Midge's Nephew involved in Ponzi Scheme
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
ROSSY LAURA RIVERA-DURMAZ, )
MAHMUT ERHAN DURMAZ, )
v. ) No. 05 C 3885
MICHAEL CHERTOFF, Secretary ) Judge Rebecca R. Pallmeyer
Department of Homeland Security, )
ALBERTO GONZALEZ, MICHAEL )
COMFORT, Chicago, Illinois District )
Director, United States Citizenship and )
Immigration Services, )
MEMORANDUM OPINION AND ORDER
Plaintiffs Rossy Laura Rivera-Durmaz and her husband, Mahmut Erhan Durmaz, sued
Defendants Secretary of Homeland Security Michael Chertoff, Attorney General Alberto Gonzales,
and Director Michael Comfort of the U.S. Citizenship and Immigration Services (“CIS”) Chicago
District Office in their official capacities. Invoking the Administrative Procedures Act, 5 U.S.C.
§ 702, Plaintiffs allege that agency decisions denying Mr. Durmaz’s application for an adjustment
of his alien status and a waiver of inadmissibility were arbitrary, capricious, and contrary to the law.
Defendants have moved to dismiss the complaint for lack of jurisdiction and for failure to state a
claim. In addition, Defendants have moved to supplement the record with evidence that the CIS
has issued a notice to appear for Mr. Durmaz. Plaintiffs move to strike all references to that notice
to appear and oppose Defendants’ motion to dismiss. For the reasons set forth here, the motion
to dismiss is granted, and the motions to strike and to supplement the record are denied as moot.
For purposes of this motion, the facts alleged in Plaintiffs’ First Amended Complaint (“FAC”)
are presumed true. Plaintiff Rossy Laura Rivera-Durmaz (hereinafter, “Mrs. Durmaz,”) is a U.S.
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1 Although the complaint does not specify a relationship between Pribilski and Mr.
Durmaz, the CDO characterized Pribilski as Mr. Durmaz’s business partner. (Decision on
Application for Waiver of Grounds of Inadmissibility (hereinafter, “CDO Decision”), Ex. 1 to
Defendants’ Motion to Dismiss, at 2.)
citizen who in 2003 resided in Illinois with her husband, Plaintiff Mahmut Erhan Durmaz, who
entered the United States legally (from Turkey, the court infers). (FAC ¶¶ 4,5.) On May 5, 2003,
Mrs. Durmaz filed a Form I-130 petition for alien relative and Mr. Durmaz filed a Form I-485 petition
for adjustment of status to lawful permanent resident with the U.S. Citizenship and Immigration
Services Chicago District Office (hereinafter, “CDO”). (Id.¶ 10.) More than a year later, Defendants
scheduled a routine interview for October 5, 2004.
Plaintiffs allege that their attorney advised Mrs. Durmaz that a letter from her employer might
bolster Mr. Durmaz’s application. (Id. ¶ 32.) Because she believed that requesting such a letter
from her employer would be an imposition, she instead requested that Robert C. Pribilski,1 the
President of USA Financial Management Services, Inc. prepare and submit an employment letter
on her behalf. (Id. ¶¶ 30-31, 33-35.) Pribilski’s letter stated that Mrs. Durmaz worked for him in
Oakbrook, Illinois, and that she resided with Mr. Durmaz at an undisclosed Illinois address. (Id. ¶
37.) In fact, however, although she “had helped around the [USA Financial] office in the past,” Mrs.
Durmaz was not an employee of USA Financial Management Services, Inc. and, moreover, she
was residing in New Jersey at the time without Mr. Durmaz. (Id. ¶ 38.) Mrs. Durmaz nonetheless
submitted the Pribilski letter at the October 5, 2004 hearing. Plaintiffs allege that Mr. Durmaz
himself had no knowledge of the Pribilski letter or of its contents. (Id. ¶¶ 30, 39-40.) They allege,
further, that they answered all questions at the October 5, 2004 hearing truthfully, but Defendants
refused to rule on the petition “allegedly because security clearances could not be completed at that
time.” (Id. ¶ 12.)
As of June 1, 2005, when Plaintiffs appeared for an “Infopass interview,” CIS staff advised
them that the case remained pending because the security clearances had not yet been completed.
