UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA SILVIA MAALOUF, ) ) ) ) Plaintiff,
v. ) Civil Case No. 08-2177 (RJL) ) ROBERT WIEMANN,) ) ) Defendant. ) 

# Iv MEMORANDUM OPINION

(September " ,2009) [# 6] Beforethe Court is defendant's Motion to Dismiss plaintiff's complaint, which challenges the Administrative Appeals Office's ("AAO") denial ofher request for an immigration status adjustment. Plaintiff, proceeding

### prose, opposes the motion. Forthe following reasons, the Court GRANTS defendant's motion. BACKGROUND Dr. Sylvia Maalouf("plaintiff' or "Maalouf') is a citizen and native of Lebanon who entered the United States as an accredited government employee for the embassy ofthe UnitedArab Emirates, (Def. Mot. at 3), pursuantto Section 101(a)(l5)(A)(ii) ofthe Immigration and Nationality Act. 2 (Compi. at 10.) That section authorizes "A-2"visas for foreign officials and employees otherthan ambassadors, public ministers, orcareer diplomatic or consular officers.

1Robert Wiemann is named here in his official capacity as Chiefofthe Administrative Appeals Office.
2 Codified at 8U.S.C. § 1101(a)(15)(a)(ii) (2006).Maaloufs A-2 visa allowed her to enterthe United States to perform work as
a translator at the Washington, D.C.-based Embassy ofthe United Arab Emirates. (Def. Mot. Ex. B at 5.) Her situation was unusual, however, in that she was accredited by, and hired to work for, the government ofa country otherthan her native country ofcitizenship. 

### (ld.) On February 2, 2000, Maaloufwas notified by the United States Department ofState that herA-2 visa status had terminated. (PI. Mot. Stay [Dkt. 9] Ex. at 21.) Soon thereafter, Maaloufapplied for a readjustment ofher immigration status pursuant to 8 U.S.C. § 1255b ("Section 13,,)3 in an attempt to obtain permanent resident status. Section 13 provides that aliens whose A-2 visas have lapsed may apply to the Attorney General for a readjustment ofthis kind. 4 Maaloufs application was initially denied in October of2007, when a DistrictDirector for the United States Citizenship and Immigration Services ("USCIS") found she had not demonstrated, as required by 8 U.S.C. § 1255b(b), sufficient compellingreasons to preventreturning herto herhome country of Lebanon. (Def. Mot. Ex. B at 2.) Maaloufappealedthe District Director's decision

3 Readjustment pursuantto § 1255b is also referred to as "Section 13" readjustment because the provision first appeared as Section 13 ofthe Act ofSeptember 1I, 1957, Pub. L. No. 85-3 16,71 Stat. 642, as modified, 95 Stat. 161 l.
4 Section 1255b(a) provides in relevant part:

Any alien admitted to the United States as a nonimmigrant under [an A-2 visa] who has failed to maintain a status under any of those provisions, may apply to the Attorney General for adjustment of his status to that of an alien lawfully admitted for permanent residence. 2

### to the AAO. On June 20, 2008, the AAO affirmed the District Director's decision
on other grounds, finding that Maaloufwas not eligible for Section 13 readjustment under the requirements set forth in 8 C.F.R. § 245.3. (Jd.) 

### Maaloufmoved for reconsideration shortly thereafter, and on November 13,2008, the AAO once again affirmed the prior denial ofMaaloufs application. The United States now seeks to
remove Maalouffromthe country pursuant to Section 240 ofthe LN.A. Her removal hearing is scheduled to begin in Immigration Court on December 8, 2009. (Pi. Mot. Stay Ex. at 1-4.) Maaloufs complaint before this Court seeksjudicial review ofthe AAO's decisions. Although Maaloufwas represented by counsel throughout herAAO proceedings, she proceeds in this Court

### prose. (Compi. at 1.) Maaloufs amended complaint, filed December 16,2008, challenges the AAO's decision on the grounds that it misinterpreted applicable regulations and therefore erred in finding Maalouf ineligible for Section 13 adjustment. On February 27, 2009, defendant moved to dismiss Maaloufs complaint on the grounds that the AAO's decision was "discretionary," and as such, beyond thejurisdiction ofthis Court. Maalouf, not surprisingly, opposes the motion. Forthe following reasons, the Court finds that it lacksjurisdictionto review the AAO decision and GRANTS defendant's motion. 

### LEGAL STANDARD Rule 12(b)(1) ofthe Federal Rules ofCivil Procedure bars a federal court from hearing claims beyond its subject matterjurisdiction. Under Rule 12(b)(1)' 3

### "theplaintiffbears the burden ofestablishing the factual predicates of jurisdiction by a preponderance ofthe evidence."

### Lindsey v. 

### UnitedStates, 448 F. Supp. 2d 37, 42 (D.D.C. 2006) (quoting

### Erby v. 

### UnitedStates, 424 F. Supp. 2d 180, 182 (D.D.C. 2006)). Although courts will construe a

### prose plaintiffs complaint liberally, they must dismiss the plaintiffs complaint if"it appears beyond doubt that the plaintiff
can prove no set offacts in support ofhis claim which would entitle him to relief." 

### See Richardson v. 

### UnitedStates, 193 F.3d 545, 548-49 (D.C. Cir. 1999) (quoting 

### Caribbean Broad. Sys., Ltd. v. 

### Cable & 

### Wireless PLC, 148 F.3d 1080, 1086 (D.C. Cir. 1998)). Moreover, where a court's subject matterjurisdiction is called into question, the court may considermatters outside the pleadings to ensure it has power overthe case. 

