Cherdchaweebusaba et al v. United States Department of State et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
PHITTHAYAPHON
CHERDCHAWEEBUSABA,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF
STATE, et al.,
Defendants.
MEMORANDUM DECISION AND
ORDER GRANTING MOTION TO
DISMISS
Case No. 1:24-cv-00173-AMA-JCB
District Judge Ann Marie McIff Allen
Magistrate Judge Jared C. Bennett
This matter is presently before the Court on a Motion to Dismiss (“Motion”)1 filed by
Defendants United States Department of State, United States Department of Homeland Security,
United States Citizenship and Immigration Services (“USCIS”), United States Citizenship and
Immigration Service Center, L. Miller, Marco Rubio,2 Kristi Noem, Joseph B. Edlow, and
Pamela Bondi. The Motion is fully briefed.3 The Court did not hear oral argument. For the
reasons set forth below, the Court grants Defendants’ Motion.
FACTUAL BACKGROUND
The following factual background is taken from the Complaint.4 Plaintiff Phitthayaphon
Cherdchaweebusaba (“Cherdchaweebusaba”),5 a citizen of Thailand, came to the United States
1 ECF No. 24.
2 When a public officer is sued in their official capacity and leaves office, their successors are
automatically substituted as parties. See Fed. R. Civ. P. 25(d).
3 See ECF Nos. 45 & 48.
4 ECF No. 4. Although Plaintiffs amended their complaint, they did not indicate the
amendment in the caption of the document. Accordingly, the Court will refer to the document
appearing in entry four of the Court’s docket as the “Complaint.”
5 Defendants raise a question about the spelling of Plaintiff’s name. See ECF No. 24 at 1 n.2.
The Court will continue to use the spelling indicated on the docket. Plaintiffs should ensure the
spellings of the parties’ names on the Court’s docket is correct.
Case 1:24-cv-00173-AMA Document 37 Filed 02/13/26 PageID.<pageID> Page 1
of 6

2
in 2017 on a B2 tourist visa.6 While physically present in the United States, and prior to
expiration of his tourist visa, Cherdchaweebusaba sought and obtained a change of status from
tourist to religious worker (under an R-1 visa) by filing Form I-129, Petition for Nonimmigrant
Worker.7 After the Form I-129 was approved, Plaintiff Wat Dhammagunaram Temple of Utah
filed a Form I-360, Petition for Special Immigrant Worker, and a Form I-485, Application to
Register Permanent Residence or Adjust Status.8 The Form I-485 Application was denied on
August 23, 2023.9 Cherdchaweebusaba appealed this denial using Form I-290B,10 which was
denied in approximately October 2023.11 Cherdchaweebusaba filed a second Form I-290B on
November 24, 2023, which was denied on two grounds: (1) untimely filing, and (2)
Cherdchaweebusaba performed religious work that constituted “employment” without USCIS’s
permission.12
In this case, Plaintiffs ask the Court to “[a]ssume jurisdiction over this matter” and to
“[o]rder Defendants to re-open, re-adjudicate, and approve Cherdchaweebusa[b]a’s applications
pertaining to his status as a lawful permanent resident.”13
6 Compl. ¶¶ 1, 8.
7 Id. ¶ 2; see 8 U.S.C. § 1101(a)(15)(R).
8 Compl. ¶ 3. Form I-485 is “commonly known as a ‘green card’ application.” Chaudhari v.
Mayorkas, No. 2:22cv47, 2023 WL 1822000, at *1 (D. Utah Feb. 8, 2023).
9 Id.
10 This form is used to file appeals and motions to reopen or reconsider. Gonzalez-Alarcon v.
Macias, 884 F.3d 1266, 1281 (10th Cir. 2018) (J. Tymkovich concurring) (citing 8 C.F.R. §
103.3 & 103.5).
11 See Compl. ¶¶ 4–5 (indicating the Form I-290B was filed on September 22, 2023,
“subsequently rejected” and a second Form I-290B was filed on November 24, 2023).
12 Id. ¶ 5 (citing Matter of Hall, 18 I. & N. Dec. 203, 203 (BIA 1982)). A subsequent I-290B
filed with USCIS’s Administrative Appeals Office was denied on jurisdictional grounds. Id. ¶ 6.
13 Id. at 16. Plaintiffs also seek to recover costs and attorney fees under the Equal Access to
Justice Act and “further relief as the Court deems just and proper.”
Case 1:24-cv-00173-AMA Document 37 Filed 02/13/26 PageID.<pageID> Page 2
of 6

