MHANNA v. U.S

-ref523 U.S. 1, 7 (1998); see also Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990) ("Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies."); Zalawadia v. Ashcroft, 371 F.3d 292, 297 (5 ^th Cir. 2004) ("The Supreme Court has made it clear that the `in custody' determination is made at the time the habeas petition is filed." (citing Spencer, 523 U.S. at 7)). The petitioner may show an Article III controversy after he is released from custody if he can demonstrate "some concrete and continuing injury other than the now-ended incarceration or parole — some `collateral consequence' of the conviction." Spencer, 523 U.S. at 7.

Mhanna argues that his habeas petition is not moot. Mhanna argues that he continues to suffer collateral consequences because he is barred from re-entering the United States based on the USCIS' finding of inadmissibility. (Pls. Reply to Def.'s Resp. to the Order to Show Cause, Pls.' Resp. to Def.'s Mot. to Dismiss the Pet. for Writ[] of Habeas Corpus as Moot, and Mot. to Dismiss Compl. (hereinafter "Pls.' Mem.") at 21-24, Docket No. 30.) Mhanna notes that federal courts have previously held that "bars to readmission are legally cognizable collateral consequences that preserve a live controversy even after [a habeas petitioner's] removal." (Id. at 22-23 (citing Zegarra-Gomez v. Ashcroft, 314 F.3d 1124, 1127 (9^th Cir. 2003); Leitao v. Reno, 311 F.3d 453, 455 (1^st Cir. 2002); Smith v. Ashcroft, 295 F.3d 425, 428 (4^th Cir. 2002); Chong v. District Director, I.N.S., 264 F.3d 378, 385 (3d Cir. 2001); Max-George v. Reno, 205 F.3d 194, 196 (5^th Cir. 2000))); see also Zalawadia, 371 F.3d at 297. Mhanna also argues that based on the manner of his removal from the United States, he remains in "constructive custody" of the United States. (Pls.' Mem. at 24-25, 28.) Mhanna contends that despite his removal from the United States, the Court may grant relief as "law and justice require." (Id. at 25); see 28 U.S.C. § 2243 ("The court shall . . . dispose of the matter as law and justice require.").

Mhanna asserts that he will be found inadmissible for the next ten years because he was found to be unlawfully present in the United States for more than one year and was subsequently removed. See 8 U.S.C. § 1182(a)(9)(B)(i)(II) ("Any alien (other than an alien lawfully admitted for permanent residence) who . . . has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States, is inadmissible."). Mhanna also asserts that a finding of inadmissibility under 8 U.S.C. § 1182(a)(6)(C)(ii) permanently bars Mhanna's re-entry into the United States. See 8 U.S.C. § 1182(a)(6)(C)(ii) ("Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter (including section 1324a of this title) or any other Federal or State law is inadmissible."). Mhanna argues that those bars to readmission "are legally cognizable consequences that preserve a live controversy even after his removal." (Pls.' Mem. at 22, Docket No. 30.)

B. The Court Does not Have Jurisdiction over Mhanna's Habeas Petition

Assuming that Mhanna can maintain his habeas claim by demonstrating that he continues to suffer collateral consequences, the Court does not have jurisdiction to remedy those collateral consequences. The Court acknowledges Mhanna's cited case law as supporting the general proposition that a statutory bar on readmission constitutes a collateral consequence maintaining a live case or controversy. The cases cited by Mhanna, however, were published prior to 2005, when Congress passed the REAL ID Act.

The REAL ID Act, Pub L. No. 109-13, § 106(c), 119 Stat. 231, 310-11 (2005), and 8 U.S.C. § 1252 provide that "[n]otwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, . . . a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order for removal entered or issued under any provision of this chapter." 8 U.S.C. § 1252(a)(5); Lang v. Napolitano, 596 F.3d 426, 428 (8^th Cir. 2010). That is, "the REAL ID Act place[s] exclusive review of orders of removal with circuit courts." Haider v. Gonzales, 438 F.3d 902, 906 (8^th Cir. 2006). "The jurisdictional provisions of 8 U.S.C. § 1252 apply to `all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States,' so judicial review of claims arising from such actions is governed exclusively by that section." Rafaelano v. Wilson, 471 F.3d 1091, 1095 (9^th Cir. 2006) (emphasis omitted) (quoting 8 U.S.C. § 1252(b)(9)). Thus, the REAL ID Act vests with circuit courts exclusive jurisdiction to review habeas corpus challenges to final orders for removal or deportation. See Skurtu v. Mukasey, 552 F.3d 651, 655-56 (8^th Cir. 2008); Fernandez v. Keisler, 502 F.3d 337, 346 (4^th Cir. 2007) (concluding that the REAL ID Act "expressly eliminated district courts' habeas jurisdiction over removal orders"); Rafaelano, 471 F.3d at 1095.

