Nama v. United States Citizenship & Immigration Servs.

SUMAN R. NAMA, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

Civil Action No. 3:20-CV-3362-K

United States District Court, N.D. Texas, Dallas Division

April 20, 2022

MEMORANDUM OPINION AND ORDER

ED KINKEADE, UNITED STATES DISTRICT JUDGE.

Before the Court is Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (the “Motion”) (Doc. No. 24). Plaintiff Suman R. Nama filed a response in opposition (the “Response”) (Doc. No. 27) and Defendants filed a reply in support of their Motion (the “Reply”) (Doc. No. 29). The Court has carefully considered the Motion, the Response, the Reply, the applicable law, and the relevant portions of the record. Because the Court lacks subject matter jurisdiction to review Plaintiff's claims, the Court GRANTS the Motion and dismisses this case without prejudice.

I. Background

Plaintiff Suman R. Nama (“Plaintiff”) filed this action against Defendants United States Citizenship and Immigration Services (“USCIS”), Alejandro Mayorkas, United States Secretary of Homeland Security, Ur Jaddou, Director of USCIS, Kathy A. Baran, Director of USCIS California Service Center Merrick Garland, Attorney General of the United States, and Christopher Wray, Director of Federal Bureau of Investigation (collectively, “Defendants”). See Am. Compl. (Doc. No. 22) at 1, ¶2 & fn.1. Plaintiff seeks judicial review of the denial of his I- 485 Application to Register Permanent Residence or Adjust Status (“I-485 Application”) under 8 U.S.C. § 1182(a)(6)(C)(i). See, e.g., id. at 7. Plaintiff alleges this Court has jurisdiction based on federal question (28 U.S.C. § 1331), the United States as a defendant (28 U.S.C. § 1346), and the Administrative Procedures Act (the “APA”) (5 U.S.C. § 555(b), et seq.) Id. at 2, ¶3.

An alien's status may be adjusted to lawful permanent resident if the alien applies to adjust his status, the alien is eligible to receive an immigrant visa and is admissible as a permanent resident, and an immigrant visa must be immediately available to the alien at the time he filed the application. 8 U.S.C. § 1255(a); 8 C.F.R. § 245.1; see also Am. Compl. at 4, ¶¶19-20. Plaintiff's spouse, Jayanthi Nagabhirava (“Plaintiff's spouse”), is the beneficiary of an Employment Based Fifth Preference (EB-5) immigrant visa petition. Id. at ¶15. As the spouse of a beneficiary of an immigrant petition, Plaintiff filed an I-485 Application on December 6, 2018. Id. at 5, ¶26; see also Pl.'s App. (Doc. No. 28) at 69. The status of Plaintiff's spouse was adjusted to lawful permanent resident on May 8, 2019. Am. Compl. at 4, ¶16.

On April 13, 2021, USCIS issued a Request for Evidence (the “RFE”) to Plaintiff stating “[i]t appears that you are inadmissible to the United States . . . because you sought to procure an immigration benefit by fraud or by concealing or misrepresenting a material fact (immigration fraud or misrepresentation). You are not eligible to adjust status unless USCIS waives the ground of inadmissibility.” Id. at 19; see also id. at 5, ¶27. USCIS specifically referenced “false information regarding [Plaintiff's] education and [work] experience” which he provided and of which he certified the truthfulness for an I-140 Petition submitted on his behalf by his employer at the time. Id. at 18. USCIS also noted that Plaintiff's claim his employer itself supplied the falsified information was implausible. Id. USCIS requested Plaintiff submit an Application for Waiver of Grounds of Inadmissibility (Form I-601) to waive this ground of inadmissibility. Id. at 19. In responding to the RFE, Plaintiff disputed USCIS's basis for finding him inadmissible and submitted evidence in support of his response. Id. at 6, ¶30; see also id. at 21-28. Plaintiff did not, however, submit a Form I-601 for a waiver of inadmissibility ground based on immigration fraud or misrepresentation. See id. On October 8, 2021, USCIS issued its Decision denying Plaintiff's I-485 Application because he did not establish that he was not subject to inadmissibility for seeking to obtain a benefit under the Immigration and Nationality Act (the “INA”) by fraud and willful misrepresentation. Id. at 31. USCIS found Plaintiff's evidence and testimony submitted with his RFE response “does not overcome your inadmissibility.” Id. at 3034. USCIS also stated that because it found Plaintiff to be inadmissible and he did not submit the available waiver of inadmissibility as USCIS requested, Plaintiff is “not qualified to adjust status, and USCIS denies [his] Form I-485.” Id. at 33; see also 8 U.S.C. § 1255(a) & 8 C.F.R. § 245.1 (for adjustment to lawful permanent resident, alien must apply to adjust status, must be eligible to receive an immigrant visa and be admissible as a permanent resident, and immigrant visa must be immediately available at time application is filed). No removal proceedings have been initiated against Plaintiff to-date.