3
DISCUSSION
The Court grants Defendants’ Motion because Plaintiffs fail to establish this Court has
jurisdiction over their claims. Under Federal Rule of Civil Procedure 12(b)(1), a party may raise
a challenge to the Court’s subject-matter jurisdiction, its very “power to hear a case,” by motion.
Knellinger v. Young, 134 F.4th 1034, 1041 (10th Cir. 2025). “The party seeking the court’s
jurisdiction bears the burden of showing it exists.” Mukantagara v. Noem, 164 F.4th 765, 769
(10th Cir. 2026). In reviewing a motion that makes a facial attack on the complaint’s allegations,
as Defendants’ Motion does,14 the Court accepts the allegations in the complaint as true. Stuart
v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001).
I. 	The Court grants Defendants’ Motion because they have shown this Court lacks
jurisdiction over Plaintiffs’ claims and Plaintiffs’ response offers no adequate
basis for the Court’s jurisdiction
Defendants contend that 8 U.S.C. § 1252(a)(2)(B) precludes the Court from exercising
jurisdiction to review of USCIS’s determination to deny an application for adjustment of status.
Defendants argue the statute expressly prohibits both (1) review of decisions regarding
adjustment of status under § 1255, and (2) review of discretionary decisions of the Attorney
General and the Secretary of Homeland Security, which includes the decisions made in denying
the petitions to adjust Cherdchaweebusaba’s status at issue here.15
14 A party may also make a factual attack, by going beyond the allegations of a complaint and
challenging the facts underlying jurisdiction with contrary evidence, which the Court may
consider without converting the motion to a Rule 56 motion. Stuart v. Colorado Interstate Gas
Co., 271 F.3d 1221, 1225 (10th Cir. 2001). On the other hand, a district court must “convert a
Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment
motion when resolution of the jurisdictional question is intertwined with the merits of the case.”
Knellinger v. Young, 134 F.4th 1034, 1041 (10th Cir. 2025).
15 Mot. at 9–13.
Case 1:24-cv-00173-AMA Document 37 Filed 02/13/26 PageID.<pageID> Page 3
of 6

4
As Defendants point out, the statute expressly precludes this Court from reviewing
Defendants’ determination to grant or deny any application for adjustment of status under § 1255
and also prohibits review of many discretionary decisions:
Notwithstanding any other provision of law (statutory or nonstatutory) . . . and
except as provided in subparagraph (D), and regardless of whether the judgment,
decision, or action is made in removal proceedings, no court shall have
jurisdiction to review--
(i) any judgment regarding the granting of relief under section . . .
1255 of this title, or
(ii) any other decision or action of the Attorney General or the
Secretary of Homeland Security the authority for which is specified under
this subchapter to be in the discretion 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). Accordingly, Defendants contend this Court lacks jurisdiction to
hear Plaintiffs’ claims, which all seek to overturn Defendants’ denial of Cherdchaweebusaba’s
applications to adjust his status.16
In response, Plaintiffs do not suggest that any of the decisions they seek to challenge
were made outside the context of seeking an adjustment of status covered by § 125517 or that
those decisions involved nondiscretionary determinations. Instead, Plaintiffs contend that 8
U.S.C § 1252(a)(2)(B) “does not preclude review of constitutional claims or those alleging
violations of federal statutes . . . .”18 Although Plaintiffs do not cite any statutory provision
16 Mot. at 13.
17 Plaintiffs’ prayer for relief suggests they exclusively challenge Defendants’ denial of
Cherdchaweebusaba’s applications to adjust status because the only substantive relief sought is
an order requiring “Defendants to re-open, re-adjudicate, and approve Cherdchaweebusa[b]a’s
applications pertaining to his status as a lawful permanent resident.” Compl. at 16.
18 Pls.’ Opp. at 6.
Case 1:24-cv-00173-AMA Document 37 Filed 02/13/26 PageID.<pageID> Page 4
of 6

