UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) LUNBING CHEN, ) ) Plaintiff, ) ) v. ) ) Civil Action No. 15- cv-1467 (TSC) LEON RODRIGUEZ, et al. ) ) Defendants. ) )
MEMORANDUM OPINION In September 2015, Plaintiff Lunbing Chen filed the instant act ion against Jeh Johnson, Secretary of the United States De partment of Homeland Security (“DHS”), Leon Rodriguez, Director of United States Citiz enship and Immigration Services (“USCIS”), a component of DHS, and Sarah Taylor, Director of USCIS’s Washington District Office (collectively, “Defendants”). (Compl. ¶¶ 13-14). Plaintiff is presently subject to an order of deportation, thou gh that order has been withheld since January 2006 pur suant to 8 U.S.C. § 1231(b)(3). This case concerns an application for adjustment of s tatus that Plaintiff filed with USCIS in December 2013. USCIS administratively closed Plainti ff’s adjustment application in M arch 2014 on the basis that it lacked jurisdiction to adjudicate it. Plaintiff subsequently f iled two separate motions for reconsideration, both of which wer e denied. Shortly after the second motion for reconsideration was denied, Plainti ff filed this case. Plaintiff alleges that USCIS’s a dministrative closure of his ad justment 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) a ccept jurisdiction over this case;2 (ii) review USCIS’s administrativ e closure of his adjustment ap plication and denial of his motions for reconsideration; (ii i) declare that he is an “arriv ing alien” eligible for adjustment under § 245(i) of the Immigration an d Nationality Act (the “INA ”); (iv) enjoin USCIS from refusing to assume jurisdiction ove r his adjustment application ; and (v) order USCIS to approve his adjustment application. ( Id. at 10-11). Defendants have moved to dismiss for lack of subject matter jur isdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and for failure to st ate a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Upon consideration of D efendants’ motion and the parties’ brief s 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. 1
I. FACTUAL BACKGROUND Plaintiff is a citizen of the P eople’s Republic of China. (Com pl. Ex. A; Mot. Ex. 1 at 2). On January 2, 1992, Plaintiff was stopped by officials of the I mmigration and Naturalization Service (“INS”) 2 in Honolulu, Hawaii. (Mot. Ex. 1 at 1). Through an interpret er, Plaintiff

1 Because this Memorandum Opinion a djudicates Plaintiff’s motiononly insofar as it is brought pursuant to Rule 12(b)(1), the court will consider the material s attached as exhibits to Defendants’ motion in addition to the allegations of the Compla int and the materials attached as exhibits to the Complaint. See, e.g. , Jerome Stevens Pharms., Inc. v. Food & Drug Admin. , 402 F.3d 1249, 1253 (D.C. Cir. 2005) (“the di strict court may consi der materials outside the pleadings in deciding whether t o grant a motion to dismiss for lack of jurisdict ion”) (citing Herbert v. Nat’l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir. 1992)).

2 As of March 1, 2003, INS ceased to exist as an independent age ncy within the United States Department of Justice, and its f unctions related to the adjudic ation of aliens’ applications for immigration benefits were ev entually assumed by USCIS. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2196; Malilia v. Holder , 632 F.3d 598, 601 n.1 (9th Cir. 2011).3 provided an INS official with a s worn statement in which he sta ted that he had come to the United States “to stay here for good” because “the U.S. governm ent 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 unc le to find work, and provided p hone numbers with Washington, D.C. area codes for his uncle’s home and business. ( Id. at 3-4). Plaintiff first stated that he did not have any travel document s, 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 passp ort to come to the United Sta tes, Plaintiff stated that he had bought a fake Chinese passport “in the street” for “500.00 Chin ese currency.” ( Id. at 4-5). Plaintiff stated that he di d 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 i n China, he asked someone else to purchase his plan e ticket for him, then “boarde d the plane with the fake passport and the ticket” before “tear[ing] off the passport while [he] w as on the plane . . . because it was fake” and of “no use.” ( Id. at 5). 3
Plaintiff was then informed tha t, because he was an immigrant w ithout a visa or other travel documents, and was not exemp t from the requirement of ha ving such travel documents, he was not admissible to the United States. ( Id. ). He was offered the choice of withdrawing his application for admission and r eturning to China, or having a h earing with an Immigration Judge. ( Id. ). Plaintiff elected to have a hearing with an Immigration Jud ge. ( Id. at 6). He was then paroled into the United States , with orders to appear at an INS office in Honolulu the following