Mhanna's habeas claim challenges only the government's effort to remove him pursuant to a valid order of removal. See Mhanna, 2010 WL 584034, at *9. That is, Mhanna was in detention pursuant to a valid final order of removal and not pursuant to the USCIS' denial of the application for adjustment. (See Order of Supervision, Engebretson Aff. Ex. F, Docket No. 4; In re Mouhanna, No. A77393085, Slip Op. at 29, Mot. to Reopen Reconsider Ex. 4, Engebretson Aff. Ex. E, Docket No. 4.)) Although the USCIS presumably would have released Mhanna if the USCIS granted his application for adjustment, Mhanna was in custody pursuant to the IJ's final order of removal. Cf. 28 U.S.C. § 2241(c)(3) ("The writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States[.]" (emphasis added)). In the Court's view, Mhanna's habeas claim therefore effectively challenges only Mhanna's detention pursuant to the final order for removal. Cf. Skurtu, 552 F.3d at 656 ("Skurtu's `Complaint' attacks the IJ's order of removal, therefore vesting this court with the `sole and exclusive means for review.'"); Haider, 438 F.3d at 910 (holding that because the petitioner's habeas petition did "nothing more than attack the IJ's removal order, our Court shall be the sole and exclusive means for judicial review." (internal quotation marks omitted)). Accordingly, the Court does not have subject matter jurisdiction to review Mhanna's habeas petition.

In addition, the Ninth Circuit has upheld the IJ's order of removal on review, and "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action . . . to . . . execute removal orders against any alien under this chapter." 8 U.S.C. § 1252(g); Lang, 596 F.3d at 428-29.

The Court notes that the REAL ID Act does not completely strip district courts of jurisdiction to hear habeas petitions from individuals subject to removal orders. The Court may review habeas claims challenging the administrative detention of an individual who is subject to a removal order. See Denis v. DHS/ICE of Buffalo, N.Y., 634 F. Supp. 2d 338, 340-41 (W.D.N.Y. 2009) ("As this [habeas] petition [is] based only on petitioner's allegedly unlawful detention in DHS/ICE custody, and not on the removal order from which the detention flowed, the issue is whether Denis suffers from any `collateral consequences' of detention now that he has been deported and he is no longer `in custody' of DHS/ICE."). To the extent that the Court could construe Mhanna's request for relief as a reviewable habeas claim relating to his ICE detention, however, ICE's removal of Mhanna from the United States renders any such claim moot. See, e.g., Castillo v. Holder, No. 8:09CV324, 2010 WL 561030, at *1 (D. Neb. Feb 9, 2010) ("The [REAL ID] Act does not affect a district court's jurisdiction over habeas petitions challenging the detention associated with a removal order, but this aspect of Castillo's habeas case became moot when she was removed from the United States and released from detention." (citation omitted)); Louismar v. Holder, No. CA 09-0221, 2009 WL 2424445, at *2 (S.D. Ala. Aug. 6, 2009) ("Several district courts, in addition to this Court, have determined that once a § 2241 petitioner has been removed from the United States and deported to his native country his petition seeking release from detention and ICE custody becomes moot as there is no longer a live case or controversy as required under Art. 3, § 2, cl. 1." (internal quotation marks omitted)); cf. Ali. v. Cangemi, 419 F.3d 722, 724 (8^th Cir. 2005) ("With Ali's December 29, 2004 release, Ali arguably received the relief he requested."). Thus, to the extent that the Court could construe Mhanna's habeas claim as challenging his administrative detention, Mhanna's habeas claim is moot.

Mhanna argues that he is in the "constructive custody" of the United States because the government did not provide Mhanna with proper documents — including a valid Lebanese passport — which led to a short detention by Egyptian Transit Police and "an investigation" by Lebanese immigration. (Pet'rs' Mem. at 25, Docket No. 30.) Mhanna argues that those incidents constitute restrictions on liberty under Rumsfeld v. Padilla, 542 U.S. 426, 437 (2007) ("[O]ur understanding of custody has broadened to include restraints short of physical confinement[.]"). Mhanna, however, has not identified any case law supporting a "constructive custody" theory and has not identified the type of relief the Court could provide Mhanna if he were successful on the merits of his habeas claim.