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2 In the waiver request, Mrs. Durmaz explained that she would suffer hardship if Mr.
Durmaz’s petition were denied because he supports Mrs. Durmaz and his two step-children;
because she is suffering from an adjustment disorder, anxiety, and depression as a result of marital
difficulties; because permanent separation from her husband will exacerbate her difficulties
because she “blames her infidelity” for her marital trouble and hopes to “reconcile” with her
husband; and because the “persecution and social isolation of Christians” in Turkey precludes her
from taking her children there to visit Mr. Durmaz. (FAC ¶ 60.)
(Id. ¶¶ 16-17.) Repeated personal and telephone contacts with CIS yielded no results and on
July 1, 2005, Plaintiffs initiated this lawsuit. (Id. ¶¶ 18-20.) At this point, the CDO scheduled a
second “adjustment of status interview,” an action that Plaintiffs call “suspect” because petitions
such as theirs are “normally decided after one interview” and because, in Plaintiffs’ view, a second
interview would be of no assistance in obtaining the security clearances Defendants had claimed
were necessary. (Id. ¶¶ 21, 23-24.) Indeed, when Plaintiffs did appear for the interview on
August 26, 2005, they allege, Defendants made no effort to investigate the issue of security
clearances but instead conducted a “de novo interview.” (Id. ¶ 27.)
Defendants approved the I-130 petition, thus classifying Mr. Durmaz as the immediate
relative of a United States citizen. They refused, however, to act on Mr. Durmaz’s I-485 petition for
adjustment of status. (Id. ¶¶ 28-29.) Instead, Plaintiffs allege, Defendants “insisted on inquiring
into” the Pribilski letter. (Id. ¶¶ 30-31.) The CDO concluded, based on that letter, that Mr. Durmaz
was inadmissible as an alien who misrepresented himself to an immigration officer. (Id. ¶ 42.)
Plaintiffs allege that on November 3, 2005, they requested that the CDO reconsider its finding on
inadmissibility, but they have never received a decision. (Id. ¶¶ 55, 57.) Plaintiffs also asked for
a waiver which would have allowed Mr. Durmaz to receive a green card in spite of his
misrepresentations because of the extreme hardship Mrs. Durmaz would face without him.2 (Id.
¶¶ 58, 60.)
In two decisions issued on November 17, 2005, the CDO denied the request for a waiver,
“formally pronounced their determination of inadmissibility” and denied Mr. Durmaz’s I-485 petition.
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(Id. at ¶¶ 61-62.) In his decision on the application for a waiver, a copy of which is attached to
Defendants’ Motion to Dismiss, Defendant Comfort observed that at the August 26, 2005 interview,
Mrs. Durmaz declared in sworn statement that she legally married Mr. Durmaz on December 29,
2002; that she resided with him in Illinois for the first four months of 2003 before moving to New
Jersey; that she had never worked for USA Financial Management Services in Illinois and instead
was employed by Bioreference Labs in New Jersey; and that she had spoken to Mr. Durmaz about
the fraudulent Pribilski letter before submitting it on Mr. Durmaz’s behalf. (CDO Decision, at 1-2.)
The CDO approved Mr. Durmaz’s I-130 petition because the Immigration and Nationality Act
provides that “a marriage for immigration purposes need only be bona fide at inception,” Mr.
Durmaz remained legally married, and Mrs. Durmaz was not seeking a divorce. (Id. at 2.) The
CDO denied the I-485 petition, however, on the ground that Mr. Durmaz is “an alien who
misrepresented himself to an immigration officer,” within the meaning of Section 212(a)(6)(C)(i) of
the Immigration and Nationality Act. (Id. at 1.) The CDO denied Plaintiff’s request for a waiver of
inadmissibility because it was unpersuaded by Plaintiffs’ evidence of “extreme hardship.” (Id. at 3-
5.) The decision concluded by notifying Plaintiffs of their right to appeal and explaining the steps
they needed to take to pursue an appeal. (Id. at 5.)
On December 5, 2005, Plaintiffs filed their First Amended Complaint seeking review of that
finding. They allege it is contrary to law and to Defendants’ own regulations; that it is arbitrary and
capricious; that it is without rational explanation, unsupported by substantial evidence, and in bad
faith. (FAC ¶¶ 62-70.) Plaintiffs ask the court to vacate the CDO’s November 17, 2005, decisions
on inadmissibility and denial of waiver and order the approval of Mr. Durmaz’s I-485 petition. (Id.