3 Plaintiff also stated that he w as aware “that one of the basic requirements for admission into the U.S.A. is to be in possession of a valid passport,” and that he could be “subject to prosecution for deliberately and intentionally de stroying documents to avoid in spection in the U.S.A.” (Mot. Ex. 1 at 5).4 day, January 3, 1992, for a deferred inspection. (Compl. Ex. A ). He did not appear as ordered. (Compl. Ex. K at 1) (“USCIS reco rds reveal that you were parole d solely for the purposes of deferred inspection. However, rev iew of the file reveals that you failed to appear for deferred inspection.”). Plaintiff eventually filed an a pplication for asylum, claiming that he would be persecuted if he returned to China. (M ot. 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 i n Immigration Court, the OSC was amended to reflect the fact t hat Plaintiff was originally “ admitted based upon [his] presenting fraudulent documents,” which rendered him “excludabl e 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 Plai ntiff, through his counsel, had “admitted the truthfulness of the factual allegations contained in [the OSC], as amended, and conceded de portability predicated on the charge.” (Mot. Ex. 2 at 1). The I mmigration Judge therefore d enied Plaintiff’s asylum application, denied his request for a withholding of deportatio n, 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 tha t Plaintiff did not timely depart the United States, he would be ordered deported back to China. ( Id. at 7-8). Plaintiff appealed t he 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). In March 2001, while the deportation proceedings were ongoing, Plaintiff’s employer filed an Application for Employm ent Certification on his behalf , which the United States Department of Labor approved i n February 2002. (Compl. Ex. E). In April 2002, Plaintiff’s5 employer filed an Immigrant Petit ion for Alien Worker (“Form I- 140”) on his behalf, seeking to classify him as a skilled work er 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). In January 2006, the Immigration J udge 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 threat ened in that country because of the alien’s race, religion, nationality, membership in a pa rticular social group, or politi cal opinion.” (Compl. Ex. C). In September 2010, Plaintiff’s daughter – a naturalized U.S. ci tizen – 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). T he Form I-130 was subsequent ly 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 adjus tment of statu s under section 2 45(i) of the INA, 8 U.S.C. § 1255(i). (Compl. ¶ 2). On September 1, 2011, Plaintiff’s first Form I-485, which he ha d filed with the Immigration Court, was marked “ terminated 9/1/2011. Acquired t hrough other means.” (Mot. Ex. 6 at 1). USCIS then denied P laintiff’s second Form I-485 o n the ground that he had used a fraudulent passport to enter the United States. (Compl. ¶ 2). 4

