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Nolasco v. Nielson

United States District Court, D. Utah

December 7, 2018

CARMEN G. NOLASCO, Plaintiff,
v.
KIRSTJEN NIELSON, Secretary of the Department of Homeland Security, et al., Defendants.

          ORDER AND MEMORANDUM DECISION GRANTING DEFENDANTS' MOTION TO DISMISS

          TENA CAMPBELL U.S. DISTRICT COURT JUDGE.

         Plaintiff Carmen G. Nolasco has brought a complaint against Defendants Kirstjen Nielsen, Secretary of the Department of Homeland Security; L. Francis Cissna, Director of the United States Citizenship and Immigration Services (USCIS); and Laura McNeer, Director of the Salt Lake City Field Office of Citizenship and Immigration Services. Ms. Nolasco asks the court to grant a writ of mandamus compelling the USCIS to adjudicate her application for adjustment of immigration status.

         The Defendants have moved to dismiss Ms. Nolasco's complaint. Because this court does not have jurisdiction to consider Ms. Nolasco's complaint, the court GRANTS the Defendants' motion.

         FACTUAL AND PROCEDURAL BACKGROUND[1]

         Ms. Nolasco, a native of El Salvador, entered the United States illegally in 1991 when she was three years old. In 1992, after Ms. Nolasco was placed in deportation proceedings, an immigration judge granted Ms. Nolasco voluntary departure. But when Ms. Nolasco did not voluntarily depart, the voluntary departure was changed to an order of deportation.

         In 2001, Ms. Nolasco was granted Temporary Protected Status (TPS) which temporarily prevents her removal from the United States. The Trump Administration has now terminated TPS designation for El Salvador, and Ms. Nolasco claims that in 2019, her TPS will end and she will be subject to removal.[2]

         Ms. Nolasco married Juan Nolasco, a United States Citizen, in 2005. Ten years after the marriage, Mr. Nolasco filed a form I-130 Petition for Alien Relative, establishing that he is a United States citizen and that Ms. Nolasco, as his spouse, is an immediate relative. The USCIS granted the petition.

         In April 2016, USCIS granted Ms. Nolasco's application for an advance parole, which meant that she could temporarily leave and return to the United States.

         Ms. Nolasco filed a form I-485 Adjustment of Status Application with USCIS in March 2017. She appeared at USCIS for an interview regarding her Form I-485 in October 2017. After the interview, USCIS sent Ms. Nolasco a Notice of Administrative Closure (Notice). In the Notice, the USCIS explained that it was administratively closing Ms. Nolasco's I-485 application because “USCIS does not have jurisdiction to adjudicate your Form I-485.” (Ex. C to Compl., ECF No. 2-1.) The Notice continued:

USCIS has jurisdiction to grant adjustment only if the Immigration Judge does not have jurisdiction. See Title 8, Code of Federal Regulations (8 CFR), sections 245.2(a) and 1245.2(a). The Immigration Judge has jurisdiction to grant or deny a Form I-485 in any case in which the applicant (other than an “arriving alien”) is a respondent in a section 240 removal proceeding before the U.S. Department of Justice, Executive Office for Immigration Review (EOIR). USCIS reviewed your case file, A#A09 4061800 and determined that an Immigration Judge ordered that you be removed from the United States, but you have not yet departed under that order. It does not appear that the removal proceedings against you have been terminated. See 8 CFR section 245.1(c)(8)(ii).
Since you are the respondent in a removal proceeding, and you are not an “arriving alien” only EOIR has jurisdiction to grant or deny your form I-485. You must submit your form I-485 to the Immigration Judge in EOIR proceedings. Since EOIR has already entered a removal order, you must move EOIR to reopen the proceedings in order for you to be able to apply for adjustment status.
Because USCIS does not have jurisdiction, your form I-485 is administratively closed; however, this does not prevent you from seeking adjustment before EOIR. 8 CFR sections 245.2(a)(1) and 1245.2(a)(1).

(Id.)

         After receiving the Notice, Ms. Nolasco filed this mandamus action, in which she asks the court to assume jurisdiction over her immigration proceedings and compel the USCIS to adjudicate her I-485 application. (See Compl. 15-16, ECF No. 2.) The Defendants have moved to dismiss her complaint for three reasons: (1) the USCIS does not have jurisdiction to grant or deny Ms. Nolasco's application to adjust her immigration status, so her complaint is moot; (2) the court lacks subject matter ...


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