John W. Holcomb, UNITED STATES DISTRICT JUDGE

David M. Telfer, DMT Law Firm, Los Angeles, CA, for Plaintiff.

Gregory J. Agron, AUSA - Office of US Attorney, Los Angeles, CA, OIL-DCS Trial Attorney, Office of Immigration Litigation District Court Section, Washington, DC, for Defendants.

AMENDED ORDER DENYING DEFENDANTS’ MOTION TO DISMISS (ECF No. 15)

John W. Holcomb, UNITED STATES DISTRICT JUDGE

Before the Court is the motion of Defendants Alanna Ow, Director of United States Citizenship and Immigration Services ("USCIS"); Terri Robinson, Director of USCIS; Chad Wolf, Acting Secretary of the Department of Homeland Security ("DHS"); William Barr, Attorney General; and Kenneth Cuccinelli, USCIS, to dismiss. The Court finds this matter appropriate for resolution without a hearing. See Fed. R. Civ. P. 78 ; L.R. 7-15. After considering the papers filed in support and in opposition, the Court orders that the Motion is DENIED , as set forth herein.

I. BACKGROUND

A. Procedural Background

On August 27, 2020, Plaintiff Gorkem Somaysoy filed a complaint against Ow, Robinson, Wolf, Barr, and Cuccinelli, alleging three claims for relief: (1) Violation of the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 701 et seq. , by DHS/USCIS; (2) Violation of 5 U.S.C. §§ 553 et seq. , by DHS/USCIS, for injunctive relief; and (3) Violation of the APA § 705, for injunctive relief. Defendants moved to dismiss on December 30, 2020. Somaysoy opposed on January 18, 2020. Defendants replied on February 5, 2021.

B. Factual Background

Somaysoy entered the United States on December 15, 2015, pursuant to a B-2 nonimmigrant visitor's visa. His I-94 entry document granted him six months to remain, or until June 15, 2016. On June 11, 2016, four days before the expiration of those six months, Somaysoy applied for asylum. As of October 2, 2018, USCIS had not taken any action on Somaysoy's asylum application.

On October 2, 2018, non-party Otto Trading, Inc., a California corporation, filed a Form I-140 Immigrant Petition for Alien Worker for Somaysoy. Somaysoy concurrently filed an I-485 Adjustment of Status Application in order to adjust his status to that of a lawful U.S. permanent resident. USCIS approved the I-140 on October 8, 2018. USCIS denied the I-485 on July 10, 2019, without a Request for Evidence or Notice of Intent to Deny, pursuant to Immigration and Nationality Act ("I.N.A.") § 245(c), for failure to maintain lawful status.

II. LEGAL STANDARD

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may bring a motion to dismiss for failure to state a claim upon which relief can be granted. Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires a "short and plain statement of the claim showing that a pleader is entitled to relief," in order to give the defendant "fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). When evaluating a Rule 12(b)(6) motion, a court must accept all material allegations in the complaint—as well as any reasonable inferences to be drawn from them—as true and construe them in the light most favorable to the non-moving party. See Doe v. United States , 419 F.3d 1058, 1062 (9th Cir. 2005) ; ARC Ecology v. U.S. Dep't of Air Force , 411 F.3d 1092, 1096 (9th Cir. 2005).

To survive a motion to dismiss, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ; Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it stops short of the line between possibility and plausibility of ‘entitlement to relief.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). The Ninth Circuit has clarified that (1) a complaint must "contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively," and (2) "the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011). III. DISCUSSION

A. Claim One: Violation of the APA

The APA requires this Court to set aside an agency action found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(C). Somaysoy urges the Court to set aside the denial of his I-485 (application to adjust status) as unlawful. Defendants move to dismiss on the grounds that Somaysoy fails to state a claim as a matter of law, because the denial was lawful and therefore cannot prohibited by the APA.

1. Applicable Statutes and Regulations

This rather complicated question of immigration law requires some background explanation. B-2 (tourist) visas allow travelers for pleasure with no intention of immigrating to visit the U.S. for short periods of time. I.N.A. § 101(a)(15)(B); see also 22 C.F.R. § 41.31 (agency regulations defining pleasure travel). Upon entry, USCIS issues a tourist an I-94 setting the length of his or her stay, usually not longer than six months. See 8 C.F.R. § 1.4. Somaysoy's I-94 allowed him to remain lawfully in the U.S. for six months.

A tourist wishing to become an immigrant has several paths to secure permanent residence (colloquially known as a "green card"). First, he may apply for asylum (discussed infra ). Alternatively, he may apply to adjust his status to that of lawfully admitted for permanent residence if he has some other basis for immigration, such as marriage to a U.S. citizen or employment by a U.S. company. Such adjustment of status is available when "(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." I.N.A. § 245(a).

Adjustment of status is not available to a visitor "who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States." I.N.A. § 245(c)(2). For the purposes of I.N.A. § 245(c)(2), federal regulations identify six categories of people with lawful status: (1) permanent residents; (2) nonimmigrants whose stay has not expired; (3) refugees; (4) asylees; (5) parolees; and (6) certain nurses. 8 C.F.R. § 245.1(d)(1). Additionally, regulations limit the parenthetical "(other than through no fault of his own or for technical reasons)" to the following circumstances:

(i) Inaction of another individual or organization designated by regulation to act on behalf of an individual and over whose actions the individual has no control, if the inaction is acknowledged by that individual or organization ...; or

(ii) A technical violation resulting from inaction of the [U.S. Citizenship and Immigration] Service (as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and the Service has not yet acted on that request) ... [or]

(iii) A technical violation caused by the physical inability of the applicant to request an extension of nonimmigrant stay

from the Service either in person or by mail ... [or]

(iv) [omitted; relevant only to nurses].