The record also indicates that Mhanna's ICE detention did not exceed the ninety-day removal period for aliens who are ordered removed. See 8 U.S.C. § 1231(a)(1)(A) ("Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days[.]"). ICE took Mhanna into custody on December 29, 2009, and ICE released Mhanna from custody when he departed the United States on February 25, 2010. (See Engebretson Aff. Exs. F, G, Docket No. 4; Kuhn Decl. Ex. 1, Docket No. 26.)

In sum, this Court does not have jurisdiction to review Mhanna's challenge to the removal order as advanced in his habeas claim, and to the extent that Mhanna seeks habeas relief relating to his ICE detention, that claim is moot. Accordingly, the Court grants defendants' motion to dismiss Mhanna's habeas petition.

II. MOTION TO DISMISS MHANNA'S REMAINING CLAIMS

A. Substantive Due Process Claim

Plaintiffs allege that the USCIS' denial of Mhanna's application for adjustment of status and finding that Mhanna is inadmissible violates a substantive due process right of Mhanna and his family to live together in the United States. (See Compl. ¶ 43, Docket No. 1.) Defendants argue that the Court should dismiss Mhanna's due process claims because Mhanna does not have a protected interest in receiving a discretionary benefit like adjustment to lawful permanent residence or in residing in the United States merely because his family members are United States citizens or lawful permanent residents. (Resp'ts' Resp. to the Order to Show Cause, Mot. to Dismiss the Pet. for Writ of Habeas Corpus as Moot, Mot. to Dismiss Pet'rs' Compl. (hereinafter "Defs.' Mem.") at 12, Docket No. 25.) The Court agrees.

The denial of discretionary relief — including the denial of an adjustment of status to lawful permanent resident — cannot violate a substantive interest protected by the Due Process clause. Hanggi v. Holder, 563 F.3d 378, 384 (8^th Cir. 2009) (holding that there is "no constitutionally-protected liberty interest in the discretionary relief of adjustment of status."); Munoz v. Ashcroft, 339 F.3d 950, 954 (9^th Cir. 2003); see also Guled v. Mukasey, 515 F.3d 872, 880 (8^th Cir. 2008) ("Because adjustment of status amounts to a power to dispense mercy, an alien can have no constitutionally protected liberty interest in such speculative relief and cannot state a claim for a violation of due process rights. The failure to receive discretionary adjustment-of-status relief does not constitute the deprivation of a constitutionally-protected liberty interest." (internal quotation marks and citations omitted)). Moreover, plaintiffs can "point to no authority to suggest that the Constitution provides [Mhanna] with a fundamental right to reside in the United States simply because other members of [his] family are citizens or lawful permanent residents." De Mercado v. Mukasey, 566 F.3d 810, 816 n. 5 (9^th Cir. 2009). Accordingly, the Court grants defendants' motion to dismiss plaintiffs' substantive due process claim.

B. Jurisdiction to Review Mhanna's Remaining Claims

Although not alleged in the complaint, Mhanna contends that his removal by ICE to Lebanon "was unlawful as executed." (Pls.' Mem. at 26-28, Docket No. 30.) Mhanna, however, does not indicate that he seeks any relief for the allegedly unlawful removal.

The Court next turns to whether it has jurisdiction to review Mhanna's remaining claims. On November 13, 2009, after the USCIS approved Tammy Mhanna's Immediate Relative Immigrant Visa Petition under INA § 201(b) and 8 U.S.C. § 1155(b), Mhanna filed a Form I-485 as an arriving alien applying to adjust his status to that of a lawful permanent resident. Mhanna also filed a Form I-601 application for waiver of grounds of inadmissibility. (Compl. ¶ 18, Docket No. 1); see 8 C.F.R. §§ 245.2(a)(1) and 1245.2(1)(ii) (providing that the USCIS has jurisdiction to adjudicate an arriving alien's adjustment of status); Matter of Yauri, 25 I N. Dec. at 107 ("[T]he existence of a final order of removal does not preclude the USCIS from granting adjustment of status to an arriving alien who is otherwise eligible for adjustment of status."). The USCIS denied Mhanna's Form I-485 application for adjustment of status, concluding that Mhanna was statutorily ineligible for adjustment because he was inadmissible for falsely representing himself as a United States citizen to immigration inspectors. (Engebretson Aff. Ex. A, Docket No. 4); see 8 U.S.C. § 1182(a)(6)(C)(ii). The USCIS further determined that Mhanna did not timely retract his misrepresentation because he did not admit that he was not a United States citizen until "after the Service . . . challenged the veracity of the claim." (Engebretson Aff. Ex. A, Docket No. 4) The USCIS denied Mhanna's Form I-601 Application for Waiver of Grounds of Inadmissibility under INA § 212(i), 8 U.S.C. § 1182(i). (Id.)

