

The court denied Ferreira’s motion for summary judgment and granted the defendants’ cross-motion for summary judgment. The order did not state that either motion was granted or denied with or without prejudice.