In his Amended Complaint, Plaintiff asserts, generally, that Defendants' denial of his application for adjustment of status is arbitrary and capricious, an abuse of discretion, and not in accordance with the law. See, e.g., id. at 8, ¶¶39-41. Plaintiff asks the Court to set this decision aside and enter a declaratory judgment that he is eligible for adjustment of status to permanent resident and adjust his status accordingly. Id. at ¶41; 9, ¶3. Plaintiff asks, in the alternative, that the Court enter a declaratory judgment that Defendants violated Plaintiff's due process rights by not allowing him to apply for a waiver of inadmissibility after submitting his response and evidence to the RFE. Id. at 9, ¶4. In response to Plaintiff's Amended Complaint, Defendants filed their Motion to Dismiss for lack of subject matter jurisdiction. That motion is ripe and the Court addresses it herein.

II. Applicable Law

A. Federal Rule of Civil Procedure 12(b)(1)

A party may challenge the court's subject matter jurisdiction to hear a case by filing a motion pursuant to Federal Rule of Civil Procedure 12(b)(1). FED. R. CIV. P. 12(b)(1). A Rule 12(b)(1) motion may assert either a facial or factual challenge. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981). If the Rule 12(b)(1) motion does not include evidence, that challenge is considered a facial attack on the court's subject matter jurisdiction. See id. “A ‘facial attack' on the complaint requires the court merely to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953 (1980).

“Federal courts are courts of limited jurisdiction.” Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). Federal courts “must presume that a suit lies outside of this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). A court properly dismisses a case for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. Smith v. Reg'l Transit Auth., 756 F.3d 340, 347 (5th Cir. 2014) (quoting Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005)); see also Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (court should grant a motion to dismiss for lack of subject matter jurisdiction “only if it appears certain that the plaintiff cannot prove any set of facts in support of [her] claim that would entitle plaintiff to relief.”).

B. Administrative Procedure Act

A court may review an agency action under the APA only where such action is made reviewable by statute or is a “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Moreover, an agency action is not subject to judicial review when the relevant statute precludes such review or when the action “is committed to agency discretion by law.” 5 U.S.C. § 701(a)(1)-(2).

III. Analysis

In their Motion, Defendants argue that the Court does not have subject matter jurisdiction to review USCIS's decision denying adjustment of Plaintiff's status because it is not a final agency action subject to judicial review. Defendants also argues the Immigration and Nationality Act (the “INA”) stripped federal courts of jurisdiction to review immigration decisions assigned to USCIS's discretion by federal law, including decisions on adjustment of status and waiver of inadmissibility. Finally, Defendants argue the Court lacks jurisdiction under the APA, federal question (28 U.S.C. § 1331), and United States as a defendant (28 U.S.C. § 1346) because the INA constrains judicial review of discretionary immigration decisions.

In his Response, Plaintiff argues USCIS's decision denying adjustment of his status is a final agency action this Court can review because there is no additional administrative action or remedy Plaintiff must or can take to seek further review. Still, even if Plaintiff can renew his request to adjust status in removal proceedings, Plaintiff asserts USCIS's decision is nevertheless final because removal proceedings are conducted by Immigration Courts (a Department of Justice agency), not USCIS which is part of the Department Homeland Security; therefore, USCIS's role has essentially concluded. Plaintiff further argues that the INA does not strip this Court of jurisdiction to review USCIS's decision because its determination that Plaintiff is ineligible for adjustment of status in this instance is not discretionary, it is a legal determination. Plaintiff also states that “[a]t this point in time, ” he “is not seeking review of the...