On December 23, 2005, Defendants moved to dismiss this case, arguing that the court has
no power to review the CDO’s discretionary decisions and that Plaintiffs had failed to exhaust their
administrative remedies. Plaintiffs filed a response in opposition to that motion. Attached as an
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exhibit to Defendants’ reply memorandum was a copy of a notice, issued on January 23, 2006,
directing Mr. Durmaz to appear at a hearing in removal proceedings on March 31, 2006. Plaintiffs
moved to strike that exhibit, and Defendants responded by filing a motion to supplement the record
with the notice. The court addresses these three motions below.
Defendants have moved to dismiss this case on two bases. First, they argue that the district
court lacks jurisdiction to review the CIS’s discretionary decision to deny adjustment of Mr.
Durmaz’s alien status. (Defendants’ Memorandum in Support of the Motion to Dismiss Plaintiffs’
First Amended Complaint (hereinafter, “Defs.’ Mem.”), at 1-2.) In the alternative, Defendants
contend that Plaintiffs have not exhausted administrative remedies that remain available to them:
Specifically, they remain free to appeal the adverse decision to the Administrative Appeals Office
(“AAO”) or before an Immigration Judge in connection with removal proceedings, should such
proceedings take place. (Id. at 6-7.) The court addresses the arguments in turn.
Plaintiffs’ complaint invokes the court’s jurisdiction pursuant to the Immigration and
Nationality Act, 8 U.S.C. § 1101, et seq; the Administrative Procedures Act, 5 U.S.C. § 701, et seq.;
and 28 U.S.C. §§ 1331, 1346(a)(2). (FAC ¶ 2.) As Defendants characterize the complaint,
Plaintiffs are seeking review and reversal of a discretionary decision on the part of District Director
Michael Comfort to deny Mr. Durmaz’s petition for adjustment of his alien status and waiver of the
grounds of inadmissibility. The district court has no discretion to review such a decision,
Defendants assert, citing 8 U.S.C. § 1252(a)(2)(B)(ii), as recently amended by Section 101(f) of the
REAL ID Act of 2005, Pub. L. 109-13, Div. B, 119 Stat. 231 (2005). As amended, Defendants urge,
the Immigration and Nationality Act makes clear that the jurisdictional bar to judicial review of
certain discretionary decisions extends to any such decisions, regardless whether the challenged
determination was made in removal proceedings. (Defs.’ Mem., at 4.) The relevance of
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Defendants’ objection turns on the questions of whether and which of the CDO’s November 17,
2005 decisions were in fact discretionary.
A. Statutory Framework
Several statutes bear on the inquiry before the court. The jurisdiction-stripping provision of
the amended Immigration and Nationality Act reads in relevant part:
Notwithstanding any other provision of law (statutory or nonstatutory) . . . no court
shall have jurisdiction to review (i) any judgment regarding the granting of relief
under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any other
decision or action of the Attorney General or the Secretary of Homeland Security,
other than the granting of relief under section 1158(a) of this title.
8 U.S.C. § 1252(a)(2)(B). Section 1255 sets out the administrative procedure for an alien seeking
permanent residence status:
The status of an alien who was inspected and admitted or paroled into the United
States . . . may be adjusted by the Attorney General, in his discretion and under
such regulations as he may prescribe, to that of an alien lawfully admitted for
permanent residence if (1) the alien makes an application for such adjustment, (2)
the alien is eligible to receive an immigrant visa and is admissible to the United
States for permanent residence, and (3) an immigrant visa is immediately available
to him at the time his application is filed.
8 U.S.C. § 1255(a) (emphasis added). The notion that an alien is inadmissible for lying to an
immigration official does not itself appear in § 1255, but § 1182(a)(6)(C)(i) commands, “Any alien
who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure
or has procured) a visa, other documentation, or admission into the United States or other benefit
provided under this chapter is inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(i). Finally, Section 1182(i)
authorizes the Attorney General to award an adjustment of the alien’s status even if he or she is
otherwise inadmissible due to a misrepresentation:
(1) The Attorney General may, in the discretion of the Attorney General, waive the
application of clause (i) of subsection (a)(6)(C) of this section in the case of an
immigrant who is the spouse, son, or daughter of a United States citizen or of an
alien lawfully admitted for permanent residence 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 or parent of such an alien[.]
