Islam v. Dir. of U.S. Citizenship & Immigration Servs.

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MD Shiful Islam, Plaintiff, v. Director of U.S. Citizenship and Immigration Services, Defendant.

C. A. No. 2:23-6423-RMG

United States District Court, D. South Carolina, Charleston Division

January 17, 2024

ORDER AND OPINION

RICHARD MARK GERGEL UNITED STATES DISTRICT JUDGE.

Before the Court is Plaintiff's motion for temporary restraining order or preliminary injunction. For the reasons set forth below, the Court denies Plaintiff's motion.

I. Background

Plaintiff MD Shiful Islam is a Bangladeshi citizen and national who has lived in the United States since 2013, when he was admitted as a student. (Dkt. No. 1 at 3). BDV Solutions paired Plaintiff with Island Subway, Inc. (“employer”) a Beaufort-based entity. (Id.).

The Department of Labor certified employer's PERM application on behalf of Plaintiff on March 18, 2020. Employer filed a Form I-140, Immigrant Petition for Alien Worker (the “I-140”) with the certified PERM application in August 2020. (Id.). Plaintiff alleges USCIS “improperly rejected” said application and did not give Plaintiff notice, even though he was a “beneficiary” of the I-140 (Id. at 4).

Employer re-filed its I-140 and USCIS received it September 18, 2020. (Id.). Plaintiff alleges USCIS “exercised its discretion and COVID 19 flexibilities to determine the application was timely” and then approved the I-140. (Id.)

On October 29, 2020, Plaintiff filed his I-485, Application to Register Permanent Residence or Adjust Status (the “I-485”).

USCIS issued a request for evidence related to the employer's immigrant visa petition and later approved it on June 7, 2021. (Id.).

On August 28, 2023, however, USCIS issued employer a Notice of Intent to Revoke (“NOIR”) its I-140 approval. (Id. at 5). Plaintiff alleges that he did not receive and USCIS did not issue him a copy of the NOIR and that if he had received a copy, he would have responded. (Id.). Plaintiff alleges there is a particular employee in the Charleston Field Office of USCIS who dislikes BDV Solutions and is hostile to noncitizen plaintiffs who obtain work through the company. (Id. 4-5). Plaintiff alleges USCIS ultimately rejected employer's I-140 because the employer's attorney sent in the I-140 after the underlying labor certification had expired. (Id.). Plaintiff alleges employer “timely responded to the notice of intent to revoke.” (Id. at 6).

On October 4, 2023, USCIS revoked Plaintiff's immigrant visa. (Id.).

While not explicitly alleged, it appears employer's response to the NOIR was rejected and that USCIS issued a decision, which the employer did not give to Plaintiff “within 33 days that would have allowed him to file an appeal.” (Id.).

With the denial of his Form I-485, Plaintiff alleges he is accruing unlawful presence, cannot work, and is suffering mental anguish. (Id.).

Plaintiff brings 3 claims:

1. I-140 Revocation-Administrative Procedure Act (“APA”). Plaintiff challenges the revocation of his employer's I-140 application. Plaintiff alleges the revocation is due to the USCIS Charleston Field Officer's dislike for BDV Solutions. Plaintiff alleges the revocation also violated the APA because USCIS did not notify Plaintiff that it intended to revoke his employer's I-140.

2. APA-Unlawful Legal Denial of Adjustment of Application. Plaintiff argues that because his employer's I-140 should not have been revoked, his I-485 should never have been rejected.

3. Procedural Due Process. Plaintiff claims he has a “cognizable due process interest in his approved immigrant visa” and that his due process rights were violated because USCIS did not mail him copies of the rejection notice, notice of intent to revoke, and revocation.

On December 11, 2023, Plaintiff filed a motion for a temporary restraining order (“TRO”) or preliminary injunction (“PI”). (Dkt. Nos. 3, 10, 14). Defendant opposes. (Dkt. No. 13). Plaintiff appears to move for injunctive relief based on his first and/or third claim. (Dkt. No. 3 at 3, 5) (“The H1B Visa statute reveals a congressional intent to require the Agency to notify the beneficiary and the beneficiary's current employer for revocation on notice for Cap H1B Visas that have already expired on their own terms.”); (Id.) (“MD has a due process interest in his approved immigrant visa and, thus, at a minimum, he must have a notice and an opportunity to respond.”); (Dkt. No. 10 at 1) (stating the Court “need not reach MD's second cause of action to rule on his pending motion.”).