An alien's timely, voluntary retraction of a false statement may excuse the misrepresentation if it is not made in response to actual or imminent exposure of the false statement. See, e.g., Llanos-Senarillos v. United States, 177 F.2d 164, 165 (9^th Cir. 1949); Matter of Namio, 14 I. N. Dec. 412, 414 (BIA 1973).

Mhanna challenges two aspects of the USCIS' decision. First, Mhanna alleges that the USCIS erred by denying his I-485 application for adjustment of status. (See, e.g. Compl. ¶ 1, Docket No. 1 ("This action challenges the US Department of Homeland Security's decision to deny the Application for Adjustment of Status for the otherwise eligible applicant, Assaf Mhanna."); id. ¶ 14 (alleging that Mhanna "is eligible for adjustment of status . . . and he should have been, or should now be, afforded adjustment of status"); Pls.' Mem. at 7, Docket No. 30). Second and relatedly, Mhanna claims that he timely retracted his statement that he was a United States citizen and the USCIS erred by concluding that he was inadmissible under INA § 212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii), and statutorily ineligible for adjustment. (See, e.g., Compl. ¶ 7, Docket No. 1 ("Defendants have erred as a matter of fact and law by finding that [Mhanna] is barred from adjustment of status at this time pursuant to INA § 212(a)(6)(C)(ii) (false claim to US Citizenship)."); id. ¶ 13 ("The Defendants did not deny [Mhanna's] Application for Adjustment of Status as a matter of discretion. Instead, the Defendants determined [Mhanna] was inadmissible and thus not eligible for Adjustment of Status under INA § 212(a)(6)(C)(ii)."); id. ¶ 29; Pls.' Mem. at 2, Docket No. 30 ("The denial of [Mhanna's] Application for Adjustment of Status based on the [USCIS'] finding that he did not timely retract any misrepresentation or false claim to US Citizenship is unlawful and contrary to controlling law."); see generally id. at 11-16.) Mhanna argues that the propriety of the USCIS' inadmissibility determination remains a justiciable issue — even though he has been removed — because if "Mhanna were to seek an Immigrant Visa through consular processing, the [USCIS'] erroneous finding of inadmissibility under INA § 212(a)(6)(C)(ii) forever bars Mhanna from obtaining an immigrant visa." (Pls. Mem. at 18-19.)

Mhanna asks the Court to assume jurisdiction of his case; declare that the USCIS' "actions are an arbitrary and capricious abuse of discretion;" "[e]nter Judgment declaring that [the USCIS'] finding that [Mhanna] is ineligible to adjust his status . . . is unlawful, null and void, and of no force and effect;" find that the USCIS "failed to act in accordance with the law . . . and reached a decision unwarranted by the facts of this case;" "[c]ompel [the USCIS] . . . to perform [its] duty to act upon the Application for Adjustment of Status owed to the Plaintiffs;" and grant any other relief that the Court deems appropriate. (Compl. at 11-12, Docket No. 1.)

1. Adjustment of Status

The Attorney General, "in his discretion and under such regulations as he may prescribe," may adjust the status of an eligible alien present in the United States if (1) the alien has been "admitted or paroled into the United States;" (2) the alien has applied for adjustment of status to lawful permanent residence; (3) the alien is eligible to receive an immigrant visa and is admissible to the United States; and (4) an immigrant visa is immediately available to the alien at the time he filed his application. INA § 245(a), 8 U.S.C. § 1255(a). An alien is inadmissible if "by fraud or willfully misrepresenting a material fact, [the alien] seeks to procure . . . admission into the United States or [any] other benefit under [the INA]." 8 U.S.C. § 1182(a)(6)(C)(i). An alien is also inadmissible if he or she "falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit." Id. § 1182(a)(6)(C)(ii).

The Attorney General may waive the inadmissibility of an alien who is deemed inadmissible pursuant to 8 U.S.C. § 1182(a)(6)(C)(i) because he or she entered the country based on fraud or misrepresentation of a material fact. See 8 U.S.C. § 1182(a)(6)(C)(iii). "The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) . . . in the case of an immigrant who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission . . . of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien[.]" 8 U.S.C. § 1182(i). The INA does not permit the USCIS to grant a waiver to an alien who is deemed inadmissible under clause (ii) for falsely representing himself to be a United States citizen.

