Hector Orozco Rivera v. Valeika

Background

Hector Orozco Rivera and Barbara Membreño Cortes sued Richard Valeika and other defendants, including United States Citizenship and Immigration Services and the Department of Homeland Security. Orozco alleged that the denial of his application to adjust his immigration status was arbitrary and capricious under the Administrative Procedure Act. Membreño, Orozco’s wife and a derivative beneficiary of his application, asserted that the denial of her related application was unlawful and sought a court order requiring action.

Orozco had entered the United States without inspection and applied for adjustment of status under 8 U.S.C. § 1255(i), based on a petition filed by his brother. United States Citizenship and Immigration Services denied the application on two stated grounds: alleged unlawful presence and an alleged willful misrepresentation concerning whether Orozco was in Mexico when a 1995 hit-and-run incident occurred. The agency also denied Orozco’s request to reopen and reconsider the decision.

The plaintiffs filed this lawsuit on June 22, 2021. On August 25, 2021, the Department of Homeland Security issued a Notice to Appear initiating removal proceedings against Orozco. The United States then moved to dismiss both plaintiffs’ claims for lack of subject-matter jurisdiction, meaning lack of legal authority for the court to hear the claims.

Court’s Analysis

The court applied Ninth Circuit precedent holding that a denial of adjustment of status is no longer a final agency action once removal proceedings begin. During removal proceedings, the noncitizen may renew the adjustment application before an immigration judge, who may modify or reverse the agency’s decision. The court therefore held that Orozco’s claim was no longer reviewable under the Administrative Procedure Act after the Department of Homeland Security initiated removal proceedings.

The court also held that Orozco had not exhausted the available administrative process. It rejected the plaintiffs’ argument that the expected length and uncertainty of the removal proceedings constituted exceptional circumstances that would excuse exhaustion.

As to Membreño, the court held that her application was entirely dependent on Orozco’s application. Because Orozco’s claim was no longer final and his removal proceedings affected the underlying application, the court concluded that Membreño’s denial was not final either. The court also determined that no enforceable duty was currently owed to her for purposes of her request for a court order.

Disposition

The court GRANTS the motion to dismiss without leave to amend. It states that the dismissal is without prejudice to the plaintiffs’ ability to return if jurisdiction later exists in the district court. The court noted that jurisdiction might later return after Orozco’s removal proceedings and appeals end or are administratively closed. It also noted that, if Orozco’s status is adjusted and that adjustment becomes final, jurisdiction might again exist regarding Membreño’s status.