United States District Court

for the

Southern District of Florida

Juan Carlos Sanchez Ramirez, 

Plaintiff,

v.

Attorney General of the United 

States, Willian Barr, and others

Defendants.

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Civil Action No. 20-22545-Civ-Scola

Order Granting Motion to Dismiss

Plaintiff Juan Carlos Sanchez Ramirez seeks review of the United States 

Citizenship and Immigration Services’ decision, denying his I-485 application

for adjustment of immigration status. (Compl., ECF No. 1.) The Government 

has filed a motion to dismiss Sanchez’s complaint, arguing (1) the Court lacks 

subject-matter jurisdiction over Sanchez’s claims because Sanchez has not 

exhausted his administrative remedies, or, alternatively, (2) Sanchez fails to 

state a claim for which relief can be granted. (Defs.’ Mot., ECF No. 9.) Sanchez 

counters the Court does have jurisdiction because the denial of his adjustment 

application was final and, he maintains, he has stated a claim by alleging the 

decision to deny his application was arbitrary and capricious. (Pl.’s Resp., ECF 

No. 12.) The Government has replied, emphasizing its contention that

Sanchez’s pending asylum petition affords him the opportunity to resolve his 

adjustment issue and, further, the agency’s decision was made in accordance 

with the law. (Defs.’ Reply, ECF No. 14.) After review, the Court agrees with the 

Government that the Court lacks subject-matter jurisdiction and therefore 

grants the Government’s motion to dismiss (ECF No. 9) on that basis.

1. Background

This case arises from the denial of Sanchez’s I-485 application for 

adjustment of status. (Compl. ¶¶ 1, 57.) Sanchez is a native and citizen of 

Venezuela. (Id. ¶ 23.) He first entered the United States in February 2014, on 

an F-1 nonimmigrant visa, with permission to remain in the county for the 

duration of that nonimmigrant status. (Id. ¶ 45.) Some six months later, 

Sanchez’s wife, in August 2014, filed an asylum application which included 

him as a derivative. (Id. ¶ 46.) That application remains pending. (Id. ¶ 49.) At 

some point, Sanchez’s nonimmigrant status terminated. (Id. ¶ 45.) 

In the meantime, in July 2018, Metoma Corporation filed an I-140 

petition for an alien worker under an EB3 classification on Sanchez’s behalf. 

Case 1:20-cv-22545-RNS Document 15 Entered on FLSD Docket 02/08/2021 Page 1 of 5
(Id. at Ex. E.) USCIS approved that application a few weeks later. (Id ¶ 49.) 

Then, once a visa became available in the EB3 visa category, Sanchez filed his 

I-485 application to adjust his status, in December 2018. (Id. ¶ 57.) In July 

and September 2019, USCIS asked Sanchez to submit evidence showing that 

he maintained his nonimmigrant status continuously, since his last lawful 

admission, until the filing of his I-485. (Id. ¶¶ 58.) Sanchez responded to the 

request, but his application was nonetheless denied, in October 2019. (Id. ¶¶ 

59–60.) 

2. Legal Standard

The Federal Rules of Civil Procedure require the dismissal of a claim if a 

court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1), (h)(3). The party 

bringing the underlying claim bears the burden of establishing federal subject 

matter jurisdiction. Sweet Pea Marine, Ltd. V. APJ Marine, Inc., 411 F.3d 1242, 

1247 (11th Cir. 2005); Wallace v. Secretary, U.S. Dept. of Homeland Sec., 616 

Fed. App’x 958, 959 (11th Cir. 2015). Attacks on subject matter jurisdiction 

under Rule 12(b)(1) come in two forms: “facial attacks” and “factual attacks.”

Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). Facial 

challenges to subject matter jurisdiction are based solely on the allegations in 

the complaint. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 

1279 (11th Cir. 2009). Factual attacks, on the other hand, challenge “the 

existence of subject matter jurisdiction in fact, irrespective of the pleadings,” 

and the court will consider “matters outside the pleadings, such as testimony 

and affidavits.” Lawrence, 919 F.2d at 1529 (internal quotation marks omitted).