5
expressly, they cite cases considering a statutory exception that allows “review of constitutional
claims or questions of law filed with an appropriate court of appeals . . . .” 8 U.S.C. §
1252(a)(2)(D). This provision does not avail Plaintiffs here because, as the statutory language
makes plain, it applies only to challenges brought in an appropriate court of appeals; not
challenges in a district court. Any potential doubt about the statutory language was resolved by
the Tenth Circuit in Green v. Napolitano, 627 F.3d 1341 (10th Cir. 2010). The Green court
expressly held that “§ 1252(a)(2)(D) does not apply in the district courts.” Id. at 1347. Rather,
challenges pursuant to the exception in § 1252(a)(2)(D)19 “must be filed in the appropriate circuit
court, not a district court.” Id. (emphasis added). Consequently, § 1252(a)(2)(D) offers no basis
upon which this Court–a district court–might assert jurisdiction over Plaintiffs’ claims.20
Accordingly, and because this is the only assertion Plaintiffs make in favor of the Court’s
19 It is also worth noting that Ҥ 1252(a)(2)(D) allows judicial review over constitutional and
legal challenges only when raised on appeal of a final order of removal. . . .” Id. at 1346
(emphasis added). Plaintiffs identify no such final order here.
20 Notably, the cases Plaintiffs cite all suggest this Court lacks the power to review
Defendants’ denial of Plaintiffs applications to adjust Cherdchaweebusaba’s status. See Patel v.
Garland, 596 U.S. 328, 338 (2022) (holding § 1252(a)(2)(B)(i) “prohibits review of any
judgment regarding the granting of relief under § 1255 and the other enumerated provisions”);
Abuzeid v. Mayorkas, 62 F.4th 578, 586 (D.C. Cir. 2023) (“The district court correctly dismissed
appellants’ case for lack of subject-matter jurisdiction . . . [because] [b]ased on the plain meaning
of § 1252(a)(2)(B)(i), and the reasoning of Patel v. Garland . . . , USCIS’s decision to deny
[plaintiff]’s application for adjustment of status is unreviewable by a federal district court.”);
Chaudhari v. Mayorkas, No. 222CV47, 2023 WL 1822000, at *8 (D. Utah Feb. 8, 2023) (“As
discussed, subparagraph (D) permits judicial review of certain legal issues that are (1) directly
filed with the “appropriate court of appeals” and (2) “upon a petition for review” of a final order
of removal.”)
Case 1:24-cv-00173-AMA Document 37 Filed 02/13/26 PageID.<pageID> Page 5
of 6

6
jurisdiction, Plaintiffs have not sustained their burden to demonstrate the Court has jurisdiction
over Plaintiffs’ claims and the Court must dismiss the Complaint for lack of jurisdiction.21
Based on the foregoing, the Court grants Defendants’ Motion and dismisses the
Complaint without prejudice. Given Plaintiffs’ arguments all appear to rest on the mistaken
assumption that § 1252(a)(2)(D) affords jurisdiction over their claims, it is not clear whether
Plaintiffs believe they can amend their Complaint to state a viable claim within the Court’s
jurisdiction. In an abundance of caution, the Court will delay entering judgment for twenty days
to allow Plaintiffs an opportunity to move to amend if they so choose.
ORDER
Having considered the parties’ briefs, the allegations in the Complaint, and the relevant
law, the Court GRANTS Defendants’ Motion to Dismiss (ECF No. 24). The Complaint is
dismissed without prejudice. Plaintiffs may file a motion to amend their complaint within 20
days of this Order if they believe they have sufficient facts that might allow them to allege a
claim within this Court’s jurisdiction. If Plaintiffs do not file a motion within that timeframe,
the court will enter a judgment of dismissal without further notice.
Dated this 13th day of February 2026. 	By the Court:
Ann Marie McIff Allen
United States District Judge
21 Given Plaintiffs have not shown the Court has jurisdiction over any of their claims, the
Court does not reach the merits of those claims, including Defendants’ arguments that Plaintiffs
have failed to adequately plead their claims.
Case 1:24-cv-00173-AMA Document 37 Filed 02/13/26 PageID.<pageID> Page 6
of 6