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(2) No court shall have jurisdiction to review a decision or action of the Attorney
General regarding a waiver under paragraph (1).
8 U.S.C. § 1182(i).
As Defendants see it, 8 U.S.C. §§ 1252(a)(2)(B) and 1182(i) settle the question. The court
cannot review the November 17, 2005 decision denying Mr. Durmaz’s I-485 petition on the grounds
that he was inadmissible because such a case involves a judgment regarding the grant of relief
under § 1255. (Defs.’ Mem., at 3-4.) And the court cannot review the November 17, 2005 decision
denying Mr. Durmaz’s petition for waiver of inadmissibility on the grounds that Mrs. Durmaz’s plight
does not rise to the level of extreme hardship because such a case involves a judgment regarding
a grant of relief under § 1182(i).
B. Legal Determinations vs. Discretionary Determinations:
Adjustment of Status
Plaintiffs nevertheless contend the court has the power to proceed here. They argue that
Defendants’ decision to deny Mr. Durmaz’s I-485 application was not discretionary, but instead was
based on a legal determination: that Mr. Durmaz had “misrepresented himself to an immigration
officer.” (Opposition to Defendant’s Motion to Dismiss and Memorandum in Support (hereinafter,
“Pls.’ Resp.”), at 7.) Plaintiffs cite several decisions from Courts of Appeals holding that while the
relevant statutes prohibit review of discretionary decisions, court review remains available for
decisions like the one at issue here, involving statutory eligibility for discretionary relief. For
example, in Singh v. Gonzales, 413 F.3d 156 (1st Cir. 2005), the First Circuit upheld a decision of
the Board of Immigration Appeals that petitioner was ineligible for adjustment of his status because
he had made misrepresentations in his application. The court noted that its jurisdiction was secure;
the statute only “limits judicial review of discretionary denial of adjustment of status applications,”
and does not bar review of a decision that the petitioner “did not meet the statutory prerequisite of
admissibility.” 413 F.3d at 160 n.4. In Pinho v. Gonzales, 432 F.3d 193 (3rd Cir. 2005), the Third
Circuit reversed a decision of the INS Office of Administrative Appeals (“OAA”) denying adjustment
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of the immigrant’s status on the basis of his criminal record. The court concluded that because the
petitioner’s criminal conviction had been vacated, the OAA erred as a matter of law in concluding
that he was statutorily ineligible for adjustment to his status. Although the court recognized that the
decision whether to grant adjustment of status “is a matter entrusted to the discretion of the
agency,” the court nevertheless retained the power to review “[n]on-discretionary actions, . . . and
purely legal determinations made by the agency.” 432 F.3d at 204, 216. See also Sepulveda v.
Gonzales, 407 F.3d 59, 63 (2nd Cir. 2005) (“§ 1252(a)(2)(B) does not bar judicial review of
nondiscretionary, or purely legal, decisions regarding an alien’s eligibility for [cancellation of
removal]”; collecting cases from other circuits reaching the same conclusion); Hernandez v.
Ashcroft, 345 F.3d 824, 847 (9th Cir. 2003) (Court of Appeals had jurisdiction to review a final
decision of the Board of Immigration Appeals denying suspension of deportation; the decision
whether petitioner satisfied the statutory requirement set forth in the Violence Against Women Act
did not involve the exercise of discretion); Soto-Sosa v. United States Attorney General, 154 Fed.
Appx. 141, 144 (11th Cir. 2005) (where petitioner had illegally reentered the country, Court of
Appeals had jurisdiction to review reinstatement of an earlier order of removal; denial of application
for adjustment of status was based on his statutory ineligibility rather than an exercise of discretion).