4 USCIS now “acknowledges that it was without jurisdiction to ad judicate Plaintiff’s second adjustment application” for the r easons set forth in its March 2014 Notice of Administrative Closure regarding Plaintiff’s third Form I-485, discussed immed iately below. (Mot. at 8 n.9).6 In December 2013, Plaintiff filed a third Form I-485, again see king to adjust his status before USCIS. (Compl. Ex. F) . In March 2014, USCIS issued a N otice of Administrative Closure (the “Notice”), stating that it was administratively cl osing Plaintiff’s application because it lacked jurisdiction to adjudi cate his Form I-485. (Compl. E x. G). The Notice provided as follows: USCIS records indicate that you were issued an Order to Show Ca use placing you in deportation proceedings on January 15, 1993, and charging yo u with gaining admission to the United States by presenting fraudulent documents. On January 3, 2006, an immigration judge denied your application for asylum b ut granted your request to withhold deportation. USCIS does not have jurisdiction to adjudicate a Form I-485 in any case in which the applicant (other than an “arriving alien”) is a respondent in proceedings before the Executive Office for Immigra tion Review (EOIR). Because wh en you were placed in proceedings you were not charged as an “arriving alie n”, only EOIR can adjudicat[e] your application f or adjustment of status. (Compl. Ex. G) (citing 8 C.F .R. §§ 245.2(a)(1) , 1245.2(a)(1)). In April 2014, Plaintiff filed a m otion for reconsideration in which he claimed that he was, in fact, properly classifi ed as an “arriving alien” under 8 C.F.R. § 1.2, thus giving USCIS jurisdiction to adjudicate his Form I-485. (Compl. Ex. H at 5- 6, 8-10). In August 2014, USCIS denied Plaintiff’s motion for r econsideration. (Compl. Ex. I; Compl. Ex. J at 1). USCIS now acknowledges that the specific reasoning cited in its August 20 14 decision on Plaintiff’s motion for reconsideration was incorre ct, but claims that its determin ation that it lack ed jurisdiction to adjudicate his Form I-485 was “ul timately correct.” (Mot. at 1 0 n.11). In September 2014, Plaintiff filed a second motion for reconsid eration, citing the incorrect reasoning in USCIS’s August 2014 decision and reitera ting that he was properly classified as an “arriving alie n.” (Compl. Ex. J at 5-8). In July 2015, USCIS denied Plaintiff’s second motion for reconsidera tion, but did not reference the in correct reasoni ng in its August 2014 decision. (Compl. Ex. K). Ins tead, it reiterated the rea soning USCIS had provided in its7 March 2014 Notice – i.e. , that it lacked jurisdiction t o adjudicate the Form I-485 beca use, when Plaintiff was placed in deporta tion proceedings, he was not cha rged as an “arriving alien,” meaning that only the Executive Office for Immigration Review c ould adjudicate his Form I-485. ( Id. ).
II. LEGAL STANDARD Federal courts are courts of lim ited jurisdiction and, as such, a district court “may not exercise jurisdiction abs ent a statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc ., 545 U.S. 546, 552 (2005); see also Fed. R. Civ. P . 12(h)(3) (“If the court de termines at any time that it lacks subject-matter jurisd iction, the court must dismiss th e action.”). “Limits on subjectmatter jurisdiction ‘keep the f ederal courts within the bounds the Constitution and Congress have prescribed,’ and those limits ‘ must be policed by the courts ontheir own initiative.’” Watts v.
SEC , 482 F.3d 501, 505 (D.C. Cir. 2007) (quoting Ruhrgas AG v. Marathon Oil Co ., 526 U.S. 574, 583 (1999)). Such limits are esp ecially important in the agency review context, where “Congress is free to choose the c ourt in which judicial review of agency decisions may occur.”
Am. Petroleum Inst. v. SEC , 714 F.3d 1329, 1332 (D.C. Cir. 2013) (in ternal quotation mark s omitted) (quoting Watts , 482 F.3d at 505). The law presumes that “a cause lies outsid e [the court’s] limited jurisdiction” unl ess the party asserting juris diction establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994) (citation omitted). Thus, the plaintiff bears the burd en of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int'l Corp. , 217 F. Supp. 2d 59, 63 (D.D.C. 2002). In evaluating a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, a court must “assu me the truth of all material fa ctual allegations in the complaint and ‘construe the complaint lib erally, granting plaintiff the b enefit of all inferences that can be8 derived from the f acts alleged.’” Am. Nat’l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi , 394 F.3d 970, 972 (D.C. Cir. 2005)). “Nevertheless, ‘the court need not accept factual in ferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint , nor must the Court accept pl aintiff’s legal conclusions.’”
Disner v. United States , 888 F. Supp. 2d 83, 87 (D.D.C. 2012) (quoting Speelman v. United
States , 461 F. Supp. 2d 71, 73 (D.D.C. 2006)). Importantly, the court “is not limited to the allegations of the complaint.” Hohri v. United States , 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds , 482 U.S. 64 (1987). Rather, “a cour t may consider such mater ials outside the pleadings as it deem s appropriate to resolve the qu estion [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics , 104 F. Supp. 2d 18, 22 (D.D.C. 2000) (citing, inter alia , Herbert , 974 F.2d at 197).
III. ANALYSIS Defendants argue the court should d ismiss Plaintiff’s claims fo r lack of subject matter jurisdiction because the United S tates courts of appeals have e xclusive jurisdiction over those claims pursuant to 8 U.S.C. §§ 1252( a)(5), (b)(9) and (g). (Mo t. at 35-36; Reply at 2-3). In pertinent part, th ese three statutory pr ovisions provide as follows:

 “[A] petition for review filed with an appropriate court of app eals in accordance with this section shall be the sole and exclusive means for jud icial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection ( e),” (8 U.S.C. § 1252(a)(5));

 “Judicial review of all questions of law and fact, including in terpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of afinal order under this section,” (8 U.S.C. § 1252(b)(9)); and

