Herbert L. R. v. Tritten

Background

Herbert L. R. entered the United States in 1999 without inspection or a valid entry document. He did not appear at a later removal hearing, and an immigration judge ordered him removed. Herbert later received temporary protected status after El Salvador was designated for that program. In 2008, he traveled to El Salvador with authorization and was paroled back into the United States.

In 2016, Herbert unsuccessfully sought to reopen his removal proceedings. In 2017, his spouse filed an immigrant petition for him, and Herbert filed an application to adjust his status to become a lawful permanent resident. USCIS approved the immigrant petition but denied the adjustment application in February 2019, determining that Herbert was a respondent in removal proceedings who was not an “arriving alien.” USCIS stated that only the immigration court had authority to decide his adjustment application.

The lawsuit and the parties’ positions

Herbert sued Leslie Tritten, Kenneth Cuccinelli, and Kevin McAleenan under the Administrative Procedure Act and a federal mandamus statute. He sought a declaration that USCIS had authority to decide his adjustment application and an order requiring USCIS to adjudicate it. Herbert argued that his 2008 parole entry made him an arriving alien and that his lawsuit did not challenge or seek to invalidate his removal order.

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, or alternatively under Rule 12(b)(6) for failure to state a claim. They argued that Herbert’s claim was an indirect challenge to his removal order because a favorable decision would be a necessary step toward obtaining lawful permanent resident status and remaining in the United States.

Court’s analysis

The court explained that federal district courts generally cannot review claims that directly or indirectly challenge a removal order. Federal immigration law makes a petition for review in the appropriate federal court of appeals the exclusive method for reviewing a removal order and bars district-court jurisdiction over certain claims arising from removal proceedings. The court also explained that the analysis depends on the substance of the relief sought, not merely how a claim is labeled.

The court concluded that Herbert’s claim was based on USCIS’s decision concerning his adjustment application, which itself was based on his removal order and related proceedings. Although Herbert did not ask the district court to grant him lawful permanent resident status or directly cancel the removal order, he sought an order compelling USCIS to adjudicate the application. The court determined that this relief was a necessary step toward adjusting his status and remaining in the country, making the claim “inextricably linked” to the outstanding removal order.

The court considered Herbert’s argument that he was an arriving alien and noted that this issue primarily concerned the merits of his claim. To the extent the issue affected jurisdiction, however, the court stated that Herbert’s temporary-protected-status status and unexecuted removal order were likely unchanged by his parole entry.

Disposition

The court granted the defendants’ Rule 12(b)(1) motion because it lacked subject-matter jurisdiction. Because jurisdiction was absent, the court did not consider the defendants’ alternative Rule 12(b)(6) motion. The court dismissed the action without prejudice and ordered judgment entered accordingly.