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Vasquez v. Napolitano

October 7, 2010


The opinion of the court was delivered by: Padova, J.


On August 20, 2010, Plaintiff Daysi Suyapa Vasquez, a citizen of Honduras, filed a "Complaint W/ Motion for Stay of Removal," seeking to require the United States Citizenship and Immigration Service ("CIS") to adjudicate her adjustment of status application, and asking us to stay her anticipated removal, which is currently scheduled for October 18, 2010, pending our adjudication of her claims. On September 15, 2010, the Government filed a Motion to Transfer and Dismiss, arguing that we have no subject matter jurisdiction over Plaintiff's request to stay her removal order and that the remainder of the Complaint fails to state a claim upon which relief may be granted. We heard argument on the Motion on October 1, 2010. For the following reasons, we grant the Government's Motion and dismiss the Complaint and Motion for Stay.


The undisputed facts as stated in Plaintiff's Complaint and other filings are as follows. Plaintiff is a 38-year-old citizen of Honduras, who currently resides in Scranton, Pennsylvania. In October 1991, she entered the United States without inspection. On December 21, 1994, an Order to Show Cause was issued, charging Plaintiff as being inadmissible. After a hearing, Plaintiff was granted voluntary departure until March 29, 1997. However, Plaintiff did not leave the country and, as a result, her voluntary departure was converted to a deportation order. On April 25, 2001, Plaintiff's father, who is a lawful permanent resident, filed a Petition for Alien Relative on Plaintiff's behalf. Plaintiff was nevertheless deported in June 2001.

Plaintiff returned to the United States in September 2001, again entering the country without inspection. On March 22, 2010, she filed an Application to Adjust Status pursuant to § 245(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255(i). CIS scheduled Plaintiff for an interview on her adjustment application on July 20, 2010. However, on the day of Plaintiff's interview, Immigration and Customs Enforcement determined that Plaintiff had been previously deported and had reentered without inspection. It therefore took Plaintiff into custody and reinstated her prior order of deportation. Plaintiff was then released on a 90-day order of supervision. Plaintiff is now scheduled to be deported on October 18, 2010, if she does not voluntarily depart before that date.

Plaintiff filed her Complaint on August 20, 2010. She asks that we: (1) assume jurisdiction over the matter; (2) order the Government to "reconsider and re-adjudicate [her] adjustment application pursuant to Section 245(i) of the INA"; (3) stay her removal "pending the determination of this petition"; and (4) grant any further relief that we deem appropriate. Although the Complaint contains no jurisdictional statement, Plaintiff has asserted in her response to the Government's Motion to Transfer and Dismiss that we have jurisdiction over her claims pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 701, et seq., which permits review of agency action unlawfully withheld or unreasonably delayed; pursuant to U.S.C. § 1361, which authorizes the issuance of writs of mandamus; and pursuant to 28 U.S.C. §§ 1331 and 1651 as a civil action arising under the Constitution and laws of the United States.

On September 14, 2010, after Plaintiff's filing of her Complaint in this case, CIS issued a decision on Plaintiff's Application to Adjust Status. That decision, a "Notice of Denial," is attached as Ex. 2 to the Government's Motion to Transfer and Dismiss. In the decision, CIS reiterates that Plaintiff is seeking an adjustment of status under § 245(i) of the INA, as the beneficiary of a Petition for Alien Relative that was filed by her father. (Ex. 2 at 1.) It concludes, however, that she is ineligible to apply for adjustment of status for several reasons. First, it states that she is barred from reapplying pursuant to § 212(a)(9)(C)(i),*fn1 and does not qualify for the exception to § 212(a)(9)(C)(i) that is set forth in § 212(a)(9)(C)(ii).*fn2 Second, CIS states that Plaintiff was not a valid beneficiary of her father's Petition for Alien Relative because lawful permanent residents may only file such petitions for unmarried children and Plaintiff was married on the date that her father filed the petition on her behalf. See 8 U.S.C. § 1153(a)(2)(B). Finally, CIS notes that Plaintiff is simply ineligible for adjustment of status pursuant to § 241(a)(5), 8 U.S.C. § 1231(a)(5), which expressly prohibits an alien who returns to the country without permission after being removed from applying for any relief under the INA. In conclusion, CIS notes that "although [it] found that [Plaintiff is] statutorily ineligible for adjustment of status, it would also have denied the application as a matter of discretion due to [Plaintiff's] repeated disregard for US immigration laws." (Ex. 2 at 5.)

At the October 1, 2010 argument, Plaintiff conceded that her request for relief in the Complaint is moot insofar as she sought an order compelling CIS to act on her adjustment of status application. However, she continues to argue that CIS erroneously concluded that she is not eligible to apply for adjustment of status and asks that we review that decision.


A motion to dismiss or transfer for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may challenge the court's jurisdiction on either "factual" or "facial" grounds. Turicentro, S.A. v. American Airlines Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002). Where, as here, a defendant argues that "the court in fact lacks subject matter jurisdiction," the court is not required to accept as true the Complaint's allegations, NE Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 & n.7 (3d Cir. 2001), and must instead "satisfy itself as to the existence of its power to hear the case." Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In the end, the plaintiff bears the burden of showing that jurisdiction exists. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).

8 U.S.C. § 1182(a)(9)(C)(ii).

When considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), we take the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). A plaintiff's pleading obligation is to set forth "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), which gives the defendant "'fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The allegations of the complaint must "'plausibly suggest[ ]' that the pleader is entitled to relief." Sovereign Bank v. B.J.'s Wholesale Club, Inc., 533 F.3d 162, 173 n.7 (3d Cir. 2008) (alteration in original) (quoting Twombly, 550 U.S. at 557). In the end, we will grant a Rule 12(b)(6) motion if the factual allegations in the complaint are not sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004)).


The Government argues in its Motion that we do not have jurisdiction to entertain Plaintiff's motion for a stay, and must transfer the case to the United States Court of Appeals for the Third Circuit insofar as it seeks a stay of the removal order, because 8 U.S.C. § 1252(a)(5) vests sole jurisdiction over challenges to orders of removal in the court of appeals. It next argues that, to the extent that we have jurisdiction to consider Plaintiff's claims, the Complaint fails to state a claim upon which relief may be granted, because § 241(a)(5) unambiguously provides that an individual in Plaintiff's circumstances -- i.e., one who ...

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