Vera Gomez v. McAleenan

Background

Olimpia Vera Gomez, a national of Mexico who had lived in the United States since 1990, applied for cancellation of removal under 8 U.S.C. § 1229b(b). She based the application on the alleged exceptional and extremely unusual hardship that her removal would cause her severely disabled, twenty-year-old United States-citizen son, who could not care for himself.

An immigration judge found that Gomez was statutorily eligible for cancellation of removal when she applied, but reserved a decision because the annual limit of 4,000 visas for this type of relief had been reached. Gomez was placed in the queue for applicants who qualified for cancellation of removal but could not receive it because of the visa limit. She alleged that the wait would be about eighteen months and that her son’s upcoming twenty-first birthday would cause him to stop qualifying as a child under the statute.

Gomez filed an emergency complaint seeking mandamus and declaratory relief. She alleged that the visa-issuance policy violated due process and conflicted with applicable law and regulations. The opinion states that her son’s birthday had passed by the time of the court’s decision.

Motion and jurisdictional issue

The defendants moved to dismiss the entire action, arguing that the district court lacked subject-matter jurisdiction, Gomez had not exhausted administrative remedies, and she failed to state a claim because she had no legal right to discretionary relief from removal.

The court resolved the motion on jurisdictional grounds. The defendants relied on 8 U.S.C. § 1252(a)(5), which makes a petition for review in the appropriate federal appeals court the exclusive means of judicial review of a removal order, and § 1252(b)(9), which channels judicial review of legal and factual questions arising from removal proceedings into review of a final removal order.

Gomez argued that § 1252(a)(5) did not apply because no removal order had been issued. She also asserted jurisdiction under federal-question jurisdiction, the statute authorizing mandamus actions, the Administrative Procedure Act, and the declaratory-judgment statute.

Court’s reasoning

The court relied on Ninth Circuit authority interpreting § 1252 broadly. That authority holds that the statute channels challenges to agency procedures through the appeals-court review process when they arise from, or are closely connected to, removal proceedings. The statute does not cover claims independent of or collateral to removal, and the court must look to the substance of the relief sought rather than merely how a claim is labeled.

The court concluded that Gomez’s complaint challenged the policy governing the issuance of visas under § 1229b(b). Because the relief she requested would have the effect of negating a removal order if one were issued, the court found that her challenge was tied to the removal process and had to be brought in the federal appeals court. The court also noted that the cases Gomez cited did not address district-court jurisdiction under § 1252.

Disposition

The court granted the defendants’ motion on the basis that it lacked jurisdiction over the action. It dismissed the case without prejudice. The opinion did not reach the defendants’ alternative arguments concerning exhaustion of administrative remedies or failure to state a claim.