United States District Court, D. Massachusetts
MEMORANDUM & ORDER
NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE.
and Meenaben Patel (“the Patels” or
“plaintiffs”) bring this action against Chad Wolf
(Acting Secretary of the United States Department of Homeland
Security), Kenneth T. Cuccinelli II (Acting Director of the
United States Citizenship and Immigration Services), Michael
J. McCleary (Director of the Boston Field Office of the
United States Citizenship and Immigration Services), William
Barr (United States Attorney General), James McHenry
(Director of the Executive Office for Immigration Review) and
Garry D. Malphrus (Acting Chairman of the Board of
Immigration Appeals) (collectively,
“defendants”). Plaintiffs seek an order of the Court
compelling defendants to adjudicate plaintiffs'
applications for adjustment of immigration status.
before the Court is the motion of defendants to dismiss
plaintiffs' complaint (Docket No. 7).
have lived in the United States for approximately 27 years
since they entered in January, 1992, on six-month tourist
visas. In 1993, long after the expiration of their visas, the
Immigration and Naturalization Service (“INS”)
placed plaintiffs into deportation proceedings. In 1996,
plaintiffs were ordered deportable after they failed to
appear at their removal hearing.
2009, plaintiffs filed their first motion to reopen their
deportation proceedings alleging that improper notice caused
them to miss their 1996 hearing. An immigration judge in the
Executive Office of Immigration Review (“EOIR”)
denied plaintiffs' petition and plaintiffs appealed to
the Board of Immigration Appeals (“BIA”) which
affirmed the immigration judge's denial. Plaintiffs then
appealed to the United States Court of Appeals for the Eighth
Circuit, which denied their appeal.
December, 2015, plaintiffs filed a second motion to reopen
deportation proceedings with the BIA based on pending visa
petitions filed by their daughter who is a United States
citizen. The BIA denied the motion as untimely.
November, 2016, United States Citizenship and Immigration
Services (“USCIS”) approved plaintiffs' I-130
Petitions which made plaintiffs eligible to apply for
adjustment of immigration status to permanent residents
without leaving the United States. 8 U.S.C. § 1255.
following month, plaintiffs applied to USCIS for adjustment
of status. In August and September, 2017, USCIS
administratively closed Mr. and Mrs. Patel's
applications. The agency explained in its denial that,
because plaintiffs were respondents in a removal proceeding
and were not “arriving aliens”, EOIR had
exclusive jurisdiction to review their applications for
adjustment of status. See 8 C.F.R. §§ 245.2(a) and
October, 2017, the Patels filed their third motion to reopen
with the BIA, which was denied in February, 2018. The Eighth
Circuit Court of Appeals subsequently denied plaintiffs'
petition for review.
Patels filed their complaint in the instant action in
February, 2019 (Docket No. 1). They once again request that
their removal proceedings be reopened so that they may apply
for adjustment of status. Defendants move to dismiss
plaintiffs' complaint for lack of subject matter
jurisdiction and failure to state a claim (Docket No. 7).
Fed.R.Civ.P. 12(b)(1) and (6).
Motion to Dismiss
Standard of Review
opposing a motion to dismiss for lack of subject matter
jurisdiction under Fed.R.Civ.P. 12(b)(1), the plaintiff bears
the burden of establishing that the Court has jurisdiction.
Lujan v. Defenders of Wildlife,504 U.S. 555, 561
(1992). If the defendant mounts a “sufficiency
challenge”, the court will assess the sufficiency of
the plaintiff's jurisdictional allegations by construing
the complaint liberally, treating all well-pled facts as true