2. Jurisdiction

Mhanna contends that the Court has subject matter jurisdiction over his claims "pursuant to 28 USC § 1331 Federal Question Jurisdiction; 28 USC § 2201, the Declaratory Judgment Act; 5 USC § 702, the Administrative Procedures Act[;] 28 USC § 1361, regarding an action to compel an office of the United States to perform his duty; [and] 8 USC § 1329, of the Immigration and Nationality Act, as amended providing for jurisdiction of this Court over actions arising under said Act[.]" (Pls.' Mem. at 18, Docket No. 30.)

a. This Court Does Not Have Jurisdiction to Review the USCIS' Denial of the I-485 Application for Adjustment of Status.

Mhanna argues that the Court "has jurisdiction to review the [USCIS'] finding of inadmissibility and the [USCIS'] denial of [Mhanna's] application for adjustment of status." (Pls.' Mem. at 19, Docket No. 30 (emphasis added).) Defendants argue that the Court does not have jurisdiction to order the USCIS to grant or deny an application for adjustment of status because the statute commits that discretionary decision to the Attorney General.

Mhanna filed his I-485 application for adjustment of status pursuant to 8 U.S.C. § 1255(a), which states:

(a) Status as person admitted for permanent residence on application and eligibility for immigrant visa

The status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

8 U.S.C. § 1255(a) (emphasis added); see also 8 C.F.R. § 245.2(a)(1) ("USCIS has jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 [C.F.R. §] 1245.2(a)(1)."). 8 U.S.C. § 1252(a)(2)(B) provides:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, . . . and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review . . . any . . . decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security[.]

8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added); Kucana v. Holder, ___ U.S. ___, 130 S. Ct. 827, 831 (2010) (holding that § 1252(a)(2)(B) precludes judicial review of determinations by the Attorney General that are made discretionary by statute, but not those that are made discretionary by regulation).

Because the USCIS' denial of an application for adjustment of status is discretionary, this Court does not have jurisdiction to review that decision. See Lang, 596 F.3d at 428 n. 1 ("Congress has barred judicial review of the denial of adjustment of status, even if made in removal proceedings, except for review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals." (internal quotation marks omitted)); Guled v. Mukasey, 515 F.3d 872, 880 (8^th Cir. 2008) (holding that the court did not have jurisdiction to review an Immigration Judge's "discretionary determination" denying an application for cancellation of removal). As this Court noted in its order denying plaintiffs' motion for a temporary restraining order, "Even if a court were to agree with the Mhannas that USCIS's determination that Mhanna is ineligible to receive adjustment of status is erroneous, Congress has nonetheless given the Attorney General discretion to determine whether to grant an application for adjustment of status." Mhanna, 2010 WL 584034, at *12. Accordingly, the Court grants defendants' motion to dismiss for lack of subject matter jurisdiction to the extent that Mhanna asks the Court to grant the application for adjustment or to review the USCIS' discretionary decision to deny the application for adjustment.

Similarly, the Court does not have jurisdiction to review the USCIS' denial of the waiver of admissibility because the USCIS' determination that a waiver is appropriate is discretionary. 8 U.S.C. § 1252(a)(2)(B) (precluding courts from exercising jurisdiction over "any judgment regarding the granting of relief under [ 8 U.S.C. §] 1182(i) [for waiver of inadmissibility under clause (i) of subsection (a)(6)(C)"); see Cospito v. Attorney General, 539 F.3d 166, 170-71 (3d Cir. 2008); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2008); see also Vaso, 2010 WL 746393, at *4 (holding that "the decision on a waiver of inadmissibility" is not subject to judicial review). Moreover, even if it could review the USCIS decision to deny Mhanna's Form I-601, the USCIS was not statutorily authorized to grant a waiver of inadmissibility because the USCIS determined that Mhanna was ineligible pursuant to INA § 212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii). See INA § 212(a)(6)(C)(iii), 8 U.S.C. § 1182(a)(6)(C)(iii) ("Waiver authorized — For provision authorizing waiver of clause (i), see subsection (i)."); 8 U.S.C. § 1182(i) ("The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C)[.]").

Federal courts, however, may review non-discretionary, legal determinations, such as a conclusion that an alien is statutorily ineligible for adjustment because he is inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii). See Guled, 515 F.3d at 880 ("We may review the non-discretionary determinations underlying [an agency's discretionary] decision, such as the predicate legal question whether the IJ properly applied the law to the facts in determining an individual's eligibility."). Thus, 8 U.S.C. § 1252(a)(2)(B) would not foreclose judicial review of the USCIS determination that Mhanna is statutorily inadmissible because he made a material misrepresentation about his citizenship. See United States ex rel. Vaso v. Chertoff, No. 09-1988, 2010 WL 746393, at *4 (3d Cir. Mar. 5, 2010) ("The determination that an alien is statutorily inadmissible is a nondiscretionary, legal determination, for which § 1252 does not foreclose review.") As discussed below, however, the Court concludes that it does not have jurisdiction to review the USCIS' nondiscretionary legal determination that Mhanna is statutorily ineligible for adjustment because he is inadmissible.

b. The Court Does Not Have Jurisdiction to Review the USCIS' Determination that Mhanna Is Inadmissible and Therefore Statutorily Ineligible to Be Adjusted to Permanent Lawful Resident.

