United States District Court, District of Columbia
S. CHUTKAN UNITED STATES DISTRICT JUDGE
September 2015, Plaintiff Lunbing Chen filed the instant
action against Jeh Johnson, Secretary of the United States
Department of Homeland Security (“DHS”), Leon
Rodriguez, Director of United States Citizenship and
Immigration Services (“USCIS”), a component of
DHS, and Sarah Taylor, Director of USCIS’s Washington
District Office (collectively, “Defendants”).
(Compl. ¶¶ 13-14).
is presently subject to an of deportation, though that order
has been withheld since January 2006 pursuant to 8 U.S.C.
§ 1231(b)(3). This case concerns an application for
adjustment of status that Plaintiff filed with USCIS in
December 2013. USCIS administratively closed
Plaintiff’s adjustment application in March 2014 on the
basis that it lacked jurisdiction to adjudicate it. Plaintiff
subsequently filed two separate motions for reconsideration,
both of which were denied. Shortly after the second motion
for reconsideration was denied, Plaintiff filed this case.
alleges that USCIS’s administrative closure of his
adjustment application and subsequent denial of his motions
for reconsideration violated the Administrative Procedure
Act. (Id. ¶ 10). He requests, among other
things, that this court (i) accept jurisdiction over this
(ii) review USCIS’s administrative closure of his
adjustment application and denial of his motions for
reconsideration; (iii) declare that he is an “arriving
alien” eligible for adjustment under § 245(i) of
the Immigration and Nationality Act (the “INA”);
(iv) enjoin USCIS from refusing to assume jurisdiction over
his adjustment application; and (v) order USCIS to approve
his adjustment application. (Id. at 10-11).
have moved to dismiss for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1), and for
failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6). Upon consideration of Defendants’
motion and the parties’ briefs in support thereof and
in opposition thereto, and for the reasons set forth below,
the motion is hereby GRANTED AS CONCEDED insofar as it seeks
dismissal for lack of subject matter jurisdiction, and is
hereby DENIED AS MOOT insofar as it seeks dismissal for
failure to state a claim.
is a citizen of the People’s Republic of China. (Compl.
Ex. A; Mot. Ex. 1 at 2). On January 2, 1992, Plaintiff was
stopped by officials of the Immigration and Naturalization
Service (“INS”) in Honolulu, Hawaii. (Mot. Ex. 1
at 1). Through an interpreter, Plaintiff provided an INS
official with a sworn statement in which he stated that he
had come to the United States “to stay here for
good” because “the U.S. government takes good
care of its citizens, ” and because he would
“have more future in the U.S.A.” (Id. at
3). Plaintiff stated that he planned on contacting his uncle
to find work, and provided phone numbers with Washington,
D.C. area codes for his uncle’s home and business.
(Id. at 3-4).
first stated that he did not have any travel documents, did
not “apply for any kind of document at all, ” and
did not have a passport to leave China. (Id. at 4).
When he was asked again whether he had a passport to come to
the United States, Plaintiff stated that he had bought a fake
Chinese passport “in the street” for
“500.00 Chinese currency.” (Id. at 4-5).
Plaintiff stated that he did not know who sold him the
passport, and that “it was just somebody in the
street.” (Id. at 4). He further stated that,
after arriving at the airport in China, he asked someone else
to purchase his plane ticket for him, then “boarded the
plane with the fake passport and the ticket” before
“tear[ing] off the passport while [he] was on the plane
. . . because it was fake” and of “no use.”
(Id. at 5).
was then informed that, because he was an immigrant without a
visa or other travel documents, and was not exempt from the
requirement of having such travel documents, he was not
admissible to the United States. (Id.). He was
offered the choice of withdrawing his application for
admission and returning to China, or having a hearing with an
Immigration Judge. (Id.). Plaintiff elected to have
a hearing with an Immigration Judge. (Id. at 6). He
was then paroled into the United States, with orders to
appear at an INS office in Honolulu the following day,
January 3, 1992, for a deferred inspection. (Compl. Ex. A).
He did not appear as ordered. (Compl. Ex. K at 1)
(“USCIS records reveal that you were paroled solely for
the purposes of deferred inspection. However, review of the
file reveals that you failed to appear for deferred
eventually filed an application for asylum, claiming that he
would be persecuted if he returned to China. (Mot. Ex. 2 at
2). In January 1993, while his asylum application was
pending, INS filed an Order to Show Cause (the
“OSC”), thereby initiating deportation
proceedings. (Compl. Ex. B). During an October 1993 hearing
in Immigration Court, the OSC was amended to reflect the fact
that Plaintiff was originally “admitted based upon
[his] presenting fraudulent documents, ” which rendered
him “excludable by law and subject to
deportation” at the time of his entry on January 2,
1992. (Id. at 1-2). The Immigration Judge
specifically noted that Plaintiff, through his counsel, had
“admitted the truthfulness of the factual allegations
contained in [the OSC], as amended, and conceded
deportability predicated on the charge.” (Mot. Ex. 2 at
1). The Immigration Judge therefore denied Plaintiff’s
asylum application, denied his request for a withholding of
deportation, and granted him the option of voluntarily
departing the country by December 31, 1993. (Id. at
7). The Immigration Judge also ordered that, in the event
that Plaintiff did not timely depart the United States, he
would be ordered deported back to China. (Id. at
7-8). Plaintiff appealed the Immigration Judge’s denial
of his asylum application to the Board of Immigration
Appeals, which subsequently remanded the case to the
Immigration Judge for further consideration of
Plaintiff’s persecution claim. (Mot. Ex. 3 at 2).
March 2001, while the deportation proceedings were ongoing,
Plaintiff’s employer filed an Application for
Employment Certification on his behalf, which the United
States Department of Labor approved in February 2002. (Compl.
Ex. E). In April 2002, Plaintiff’s employer filed an
Immigrant Petition for Alien Worker (“Form
I-140”) on his behalf, seeking to classify him as a
skilled worker under the INA. (Mot. Ex. 4). The Form I-140
was approved by USCIS in December 2002. (Id.). In
September 2004, Plaintiff submitted an Application to Adjust
Status (“Form I-485”) to the Immigration Court
based on his approved Form I-140. (Mot. Exs. 5-6).
January 2006, the Immigration Judge again denied
Plaintiff’s asylum application, but this time granted
his request for withholding of deportation pursuant to 8
U.S.C. § 1231(b)(3), which provides that an alien may
not be removed to a country if it is determined “that
the alien’s life or freedom would be threatened in that
country because of the alien’s race, religion,
nationality, membership in a particular social group, or
political opinion.” (Compl. Ex. C).
September 2010, Plaintiff’s daughter - a naturalized
U.S. citizen - filed a Petition for Alien Relative
(“Form I-130”) on Plaintiff’s behalf,
seeking to classify Plaintiff as the parent of a U.S.
citizen. (Compl. Ex. D). The Form I-130 was subsequently
approved. (Id.). Plaintiff then filed a second Form
I-485 - this time with USCIS, and this time based on his
approved Form I-130 - again seeking adjustment of status
under section 245(i) of the INA, 8 U.S.C. § 1255(i).
(Compl. ¶ 2).
September 1, 2011, Plaintiff’s first Form I-485, which
he had filed with the Immigration Court, was marked
“terminated 9/1/2011. Acquired through other
means.” (Mot. Ex. 6 at 1). USCIS then denied
Plaintiff’s second Form I-485 on the ground that he ...