[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 09-16393 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ DECEMBER 28, 2010
JOHN LEY
D. C. Docket No. 09-22354-CV-PCH CLERK
LAUDY R. IBARRA,
Plaintiff-Appellant,
versus
LINDA SWACINA,
Director, United States Citizenship &
Immigration Services, Miami and
Caribbean District,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 28, 2010)
Before DUBINA, Chief Judge, BLACK, Circuit Judge, and GOLDBERG,* Judge.
PER CURIAM:
*
Honorable Richard W. Goldberg, United States Court of International Trade Judge,
sitting by designation.
Laudy R. Ibarra appeals the district court’s dismissal of her complaint under
the Administrative Procedure Act (APA), 5 U.S.C. § 701 et. seq, for lack of
subject matter jurisdiction. Ibarra seeks review of the United States Citizenship
and Immigration Services’ (USCIS) denial of her I-485 application for adjustment
to legal permanent resident status. Ibarra asserts the district court erred in
concluding she has not exhausted her administrative remedies as required by the
APA because she is required to first go through removal proceedings.1 After
review, we affirm the district court’s dismissal.
The APA establishes judicial review is not available until “an aggrieved
party has exhausted all administrative remedies expressly prescribed by statute or
agency rule.” Darby v. Cisneros, 509 U.S. 137, 146 (1993). At that point, “the
agency action is ‘final for the purposes of this section’ and therefore ‘subject to
judicial review.’” Id. (quoting 5 U.S.C. § 704). The regulation regarding the
USCIS’s denial of an application for adjustment of status allows an alien “to
renew his or her application in [removal] proceedings.” 8 C.F.R. § 245.2(a)(5)(ii).
Once an alien is placed in removal proceedings, “the immigration judge hearing
1
Ibarra further asserts the district court erred in concluding a determination that an alien
is not entitled to adjust her status pursuant to the Cuban Adjustment Act is a discretionary matter
not subject to review under 8 U.S.C. § 1252(a)(2)(B)(ii). As we affirm the district court’s
conclusion it lacked jurisdiction under the APA, we need not address this issue.
2
the proceeding has exclusive jurisdiction to adjudicate any application for
adjustment of status the alien may file.” 8 C.F.R. § 1245.2(a)(1).
Ibarra is currently in removal proceedings, and will participate in a removal
hearing on January 6, 2011. Ibarra concedes that she is renewing her adjustment
of status application in removal proceedings, which gives her another opportunity
to obtain adjustment of status. The decision on her adjustment of status is not yet
final, as an adjustment of status “decision is final where there are no deportation
proceedings pending in which the decision might be reopened or challenged.”
Pinho v. Gonzales, 432 F.3d 193, 202 (3d Cir. 2005).2 Moreover, because the
immigration judge has exclusive jurisdiction over Ibarra’s adjustment of status
application, remand to the USCIS would be futile at this point.
Ibarra’s case is different from Mejia Rodriguez v. U.S. Dep’t of Homeland
Sec., 562 F.3d 1137, 1145 (11th Cir. 2009). In that case we held the USCIS’s
dismissal of Mejia Rodriguez’s appeal of his application for Temporary Protected
Status (TPS) was a final agency decision, and thus the district court had
jurisdiction under the APA to review his claim challenging the USCIS’s decision.
2
In Pinho, the Third Circuit held the district court had jurisdiction under the APA in a
case challenging the USCIS’s denial of adjustment of status to an alien. Unlike Ibarra, however,
the alien had not yet been placed in removal proceedings. Pinho, 432 F.3d at 196, 202. We do
not have before us and therefore do not decide whether we have jurisdiction under the APA if the
alien has not yet been placed in removal proceedings.
3
Id. at 1145-46. The TPS regulations, similar to the adjustment of status
regulations, permit de novo review of an alien’s eligibility for TPS by an
immigration judge if the alien is placed into removal proceedings after the denial
of his TPS application by the USCIS. Id. at 1145, citing 8 C.F.R. §§ 244.10(d)(1),
244.11. We concluded those regulations were inapplicable to the circumstances
regarding Mejia Rodriguez’s TPS application because Mejia Rodriguez had
already gone through removal proceedings before his application for TPS was
denied by the USCIS, and there was an existing, final order of removal against
him. Id. We declined to require Mejia Rodriguez to “demand[] that the [Board of
Immigration Appeals] sua sponte re-open his prior removal proceedings to review
his TPS eligibility.” Id. at 1145 n.16. We did not decide whether the district court
would have jurisdiction under the APA if Mejia Rodriguez had currently been in
removal proceedings, as Ibarra is here.
The district court did not err in concluding it lacked jurisdiction under the
APA to review the denial of Ibarra’s application for adjustment of status.
Accordingly, we affirm the district court’s dismissal of Ibarra’s case for lack of
jurisdiction under the APA.
AFFIRMED.
4