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Keywords

defendantjurisdictionmotioncitizenshipdeportationjudicial reviewmotion to dismiss

defendantjurisdictionstatutemotionmotion to dismiss

Related Cases

United States Kolenovic v. United States Citizenship & Immigration Servs

Facts

Kolenovic arrived in the United States from the former Yugoslavia shortly after her first birthday and obtained temporary residence under the Immigration Reform and Control Act (IRCA) in 1989. Her application for permanent residence was due 43 months later, but she submitted it approximately 19 months late, leading to its denial. Kolenovic claimed that her late filing was due to ineffective assistance of counsel. After her temporary resident status was terminated, she filed a second application, which was also denied as moot.

Kolenovic arrived in the United States on September 1, 1979, and obtained temporary residence under the IRCA on November 8, 1989. Her application for permanent residence was due forty-three months later, but she did not submit it until December 5, 1994.

Issue

Whether the court has jurisdiction to review the denial of Kolenovic's application for adjustment of status, which was denied based on a late filing.

Rule

Under 8 U.S.C. 1255a(f)(2), no denial of adjustment of status based on a late filing may be reviewed by a court. Additionally, judicial review of such denials is only permitted in the context of an order of deportation.

No denial of adjustment of status under this section based on a late filing of an application for such adjustment may be reviewed by a court of the United States or of any State or reviewed in any administrative proceeding of the United States Government.

Analysis

The court determined that Kolenovic's first application was denied because it was not filed within the required 43 months after her temporary resident status was granted. Since both her applications were denied based on late filing, the court concluded that it lacked jurisdiction to hear her claim. Furthermore, Kolenovic was not subject to an order of deportation, which further precluded judicial review.

The Court need not look beyond the clear text of the statute to conclude that it lacks jurisdiction. Kolenovic's first application was denied because it 'was not filed within 43 months after the approval of [her] application for temporary resident status.'

Conclusion

The court granted the defendant's motion to dismiss due to lack of jurisdiction over Kolenovic's claim.

Defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(1) is therefore GRANTED.

Who won?

The United States Citizenship and Immigration Service (USCIS) prevailed because the court found it lacked jurisdiction to review the denial of Kolenovic's application based on the clear statutory language.

The Court therefore lacks jurisdiction to hear Kolenovic's claim.

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