NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

____________________________________

:

ROEL NAPICOL OLAVIDES, :

A070-910-047, :

:

Plaintiff, : Civil Action No. 11-0547 (JAP)

v. :

:

JANET NAPOLITANO, SECRETARY, : OPINION

UNITED STATES DEPARTMENT OF :

HOMELAND SECURITY, et al., :

:

Defendants. :

___________________________________ :

PISANO, District Judge.

Plaintiff Roel Napicol Olavides brings this action seeking a declaration that he is eligible

for a waiver of inadmissibility under Section 212(i) of the Immigration and Nationality Act 

(“INA”). Presently before the Court is Defendants’ motion to dismiss Plaintiff’s complaint 

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons below, the 

Court will grant Defendants’ motion. 

I. BACKGROUND1

Plaintiff is a native and citizen of the Philippines. He entered the United States on or 

about May 31, 1990, and was later found to be inadmissible under Section 212(a)(6)(C)(i) of the 

INA, 8 U.S.C. § 1182(a)(6)(C)(i), for seeking to procure admission to the United States through 

fraud or misrepresentation. Following his marriage to a United States citizen on March 8, 2002, 

Plaintiff submitted an application to United States Citizenship and Immigration Services 

 

1

In addressing a motion to dismiss, the Court must accept as true the allegations contained in a complaint. See Toys 

"R" US, Inc. v. Step Two, S.A., 318 F.3d 446, 457 (3d Cir. 2003); Dayhoff, Inc. v. H.J. Heinz Co., 86 F.3d 1287, 

1301 (3d Cir. 1996). Accordingly, the facts recited herein are taken from the complaint unless otherwise indicated; 

they do not represent this Court’s factual findings.

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(“USCIS”) for adjustment of status pursuant to 8 U.S.C. § 1255 and for a waiver of 

inadmissibility pursuant to INA Section 212(i), 8 U.S.C. § 1182(i). 

The Newark Field Office denied Plaintiff’s applications in February and March 2008, 

respectively. In denying his application for a waiver of inadmissibility, the Field Office Director 

concluded that Plaintiff failed to establish that a bar to his admission would result in “extreme 

hardship” to his wife as defined in 8 U.S.C. § 1182(i). On appeal, the Administrative Appeals 

Office (“AAO”) reached the same conclusion, determining that Plaintiff had not met his burden 

of establishing “extreme hardship” to his wife. Thus, the AAO dismissed Plaintiff’s appeal. 

On January 28, 2011, Plaintiff filed a complaint in this Court. Therein, he seeks a 

declaration that he is eligible for a waiver of inadmissibility based upon demonstrated “extreme 

hardship” to his wife. He challenges the USCIS’ determinations that he had not met his burden 

of establishing that a waiver of inadmissibility was warranted, and asserts that those 

determinations were based upon a misinterpretation of the term “extreme hardship.” 

On June 24, 2011, Defendants filed a motion to dismiss Plaintiff’s complaint pursuant to 

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendants contend that the Court lacks 

jurisdiction over Plaintiff’s complaint because he seeks review of the USCIS’ factual and 

discretionary determinations, and because Plaintiff is in deportation proceedings, see Owen 

Decl., Ex. B, and therefore has not exhausted his administrative remedies. Additionally, 

Defendants assert that Plaintiff’s complaint should be dismissed because it is comprised of mere

labels and conclusions, and thus fails to state a claim upon which relief can be granted. Plaintiff 

did not file an opposition to Defendants’ motion.

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II. STANDARDS OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) allows a party to move for dismissal of claims 

based on a lack of subject matter jurisdiction. Challenges to jurisdiction under 12(b)(1) may be 

either facial or factual. Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006). A 

facial attack challenges the sufficiency of the pleadings, and the trial court “must consider the 

allegations of the complaint as true.” Id. However, in a factual attack, plaintiff’s allegations are 

afforded no presumption of truthfulness, id., and the trial court may review evidence outside the 

pleadings. Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). The 

plaintiff bears the burden of establishing that jurisdiction exists. Petruska, 462 F.3d at 302 n.3. 