In at least one case, the Seventh Circuit brushed aside an appeal from the denial of
adjustment of status as beyond the court’s jurisdiction. Specifically, in McBrearty v. Perryman, 212
F.3d 985, 986 (7th Cir. 2000), where plaintiffs sought adjustment of their immigration status, the
district director denied their applications, “primarily as untimely.” They sought review of the
decision, but the district court dismissed the case for lack of jurisdiction and the Court of Appeals
affirmed, without analysis of the question whether the agency’s decision was discretionary or a
determination that the untimeliness of the applications rendered plaintiffs statutorily ineligible for
adjustment. Id. at 987. In Iddir v. INS, 301 F.3d 492 (7th Cir. 2002), the Seventh Circuit concluded
that the INS did not exercise its discretion at all when it refused to adjust time-sensitive visa lottery
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applications because the window in which these applications could be adjusted had closed. The
Iddir court characterized this procedural denial as nondiscretionary and therefore outside of the
scope of 8 U.S.C. § 1252(a)(2)(B)(i), but, citing McBrearty, speculated that “[i]f the appellants had
their applications heard and were denied adjustment of status under section 1255 on the merits,
that would be a ‘judgment’ or ‘decision or action’ likely covered by section 1252(a)(2)(B).” Id. at
In several other cases, however, the Seventh Circuit has acknowledged a distinction
between legal standards of eligibility for adjustment of status, on the one hand, and discretionary
bases for the denial of an application for adjustment of status, on the other. In Mireles v. Gonzales,
433 F.3d 965, 968 (7th Cir. 2006), the court observed that the federal judiciary had no jurisdiction
to review the discretionary decision of an Immigration Judge (“IJ”) and the Board of Immigration
Appeals (“BIA”) that the hardship the applicant’s mother would suffer if he were removed was not
“exceptional and extremely unusual” under 8 U.S.C. § 1229b(b)(1). The court did, however, appear
to acknowledge it would have had power to review the decision if the immigration judge had made
a “legal error” in understanding the meaning of the statutory language. Id. at 969.
In at least two cases where plaintiffs sought cancellation of removal, the Seventh Circuit
recognized the distinction between a statutory ineligibility and a discretionary denial of that relief.
In Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir. 2004), the appellant sought review of the
BIA’s decision denying his request for cancellation of removal. The Court of Appeals concluded
it had jurisdiction, in spite of the broad language of § 1252(a)(2)(B)(i), to determine whether the IJ
applied the correct legal standard for finding the petitioner’s “continuous physical presence” in the
United States, a nondiscretionary prerequisite to the exercise of the Attorney General’s
discretionary judgment under § 1229b. Id. at 421-22 (citing Fornalik v. Perryman, 223 F.3d 523,
532 (7th Cir. 2000)); see also 8 U.S.C. § 1252(a)(2)(D) (“Nothing in subparagraph (B) or (C), or in
any other provision of this chapter (other than this section) which limits or eliminates judicial review,
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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.”) And
where an IJ denied a petitioner’s request for cancellation of removal for two reasons, one based
on the statutory requirements (reviewable, the court held) and another based on the absence of
“good moral character” (not reviewable), the Seventh Circuit ordered a remand to permit the BIA
to explain the basis for its decision to uphold the IJ’s ruling. Cuellar Lopez v. Gonzales, 427 F.3d
492, 493-94 (7th Cir. 2005).
For purposes of this decision, the court assumes that § 1252(a)(2)(B) does not bar review
of an agency decision that petitioner does not meet the legal standards for adjustment of his status.
To the extent that Defendants’ motion seeks to bar judicial review of the question whether Mr.
Durmaz is guilty of a misrepresentation that bars him from seeking such relief, the motion is denied
C. Legal Determinations vs. Discretionary Determinations:
Waiver of Inadmissibility
Plaintiffs here challenge not only the District Director’s determination that Mr. Durmaz is not
eligible for an adjustment of status, but also the Director’s refusal to waive Mr. Durmaz’s
inadmissibility. The parties have devoted less attention to this aspect of Plaintiffs’ complaint, and
the court concludes Defendants stand on much firmer ground in arguing that the court lacks
jurisdiction to review that decision. As described above, Plaintiff sought a waiver of admissibility
pursuant to 8 U.S.C. § 1182(a)(6)(C)(iii) on the basis of the “extreme and exceptional hardship” Mrs.
Durmaz would suffer if Mr. Durmaz is not admitted to the United States. See 8 U.S.C. § 1182(i).