### Teva Pharm., USA, Inc. v. 

# u.s. Food

### &DrugAdmin., 182 F.3d 1003, 1008 (D.C. Cir. 1999). ANALYSIS Maaloufargues that the AAO's November 13th
, 

### 2008 determination ofher statutory ineligibility for Section 13 adjustment was "erroneous in law and in facts." (Am. Compi. at 2.) In essence, Maaloufseeksjudicial review ofthe agency action under the Administrative Procedure Act ("APA"), which authorizesjudicial review of"final agency action for which there is no other adequate remedy," 5 U.S.C. § 704, provided no other statute expressly or impliedly forbids the reliefsought on review, 5 U.S.C. § 702.5

5 

### The Court easily rejects Defendant's argument that Maaloufs complaint must be 

### 4

### Threerequirements limit a federal district court'sreview ofagency action under 5U.S.C. § 704: the agency action in question must adversely affect the party seeking review, it must be non-discretionary, 6 

### and it must be final. 

### See Pinho v. 

### Gonzales, 432 F.3d 193 (7th 

### Cir. 2000). While there is no question the AAO's decision adversely affects Maaloufand was not discretionary, there is, to say the least, a question as to whether she has exhausted her administrative remedies as required by the statute. Unfortunately for Maalouf, she has not. How so? Because Maaloufmayrenew her application for a status adjustment when she appears in Immigration Court for her upcoming removal hearing, 

### see 8 C.F.R. § 245.2, the Immigration Judge presiding over Maaloufs case will have to consider the same Section 13 issues previously decided by the AAO and now before this Court. 

### See Pinho, 432 F.3d at 201. IfMaaloufis unhappy with the outcome ofthe Immigration Judge's decision, she can subsequently appeal that decision to the Board ofImmigration Appeals ("BIA"), and ifneed be thereafter, to an appropriate dismissed because it "totally fails" to comply with federal pleading requirements. (Def. Mot. at 5.) Defendant himselfobserves that Maaloufispro se, and further thatpro se complaints are to be construed liberally. See Def. Mot. at 2 (citing Haines v. Kerner, 404 U.S. 519, 520 (1972), Richardson v. UnitedStates, 193 F.3d 545, 548 (D.C. Cir. 1998)). Notwithstanding, defendant seeks to take Maaloufto task for failing to cite the precise statutory provisions under which she seeks relief. As aprose plaintiff, Maaloufneed not cite the APA by name or provision; it is abundantly clear from her complaint that she seeks to challenge final agency action which she contends was "erroneous in law and in facts," and the Court construes her complaint to effectivelyplead APAjurisdiction. See id
6 Defendant relies most heavily on 8 U.S.C. § 1252(a)(2)(B) to argue against this Court'sjurisdiction overthe AAO'sdecision. That section, which expressly forbids any court from reviewing discretionary reliefgranted under Section 13, is largely duplicative of 5U.S.C. § 704 to the extent the latterprovision generally forbids courts from reviewing discretionary agency action. See Pinho, 432 F.3d at 200 n.9. 5federal 

### Court of Appeals. 8 U.S.c. 

### § 1252(a)(5);7

### see also Ramaniv. Ashcroft, 378 D.3d 554, 559 (6th Cir. 2004) (noting that the purpose ofthe I.N.A.'s exhaustion requirement is to "allowthe BIA to compile a record which is adequate forjudicial review" (citation omitted)). This review process, not surprisingly, is exclusive. 

### See 8 U.S.C. 

### §§ 1252(b)(9)8 and (d)(l).9 Thus, other courts who have confrontedthis issue have reached the same conclusion. 

### See Howell v. INS, 72 F.3d 288,293 (2d Cir. 1995) (findingjurisdiction lacking where removal proceedings had begun because denials ofstatus adjustment may be reviewed by immigrationjudges); 

### cfPinho, 432 F.3d at 200-201 (holding that an AAO eligibility determination is "final" and ripe for district courtreview ifremoval proceedings have not been initiated, but noting that judicial review is barred in cases where removal proceedings have begun).

78 U.S.C. § 12S2(a)(S) provides, in relevant part: "Notwithstanding any other provision oflaw
... a petition for review filed with an appropriate court ofappeals in accordance with this section shall be the sole and exclusive means forjudicial review ofan order ofremoval entered orissued under any provision ofthis chapter, except as provided in subsection (e) ofthis section."
8 8 U.s.c. § 12S2(b)(9) provides, in relevantpart: "Judicial review or all questions oflaw and fact, including interpretation and application ofconstitutional and statutory provisions, arising from any action taken orproceeding brought to remove an alien from the United States underthis subchapter shall be available only injudicial review ofa final order underthis section. Except as otherwise provided in this section, no court shall have jurisdiction
... to review such an order or such question oflaw or fact."
9 8 U.S.C. § 12S2(d)(l)provides: "A court may review a final order ofremoval only ifthe alien has exhausted all administrative remedies available to the alien as of right." 

### 6

### CONCLUSION Thus, having failed to exhausther administrative remedies, this Court lacks jurisdiction overMaalouf's case and defendant's Motion to Dismiss her complaint is GRANTED. An appropriate order

### will accompany this Memorandum Opinion.

RICHARD. ON United States District Judge

7