Plaintiff's motion is fully briefed and ripe for disposition.

II. Legal Standard

The substantive standards for granting a request for a temporary restraining order and entering a preliminary injunction are the same. See Virginia v. Kelly, 29 F.3d 145, 147 (4th Cir. 1994) (applying preliminary injunction standard to a request for temporary restraining order).

Both “are intended to meet exigent circumstances[.]” Ideal Toy Corp. v. Plawner Toy Mfg. Corp., 685 F.2d 78, 84 (3d Cir. 1982). It “is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). “[T]he party seeking [either of these types of relief] must prove [its] own case and adduce the requisite proof, by a preponderance of the evidence, of the conditions and circumstances upon which he bases the right to and necessity for injunctive relief.” Citizens Concerned for Separation of Church & State v. City of Denver, 628 F.2d 1289, 1299 (10th Cir. 1980).

A temporary restraining order or a preliminary injunction should issue only when the plaintiff can “[1] establish that [it is] likely to succeed on the merits, [2] that [it is] likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in [its] favor, and [4] that [injunctive relief] is in the public interest.” Winter, 555 U.S. at 20, 129 S.Ct. 365. The burden is on the party seeking injunctive relief to show it is entitled to the relief, not the burden of the other party to show the movant is not entitled. Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 443, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974).

“[A]ll four requirements must be satisfied.” Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346 (4th Cir. 2009). Thus, even a strong showing of likely success on the merits cannot compensate for failure to show likely injury. Winter, 555 U.S. at 21-22, 129 S.Ct. 365. And, irreparable injury alone is insufficient to support equitable relief. See id. at 23, 129 S.Ct. 365 (holding irreparable injury was likely to occur, but holding injunctive relief was improper because of the burden on the government and impact on public interest). In other words, “[a temporary restraining order or a] preliminary injunction shall be granted only if the moving party clearly establishes entitlement.” Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017).

“Given [the] limited purpose [of a temporary restraining order and a preliminary injunction], and given the haste that is often necessary ..., [they are] customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). “Because [the] proceedings are informal ones designed to prevent irreparable harm before a later trial governed by the full rigor of usual evidentiary standards, district courts may look to, and indeed in appropriate circumstances rely on, hearsay or other inadmissible evidence when deciding whether a preliminary injunction is warranted.” G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 725-26 (4th Cir. 2016), vacated and remanded on other grounds, U.S.----, 137 S.Ct. 1239, 197 L.Ed.2d 460 (2017).

III. Analysis

Defendant's principal argument in opposition to Plaintiff's motion is that this Court lacks subject mater jurisdiction because the “gravamen of Plaintiff's complaint is a request for this Court to review USCIS's decision to revoke Plaintiff's [employer's] I-140 petition.” (Dkt. No. 13 at 1).

Polfliet v. Cuccinelli, 955 F.3d 277 (4th Cir. 2020) is instructive. In Polfliet, the Fourth Circuit affirmed a district court's dismissal of a case wherein a plaintiff alleged USCIS unlawfully revoked his I-130 family visa petition. Under the Adam Walsh Act, USCIS denied Polfliet's petition on behalf of his wife's son. See 8 U.S.C. § 1154(a)(1)(A)(viii) (barring persons convicted of certain offenses against minors from filing family visa petitions on behalf of any beneficiary unless the Secretary of the Department of Homeland Security determines “in the Secretary's sole and unreviewable discretion” that the petitioner poses “no risk” to the beneficiary).

The Fourth Circuit held-like “almost every other circuit”-that 8 U.S.C. § 1155's “plain language”^[1] “confers discretion upon the Secretary to revoke visa petitions.” Id. at 383. Thus, under § 1252(a)(2)(B) and (ii), review by the district court was not permitted. § 1252(a)(2)(B) and (ii). Id.^[2]

The Fourth Circuit also addressed plaintiff's contention that even if § 1155 is discretionary, “courts have jurisdiction to review constitutional challenges to a visa revocation.” Id. at 383. The court rejected plaintiff's argument.

We addressed the effect of § 1252(a)(2)(B)(ii) on constitutional claims in Lee v. USCIS, in which the plaintiff challenged an adjustment of status regulation ostensibly on purely legal grounds. 592 F.3d 612, 613 (4th Cir. 2010). The plaintiff noted that in the statutory scheme of the INA, § 1252(a)(2)(B) applies “except as provided in subparagraph (D).” Then, § 1252(a)(2)(D) states, “[n]othing in subparagraph (B) ... shall be construed as precluding review of

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