In the context of the Administrative Procedures Act, agency action is 

subject to judicial review only when it is either (1) made reviewable by statute; 

or (2) a “final” action “for which there is no other adequate remedy in a court.” 

5 U.S.C. § 704. In other words, until an agency action or decision becomes 

final, the APA does not provide a valid basis for subject-matter jurisdiction in a 

district court. Ibarra v. Swacina, 628 F.3d 1269, 1269 (11th Cir. 2010) (quoting 

Darby v. Cisneros, 509 U.S. 137, 146 (1993) (“The APA establishes judicial 

review is not available until ‘an aggrieved party has exhausted all 

administrative remedies expressly prescribed by statute or agency rule.’”).

3. Discussion

In arguing the Court has subject-matter jurisdiction over his case, 

Sanchez points to “several courts” that “have held, without more, that the 

district court has jurisdiction to review” a USCIS decision denying an 

adjustment application. (Pl.’s Resp. at 4.) In support of its contrary contention,

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that the Court lacks subject-matter jurisdiction, the Government argues 

Sanchez’s still-pending asylum application will result, one way or another, in 

the resolution of his adjustment issue. (Def.’s Mot. at 6.) In making this 

argument, the Government relies on persuasive case law that is favorable to its 

position. (Id. at 6–7; Def.’s Reply at 3–4.) While the Court recognizes the split of 

authority on this issue, the Court nonetheless agrees with the Government that 

Sanchez has not carried his burden of alleging the Court’s subject-matter 

jurisdiction.

There is no Eleventh Circuit precedent directing a result here. In 2010, 

the Eleventh Circuit pointedly declined to decide the issue. Ibarra, 628 F.3d at 

1270 (“We do not . . . decide whether we have jurisdiction under the APA if the 

alien has not yet been placed in removal proceedings.”) And, as noted recently, 

“federal courts of appeals are split on the question whether an alien has 

exhausted all administrative remedies on the denial of an adjustment 

application when the alien has not yet been placed in removal proceedings.” 

Duque Mendez v. Cuccinelli, 467 F. Supp. 3d 1249, 1257 (S.D. Fla. 2020)

(Altonaga, J.) (comparing various circuit cases). In urging the Court to find 

jurisdiction, Sanchez relies on several cases from outside this circuit. The 

Court finds many of them, however, unpersuasive because either they fail to 

directly address the jurisdictional issue or they involve key allegations that are 

absent here.

For example, Sanchez relies on Tang v. Reno to support jurisdiction. 77 

F.3d 1194 (9th Cir. 1996). But, in Tang, this specific issue was not even raised, 

never mind addressed. Cabaccang v. U.S. Citizenship & Immigration Services, 

627 F.3d 1313, 1317 (9th Cir. 2010) (“[T]he jurisdictional issue was never 

raised in Tang.”). And further, in Tang, the court pointedly concluded that no 

appeal whatsoever was possible from the decision of which the plaintiffs sought 

review. Tang, 77 F.3d at 1196 (“No appeal was possible from that decision.”). 

Here, in contrast, Sanchez has made no showing that further review is 

impossible. And, finally, in Tang, the plaintiffs there sought to challenge the 

“promulgation and enforcement” of an Immigration and Naturalization Service 

regulation, rather than an adjustment decision itself. Id. at 1195. The Court, 

therefore, discerns nothing in Tang that would persuade the Court that it has 

jurisdiction in this case.

Jaa v. U.S. I.N.S., another Ninth Circuit case, is similarly unavailing. 779 

F.2d 569 (9th Cir. 1986). “In Jaa, removal proceedings were already complete 

and a deportation order had issued.” Cabaccang, 627 F.3d at 1317. The Court 

agrees “this distinction is crucial.” Id. Because removal proceedings in Jaa had 

already been completed, with a deportation order issuing, any possibility of 

further review was demonstrably foreclosed. Id. (“Without a pending removal 

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proceeding, a denial of status adjustment is final because there is no appeal to 

a superior administrative authority.”) Again, here, Sanchez has not made a 

similar showing of impossibility. 

