Akimenko v. Mayorkas

Background

Andrey Nikolaevich Akimenko sued Alejandro Mayorkas and other Department of Homeland Security and U.S. Citizenship and Immigration Services officials. He originally sought an order requiring the officials to decide his Form I-485 application to adjust his status to permanent residence. Akimenko alleged that he was the beneficiary of an approved Form I-140 employment-based immigrant petition filed on his behalf by VAAS.

USCIS later revoked approval of the I-140 petition and denied Akimenko’s I-485 application because the underlying petition had been revoked. The court dismissed Akimenko’s original complaint as moot but allowed him to file an amended complaint challenging the I-140 revocation. Akimenko filed that amended complaint and sought to invalidate the revocation, have it declared unlawful, and require USCIS to decide his I-485 application.

After Akimenko appealed the revocation, USCIS’s Administrative Appeals Office withdrew the revocation and returned the matter to the originating office for further consideration. According to a USCIS official, that action returned the I-140 petition to approved status. USCIS also reopened the I-485 application. By the time of the ruling, the I-485 application was pending, and USCIS had approved Akimenko’s applications for employment authorization and travel.

Jurisdictional challenge

The defendants moved under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal when the court lacks subject-matter jurisdiction—the legal authority to hear the dispute. They argued that the court could not review the I-140 revocation under the Administrative Procedure Act because the Administrative Appeals Office had withdrawn the revocation and sent the matter back for further action.

The Administrative Procedure Act generally permits review of an agency action made reviewable by statute or of a final agency action for which there is no other adequate remedy in court. The court held that the first category did not apply because no statute authorized judicial review of a denial of status adjustment in this case. It also held that the withdrawn I-140 revocation was not final agency action because the petition had returned to approved status and the agency had not completed its consideration.

Akimenko argued that the revocation had been unlawful and baseless, had violated the Administrative Procedure Act, and had caused harm. The court acknowledged those assertions but concluded that the rights and obligations associated with the I-140 petition had not yet been determined. USCIS could still decide not to revoke the petition and could later grant or deny the I-485 application. The court therefore concluded that it lacked jurisdiction over Akimenko’s claims at that time.

Ruling

Judge Donna M. Ryu granted the defendants’ motion to dismiss the amended complaint for lack of subject-matter jurisdiction. The court also granted the defendants’ administrative motion. The dismissal was without prejudice to Akimenko’s ability to file a new case if USCIS issued a final action on the I-140 petition and jurisdiction lay in the court. The Clerk was directed to close the file.