Under Federal Rule of Civil Procedure 12(b)(6), a court may grant a motion to dismiss if 

the complaint fails to state a claim upon which relief can be granted. The Supreme Court set 

forth the standard for addressing a motion to dismiss under Rule 12(b)(6) in Bell Atl. Corp. v. 

Twombly, 550 U.S. 544 (2007). The Twombly Court stated that, “[w]hile a complaint attacked 

by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s 

obligation to provide the grounds of his entitle[ment] to relief requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 

555 (internal citations omitted). Therefore, for a complaint to withstand a motion to dismiss 

under Rule 12(b)(6), the “[f]actual allegations must be enough to raise a right to relief above the 

speculative level, on the assumption that all the allegations in the complaint are true (even if 

doubtful in fact).” Id. (internal citations and footnote omitted).

More recently, the Supreme Court emphasized that, when assessing the sufficiency of a 

civil complaint, a court must distinguish factual contentions and “[t]hreadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 129 

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S. Ct. 1937, 1949 (2009). A complaint will be dismissed unless it “contain[s] sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 

Twombly, 550 U.S. at 570). This “plausibility” determination will be “a context-specific task 

that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 

1950. To help guide a district court’s evaluation of a motion to dismiss, the Third Circuit has 

established a three-part analysis:

First, the court must “tak[e] note of the elements a plaintiff must plead to state

a claim.” Second, the court should identify allegations that, “because they are 

no more than conclusions, are not entitled to the assumption of truth.” Finally, 

“where there are well-pleaded factual allegations, a court should assume their 

veracity and then determine whether they plausibly give rise to an entitlement 

for relief.”

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 

1947-50)). 

III. ANALYSIS 

As the first basis for dismissing Plaintiff’s complaint, Defendants assert that this Court 

lacks jurisdiction to review the factual and discretionary determinations of the USCIS in denying 

Plaintiff’s application for a waiver of inadmissibility. Under 8 U.S.C. § 1182(i), the Attorney 

General2is afforded discretion to waive the inadmissibility of an individual “who is the spouse, 

son, or daughter of a United States citizen . . . if it is established to the satisfaction of the 

Attorney General that the refusal of admission to the United States of such immigrant alien 

would result in extreme hardship to the citizen or lawfully resident spouse.” Pursuant to 8 

U.S.C. § 1182(i)(2), no court has jurisdiction to review that determination. See 8 U.S.C. § 

1182(i)(2) (“[n]o court shall have jurisdiction to review a decision or action of the Attorney 

 

2

Pursuant to the Homeland Security Act, the authority of the Attorney General was transferred to the Secretary of 

the Department of Homeland Security. 

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General regarding a waiver under paragraph (1).”). Similarly, 8 U.S.C. § 1252(a)(2)(B)(i)

provides that “no court shall have jurisdiction to review any judgment regarding the granting of 

relief under section . . . 1182(i).” 

Here, therefore, the Court lacks jurisdiction to review the USCIS’ denial of discretionary 

relief under 8 U.S.C. § 1182(i). As the plain language of sections 1182(i)(2) and 

1252(a)(2)(B)(i) makes clear, decisions granting or denying waivers of inadmissibility are not 

subject to judicial review. Indeed, courts have consistently held that they lack jurisdiction to 

review “hardship” determinations such as those made by the USCIS in the instant case. See, e.g., 

Jiminez v. Attorney General, 358 F. App’x 355, 356-57 (3d Cir. 2009); Cospito v. Attorney 

General, 539 F.3d 166, 170 (3d Cir. 2008); Corona-Mendez v. Holder, 593 F.3d 1143, 1146 (9th 

Cir. 2010); Rodrigues-Nascimento v. Gonzales, 485 F.3d 60, 62 (1st Cir. 2007); Camara v. Dep’t 

of Homeland Sec., 497 F.3d 121, 124 (2d Cir. 2007). 