Despite defendants' concession — without citing case law — that this Court has jurisdiction to review nondiscretionary, legal determinations such as the finding of statutory ineligibility, the Court concludes that the INA does not affirmatively grant district courts' jurisdiction to review constitutional or legal questions of the kind presented here. The Court also concludes, in accordance with Eighth Circuit precedent and recent appellate case law, that the INA precludes district courts' exercise of jurisdiction over such constitutional or legal questions.

Defendants apparently agree with plaintiffs that under the APA the "Court would have jurisdiction to review Mhanna's APA claim regarding denial of the adjustment of status application . . . [because] all possible administrative remedies have been exhausted, and USCIS did not deny adjustment of status in the exercise of discretion." (Defs.' Reply Mem. at 7, Docket No. 34; see also Defs.' Mem. at 13, Docket No. 25 ("Under the specific facts alleged here, Respondents acknowledge that this Court would have subject matter jurisdiction to review the denial of adjustment of status to Mhanna under federal question jurisdiction, as his cause of action would proceed under the [APA].").)

i. The Court Does Not Have Jurisdiction to Review Nondiscretionary Legal Determinations Under the INA.

Section 1252(a)(2)(D) provides that although courts do not have jurisdiction to review discretionary determinations under § 1252(a)(2)(B), "[n]othing in subparagraph (B) . . . which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section." 8 U.S.C. § 1252(a)(2)(D) (emphasis added). Federal courts in this district, the Eighth Circuit, and outside of the Eighth Circuit have construed that language to hold that appellate courts therefore have exclusive jurisdiction to review Constitutional issues or questions of law. See Abdelwahab v. Frazier, 578 F.3d 817, 821 (8^th Cir. 2009) ("[Section] 1252(a)(2)(D) applies only to questions of law raised upon a petition for review filed with an appropriate court of appeals. Thus, it does not grant jurisdiction to review questions of law in district court cases." (internal quotation marks omitted)); Bah v. Cangemi, 489 F. Supp. 2d 905, 912-13 (D. Minn. 2007); Lopez-Aldana v. Jarpmin, No. 09-CV-2479, 2009 WL 3202426, at *2-3 (D. Minn. Sept. 30, 2009) ("Under 8 U.S.C. § 1252(a)(2)(D), Lopez-Aldana can seek review of constitutional claims or questions of law underlying the decision to deny [temporary protected status ("TPS")] even though the ultimate decision to deny TPS is discretionary. But such review is only available in the `appropriate court of appeals[.]'" (quoting 8 U.S.C. § 1252(a)(2)(D))); Ginters v. Cangemi, 419 F. Supp. 2d 1124, 1131 (D. Minn. 2006) (stating that issues of law relating to the denial of an I-130 Petition for Alien Relative "must be reviewed by the Eighth Circuit Court of Appeals rather than the District Court"); see also Hassan v. Chertoff, 543 F.3d 564, 566 (9^th Cir. 2008) (per curiam), amended and superseded on rehearing en banc on other grounds, 593 F.3d 785 (9^th Cir. 2010); Hamilton v. Gonzales, 485 F.3d 564, 568 (10^th Cir. 2007). But see, e.g., Baez v. United States, No. CV-09-662-HU, ___ F. Supp. 2d ___, 2010 WL 2175995, at *12-16 (D. Or. May 28, 2010) (reviewing an underlying legal determination by the USCIS in the adjudication of an alien's application for adjustment of status); Chen v. Napolitano, 651 F. Supp. 2d 63, 70 (S.D.N.Y. 2009) (finding subject matter jurisdiction over a question of law underlying a decision by the Administrative Appeals Office).

ii. The INA Precludes the Court's Exercise of Subject Matter Jurisdiction over the USCIS' Nondiscretionary Legal Determinations Under the APA or Any Other Statute.