Sanchez further relies on a third Ninth Circuit opinion to support 

jurisdiction. In that case, Chan v. Reno, the court relied on Tang and Jaa to 

sustain its conclusion that the district court had jurisdiction over the plaintiffs’ 

challenges to the INS’s denial of their status-adjustment applications. 113 F.3d 

1068, 1071 (9th Cir. 1997). There is no indication, however, in Chan, regarding 

the feasibility or likelihood that the plaintiffs there would be able to resolve 

their adjustment issue through further agency action. 

The Court finds this factual wrinkle critical. Here, Sanchez has a pending 

asylum application. This application “will necessarily resolve” Sanchez’s

“challenge to the denial of h[is] application for adjustment of status”: if his

“asylum application is approved, h[is] newfound asylee status would provide 

[him] with a separate basis to seek adjustment and this action would be 

effectively rendered moot,” or, if his “asylum application is denied, []he will be 

placed in removal proceedings and will be able to challenge, de novo, the 

USCIS’s denial of h[is] adjustment application.” Duque, 467 F. Supp. 3d at

1258 (cleaned up). Sanchez is not in a position where he must simply “await 

deportation proceedings that the agency may or may not choose to institute.”

Pinho v. Gonzales, 432 F.3d 193, 201 (3d Cir. 2005) (emphasis added). 

Although Sanchez argues, in his response, that there has been an “extreme 

delay” in the agency’s processing of his asylum application, he supplies no 

allegations or evidence showing that resolution of his adjustment is, in fact, 

unlikely or remote. Indeed, Sanchez has failed to present any allegations, or 

even argument, that he will be foreclosed from “receiv[ing] the same or nearly 

identical relief” through his asylum application. Canal A Media Holding, LLC v. 

United States Citizenship & Immigration Services, 964 F.3d 1250, 1256 (11th 

Cir. 2020) (emphasis in original) (concluding that because the plaintiff 

definitively lacked any further opportunity for review whatsoever, the agency’s 

denial of the plaintiff’s application was final). Accordingly, the Court finds 

Sanchez has failed to meet his burden of alleging subject-matter jurisdiction in 

this case. See Nolasco v. Crockett, 958 F.3d 384, 387 (5th Cir. 2020), opinion 

withdrawn and superseded on reh'g on other grounds, 978 F.3d 955 (5th Cir. 

2020) (“[F]ederal courts lack jurisdiction over challenges to the denial of aliens’ 

applications for LPR status unless and until the challenge has been exhausted 

in removal proceedings.”); Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir. 2000)

(noting that, although the plaintiff could “not directly appeal the immigration 

judge’s denial of her request for adjustment of status, she may, nevertheless, 

renew her request upon the commencement of removal proceedings” and, 

Case 1:20-cv-22545-RNS Document 15 Entered on FLSD Docket 02/08/2021 Page 4 of 5
therefore “ha[d] not yet exhausted her administrative remedies,” thus 

preventing the court from exercising jurisdiction); McBrearty v. Perryman, 212 

F.3d 985, 987 (7th Cir. 2000) (finding the plaintiffs’ suit “premature, since, as 

the plaintiffs acknowledge[d], they could obtain review of the district director’s 

decision by the Board of Immigration Appeals if and when the immigration 

service institutes removal . . . proceedings against them”).

4. Conclusion

For the foregoing reasons, the Court grants the Government’s motion to 

dismiss (ECF No. 9) based on a lack of subject-matter jurisdiction. Because the 

Court dismisses this case for a lack of jurisdiction, (1) it declines to address the 

merits of Sanchez’s claims; and (2) the dismissal of Sanchez’s case with 

without prejudice, subject to refiling once Sanchez has exhausted his 

administrative remedies. 

The Clerk is directed to close this case. Any other pending motions are 

denied as moot. 

Done and ordered in Miami, Florida, on February 5, 2021.

________________________________

Robert N. Scola, Jr.

United States District Judge

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