United States District Court, D. Utah
CARMEN G. NOLASCO, Plaintiff,
KIRSTJEN NIELSON, Secretary of the Department of Homeland Security, et al., Defendants.
ORDER AND MEMORANDUM DECISION GRANTING
DEFENDANTS' MOTION TO DISMISS
CAMPBELL U.S. DISTRICT COURT JUDGE.
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
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'
AND PROCEDURAL BACKGROUND
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.
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
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.
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.
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
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).
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 ...