Plaintiff seeks to overcome this jurisdictional hurdle by asserting in his complaint that the

USCIS’ errors involved matters of statutory interpretation and questions of law. As an initial 

matter, although 8 U.S.C. § 1252(a)(2)(D) provides for jurisdiction where questions of law or 

constitutional claims are involved, that jurisdiction is conferred upon the “appropriate court of 

appeals,” not district courts. See 8 U.S.C. § 1252(a)(2)(D) (“Nothing in subparagraph (B) . . . 

shall be construed as precluding review of constitutional claims or questions of law raised upon a 

petition for review filed with an appropriate court of appeals in accordance with this section.”). 

Moreover, judicial review is not appropriate simply because the plaintiff “attach[es] a particular 

label to the claim.” Cospito, 539 F.3d at 170 (further noting that any asserted legal question 

must be “colorable”). 

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Here, Plaintiff’s complaint centers on the USCIS’ application of the “extreme hardship” 

standard and takes issues with its decisions that Plaintiff failed to meet that standard.

3

 Thus, 

Plaintiff’s claims involve no more than a challenge to the USCIS’ factual and discretionary 

determinations—determinations that this Court expressly lacks jurisdiction to review. See 8 

U.S.C. § 1182(i)(2); 8 U.S.C. § 1252(a)(2)(B)(i). Accordingly, Plaintiff’s attempt to frame his 

complaint in a manner that overcomes the jurisdictional bars is rejected, and his complaint must 

be dismissed.

In addition to being unreviewable under sections 1182(i)(2) and 1252(a)(2)(B)(i), the 

Court further notes that Plaintiff’s claims warrant dismissal because his deportation proceedings 

have been reopened. See Owen Decl., Ex. B. In that regard, this Court lacks jurisdiction to 

review the USCIS’ determinations because there has been no “final agency action” within the 

meaning of the Administrative Procedure Act, 5 U.S.C § 704. See Pinho v. Attorney General, 

432 F.3d 193, 200 (3d Cir. 2005) (if there remain steps that the plaintiff “can take to have an 

action reviewed within the agency, then the action is not final.”). Indeed, it is well-settled that 

district courts lack jurisdiction to review status adjustment and eligibility determinations if 

removal proceedings are simultaneously pending. Id. (judicial review is barred if removal 

proceedings are instituted against the plaintiff because, under 8 C.FR. § 245.2, applications for 

adjustment of status can be renewed during such proceedings); see, e.g., Pinho, 432 F.3d at 200-

01 (although an AAO eligibility determination is “final” if removal proceedings have not been 

initiated, judicial review is barred in cases where removal proceedings have been commenced); 

Cabaccang v. USCIS, 627 F.3d 1313, 1317 (9th Cir. 2010) (“we join our sister circuits in holding 

 

3 As reflected in the decision attached to Plaintiff’s complaint, see Dkt. Entry 1-2, the AAO applied the prevailing 

law as to meaning of the waiver provisions of the INA and the requirements an applicant must meet in establishing 

extreme hardship to his or her qualifying relative. Id. at 3-7. Thus, Plaintiff’s argument that the AAO misinterpreted 

the definition of “extreme hardship” does not provide a basis for jurisdiction in this Court. See Jiminez v. Attorney 

General, 358 F. App’x 355, (3d Cir. 2009) (argument that agency misinterpreted “hardship” standard does not raise 

a colorable question of law). 

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that district courts lack jurisdiction to review denials of status adjustment if removal proceedings 

are simultaneously pending”) (citing Second Circuit and D.C. Circuit opinions). Accordingly, 

Plaintiff’s complaint must be dismissed.

IV. CONCLUSION

For the reasons above, Defendants’ motion to dismiss is granted. An appropriate Order 

will follow. 

/s/ JOEL A. PISANO 

United States District Judge

Dated: December 12, 2011 

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