Mhanna argues that the Court has jurisdiction under the APA to review certain agency determinations outlined in 8 U.S.C. § 1252. (Pls. Mem. at 7, Docket No. 30.) The APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. Under the APA, the Court has jurisdiction to review an agency decision if the agency action is final, the action adversely affects the party seeking review, and the agency's decision is non-discretionary. See 5 U.S.C. §§ 702, 704 ("Agency action made reviewable by statute and final agency action for which there is not other adequate remedy in a court are subject to judicial review."). The Court "shall decide all relevant questions of law," and "shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

The APA "is not a jurisdiction-conferring statute." Trudeau v. FTC, 456 F.3d 178, 183 (D.C. Cir. 2006). "Rather, the jurisdictional source for an action under the APA is the `federal question' statute[, 28 U.S.C. § 1331], which grants the district court `original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States, and thereby confer[s] jurisdiction on federal courts to review agency action." Lee v. U.S. Citizenship Immigration Servs., 592 F.3d 612, 619 (4^th Cir. 2010) (some internal quotation marks and citation omitted). "The judicial review provisions of the APA, see 5 U.S.C. §§ 701- 706, simply provide a limited cause of action for parties adversely affected by agency action." Id. (internal quotation marks omitted).

Mhanna contends that he was adversely affected by the USCIS' legal determination that he is statutorily ineligible for adjustment of status because he is inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii). (Pls.' Mem. at 7-10, Docket No. 30.) Mhanna argues that "[n]otwithstanding the restrictions on judicial review of certain agency determinations set forth at 8 USC § 1252, APA jurisdiction is supported when the agency's action is final, the action adversely affects the party seeking review, and the agency's decision is non-discretionary," such as the USCIS' inadmissibility determination under 8 U.S.C. § 1182(a)(6)(C)(ii). The Court disagrees.

The Supreme Court has "read the APA as embodying a basic presumption of judicial review," see Lincoln v. Vigil, 508 U.S. 182, 190 (1993) (internal quotation marks omitted), but the APA's provisions do not apply where "statutes preclude judicial review." 5 U.S.C. § 701(a)(1). Here, the Court must consider "whether the INA precludes review of [Mhanna's] claim under the APA." See Lee, 592 F.3d at 619.

As discussed above, the INA strips courts of jurisdiction to review discretionary agency decisions such as the denial of adjustment of status "[n]otwithstanding any other provision of law (statutory or nonstatutory), . . . except as provided in subparagraph (D) and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under section . . . [1255 of this title]." 8 U.S.C. § 1252(a)(2)(B). "[T]he language `regardless of whether the judgment, decision, or action is made in removal proceedings' makes clear that the jurisdictional limitations imposed by § 1252(a)(2)(B) also apply to review of agency decisions made outside of the removal context." Lee, 592 F.3d at 619.

To the extent that Mhanna challenges only the USCIS' legal determination of statutory ineligibility, the INA precludes the Court from exercising jurisdiction over Mhanna's APA claims. Section 1252(a)(2)(D) carves out an exception to the jurisdiction-stripping language of § 1252(a)(B) whereby "courts of appeal [retain] a narrowly circumscribed jurisdiction to resolve constitutional claims or questions of law raised by aliens seeking discretionary relief." Lee, 592 F.3d at 620 (citing Higuit v. Gonzales, 433 F.3d 417, 419 (4^th Cir. 2006)).

The Court agrees with the Fourth Circuit's holding in Lee v. United States Citizenship Immigration Services, that despite raising an apparent question of law — that is, whether the USCIS properly applied the timely-retraction law to the facts of the case — "§ 1252(a)(2)(D) does not give [Mhanna] a jurisdictional bootstrap into district court. The express language of the statute requires [Mhanna] to raise any constitutional or legal questions upon a petition for review filed with an appropriate court of appeals." 592 F.3d at 620 (internal quotation marks omitted). In Lee, the plaintiff, an alien and Korean national, brought an action in federal district court against the defendant USCIS under the APA challenging the USCIS' denial of his application for adjustment of status on the basis that plaintiff was statutorily ineligible for adjustment. Id. The district court dismissed the case for lack of jurisdiction, and the plaintiff appealed. The Fourth Circuit, citing the Eighth Circuit case Abdelwahab v. Frazier, 578 F.3d 817, concluded "that the district court did not have jurisdiction to entertain [the plaintiff's] challenge to the [USCIS'] eligibility determination and subsequent denial of adjustment of status," and that § 1252(a)(2)(D) "specifically provides that the exclusive means of judicial review of a legal issue related to the denial of an adjustment of status is by a petition for review to the court of appeals." Lee, 592 F.3d at 621.