 “Except as provided in this sect ion and notwithstanding any oth er provision of law . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the deci sion or action by the Attorney General9 to commence proceedings, adjudicate cases, or execute removal o rders against any alien under this chapter,” (8 U.S.C. § 1252(g)). Defendants argue that these thr ee statutory provisions, taken t ogether, divest this court of jurisdiction over al l questions of law and fact arising from an y action taken or proceeding brought to remove an alien from th e United States once a final order of removal has been issued, and lodge exclusive jurisdicti on over such actions in the Unite d States courts of appeals. (Mot. at 35-36). Plaintiff does not dis pute that he is presently sub ject to an order of deportation. (Compl. ¶ 1). Defendants therefor e contend that, while Plainti ff frames his lawsuit as merely seeking review of USCIS’s decisi on to administratively close hi s application for adjustment of status, he is, in essence, colla terally challenging the deporta tion proceedings against him. (Mot. at 35-36). Accordingly, Defendants argue that this court lacks subject matter jurisdiction over this case, since jurisdiction f or such challenges lies only in the courts of appeals. Despite a heading in Plaintiff’ s opposition brief which reads, “This Court has jurisdiction to make a legal determination on whether the Plaintiff is an ar riving alien, whether he is eligible to adjust status under INA 245(a) a nd whether the Defendants ha ve jurisdiction over Plaintiff’s adjustment application” (Opp’ n at 25), Plaintiff does not addre ss Defendants’ subject matter jurisdiction argument. Instead, P laintiff merely argues that t hat Defendants have jurisdiction to adjust his status because he i s properly classified as an “arri ving alien.” ( Id. at 25-26) (contending that Defendants “hav e jurisdiction to adjudicate th e adjustment of an arriving alien who was paroled into the United S tates, including aliens who ar e in removal, deportation or exclusion proceedings or who have an outstanding or unexecuted exclusion, deportation or removal order”). But the questi on of whether Defendants have j urisdiction to adjudicate his adjustment applicati on is wholly distinct from the question of whether this court has jurisdiction to adjudicate this case.10 Because Plaintiff does not address the question of whether this court has subject matter jurisdiction over this litigation, the court will treat Defenda nts’ subject matter jurisdiction argument as conceded. See Wannall v. H oneywell, Inc. , 775 F.3d 425, 428 (D.C. Cir. 2014) (“[I]f a party files an opposition to a motion and therein addr esses only some of the movant’s arguments, the court may treat the unaddressed arguments as con ceded.”) (citing Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries , 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit thatwhen a plaintiff files an oppos ition to a dispositive motion and addresses only certain argum ents raised by the defendant, a cou rt may treat those arguments that the plaintiff failed to a ddress as conceded.”), aff’d , 98 F. App’x. 8 (D.C. Cir. 2004)). Moreover, even if Plaintiff had notconceded Defendants’ Rule 1 2(b)(1) argument, the court would still find that it l acks subject matter jurisdictio n over this case. J udicial review of orders of removal such as the de portation order to which Plaint iff is subject is governed by 8 U.S.C. § 1252, which provides, in pertinent part, that “[n]ot withstanding any other provision of law . . . a petition for review f iled with an appropriate court of appeals in accordance with this section shall be the sole and exc lusive means for judicial revi ew of an order of removal entered or issued under any provision of t his chapter.” 8 U.S.C. § 125 2(a)(5). The Second, Seventh and Ninth Circuits are in accord tha t § 1252(a)(5) “prohibits Admin istrative Procedure Act claims that indirectly challenge a removal order.” Martinez v. Napolitano , 704 F.3d 620, 622 (9th Cir. 2012); see also Delgado v. Quarantillo , 643 F.3d 52, 55 (2d Cir. 2011); Estrada v. Holder , 604 F.3d 402, 408 (7th Cir. 2010). Regardless of how it is framed, when a claim by an alien challenges an agency determinati on that is “inextricably linked ” to a removal order, § 1252(a)(5) prohibits it from being heard in district court. Martinez , 704 F.3d at 623 (quoting MoralesIzquierdo v. Dep’t of Homeland Sec. , 600 F.3d 1076, 1082 (9th Cir. 2010), overruled in part on other grounds by Garfias-Rodriguez v. Holder , 702 F.3d 504, 516 (9th Cir. 2012) (en banc)).11 Furthermore, § 1252(b)(9) states t hat “[j]udicial review of all questions of law and fact . . . arising from any acti on taken or proceeding brought to remove an alien from the United States under this subchapter sha ll be available only in judicia l review of a final order under this section.” 8 U.S.C. § 1252(b)(9). T his section, read concurren tly with § 1252(a)(5), indicates that once a removal order has b een issued, an alien subject to such order “may only seek adjustment of status by filing a motion to reopen removal proce edings with an immigration judge, and [that] any subsequentchallenges may be brought via petition for review of the final removal order” in the United States courts of appeals. Akinmulero v. Holder , 347 F. App’x 58, 61 (5th Cir. 2009). The D.C. Circuit also follows t he longstanding ru le that “where a statute commits review of agency action to the Court of Appeals, any suit seeking reli ef that might affect the Circuit Court’s future jurisdict ion is subject to the exclusive review of the Court of Appeals.”
