Kerur v. Mayorkas

Background

Akshay Ashok Kerur sued U.S. Citizenship and Immigration Services (USCIS), the Department of Homeland Security, and several federal officials. Kerur challenged USCIS’s denial of his application to adjust his immigration status from nonimmigrant to lawful permanent resident under 8 U.S.C. § 1255(a). He alleged that the denial violated the Administrative Procedure Act (APA) and the due process clause of the Fifth Amendment.

Kerur filed his application in October 2020. USCIS denied it three times. In the most recent denial, USCIS concluded that Kerur was statutorily eligible for adjustment of status but that discretion should not be exercised in his favor.

Jurisdictional issue

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which challenges a federal court’s subject-matter jurisdiction—the court’s legal authority to hear a case. The court treated the motion as a facial attack, meaning it evaluated whether the complaint’s allegations were sufficient on their face to establish jurisdiction.

The court held that 8 U.S.C. § 1252(a)(2)(B) bars judicial review of USCIS’s decision. Section 1252(a)(2)(B)(i) bars review of judgments concerning relief under § 1255, and the court concluded that USCIS’s denial of Kerur’s adjustment-of-status application fell within that provision. The court also held that § 1252(a)(2)(B)(ii) independently bars review because adjustment of status is committed to immigration authorities’ discretion.

The court rejected Kerur’s argument that the jurisdictional bar applies only to decisions made during removal proceedings. It also rejected his argument that the APA supplied jurisdiction, explaining that the APA does not authorize review when another statute precludes it.

Due process claim

Kerur argued that the court could retain jurisdiction over his due process claim even if it could not review the adjustment-of-status decision. The court disagreed. It explained that, to the extent Kerur raised a colorable constitutional claim, § 1252(a)(2)(D) permits review through a petition challenging a final removal order in the appropriate court of appeals. The court found no authority allowing it to retain jurisdiction while Kerur attempted to pursue that route.

Disposition

Judge Virginia K. Demarchi granted the defendants’ motion to dismiss for lack of subject-matter jurisdiction. The court dismissed Kerur’s complaint without prejudice, directed the clerk to enter judgment, and ordered the file closed. The dismissal was based on lack of jurisdiction rather than an adjudication of the merits.