In his written decision denying Mr. Durmaz’s application for a waiver of inadmissibility, Mr. Comfort
reviewed the evidence of economic hardship, emotional and psychological hardship, and cultural
hardship Plaintiffs had offered. He concluded that “neither individually nor in the aggregate do the
circumstances rise to the level of extreme hardship.” (CDO Decision, at 5.)
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Courts that have addressed the question have uniformly concluded that a decision denying
a waiver of inadmissibility on hardship grounds is discretionary and not subject to judicial review.
In Zhang v. Gonzales, 457 F.3d 172, 175 (2d Cir. 2006), the Second Circuit was asked to determine
whether a determination that an alien’s relative has not shown “extreme hardship” sufficient under
§ 1182(i) to support a waiver of inadmissibility was a discretionary decision, and not subject to
judicial review. The Zhang court likened the inquiry under § 1182(i) to that made under the
provisions of the Immigration and Nationality Act which allow for cancellation of removal under
certain conditions. Id. The court observed that “[a]lthough the phrasing of the § 1182(i)(1) standard
and the § 1229b(b)(1)(D) standard varies slightly, the Attorney General makes both decisions in the
same manner: by evaluating the same discretionary factors in light of the facts and circumstances
of a given case.” Id. The court concluded that the § 1182(i) extreme hardship determination is
discretionary and that § 1252(a)(2)(B)(i) therefore stripped the court of jurisdiction to review the
petition before it. Id. at 175-76. See also Okpa v. U.S. INS, 266 F.3d 313, 317 (4th Cir. 2001)
(“we lack jurisdiction to review Okpa’s claim that the BIA abused its discretion in concluding that
his wife would not endure extreme hardship. The question of whether an alien can show extreme
hardship is committed to the Attorney General’s discretion by statute.”).
The Zhang court’s analogy of the hardship determination for a waiver of admissibility to the
similar hardship determination for a cancellation of removal is significant. In Mireles, 433 F.3d at
968, the Seventh Circuit considered a petition for review of denial of a petition for cancellation of
removal to an alien who contended that his removal from the United States would “cause
exceptional hardship to his widowed mother, a naturalized citizen of the United States who, Mireles
maintains, depends on his emotional support and his (illegal) earnings.” The IJ and the BIA
concluded this hardship was not “exceptional and extremely unusual” and therefore denied the
request for cancellation. Id. The Seventh Circuit held squarely: “We lack jurisdiction to review his
contention that the agency should have exercised discretion in his favor. Decisions under § 1229b
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are not reviewable by the federal judiciary.” Id. (citing 8 U.S.C. § 1252(a)(2)(B)(i); Leyva v.
Ashcroft, 380 F.3d 303 (7th Cir. 2004). Cf. El-Khader v. Monica, 366 F.3d 562, 568 (7th Cir. 2004)
(holding that the court was without jurisdiction to review the Attorney General’s exercise of
discretion to revoke petitioner’s worker’s visa on the basis of a finding of marriage fraud for
This court concludes it lacks jurisdiction to review Defendant’s discretionary decision that
Plaintiffs did not establish extreme hardship to Mrs. Durmaz that would support a waiver of
inadmissibility for Mr. Durmaz.
II. Exhaustion of Administrative Remedies
As an alternative to the jurisdictional argument, Defendants urge the court to dismiss this
case due to Plaintiffs’ failure to exhaust their administrative remedies. According to Defendants,
Plaintiffs are entitled to and required to review the November 17, 2005 decision denying Mr.
Durmaz’s request for an adjustment of status in removal proceedings. (Defs.’ Mem., at 3.) Plaintiffs
contend that they have the option of renewing their request for adjustment of status before an
immigration judge in a removal proceeding, but that they are not required to do so by statute or
agency regulation and are not otherwise bound by an exhaustion requirement. (Pls.’ Resp., at 11-
12.) They rely chiefly on Darby v. Cisneros, which held that when a party challenges a final agency
decision under the Administrative Procedures Act,
an appeal to “superior agency authority” is a prerequisite to judicial review only
when expressly required by statute or when an agency rule requires appeal before
review and the administrative action is made inoperative pending that review.