Telecomm. Research & Action Ctr. v. FCC , 750 F.2d 70, 75 (D.C. Cir. 1984) (emphasis in original). Under § 1252(b)(2), the INA “commits review of agen cy action” exclusively to “the court of appeals for the judicial circuit in which the immigrat ion judge completed the proceedings.” Sadhvani v. Chertoff , 460 F. Supp. 2d 114, 124 (D.D.C. 2006) (quoting 8 U.S.C. § 1252(b)(2)), aff’d , 279 F. App’x 9 (D.C. Cir. 2008); see also 8 U.S.C. §§ 1252(a)(5), (g). “Because the INA ‘vests jurisdiction in a particular court,’ th at statute, then, also ‘cuts off original jurisdiction’ in all other courts,” including the dist rict court. Sadhvani , 460 F. Supp. 2d at 124 (quoting Telecomm. Research & Action Ctr. , 750 F.2d at 77). Moreover, § 1252(g) states: Except as provided in this section and notwithstanding any othe r provision of law . . . no court shall have jur isdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorne y General to commence proceedings, adjudicate cases, or execute removal orde rs against any alien under this chapter.12 8 U.S.C. § 1252(g). In Sadhvani, the district court found that ther e are three key components t o § 1252(g): The first, “[e]xcept as provided in this section,” refers to th e remainder of § 1252, which generally permits judicial review of removal orders only via a petition for a review in the regional court of appeals. See 8 U.S.C. §§ 1252(a)(1), (a)(5). The second key phrase is the one that begins with “notwithstanding any other provision of law.” This phrase makes it cl ear that aliens ordered remove d cannot circumvent the exclusive judicial review in the courts of appeals by seeki ng relief in the district court. . . . The final phrase in § 1252(g) divests all courts, unless indicated elsewhere in the statute, of j urisdiction over a certain class of claims – those “arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute rem oval orders against any alien.” Sadhvani , 460 F. Supp. 2d at 122 (citations omitted). The D.C. Circuit’ s affirmance of the district court’s decision in Sadhvani supports Defendants’ argument that this court does not have jurisdiction over this case. Simply put, aliens cannot avoid t he terms of 8 U.S.C. § 1252(g) “by simply characterizing their com plaint as a challenge to a denia l of adjustment of status, rather than a challenge to the execution of a removal order.” Cardoso v. Reno , 216 F.3d 512, 516 (5th Cir. 2000). In sum, Plaintiff is presentl y subject to an order of deportati on, and the instant action arises out of his unsuccessful attem pts to adjust his status in order to remain in this country. (Compl. ¶ 1; Mot. at 6-10). Although Plaintiff only “indirectl y challenge[s]” the removal order to which he is subject by fra ming this case as seeking judicial review of USCIS’s decision to administratively close his adju stment application, he has not p ersuaded the court that this case is anything other than “i nextricably linked” t o the outstanding or der of deportation to which he is subject. Martinez , 704 F.3d at 622-23; see also Morales-Izquierdo , 600 F.3d at 1082-1083 (finding that § 1252(a)(5) barred c hallenge to adjustment of st atus determination because removal order was contingent on status determination). Furthermore, because § 1252(a)(5) “commits review of agency acti on to the Court of Appeals,” this suit “is subject to the exclusive13 review of the Court of Appeals.” Telecomm. Research & Action Ctr. , 750 F.2d at 75 (emphasis in original); Sadhvani , 460 F. Supp. 2d at 124. And for the f urther reason that this case “aris[es] from the decision or action by the A ttorney General to commence [deportation] proceedings” against Plaintiff, exclusive j urisdiction belongs to the United States courts of appeals. 28 U.S.C. § 1252(g); Sadhvani , 460 F. Supp. 2d at 122 (“aliens orde red removed cannot circum vent the exclusive judicial review in the courts of appeals by seeking r elief in the district court”) (citing
Sissoko v. Rocha , 440 F.3d 1145, 1155 n.14, opinion withdrawn and superseded on denial of reh’g , 509 F.3d 947 (9th Cir. 2007)).
IV. CONCLUSION For the foregoing reasons, Defendants’ motion is hereby GRANTED AS CONCEDED insofar as it seeks di smissal of this action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) . Because the court’s d ecision on subject matter jurisdiction requires the dismissal of this action, the court n eed not address Defendants’ request for dismissal for failure to state a claimpursuant to Federal Rule of Civil Procedure 12(b)(6), which is hereby DENIED AS MOOT

. An appropriate Order accompani es this Memorandum Opinion.

Date: August 5, 2016 

## Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge