1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ARMANDO GARCIA , Plaintiff,

v. Civil Action No. 15 - 744 (JEB)
U.S. CITIZENSHIP AND IMMIGRATION SERVICES , et al. , Defendant s .

MEMORANDUM OPINION As modernist a rchitect Ludwig Mies van der Rohe once reflected , “It is not possible to go forward while looking back.” Yet that is exactly what Plaintiff Armando Moya Garcia , a n alien émigré from Cuba , seeks to do here . He wants this Court to turn back time, not in a literal sense, but in a legal one , so that his quest to remain in this country may go forward

. Garcia came to the U.S. by boat in 1980, and i n 1981, while he was a minor living in Florida, his mother applied on his behalf for lawful

- permanent

- resident (LPR) status with the predecessor agency of what is now U.S. Citizenship and Immigration Service s . After years of waiting without a decision on that application , Garcia filed a second application as an adult in 1990. Initially successful in obtaining LPR status on that one , he was later ordered deportable, in large part because of a cocaine

- trafficking conviction . H e subsequently sought

– and was denied

– a discretionary waiver from deportation ; as a result, h e has been under an order of supervision ever since. Garcia has two goals in bringing this suit: to obtain through the Freedom of Information Act a record of any adjudication of his 1981 application and, barring that, to secure a2 reconsider ation of his LPR request under the facts and law as they stood in 1981

– before his criminal conviction

– so that he may seek another chance at a deportation waiver

. On his FOIA cause of action, t he Court ultimately concludes that USCIS has adequately

sear ched

– albeit in vain

– for a record of a 1981 adjudication. As to his LPR

- reconsideration claim, Plaintiff’s theory of relief is both too speculative and too spectral to establish that he has standing

. It would require the exercise of extraordinary nunc pro tunc equitable remedies

– ones the Court doubts it has the authority to grant

– to bend time in the manner Garcia seeks , rewind ing 20 years of changes to immigration laws and 35 years of facts relating to him

. As

s uch relief is not warranted here, th e Court will grant Defendants’ combined Motion for Summary Judgment and Motion to Dismiss

. I. Background Because the relevant parts of Plaintiff’s story take place in both the past (his claim for adjustment of status under his 1981 Application for LPR status ) and the present (his FOIA inquiry), the Court will recount them separately. A. Adjustment of Status and Order of Deportation “[O]ur Byzantine immigration laws and administrative regulations are second or third in complexity [only] to the Internal Revenue Co de.” Santiago v. Holder , 312 F .App ’ x 867, 868 (9th Cir. 2009) (Pregerson, J., dissenting)

. T he Court’s recitation of the background of Plaintiff’s case , accordingly, is light on facts but heavy on law. Plaintiff Armando Garcia Moya is a citizen of Cuba who currently resides in Falls Church, Virginia. See Co mpl., ¶ 9. Although the parties do not account for his early childhood,

o n October 19, 1981

– when Plaintiff was nine

– his mother filed on his behalf a Form I

- 485A, an Applicati on by Cuban Refugee for Permanent Residence, with Immigration and3 Naturalization Services (INS) , the predecessor agency to USCIS. Id. , ¶ 15 ; see also Notice (ECF No. 13) , Exh. 8 (I

- 485A Application (Oct. 19, 1981))

. Plaintiff’s mother appears to have fil ed his 1981 application in person , and Garcia seems to have been interviewed by INS that same day,

see Compl. , ¶ 15, but his family never receive d notification of the resolution of his application. Id. , ¶ 16. Once Garcia reached the age of majority in 1990 , he filed a second Form I

- 485A

a pplication , on November 19, 1990

. Id. ; see also Notice, Exh. 10 (I

- 485A Application (Nov. 19, 1990))

. While his 1981 application omitted the date and location of his arrival in the United States, his 1990 applicat ion suggests he arrived in Miami, Florida , by boat on August 11, 1980. See I

- 485A Application (Nov. 19, 1990) at 1

. At n o time either before the filing of his 1990 application or during its adjudication does Plaintiff suggest he or his mother ever inquired into the status of the 1981 application. This was only the beginning of Garcia’s interactions with federal agencies

. Six months

a fter he filed his 1990 a pplication, Plaintiff was convicted on May 31, 1991 , of distribution and possession with intent to distribute more than 500 grams of cocaine

. See Notice, Exh. 11 (Order to Show Cause and Notice of Hearing (Nov. 21, 1995 ) ) at 6 ; id. , Exh. 7 (Decision of Immigration Judge (Jan. 23, 1996)) at 2

. Around that same time, his status was adjusted to that of lawful permanent resident by INS. To the Court’s initial confusion , Plaintiff’s pleadings never specify the date this adjustment took place , and the record evidence and Defendants’ briefings contradict themsel ves as to whether it occurred on April 19, 1991 , or April 19, 1992

. 1 B ecause the Memorandum of Creation of Record of Lawful Permanent Residence for Plaintiff is dated April

1 In Defendants’ Combined Motion to Dismiss and Motion for Summary Judgment, they state that Plaintiff’s I

- 485A application was granted on April 19, 1991 , s ee MTD/MSJ at 4, although they point to the date of April 19, 1992, in their Reply. See Reply at 19. Other documents including the 1995 Order to Show Cause and the 1996 Decision of Immigration Judge, also use the April 19, 1992, date.4 19, 1991 , in multiple places on the document, and because that document is the off icial record of his adjustment of status, the Court will assume the 1991 date is accurate

. See Notice, Exh. 12 (Memorandum of Creation of Record of Lawful Permanent Residence). In any case, at the time his status was adjusted, it was also made administratively retroactive to January 1, 1982 , a fact the parties do agree on

. Id. ; see also Compl., ¶ 16; Reply at 19. Absent any other explanation, the retroactive status appears to have been made in recognition of his earlier

– and then

o utstanding

– 1981 application. Plaintiff’s honeymoon with LPR status did not last long , however. In 1995, he was issued a n Order to Show Cause and Notice of Hearing, in which he was informed that he was subject to deportation und er several provisions of the Immigrat ion and Naturalization Act

. See Order to Show Cause. The grounds for his deportation included his involvement with illegal drug trafficking, his conviction related to a controlled substance, and the procurement of immigration benefits (his LPR status) based on fraudulent or willful misrepresentation by attesting in his 1990 application that he was not then involved in drug trafficking or narcotics distribution

. Id. at 3 , 6

. T he subsequent events are legally complicated, but reciting the m with precisi on is critical
to the disposition of Plaintiff’s case. At his January 4, 1996, hearing on the issue of deportation, Garcia admitted all of the allegations of fact contained in the Order to Show Cause, and he was consequently found to be “ deportable as cha rged. ” See Decision of Immigration Judge at 2. Although both the parties’ briefs and the documentary record fail to establish this, the parties appear to agree that Garcia’s LPR status was terminated as a result of the i mmigration j ud ge’s order that he b e deported. See Compl., ¶ 16; Defendants’ Statement of Material Facts (ECF No. 11

- 2) at 7

. At a minimum , the case law supports this conclusion. See Matter of Lok , 18 I. & N.5 Dec. 101, 101 (BIA 1981) (“The lawful permanent resident status of an alien terminates within the meaning of section 101(a)(20) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(20), with the entry of a final administrative order of deportation . . . .”); Rivera v. I.N.S. , 810 F.2d 540, 541 (5th Cir. 1987) (applying Matter of Lok ); see also United States v. Yakou, 428 F.3d 241, 248 (D.C. Cir. 2005). The Court, accordingly, proceeds under the assumption that at the present moment Garcia no longer has LPR status. W hat happened next involves considerable legal time travel , given the changing and fluid nature of this country’s immigration laws

. Having been ordered deportable, Garcia applied for a discretionary waiver from deportation under § 212( c ) of the INA ( then codified as amended at 8 U.S.C. § 1182(c) , and since repealed )

. See Decision of Immigration Judge at 2

. Confusingly, a t the time Garcia applied , the plain text of § 212(c) suggested such a waiver was available only in instances of exclusion proceedings

– that is, when a n LPR who had left the country returned and

was denied re

- entry
. See 8 U.S.C. §§ 1182 (a), (c) , repealed by Omnibus Consolidated Appropriations Act, 1997, Pub. L. 104

- 208 , § 304 (b) , 110 Stat. 3009, 3009

- 597 ( Sept. 30, 1996) ( setting out conditions under which “excludable aliens . . . shall be excluded from admission into the United States”)

. The parties do not provide any evidence suggesting Garcia entered exclusion proceedings after returning from abroad, an d the address listed in his 1995 o rder to

s how c ause , as well as that listed in the immigration judge’s 1996 decision , suggest he was incarcerated at the time he applied for the waiver. S ee Order to Show Cause at 1 (listing Plaintiff’s address as “Avoyelles Parish Jail” in Marksville, LA); Decision of Immigration Judge at 1 ( same ) . At first blush, then, Garcia’s seeking a § 212(c) exclusion waiver would seem to have been improper

.6 The Court presumes that t he reason Garcia sought such a waiver is t hat at the time ( 1996 ) , the relevant statute

– 8 U.S.C. § 1182(c)

– granted immigration judge s considerably more discretion in waiving deportation or exclusion orders than did the equivalent waiver for aliens ordered deported from within the United States , then known a s a § 244 waiver ( since moved to § 237 of the INA and re - codified as amended at 8 U.S.C. § 1227)

. See Zamora

- Mallari v. Mukasey , 514 F.3d 679, 683

- 86 (7th Cir. 2008) (providing extensive history of applicability of § 212(c) waivers). Indeed, a fter the Seco nd Circuit in 1976 found that such difference in
treatment between those ordered deportable and those ordered excludable was arbitrary and in violation of the Equal Protection Clause, see Francis v. INS , 532 F.2d 268 , 273 (2d Cir. 1976) , the Board of Immigration Appeals (BIA) began to permit “immigration courts through out the country [to] consider[] § 212(c) waiver requests from lawful permanent residents in deportation proceedings where the permanent resident aliens were similarly situa ted to those in exclusion proceedings. ” Zamora

- Mallari , 514 F.3d at 685 (citing Matter of Silva , 16 I & N. Dec. 26 ) (emphasis added)

. The Court thus assumes that this is why Garcia’s immigration judge entertained his § 212(c) waiver absent any evidence of his having been found excludable

. While § 212(c) has since been repealed in its entirety , s ee § 304 (b) , 110 Stat. at 3009

- 597 , at that time it functioned to grant the Attorney General broad discretion to waive an order of deportation for aliens who satisfied two conditions: first, they were “lawfully permitted for permanent residence , ” and second, they had “ un relinquished domicile of seven consecutive years” in the United States. See id. ; see also Decision of Immigration Judge at 2. Garcia’s j udge denied his waiver application for failure to satisfy the first condition . He held that “respondent was not ‘lawfully’ admitted for permanent residence because he obtained his adjustment of status by fraud and the willful7 misrepresentation of a materi al fact.’” Decision of Immigration Judge at 2. The fraud, as Garcia acknowledges , was that he had “willfully failed to disclose his drug trafficking activities during the course of his adjustment of status,” which would have rendered him “ineligible for adjustment of status due to section 212(a)(2)(C) . . . .” Id. ; see also Compl., ¶ 16 ; I

- 485A Application (Nov. 11, 1990) at 3

- 4

. In 1996 , INA Section 212(a)(2)(C) , then codified at 8 U.S.C. § 1182, deemed excludable “ [a] ny alien who the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in any such controlled substance or is or has been a knowing assister, abettor, conspirator, or colluder with others in the illicit trafficking in an y such controlled s ubstance .

. . .” § 212(a)(2)(C) (amended 1996)

. Although the immigration judge ordered that Garcia be removed from the country, his Cuban citizenship presumably blocked INS from carrying out his removal, and so Plainti ff was instead placed under an o rde r of s upervision on June 11, 1998 , see Compl., ¶ 16 , a status that he has apparently retained ever since. Apart from a n apparent 2004 FOIA request for documents related to his immigration file , see Response, Exh. 2 (USCIS FOIA Correspondence (Sept. 13, 2004) ) , Plaintiff appears to have made no objection to either his deportability or the revocation of his LPR status in the intervening years

. So what has changed to motivate his suit today , nearly 20 years later ? Although his Complaint does not say so , the recent reestablishment of diplomatic relations between Cuba and the United States

– and the concomitant threat of deportation

– is a likely catalyst . In any event, Garcia here does not challenge an ything related to the adjudication of his second (and successful) 1990 I

- 485A application for adjustment of status to LPR

. Instead, h e claims that had the 1981 I

485A application been adjudicated “ in 1981 , [he] could have sought relief under [ § 212(c)] to preserve his lawful permanent residence status at his deportation hearing.” Compl., ¶ 16. That8 date is crucial because if he had achieved per manent

- resident status in 1981 , it would have preceded his participation in criminal activities related to cocaine trafficking. H e therefore

w ould not have had to commit fraud or misrepresentation by lying about his criminal activities in order to qualify for LPR status during his 1981 adjustment

- of

- status process
. Absent th e fraud or misrepresentation, in turn, he may have been eligible to do the time warp again and apply for the discretionary § 212(c) waiver denied him in 1996 , which could curtail his 1995 deportation order. B. FOIA Request To complicate matters still furthe r, Plaintiff does not k now what actually happened with his 1981 application. That mystery , in turn, led to a 2013 FOIA request , in which he sought a “complete copy of [his ] Alien File (A

- File),” the official record of all immigration transactions involving Garcia. See MTD/MSJ at 5 (quoting Notice (ECF No. 13) , Exh. 1 (Decl. of Jill A. Eggleston) , ¶ 8 ). Upon receipt of his request, USCIS conducted a computerize d search and located Plaintiff’s physical A

- File, which it then scanned and reviewed. Id. On August 30, 2013, USCIS informed Garcia it had identified 419 pages responsive to his request; 263 were released in their entirety, 15 were released in part, and 5 were withhe ld in full. See Compl., ¶ 17. The balance of pages (136) originated with other federal agencies, and so USCIS referred 8 to the Federal Bureau of Prisons and 128 to Immigration and Customs Enforcement for their own
responses . Id. ; see also MTD/MSJ at 5

- 6

. Among the responsive documents in his A

- File that USCIS released was a copy of the 1981 I

- 485A application, but no documentation demonstrating whether or how that application had been resolved

. See Compl., ¶ 17

. BOP eventually released all 8 pages in their entirety to Garcia, while ICE produced 54 pages in full and 74 pages in part. See MTD/MSJ at 6. There is9 no evidence that Plaintiff filed an administrative appeal concerning the withholdings and exemptions asserted by ICE. Id. Plaintiff did fi le an administrative appeal with USCIS on October 8, 2013, however, arguing that “a reasonably conducted search would have revealed the ultimate disposition of” his

case. See Compl., ¶ 17. USCIS in response released 3 additional pages, all entirely redacted but for the heading “Supplemental Release” and the page numbers. Id. Still dissatisfied, Garcia sought mediation by the Office of Government Information Services (OGIS) , the f ederal FOIA Ombudsman that mediates di sputes between FOIA requesters and federal agencies

. Id. , ¶ 18 ; Notice, Exh. 4 (OGIS Letter )

. On September 4, 2014, OGIS concluded the mediation without being able to assist Plaintiff in finding any record of an adjudication of his 1981 application. Id. , ¶ 18; see also OGIS Letter. C. Federal L awsuit Frustrated by his inability both to uncover what happened to his 1981 I

- 485A application and to forestall deportation , Plaintiff brought this suit against USCIS, L é on Rodr í guez in his official capacity as Direc tor of USCIS, and Jeh Johnson in his official capacity as Secretary of the Department of Homeland Security , the federal agency within which USCIS is housed

. Garcia claims that USCIS has fallen short in one of its duties: either it has not satisfied its FOIA obligations to perform an adequate search for responsive documents, see Compl

. , ¶¶ 19

- 22, or, if no records exist, it has failed to fulfill its responsibility to adjudicate his 1981 I

- 485A application in a reasonable time. Id. , ¶¶ 23

- 26. Plainti ff thus seeks relief under FOIA regarding records of his unresolved I

- 485A application , id. , ¶ 5, and , in the alternative , he brings causes of action arising under the INA, the APA, and the federal mandamus provision to have this Court compel USCIS to adjudicate his 1981 application

. Id. , ¶¶ 5

- 8

.10 Defendants respond with a combined M otion for S ummary J udgment and M otion to D ismiss. Under the former, they seek judgment on Garcia’s FOIA claim, arguing that they have “satisfied all of thei r statutory obligations under the FOIA to conduct a reasonable search and produce all” relevant and non

- exempt documents. See MTD/MSJ at 1. Under the latter, Defendants maintain that the Court lacks subject

- matter jurisdiction over

– and Plaintiff has fa iled to state a claim for relief on

– the non

- adjudication of his 1981 I

- 485A application

. Id

. The Court deals with each in turn

. Before doing so, it notes that a full month after Defendants filed their Reply, Plaintiff moved for leave to file a Sur

- Repl y. See ECF No. 20. Although this appears untimely, and Defendants oppose it, see ECF No. 22 , the Court will nonetheless grant it and consider the arguments raised therein where relevant. II. FOIA Claim A. Legal Standard Defendant s here move for summary judgment on Plaintiff’s FOIA claim, which may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter o f law.” Fed. R. Civ. P. 56(a)

. A genuine issue of
mate rial fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 2 48 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry o f summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to construe the conflicting evidence in the light most favorable to the non

- moving party. See Sample v. Bureau of Prisons , 466 F.3d 1086, 1087 (D.C. Cir. 2006)

. Factual assertions in the moving party’s affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits,11 declarations, or documen tary evidence to the contrary. Neal v. Kelly , 963 F.2d 453, 456 (D.C. Cir. 1992). F OIA cases typically and appropriately are decided on motions for summary judgment. See Defenders of Wildlife v. Border Patrol , 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. Agency for Int’ l Dev. , 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In FOIA case s , the agency bears the ultimate burden of proof. See Dep’t of Justice v. Tax Analysts , 492 U.S. 136, 142, n.3 (1989). T he Court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations when they describe “th e documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discover ability of other documents.’” SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA , 692 F.2d 770, 771 (D.C. Cir. 1981)). Congress enacted the Freedom of Information Act in order “ to pierce the veil o f administrative secrecy and to open agency action to the light of public scrutiny. ” Dep ’ t of Air Force v. Rose , 425 U.S. 352, 361 (1976) ( citation omitted)

. “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a dem ocratic society, needed to check against corruption and to hold the governors accountable to the governed.” John Doe Agency v. John Doe Corp. , 493 U.S. 146, 152 (1989) (citation omitted). The statute provides that “each
agency, upon any request for recor ds which (i ) reasonab ly describes such records and (ii ) is made in accorda nce with published rules .

. . shall make the records promptly availa ble to any person.”12 5 U.S.C. § 552(a)(3) (A) . Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that a n agency improperly withholds. See 5 U.S.C. § 552(a)( 3 ); Dep’t of Justice v. Reporters Comm. for Freedom of the Press , 489 U.S. 749, 755 (1989). “Unlike the review of other agency action that must be u pheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’” Reporters Comm. , 489 U.S. at 755 (qu oting 5 U.S.C. § 552(a)(4)(B)). “At all times courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure ’

. . . . ” Nat’l Ass’n of Home Builders v. Norton , 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of State v. Ray , 502 U.S. 164, 173 (1991)). B. Merits Garcia’s only proper FOIA challenge is that USCIS failed to perform an adequate search for responsive documents. See Compl., ¶ ¶ 19

- 22. In such a circumstance , “ [a] n agency fulfills its obligations under FOIA if it can demons trate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia

- Lucena v. Coast Guard , 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State , 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep’t of Justice , 23 F.3d 548, 551 (D.C. Cir. 1994). “[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate .” Weisb erg v. Dep’t of Justice , 745 F.2d 1476, 1485 (D.C. Cir. 1984)

. The adequacy of an agency’s search for documents requested under FOIA “is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To13 meet its burden, the agency may submit affidavits or declarations that explain the scope and method of its search “in reasonable detail.” Perry v. Block , 684 F.2d 121, 127 (D.C. Cir. 1982) ( per curiam )

. The affidavits or declarations should “ set [] forth the sear ch terms and the type of search performed, and aver[] that all files likely to contain responsive materials (if such records exist) were searched .” Oglesby v. Dep ’ t of Army , 920 F.2d 57, 68 (D.C. Cir. 1990)

. Absent contrary evidence, such affidavits or declarations are sufficient to show that an agency complied with FOIA

. See Block , 684 F.2d at 127

. “If, however, the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt , 897 F.2d
at 542. The undisputed facts in this case show that on July 30, 2013, Garcia submitted a FOIA request to USCIS for a “complete copy of Plaintiff’s Alien File (A

- File),” which is “the official government record that contains information regarding transactions involving an individual as he/she passes through the U.S. immigration and inspection process.” Eggleston Decl. , ¶¶ 8, 10 n.2 ; see also 76 Fed. Reg. 34 , 233 , 34 , 234 (June 13, 2011) (describing A

- File recordkeeping system)

. As explained above, USCIS located the file, scanned it, identified 419 pages of responsive materials, and released the vast majority to Plaintiff. Garcia here challenges neither the referral of certain of these records to other agencies nor the specific exemptions USCIS and ICE relied on in withholding certain documents. Instead, Plaintiff ’s claim relates solely to the adequacy of the search. See Compl. at 8. He remains convinced that USCIS has not conducted a thorough search for responsive documents because among the docum ents the agency released to Garcia was his 1981 Form I

485A Application, dated October 19, 1981, and stamped “UP

- FRONT PROCESSED,” “indicating that Mr. Garcia was interviewed in connection with the application.” Eggleston14 Decl., Exh. D (FOIA Appeal (Octob er 8, 2013)) at 1. Yet “the 278 pages released by USCIS contain no indication of adjudication of the application

. ” Id. Plaintiff thus contends that a “reasonably conducted search would have revealed the ultimate disposition of Plaintiff Garcia’ s applica tion. ” Compl., ¶ 17. In so arguing, Plaintiff heavily relies on an apparent disparity between the assertions of USCIS, the agency that initially handled his FOIA request, and OGIS, the agency to which he appealed USCIS’s FOIA productions. OGIS informed Plaintiff i n a September 4, 2014 , letter that it had conducted an inquiry with USCIS and had confirmed both that the original search determined that “the A

- file did not contain the Form I

- 485A,” and that “USCIS ran another search and did not locate any do cuments responsive to [Plaintiff’s] request, including Mr. Garcia’s Form I

- 485A.” OGIS Letter at 2. Plaintiff explains that “OGIS’s statement that the Form I

- 4 85A was not found in the A

- file” is not true because “ the Form I

- 485A was contained in the A

- fi le” that USCIS initially provided him. See Compl., ¶ 20. This error must manifest an inadequate search, he posits. Defendants’ explanation for this disparity is that OGIS misspoke: Given the other language of the letter, and letter’s acknowledgement tha t counsel’s request for review was only concerned with “the disposition of the Form I

- 485A filed on behalf of [Plaintiff],” see Exhibit _ [ sic ] at p. 2, it is far more likely that OGIS was stating that a Form I

- 485A with approval was not located.” MTD/MSJ at 7 n . 3

. Whether this reasonable explanation is true or not , OGIS has no independent access to the underlying records in question; “OGIS has no investigatory or enforcement power, nor can [it] compel an agency to release documents. OGIS serves as the Federal FOIA Ombudsman and [its] jurisdiction is limited to assisting with the FOIA process.” OGIS Letter at 1. Whatever records OGIS reviewed, then, are the same records USCIS reviewed

– and the same ones USCIS15 either provided to Plai ntiff or withheld under a FOIA exemption. And as shown by USCIS’s Vaughn Index

– the document that provides a description of each partially or fully withheld page and the exemption claimed for such withholding

– none of the 18 pages withheld in part or 2 pages withheld in full is a document related to the ultimate disposition of Plaintiff’s 1981 I

- 485A application. See Eggleston Decl., Exh. G ( Vaughn Index). OGIS ’s statement thus has no bearing on whether USCIS fulfilled its legal obligations under FOIA. At bottom, what USCIS must demonstrate “ beyond material doubt is that it has conducted a search reasonably calculated to uncover all relevant documents.” Weisberg v. Dep’t of Justice , 705 F.2d 1344, 1351 (D.C. Cir. 1983)

. The Court believes it has. Pla intiff requested his “Complete Alien File (A

- File)” and provided his Alien Registration Number and date of birth to assist in the production of this A

- File. As USCIS explains, “USCIS is the custodian of all A

Files, including Plaintiff’ s A

- File. All offi cial records generated or held by U.S. immigration authorities . . . [should] be consolidated in the A

- File, maintained under and retrievable by reference to Plaintiff’s name and Alien number, and date of birth, or combination thereof.” Eggleston Decl. , ¶ 10 n. 2

. T he National R ecords Cente r, a unit of USCIS, “conducted a computerized database search in the Natio nal File Tracking System (NFTS) database [the database that records and tracks the location of A

- files] using the information that was provided in the Plaintiff’s FOIA request and located an A

- File bearing the Plaintiff’s name and A

number.” Id. , ¶ 11. Because all documents related to an alien’s immigration transactions “should, as a matter of course, be c onsolidated in the A

- File,” there is no reason to doub t that any extant files related to Plaintiff’s 1981 I

- 485A application were included in his A

- File , and Plaintiff has provided no evidence to suggest otherwise

. Id. , ¶ 10 n.2.16 Garcia puts forward two additional arguments for the inadequacy of USCIS’s search in his Response, but each falls equally short. First, he contends that the agency searched only for the paper copy of his A

- File, not a possible electronic copy

. See Response at 5

- 6. A s Defendants explain in their Reply, however, not all A

- Files are digitized

. S ee Reply at 7 (citing Notice of Update and Reissuance of Privacy Act System of Records, 78 Fed. Reg. 69 , 864 (Nov. 21, 2013))

. Indeed, w hen USCIS searched the NFTS database for Plaintiff’s A

- File, it obtained the physical location of the file , and there was no indication it had been digitized; had it been, “the results of the search inquiry would have been reflected in bold, red print that the file had been digitized.” Id. at 7 (citing Reply, Exh. 13 ( Declaration of Brian J. Welsh ) , ¶ 9 ) ; see also Welsh Decl. , Exh. 3 (NFTS Query Screenshot )

. E ven if Plaintiff’s A

- File had been digitized, Defendants aver, the electronic copy would “either be identical to the paper A

- File, or woul d contain even less material than the paper A

- File

. . . .” Reply at 7 (citing 78 Fed. Reg. at 69 , 864 ). Plaintiff also raises concerns about ot her possibly missing documents, including any potential contents of his T

- File

– a temporary file

– and the scan of the “hard jac ket cover” folder of his A

- File

. See Response at 6. Defendants respond that if a T

- File existed for Plaintiff, USCIS’s search for his A

- File would have yielded it , because when an A

- File is created, documents in the T

- File are permanently consolidated into it

. See Welsh Decl., ¶ 5

. As to the “hard jacket cover , ” it was not scanned initially because such jackets are scanned only if they “contain[] substantive information

. . . . ” Id., ¶ 11; see also Reply at 8

- 9. It was subsequently released, however, and inspection of the document confirms that it yields no substantive information. See Reply, Exh. 14 (File Folder). T he Court thus concludes that USCIS has conducted an adequate search. After all, “the relevant issue ‘ is not whether there might exist any other documents possibly responsive to the17 request, but rather whether the search for those documents was adequate

. ’” Schrecker v. U.S. Dep ’ t of Justice , 349 F.3d 657, 662 (D.C. Cir. 2003) (quoting Weisberg , 745 F.2d at 1485 )

. Plaintiff’s FOIA request specifically sought only his A

- File, see Eggleston Decl., Exh. A ( Form G

- 639 FOIA Request) at 1 , which USCIS provided , and he cannot now

– on appeal

– seek to expand his search beyond that

. Without evidence to suggest that other documents definitely exist in digitized form , and without a FOIA request seeking records located somewhere other than in his A

- File , the Court believes USCIS satisfied its st atutory responsibility under FOIA to search for and provide responsive records. One other note. Plaintiff also seeks in camera review of agency records , arguing that inconsistencies in what USCIS has released suggests that i t is holding something back. S ee Response at 8

- 9

. The parties trade arguments as to whether Garcia failed to exhaust administratively his in camera request in his FOIA agency appeal

. See Reply 12

- 13; Sur

- Reply at 1

- 8. Yet the Court need not resolve this dispute because a larger problem emerges: Plaintiff has never claimed that documents specified in the Vaughn I ndex were improperly withheld under particular FOIA exemptions

. Instead, Count I of his Complaint is titled “The USCIS Failed to Perform an Adequate Search for Responsive Documents.” Compl. at 8. H e nonetheless now seeks blanket in camera review of “ all agency records.” Response at 8 (emphasis added). T his is plainly not how in camera review should be entertained in the context of FOIA. Rather, such review is only appropriate where a litigant properly challenges specific exemptions used to justify withholdings, something Plaintiff has not done here. See Ray v. Turner , 587 F.2 d 1187, 1195 (D.C. Cir. 1978) (holding that in camera inspection is appropriate where district court must independently evaluate agency’s claims of exemption ); Juarez v. Dep ’ t of Justice , 518 F.3d 54, 60 (D.C. Cir. 2008).18 Garcia instead simply r ecites documents he would like

– e.g. , “electronic files mainta ined about the plaintiff” and any documents anywhere located that relate to his 1981 I

- 485A application

– ignoring Defendants’ answer s that such documents could not be found in the places he asked to be searched

. See Reply at 8 (“ [T] he Agency’s review of Plaintiff’s p aper A

- File was

. . . the only search that USCIS could have performed because no digitized file existed.”). Whether or not Garcia has failed to exhaust his administrative remedies, then, he has not put forward specific challenges to USCIS’s withholding exemptions concerning individual records , and so the Court has no basis upon which to consider in camera revie w, a remedy squarely within its discretion to grant. See Juarez , 518 F.3d at 60 (noting that district court “acts within its ‘broad d iscretion ’ by declining to conduct such [ in camera ] review”) (citation omitted). The Court consequently holds that whether or not Plaintiff’s I

- 485A application was actually adjudicated, summary judgment will be entered for Defendants on Plaintiff’s FOIA cause of action alleging inadequate search

. III. Duty to Adjudicate 1981 Application Assuming, then, that no document exists indicating that a decision on Garcia’s 1981 application was ever rendered , the Court next turns to his claims concerning the applicat ion itself. To reiterate, Plaintiff seeks a Court order requiring USCIS to adjudicate his 1981 I

- 485A application under the facts and law as they existed in that year

. See Compl. at 9

- 10

. Garcia brings causes of action arising under the INA itself, the APA, and the statutory mandamus provision. Id. , ¶¶ 5

- 8. As to the first of the se, Plaintiff asserts that the INA , 8 U.S.C. § 1103, imposes on USCIS a “duty to adjudicate applications for adjustment status with in a reasonable time,” i d. , ¶ 8, something he believes the agency has not done with his 1981 I

- 485A application. Id. , ¶ 4. Second, Garcia relies on the APA, which “empowers district courts to ‘compel agency19 action unlawfully withheld or unreasonably delayed.’” Id. , ¶ 6 (quoting 5 U.S. C. § 706(1)). Finally, he alleges a claim under the federal mandamus provision, which grants federal district courts original jurisdiction over “ ‘ any action in the nature of mandamus. ’ ” Id. , ¶ 7 (quoting 28 U.S.C. § 1361 )

. As the Court decides this issue on jurisdictional grounds, it sets forth that legal standard before proceeding to its analysis. A. Legal Standard In evaluating Defendants’ Motion to Dismiss, the Court must “treat the complaint’s factual allegations as true . . . and must grant plainti ff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc. , 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979)) (citation omitted); see also Jer ome Stevens Pharms., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005). Importantly, this standard governs the Court’s considerations of Defendants’ contentions under both Fed. R. Civ. P. 12(b)(1) and 12(b)(6). See Scheuer v. Rhodes , 416 U.S. 232, 236 (1 974) (“[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.”); Walker v. Jones , 733 F.2d 923, 925

– 26 (D.C. Cir. 1984) (same). The Court need not accept as true, however, “a legal conclusion couched as a factual

a llegation,” nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm ’ n , 456 F.3d 1 78, 193 (D.C. Cir. 2006) (citation omitted)

. To survive a motion to dismiss under Rule 12(b)(1), a p laintiff bears the burden of proving that the Court has subject

- matter jurisdiction to hear his claims. See DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 34 2 & n.3 (2006); Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015). A court has an “affirmative obligation to ensure that it is acting within the scope of its20 jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft , 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, “‘the [p]laintiff’s factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13

- 14 (quoting 5A Ch arles A. Wright & Arthur R. Miller, Fed

. Prac. & Proc

. § 1350 (2d ed. 1987)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding whether to grant a motion to d ismiss for lack of jurisdiction.

. . . ” Jerome Stevens Pharm. , 402 F .3d at 1253. B. Jurisdiction In seeking dismissal here , Defendants raise a host of jurisdictional arguments, but the Court need only address the first, which concerns standing

. See Am. Library Ass ’ n v . FC C , 401 F.3d 489, 492 (D.C. Cir. 2005) (noting that Article III standi ng is a prerequisite to federal

- court jurisdiction)

. After examining the precepts relating to standing and mootness, it will apply them to Plaintiff’s claims , find ing that he lack s s tanding

. 1. Standing and Mootness Defendant s’ first line of defense relates to Garcia ’s ability to maintain his lawsuit altogether: they argue that “Plaintiff’s immigration

- related claim became moot when, on April 19, 1991, USCIS’s predecessor organization (the INS) adjudicated Plaintiff’s 1990 I

- 485 Application.” MTD/MSJ at 24. While they are correct in stating that where “the relief a plaintiff seeks has already been obtained, a federal court must dismiss the action as moot,” id. , the Court believe s the circumstances of this case are more properly characterized as issues of standing rather than mootness

. T he two concepts are “inter

- related judicial doctrines” that “ensure that federal courts assert jurisdiction only over ‘Cases’ and ‘Controversies.’” W orth v. Jackson , 451 F.3d 854, 85521 (D.C. Cir. 2006) (quoting U.S. C ONST
. art. III, § 2, cl. 1.)

. While s imilar in their functions , standing and mootness are distinguished by the question of timing

. See Garden State Broad. Ltd. Partnership v. FCC , 996 F.2 d 386, 394 (D.C. Cir. 1993) (“ Mootness and standing are related concepts. The Supreme Court has characterized mootness as ‘ the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness ).’”) (quoting U.S. Parole Comm’n v. Geraghty , 445 U.S. 388, 397 (1980)) ; see also Judicial Watch, Inc. v. Kerry , No. 15

- 785 , 2016 WL 126349, at *3 (D.D.C. Jan. 11, 2016)

. Given that both doctrines implicate the need for a plaintiff to demonstrate he has standing, the Court will briefly recite the constitutionally required tripartite standard

. First, he “must h ave suffered an injury in fact

– an invasion of a legally

- protected interest whi ch is (a) concrete and particularized . . . and (b) actual or imminent, not conjec tural or hypothetical .

. . .” Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992) (citations and internal quotation marks omitted). Second , “there must be a causal co nnection between the injury and the conduct complained of

– the injury has to be fairly .

. . trace[able] to the challenged action of the defendant, and not .

. . th[e] result [of] the independent action of some third party not before the court.” Id. (citation and internal quotation marks omitted). Third, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Id. at 561 (citation omitted). A “deficiency on any one of the three prongs suffices to defeat standing

. . . .” U.S. Ecology, Inc. v. U.S. Dep’t of Interior , 231 F.3d 20, 24 (D.C. Cir. 2000). As stated above, w hereas a standing inquiry is concerned with the presence of injury, causation, and redressability at the time a compla int is filed , a mootness inquiry scrutinizes the presence of these elements after filing

– i.e. , at the time of a court’s decision. See La Botz v.22 Fed. Election Comm’n , 61 F. Supp. 3d 21, 28 (D.D.C. 2014) (“Whether a plaintiff has standing is determined a t the time the suit commences. Thus, standing in the present action is ascertained from the facts as they existed when [Plaintiff] first filed his complaint in this Court.”) (citations omitted); 13B Wright & Miller, Fed. Prac. & Proc. § 3533 (3d ed. 1998 ) (“ Mootness doctrine encompasses the circumstances that destroy the justiciability of a suit previously suitable for determination. It is not enough that the initial requirements of standing and ripeness have been satisfied; the suit must remain alive thr oughout the course of litigation . . . .”) (emphasis added)

. In light of this distinction , the Court finds USCIS’s defense is more properly construed as one of standing rather than mootness , inas much as Garcia’s 1990 a pplication was processed on April 19, 199 1 , long before he filed his federal lawsuit seeking to have his 1981 a pplication adjudicated. See Compl. (filed May 1 8 , 2015)

. Neither his legal status n or the status of his 1981 application appear s to have changed since he initiated suit

. S ince the alleged action s that “moot ” Plaintiff’s claim all took place before he brought his law suit, therefore, Defendants’ justiciability argument is better characterized as one of standing. S ee Advanced Mgmt. Tech., Inc. v. FAA , 211 F.3d 633, 636 (D.C. Cir. 2000) (“The claim may sound like one of mootness

– a justiciable controversy existed but no longer remains

– but the timing makes [Plaintiff’s] problem one of standing. . . . Standing is assessed at the time the action comme nces , i.e. , in this case, at the time [Plaintiff] sought relief from an Article III court.

. . .”) (internal quotation marks and citation omitted) (emphasis added)

. A s a threshold matter, then, Garcia must establish standing at the time he filed in order to pursue his causes of action under the INA , the APA, and the statutory mandamus provision

.23 2. Injury and Redressability The thrust of Defendants’ justiciability argument is that Plaintiff has no cognizable injury because a n I

- 485A application for his adjustment of status to LPR has already been adjudicated

. See MTD/MSJ at 24. They contend that the adjudication of his 1990 application vitiated any remaining need he had for adjudication of the earlier 1981 application

. Id. at 25 (“Here, there is

no ac tion left to perform because the 1981 I

- 485 Application became moot at the very moment the INS issued a decision on Plaintiff’s subsequent I

- 485 Application [ in 1991 ]

. ” ). In other words, because t he relief he sought in his 1981 application was the relief he actually received from his 1990 application

– albeit short

- lived

– there is nothing left for the Court to do

. Bolstering this position is the fact that when INS adjusted Garcia’s status to that of LPR in 1991 , it made this adjustment ret roactive to January 1, 1982. See MTD/MSJ at 4; Decision of Immigration Judge at 2. T here would be no reason

– and Plaintiff has offered none

– for his 1990 application to warrant retroactive adjustment to that date unless INS had credited the fact of his previous 1981 application

. See Compl., ¶ 6. Plaintiff’s alleged injury , in fact , is more nuanced than the mere lack of a hearing on an I

485A application. He pleads that [i]f [his] application filed in 1981 had been adjudicated within a reasonable time, it would have been adjudicated when he was clearly eligible for the adjustment and before his disqualifying criminal activity in 1990. In deportation proceedings as a perm anent resident, Mr. Garcia would have been eligible to seek relief under [§ 212(c)] to avoid a dep ortation order. Id

. , ¶ 25. In other words, INS’s delay on his 1981 application caused him harm because it ultimately deprived him of subsequent eligibilit y for a discretionary § 212(c) waiver today

. But his injury consists of more than INS’s failure to adjudicate his 1981 application ; after all, a grant24 of LPR status would not by itself cancel his order of deportation

. Such LPR status must also be accompanied by a grant of the discretionary § 212(c) waiver for Garcia to avoid deportation

. Given this more specific harm that Plaintiff allege s , the Court believes his standing problem is better articulated as one of redres sability rather than one of injury

. Garcia’s ultimate harm

– his looming deportation

– cannot be avoided unless he obtains a § 212(c) waiver, and he needs the Court’s help in getting it. Absent an eventual grant of such waiver, the mere adjudication of his 1981 application would not alter his status as deportable

. At the end of the day, however, since the Court cannot force USCIS to pro vide the relief Plaintiff seeks

– it can only offer him an outside chance

– i t cannot redress his injury. The Court now explains how far

flung Plaintiff’s theory of relief is because “it must be likely, as opposed to merely speculative, that [ his ] injury will be redressed by a favorable decision.” Lujan , 504 U.S. at 561 (citation and inte rnal quotation marks omitted)

. Preliminarily, t here is no guarantee that his 1981 application would yield a successful adjustment of status to LPR ; for any number of reasons, USCIS could deny it

. No applicant is assured adjustment of status , and this Court has no power to order USCIS to issue it , given the lack of jurisdiction federal courts have over all discretionary decisions made by the Attorney General and the Secretary of Homeland Security concerning immigration status matters. See 8 U.S.C. § 1252(a)(2)(B) (“[N]o court shall have jurisdiction to review

-- (i) any judgment regarding the granting of relief under section . . . 1255 of this title [“Adjustment of status of nonimmigrant to that of person admitted for permanent residence”], or (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security

. . . for which is specified

. . . to be in the discretion of the Attorney General or the S ecretary of Homeland Security .

. . .”).25 E ven if Garcia did obtain adjustment of status to LPR, furthermore, that would not get him across home plate. He would still need his order of deportation nullified via the § 212(c) waiver. L ike adjustment s of status, waivers from deportation under § 212(c) were granted discreti onarily

. E ven if an immigration judge finds that Plaintiff has lawfully obtained his permanent

- resident status

– and therefore is at least not ineligible for a § 212(c) waiver on that basis

– there is no guarantee she would grant him the waiver on the equities

. And without it , Garcia remain s deportable. This discretion renders too speculative the po ssibility that the relief Plaintiff can obtain here will redress the injury he has suffered , as he has not established any reason to believe he would be successful in obtaining the waiver. For § 212(c) waivers, “[t]he burden [was] on the applicant to est ablish that a grant of a waiver . . . [was] warranted in the exercise of discretion,” In Re Mendez

- Moralez , 21 I. & N. Dec. 296, 299 (BIA 1996), since § 212(c) waivers involved equitable balancing. See Vargas

Hernandez v. Gonzales , 497 F.3d 919, 927 (9th Cir. 2007). Equitable factors the BIA considered in weighing a § 212(c) applicant’s case included “the nature and underlying circumstances of the

. . . deportation ground at issue,” “the existence, seriousness, and recency of any criminal record,” and “ev idence of bad character.” Yepes

- Prado v. IN S , 10 F.3d 1363, 1366 (9th Cir. 1993) (citing Matter of Edwards , 20 I. & N. Dec. 191 (BIA 1990)). The Court is doubtful

– given Plaintiff’s previous record of fraudulent and misleading behavior, coupled with his criminal conviction for drug trafficking

– that an immigration judge would grant such discretionary relief. Plaintiff himself has not alleged that such judge could turn a blind eye to his cocaine

- trafficking conviction and his previous mistruths in his 1990 I

- 485A application. T he Cour t thus does not find it likely that the order he asks for

– adjudi cation of his 1981 application

– w ould ultim ately remediate the harm he seeks to prevent

– viz. , his26 deportation. As such, Plaintiff has not stated an injury redressable by the Court and thus cannot establish that he has standing to bring this suit. 3. Nunc Pro Tunc Garcia faces yet another roadblock in seeking to establish the redressability of his claim

– namely, the extraordinary remedy he seeks from this Court. He cannot even roll the dice for his longshot discretionary bid unless this Court grants him a far

- reaching equitable reprieve in the form of nunc pro tunc . This is because the law and facts as of 2016 preclude Garcia from both applying for and obtaining LPR status as well as seeking and obtaining a § 212(c) waiver. “ Nunc pro tunc , Latin for ‘now for then,’ r efers to a court’s inherent power to enter an order having retroactive effect. ” Iouri v. Ashcroft , 487 F.3d 76, 87 (2d Cir. 2006 ) (citing Black’s Law Dictionary 1100 (8th ed. 2004) )

. A lthough central to his case, Plaintiff barely raise d nunc pro
tunc at all until his untimely Sur

- Reply. See ECF No. 20, Exh. 4 (Sur

- Reply) at 15

- 17. Given the extensive nature of Garcia’s nunc pro tunc request , the Court doubts that it even has the power to grant it

. If the Court were so empowered, moreover, it concludes that the equities strongly weight against a grant.

a. Availability As a threshold matter, the reach of federal courts to grant nunc pro tunc relief in immigration cases is unsettled. It remains an open question whether federal courts sitting in
eq uity may use nunc pro tunc as broadly as the BIA itself does in immigration matters, for outside of the immigration context , nunc pro tunc has been an “equitable remedy traditionally used to apply to a court’s own [prior] order or judgment retroactively.” Ethyl Corp. v. Browner , 67 F.3d 941, 945 (D.C. Cir. 1995) (emphasis added). Some courts have concluded that while the BIA may possess broad discretion to use nunc pro tunc , courts should exercise it on a more27 limited basis. See Romero

- Rodriguez v. Gonza les , 488 F.3d 672, 678

- 79 (5th Cir. 2007) (“[W]e do not believe that the courts’ nunc pro tunc authority is any broader in the context of immigration law than it is in other contexts.”). Although the D.C. Circuit has not ruled on the propriety of nunc pro tunc relief in the quest for since

- repealed § 212(c) waivers, other circuits have split as to the availability of such a remedy

. Compare Edwards v. I.N.S. , 393 F.3d 299, 309 (2d Cir. 2004) (“The BIA has, through much of § 212(c)’s history, explicitly deem ed it appropriate to award § 212(c) waivers nunc pro
tunc
. ”) , with Fernandes Pereira v. Gonzales , 417 F.3d 38, 47 (1st Cir. 2005) ( refusing to grant nunc pro tunc relief for plaintiff erroneously denied access to § 212(c) waiver by immigration judge )

. Yet , to be able to seek a § 212 waiver , Plaintiff must first obtain nunc pro tunc relief for adjudication o f his 1981 I

- 485A application. Such nunc pro tunc relief, however, is more than was authorized in Edwards , which only stated that nunc pro tunc orders are appropriate where they would “return aliens to the position in which they would have been, but for a significant error in their immigration proceedings.” 393 F.3d at 308

- 09. In Plaintiff’s case, there was no error in the denial of his § 212(c) waiver, so at best his argument is that USCIS erred in failing to adjudicate his 1981 I

- 485A application. T his leads to another problem for Garcia

. As one Circuit p ut it: [T] he instances in which such [ nunc pro tunc ] relief could be granted have been lim ited to those in which the grant would effect a complete disposition of the case, i.e., where the only ground of deportability or inadmissibility would thereby be eliminated or where the alien would receive a grant of adjustment of status in conjunction wi th the grant of any appropriate waivers of inadmissibility. Perez

- Gonzalez v. Ashcroft , 379 F.3d 783, 789 (9th Cir. 2004) , rev’d on other grounds , Gonzales v. Dep ’ t of Homeland Sec. , 508 F.3d 1227 (9th Cir. 2007) (quoting In Re Garcia

- Linares , 21 I. &28 N. Dec. 254, 257 (BIA 1996)) (emphasis added) (internal quotation marks omitted). In other words, i n t hose cases where courts have ordered nunc pro tunc relief, such order s granted plaintiffs the complete relief they sought

. See, e.g. , Edwards , 393 F.3d at 304

- 306 (granting nunc pro tunc relief to aliens erroneously denied opportunity to apply for § 212(c) waiver s ) ; Snajder v. I.N.S. , 29 F.3d 1203 , 1208 (7th Cir. 1994) ( granting plaintiff removal hearing nunc pro tunc to remedy immigration judg e’ s error in proceeding with hearing without petitioner’ s attorney present ); Batanic v. I.N.S. , 12 F.3d 662, 664 , 667

- 668 (7th Cir. 1993) (granting nunc pro tunc relief to alien erroneously denied opportunity to apply for asylum)

. Here, by contrast, the error Plaintiff alleges is unrelated to the relief he ultimately seeks. The error is that USCIS wrongly failed to adjudicate his 1981 I

- 485A application , but the injury Garcia ultimately seeks to redress is his denial of access to a § 212(c) waiver. O rdering USCIS to adjudicate the 1981 application nunc pro tunc would not “effect a complete disposition” of his claim , see Perez

- Gonzalez , 379 F.3d at 789, because even a successful adjustment of status would not guarantee his eligibility for a § 212(c) w aiver , let alone success at obtaining it on the merits. Plaintiff , in fact, may have been ineligible for a § 212(c) waiver for other reasons, such as having served more than five years in prison due to an aggravated felony. See 8 U.S.C. 1182(c) (1990) , repealed by § 304(b), 11 0 S tat. at 3009

- 597 ; Fernandes Pereira , 417 F.3d at 41 (denying plaintiff’s claim for § 212(c) nunc pro tunc relief to treat plaintiff as having served less than five years in prison). The nunc pro tunc relief Plaintiff ask s for is thus different from that sought in those cases in which c ourts have found such remedy availing

. Given these considerations, the Court does not believe nunc pro tunc relief is available to remediate the harm Plaintiff hopes to avoid , and so any order from this Court would do nothing
to redre ss his narrowly alleged injury.29 b. Breadth of Relief Sought Even a ssuming the availability of nunc pro tunc here , the form of relief Garcia seeks is exceptionally broad , as he faces several timing

- related challenges

. His first hurdle is that , as of today, he would not even be eligible for adjustment of status to LPR

. While INS did grant him LPR status in 1991, in his 1990 application he answered “ no ” to the question of whether “any of the foregoing classes apply to you,” where said classes included “aliens who have been convicted of violation of any law or regulation relating to narcotic drugs or marihuana, or who have been illicit traffickers i n narcotic drugs or marihuana

. . . .” Notice, Exh. 10 (I

- 485A Application (Nov. 1 9 , 1990)) (emphasis added)

. He would have to answer “ yes ” to such a question today, rendering himself ineligible. What Plaintiff seeks is therefore even more far

reaching: that USCIS’s adjustment

- of

- status proce d ure take place as if it were 1981, before he participated in the cocaine