In light of the INA's application "[n]otwithstanding any other provision of law (statutory or nonstatutory), . . . except as provided in subparagraph (D)," 8 U.S.C. § 1252(a)(2)(B), and the APA's limited application where "statutes preclude judicial review," 5 U.S.C. § 701(a)(1), the Court concludes that the INA precludes this Court's exercise of subject matter jurisdiction over Mhanna's claims under 28 U.S.C. § 1331 and the APA. See generally Lee, 592 F.3d at 618-621. Accordingly, the Court grants defendants' motion to dismiss Mhanna's complaint.

Even if the Court had jurisdiction to grant or deny an application for adjustment of status or remand to the USCIS with instructions to grant Mhanna's application, the USCIS would not be able to grant the application. Under 8 U.S.C. § 1255(a), aliens must be "inspected and admitted or paroled into the United States" to be eligible to apply for adjustment of status. See also 8 C.F.R. § 245.1(a) (limiting eligibility to apply for adjustment of status to aliens "physically present in the United States"). Mhanna has been removed from the United States and is now in Lebanon. Because Mhanna is not physically present in the United States, he is not statutorily eligible for adjustment of status. Cf. 8 C.F.R. §§ 245.2(a)(4), 1245.2(a)(4) (stating that the departure of an applicant "who is under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of the proceedings by reason of the departure"). As Mhanna notes, however, there are consequences of the USCIS' inadmissibility determination that extend to Mhanna's future ability to seek admission to the United States through an Immigrant Visa. (See Pls.' Mem. at 18-19, Docket No. 30.)

iii. Mhanna's Other Asserted Grounds for Jurisdiction

Mhanna also contends that the Court has jurisdiction under 8 U.S.C. § 1329 and the Declaratory Judgment Act, 28 U.S.C. § 2201 to review the USCIS' eligibility determination. Although the Court concludes that the INA precludes the Court from reviewing Mhanna's claims, the Court also notes that Mhanna's other jurisdiction grounds do not affirmatively grant the Court subject matter jurisdiction in these circumstances.

8 U.S.C. § 1329 provides: "The district courts of the United States shall have jurisdiction of all causes, civil and criminal, brought by the United States that arise under the provisions of this subchapter." 8 U.S.C. § 1329 (emphasis added). That provision, however, refers only to civil and criminal cases brought by the United States relating to a "suit or proceeding for a violation of any of the provisions" of the INA. Id. Section 1329 further states: "Nothing in this section shall be construed as providing jurisdiction for suits against the United States or its agencies or officers." Id. Accordingly, § 1329 does not affirmatively confer jurisdiction on this Court to review the USCIS' nondiscretionary, legal determinations of statutory eligibility. See Sabhari v. Reno, 197 F.3d 938, 941-42 (8^th Cir. 1999) (agreeing with the district court that "§ 1329 no longer provides a basis for jurisdiction over actions . . . instituted against officers of the United States").

In addition, 28 U.S.C. § 2201, the Declaratory Judgment Act "enlarges the range of remedies available in federal courts but does not confer jurisdiction." See Patel v. Chertoff, No. 4:06CV01207, 2007 WL 1223553, at * 2 (E.D. Mo. Apr. 24, 2007) (citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950)). Thus, the Declaratory Judgment Act does not provide independent, affirmative jurisdictional grounds on which to review Mhanna's claims.

In sum, the Court grants defendants' motion to dismiss Mhanna's habeas petition because the Court does not have jurisdiction to review a habeas petition challenging a final order of removal and because Mhanna's removal to Lebanon otherwise renders the habeas petition moot. The Court also grants defendants' motion to dismiss Mhanna's remaining claims. Mhanna has not pleaded a plausible claim to relief for substantive due process violations, and this Court does not have subject matter jurisdiction to review the USCIS' discretionary denial of the I-485 Application for Adjustment of Status or the underlying legal determinations of statutory ineligibility. Accordingly, the Court dismisses plaintiffs' action with prejudice.

The habeas jurisdiction of the district courts have been greatly restricted in recent years in regard to immigration matters, mostly as a result of the actions of the Congress. In this case, the Court has very carefully examined in detail every claim raised by the plaintiffs to determine whether jurisdiction exists in this Court. The Court is surely mindful of, and sympathetic to, the significant impact these proceedings have had on the plaintiffs' family. But after an exhaustive review, it is quite clear to the Court that it simply has no jurisdiction to provide any of the avenues of relief that are sought. Without jurisdiction, the Court cannot provide a remedy to Assaf and Tammy Mhanna in this case. For that reason, the case is dismissed.

ORDER

Based on the foregoing and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that defendants' Motion to Dismiss [Docket No. 24] is GRANTED. Plaintiffs Assaf Mhanna and Tammy Mhanna's complaint is DISMISSED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: December 13, 2010 at Minneapolis, Minnesota.