509 U.S. 137, 154 (1993). As Darby directs, to determine whether exhaustion is required, the court
must consider language of the Immigration and Nationality Act and agency regulations. The sole
express reference to exhaustion in the Immigration and Nationality Act itself pertains only to
removal orders and states:
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A court may review a final order of removal only if (1) the alien has exhausted all
administrative remedies available to the alien as of right, and (2) another court has
not decided the validity of the order, unless the reviewing court finds that the petition
presents grounds that could not have been presented in the prior judicial proceeding
or that the remedy provided by the prior proceeding was inadequate or ineffective
to test the validity of the order.
8 U.S.C. § 1252(d). Perhaps because of the bar on any review of discretionary decisions, the Act
sets forth no explicit requirement that an alien seeking adjustment of his status must exhaust
administrative remedies; applicable agency regulations do suggest such a requirement, however.
The regulations governing decisions on I-485 petitions state, “No appeal lies from the denial of an
application by the director, but the applicant, if not an arriving alien, retains the right to renew his
or her application in proceedings under 8 CFR part 240 [regulations governing removal
proceedings].” 8 C.F.R. § 245.2(a)(5)(ii). As Plaintiffs read this regulation, exhaustion is optional.
Seventh Circuit case law is to the contrary. In McBrearty, 212 F.3d at 986, the plaintiffs
sought judicial review of the refusal of the district director of the immigration service to adjust their
status under 8 U.S.C. § 1255. The plaintiffs were not the subjects of removal proceedings at the
time they filed for review in federal district court, and Judge Posner concluded:
The suit was premature, since, as the plaintiffs acknowledge, they could obtain
review of the district director's decision by the Board of Immigration Appeals if and
when the immigration service institutes removal (i.e., deportation) proceedings
against them. . . . They thus have failed to exhaust their administrative remedies.
Id. at 987; see also Kashani v. Nelson, 793 F.2d 818, 824 (7th Cir. 1986) (requiring plaintiff to await
removal proceedings in order to exhaust administrative remedies before he could seek judicial
review of an agency decision denying him asylum); accord Cardoso v. Reno, 216 F.3d 512, 518
(5th Cir. 2000) (the option of a rehearing on the agency’s refusal to adjust petitioner’s status
imposes an exhaustion requirement); cf. Howell v. INS, 72 F.3d 288, 294 (2nd Cir. 1995) (once
deportation proceedings are commenced, alien is required to exhaust administrative remedies,
instead of directly seeking review in district court; district court therefore properly dismissed action
seeking review of the district director’s denial of his application for adjustment of his status); Chan v.
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Reno, 916 F. Supp. 1289, 1297-99 (S.D.N.Y. 1996); cf. Gonzalez v. O’Connell, 355 F.3d 1010,
1016-17 (7th Cir. 2004) (no requirement of exhaustion precludes constitutional challenge brought
by alien subject to mandatory detention).
Plaintiffs make much of the fact that Defendants had not issued a notice to appear or
otherwise initiated removal proceedings at the time their original complaint was filed, and argue that
Defendants may not by such action deprive the court of jurisdiction. (Further Opposition to
Defendant’s Motion to Dismiss and Memorandum in Support of Motion to Strike Exhibit 2 and Any
Reference to it From Defendant’s Reply Memorandum in Support of the Motion to Dismiss Plaintiffs’
First Amended Complaint, at 3-4.) The court notes, however, that no recent case appears to permit
review by a district court of a district director’s decision to deny adjustment of status. The court
declines to review Defendants’ determination on Mr. Durmaz’s eligibility for adjustment of status
until Plaintiffs have exhausted their administrative remedies—specifically, consideration of the
matter by an Immigration Judge and review by the Board of Immigration Appeals.
For the above stated reasons, Defendants’ motion to dismiss for lack of jurisdiction (16) is
granted. The court lacks jurisdiction to review the agency’s discretionary denial of Plaintiffs’ request
for a waiver of inadmissibility. Plaintiffs’ challenge to the determination regarding Mr. Durmaz’s
legal eligibility for adjustment of status is dismissed without prejudice pending exhaustion of
administrative remedies. Plaintiffs’ motion to strike (30) and Defendants’ motions to supplement
the record (33, 40) are denied as moot.
Dated: September 29, 2006 ____________________________________
REBECCA R. PALLMEYER
United States District Judge
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