- trafficking activities and was incarcerated. Only then could Garcia lawfully obtain LPR status, doing so before his criminal activities rendered him ineligible. T his remedy is not only extraordinary, but it wo uld also require USCIS to ignore its own adjustment

- of

- status procedures. As Defendants point out in their Reply, DHS’s regulations require that “[a]n application or petitioner must establish that he or she is eligible for the requested benefit at the tim e of filing the benefit request and must continue to be eligible through adjudication .” 8 C.F.R. § 103.2(b)(1) (emphasis added); see also Reply at 16. An “immigration benefit application” includes “any application or petition to confer, certify, change, adjust , or extend any status granted under the Immigration and Nationalization Act.” 8 U.S.C. § 1572(2) (emphasis added). This includes applications to adjust an alien’s status to that of permanent resident. As a result, even if Garcia were eligible for the immigration benefit

– LPR status

– as of the time he filed (in 1981), the regulation requires that he continue to be eligible until the time30 the status is granted

– i.e. , today. The Court would therefore also have to order USCIS to turn a blind eye t o his subsequent criminal activities

. And Garcia’s need for nunc pro tunc relief does not stop there. Even if he did obtain LPR status, he would remain ineligible for a § 212(c) waiver today because such waivers no longer exist , having been repealed in 1996

. See 8 U.S.C. 1182(c), repealed by § 304 (b) , 110 Stat. at 3009

- 597

. The Court would also have to order USCIS to ignore other 1996 amendments to the INA , see § 304 (a) , 110 Stat. 3009

- 594, that render cancellation of removal categorically unavailable to a permanent resident convicted of an aggravated felony. See 8 U.S.C. § 1229b (a)(3 )

. Garcia would thus need the Court to order that USCIS consider such a waiver nunc pro tunc , as if it were still available today and as if he were still eli gible for relief from deportation

.
c. Equities E ven if it were proper for the Court to grant “ nunc pro tunc relief [, it] ‘ should be granted or refused[ only ] as justice may require.’” Edwards , 393 F.3d at 310 (quoting Mitchell v. Overman , 103 U.S. 62, 65 (1882)). Here, the Court does not believe that justice demands rewinding both the law (the availability of the § 212(c) waiver) and the facts (to treat Plaintiff as if he came before USCIS in 1981). Nunc pro tunc is a n equitable remedy infrequently grant ed

. See Zhang v. Holder , 617 F.3d 650, 665 (2d Cir. 2010) (“[T]he doctrine of nunc pro tunc is a far

reaching equitable remedy applied in certain exceptional cases, typically aimed at rectify[ing] any injustice [to the parties] suffered by them on account of judicial [or agency] delay.”) (citations and inte rnal quotation marks omitted). Plaintiff does not come before this Court with clean hands , a chief consideration in the weighing of equitable remedies

. See Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co. ,31 324 U.S. 806, 814 (1945) (noting “equitable maxim that ‘he who comes into equity must come with clean hands’ . . . closes the doors of a court of equity to one tainted with inequitableness or bad faith . . . however improper may have been the behavior of the defendant”). Garcia himself acknowledges that he acted fraudulently or misleadingly in his 1990 adjudication, in which he claimed LPR eligibility while simultaneously engaging in unlawful cocaine trafficking that would render him ineligible for such status

. See Decision of I mmigration Judge at 2. It is clear from his November 19, 1990 , I

- 485A application that he fraudulently checked the “no” box concerning whether he had participated in violations of the law and in illicit trafficking of

narco tic s . See I

- 485A Application (Nov. 19, 1990) at 2

- 3. The equities do not seem to weigh in Plaintiff’s favor where he seeks to use the Court’s power to erase his bad act s from his immigration record. Plaintiff ’s equitable claim is also weakened by his own delays , limiting his ability to contend that the injustice arose due only to agency delay

. Cf. Iouri v. Ashcroft , 487 F.3d 76, 87

- 89 (2d Cir. 2007) (finding nunc pro tunc relief unwarranted where plaintiff’s delays contributed
to inability to seek discretionary stay of voluntary dep arture from BIA )

. Here, Garcia has been under an order of supervision (and potentially deportable) since 1998 , a status he has not sought to alter through adjudication of his 1981 application until now, nearly 20 years later, presumably because rapidly im proving diplomatic relations with Cuba may one day soon make him deportable

. H is 2015 lawsuit is the first documented effort he has made to seek action on his application filed nearly 35 years ago . While attached exhibits indicate Plaintiff filed a FOIA request in 2004 and obtained 387 pages of responsive documents, s ee USCIS FOIA Correspondence (Sept. 13, 2004), he never explains why he did not challenge inaction on his 1981 application back then , when he was surely aware of it

.32 Garcia tries to shift the balance of the equities by arguing that “the fault in failing to adjudicate plaintiff’s application lies solely with the defendants,” s ee Sur

- Reply at 15, but this is not true. Plaintiff has not provided any evidence that he or his family ever contacted INS between 1981 and 1990 to determine the status of the 1981 application , or that he raise d the issue
at his deportation hearing or during his § 212(c) waiver hearing

. Indeed, rather than seek

a djudication of his first application in 1990, he effectively abandoned it by applying anew with a second application , obtaining retroactive relief under that later application all the way back to January 1, 1982. By all accounts, Plaintiff was satisfied with the outcome of his adjustment of status until it was revoked on account of his drug

- trafficking activities. W hatever injury Plaintiff has experienced from the delay on his 1981 application, he appears to have made no effort until this lawsuit to remediate it

. To now come into court decades later and claim injustice seems a stretch. The weighing o f the equities, therefore, tilt s decidedly in Defendants’ favor. * * * When all is said and done, Plaintiff’s only hope for relief requires the Court to string together a considerable series of counterfactuals so that Garcia can retroactively obtain LPR status at a time before his drug conviction rendered him ineligible. To wit, h e needs the Court in 2016 to grant him an adjustment of status as if it were 1981 , so that he can pursue a waiver that was repealed in 1996

– without being disqualified by unlawful actions he engaged in back in 1990. And even if the Court did weave such a complex legal rewriting of history , there is no guarantee such a discretionary remedy would be granted to him, particularly given the demonstrable evidence that he has previously been dishonest in seeking adjustment of status and was subsequently convicted of drug trafficking

. Such relief i s simply too speculative to maintain standing even if it were warranted on an equitable basis, which the Court concludes it is not

.33 Because the Court finds that Plaintiff lacks standing to seek relief, it need not tackle the complicated legal arguments as to whether it has jurisdiction under the INA, APA, or federal mandamus provision, n or resolve the statute

- of

- limitations issues raised by Defendants. See Am. Library Ass’n v. FCC , 401 F.3d 489, 492 (D.C. Cir. 2005) (“ It is

. . . well established that Art icle III standing is a prerequisite to federal court jurisdiction

. . . . ”)

. IV. Conclusion While the Court’s path through this country’s immigration laws has been tortuous, the outcome is straightforward : no remedy is available to Plaintiff here. Defendants have demonstrated that they have fulfilled their search obligations on Garcia’s FOIA request, and Plaintiff lacks standing to ask this Court to order USCIS to adjudicate his outstanding 1981 I

485A application for adjustment of status. The Cour t will , accordingly , issue a contemporaneous Order granting Defendants’ Motion to Dismiss and Motion for Summary Judgment. /s/ James E. Boasberg JAMES E. BOASBERG United States Dis trict Judge Date: March 2, 2016