8 C.F.R. § 245.1(d)(2).

This case also implicates asylum law, a separate and equally byzantine portion of our immigration legal system. A person may apply for asylum from within the U.S. if he fears persecution in his home country. I.N.A. § 208(a)(1). Technically, asylum applications must be adjudicated within six months of filing. I.N.A. § 208(d)(5)(A)(ii). In practice, however, the process can take years. A pending asylum application is not one of the six enumerated categories of legal status under 8 C.F.R. § 245.1(d)(1) for the purposes of I.N.A. § 245(c). In other words, only upon the granting of asylum does a person gain legal status sufficient to adjust status (although, because the grant of asylum confers a green card, asylees rarely apply to adjust status separately). 8 C.F.R. § 245.1(d)(1)(iv).

2. Analysis

Somaysoy's lawful nonimmigrant status expired on June 15, 2016. Thus, when he applied to adjust status on October 2, 2018, he was not within any of the six enumerated categories of lawful status. For that reason, USCIS denied his application under I.N.A. § 245(c) because he had failed to maintain continuously a lawful status since his entry into the United States. However, Somaysoy had a second, parallel proceeding: on June 11, 2016, he applied for asylum. Somaysoy now argues that because of his pending asylum application, he fell within the exception to § 245(c): he had "failed ... for technical reasons ... to maintain continuously a lawful status since entry into the United States" under 8 C.F.R § 245.1(d)(2)(ii), and, therefore, he remained eligible to apply to adjust status. Defendants aver that USCIS's failure to adjudicate Somaysoy's asylum application is not a "technical reason" excusing his failure to maintain lawful status.

The parties point out that the few district courts around the country to consider this question have split. See Duque Mendez v. Cuccinelli , 467 F. Supp. 3d 1249, 1260 (S.D. Fla. 2020) (upholding USCIS's denial of adjustment of status for similarly-situated plaintiff); Kavafoglu v. Nielsen , 2019 WL 172865, at *4 (S.D. Tex. Jan. 11, 2019) (same); but see Sayin v. United States , 2018 WL 4624827, at *3 (W.D. Tex. Sept. 26, 2018) (reversing denial). However, this Court has before it two more authoritative opinions on the question: one from the Board of Immigration Appeals and one from the Ninth Circuit.

Somaysoy points the Court to the BIA's single consideration of this question. In Matter of L-K- , 23 I. & N. Dec. 677 (BIA 2004), the BIA found that " ‘technical reasons’ for being out of lawful status end when the DHS acts other than favorably on a pending asylum application." Id. at 680. DHS action, in this context, is not limited to granting or denying the asylum application, but includes any act to "approve, deny, refer, or dismiss the asylum application." Id. The BIA held that once DHS has taken one of these actions, the asylum applicant "may no longer be considered to be out of status for technical reasons." Id. at 681. In other words, a person who applies for asylum while on a nonimmigrant visa and then allows that visa to lapse is considered to have failed to maintain lawful status for technical reasons—and, therefore, to be eligible to adjust status—until DHS grants, denies, or refers to an immigration judge his asylum application. Under this analysis, Somaysoy would sufficiently state a claim for relief.

The Ninth Circuit addressed this question last year. After careful examination of 8 C.F.R § 245.1(d)(2)(ii), the court held that what matters for determining "technical reasons" was not whether DHS has taken some action (as in Matter of L-K- ), but rather the ultimate outcome of the asylum application. Attias v. Crandall , 968 F.3d 931, 937-8 (9th Cir. 2020). The court in Attias reasoned that a lapse in status can only be "resulting from inaction" of USCIS—and therefore be a qualifying "technical reason"—if the asylum application is ultimately meritorious. Id. In other words, if the application is ultimately unsuccessful, then the applicant's lapse in status results from his ineligibility for asylum, not from USCIS's delay. If, on the other hand, the application is ultimately granted, then "the alien will be considered to have never been in unlawful status," so the temporary lapse in status is due to technical reasons on USCIS's part. Id. at 939. In summary, a " ‘technical violation’ thus occurs only if the alien's application to maintain lawful status is ultimately granted." Id. at 938.

Attias did not discuss Matter of L-K- , nor is Matter of L-K- necessarily binding upon this Court. What is clear, however, is that Defendants are not as a matter of law correct that 8 C.F.R § 245.1(d)(2)(ii) did not cover Somaysoy. Under Attias , Somaysoy pleaded a set of facts that entitle him to relief: if his asylum application is successful, then his status will have lapsed for "technical reasons," and, therefore, he will be entitled to adjust status. Accordingly, the Court DENIES the Motion with respect to Claim 1.

B. Claims Two and Three

Defendants’ Motion is confined to the argument that USCIS's decision to deny Somaysoy's application for failing to qualify for I.N.A. § 245(c)(2)’s exception was lawful. However, as the Court found above, Somaysoy plausibly stated a claim for finding that Defendants’ action contradicted Ninth Circuit precedent. Defendants do not address Claims Two and Three directly. To the extent that Defendants’ argument was intended to address Claims Two and Three, the Court DENIES the Motion.

IV. CONCLUSION

For the reasons stated herein, the Court hereby ORDERS as follows:

1. Defendants’ Motion to Dismiss is DENIED .

2. Defendants are DIRECTED to file their response to Somaysoy's Complaint on or before May 10, 2021.

IT IS SO ORDERED.