Nazareno v. Cuccinelli

Background

Ericson Olfato Nazareno brought an action under the Administrative Procedure Act, or APA, challenging U.S. Citizenship and Immigration Services’ decisions concerning his applications to adjust his immigration status. He sought adjustment under 8 U.S.C. § 1255(i), based on an immigrant visa petition filed by his U.S. citizen daughter and his alleged status as a derivative beneficiary of an earlier petition filed on behalf of his father.

USCIS initially denied Nazareno’s Form I-485 application in August 2020 because it found that he had not shown that he was the spouse or child of the principal beneficiary when the qualifying petition was filed. USCIS later vacated that denial and reopened the I-485 application and an application for a waiver of inadmissibility. In June 2021, USCIS denied the waiver application for failure to establish the required extreme hardship and denied the I-485 application based on that waiver denial.

Nazareno challenged the June 2021 decisions and the earlier eligibility decision under the APA. He also challenged an alleged USCIS policy requiring a derivative beneficiary to have been the spouse or child of a grandfathered principal beneficiary when the qualifying petition or application was filed. He requested an injunction requiring USCIS to remove that policy from its policy manual. The Department of Homeland Security later initiated removal proceedings against him.

Jurisdiction over the adjustment-of-status claims

The defendant moved under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal for lack of subject-matter jurisdiction. The court explained that, under Ninth Circuit precedent, a district court generally lacks jurisdiction to review a denial of adjustment of status while removal proceedings are pending. The applicant may renew the adjustment application before an immigration judge, who has authority to modify or reverse the denial, and the applicant generally has not exhausted the available administrative process.

Nazareno conceded that the court lacked jurisdiction over his claims challenging the August 2020 and June 2021 adjustment-of-status decisions. The court therefore dismissed those claims without prejudice to his ability to file another action if the court later has jurisdiction.

Standing to challenge the alleged policy

The court separately considered Nazareno’s challenge to the alleged section 1255(i) policy. Article III standing, a constitutional requirement for federal-court jurisdiction, requires an injury in fact that is fairly traceable to the challenged conduct and likely to be remedied by the requested relief.

The court found that Nazareno had not shown an injury in fact. USCIS had vacated the August 2020 decision that allegedly applied the policy. USCIS’s later denial of the I-485 application relied on the denial of the waiver application and did not refer to Nazareno’s eligibility under section 1255(i). The court also rejected Nazareno’s argument that he faced a future injury because USCIS might apply the policy to a future application, concluding that this possibility was speculative rather than a real and immediate threat.

The court dismissed the policy claim without leave to amend.

Disposition

The court granted the defendant’s motion to dismiss the amended complaint. The dismissal was without prejudice to Nazareno’s ability to file another action after his removal proceedings and appeals ended or were administratively closed. The Clerk was directed to close the case. The court also denied as moot Nazareno’s later motion to submit supplemental pleadings.