Nascimento v. U.S. Dep't of Homeland Sec.

689 F.Supp.3d 1245

Suzana Rodrigues Do NASCIMENTO, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Case Number: 22-cv-22261-JEM

United States District Court, S.D. Florida, Miami Division

Entered August 31, 2023

Signed August 30, 2023

Leon Fresco, Holland & Knight LLP, Washington, DC, for Plaintiff.

Zakarij Neil Laux, U.S. Attorney's Office, Civil Division, Miami, FL, for Defendants.

ORDER GRANTING MOTION TO DISMISS

JOSE E. MARTINEZ, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on Defendants United States Department of Homeland Security ("DHS"), Alejandro Mayorkas as DHS Secretary, United States Citizenship and Immigration Services ("USCIS"), Ur Jaddou as Director of USCIS, and Alissa Emmel as Chief of USCIS's Immigrant Investor Program Office's (collectively, "Defendants") Motion to Dismiss ("Motion"), (ECF No. 7). Plaintiff has filed a response in opposition to the Motion ("Response") (ECF No. 8), to which Defendants have replied ("Reply") (ECF No. 9). After the filing of this briefing, Defendants filed several Notices of Supplemental Authority (ECF Nos. 10, 12, 14, 16, 17, 18, 19, 20), some to which Plaintiff has responded (ECF Nos. 13, 15, 20). After careful consideration, the Motion is GRANTED for the reasons set forth herein.

BACKGROUND

In an effort to encourage job growth in the United States and investments into the United States from foreign nationals, the EB-5 visa program allows foreign investors to make certain investments into United States-based commercial enterprise initiatives in exchange for "employment based, fifth-preference ('EB-5') immigrant visa[s] . . . ." (Compl. ¶ 19, ECF No. 1). Plaintiff, a Brazilian national whose principal place of residence is in Rio de Janeiro, invested $500,000 into the development of the Radisson RED Miami Airport hotel (the "Project"). (Id. ¶¶ 1, 8). On November 20, 2019, after this investment, Plaintiff filed her I-526 petition and paid a $3,675.00 application fee to the USCIS "in exchange for timely adjudication of her petition." (Id. ¶ 5). Today, Plaintiff's petition remains pending. (Id. ¶ 6).

Plaintiff alleges that "[t]he longer it takes for Investor Plaintiff's I-526 petition to be processed, the longer the money is at risk, and the greater the risk that the Project will not have available funds to repay her in the event that her I-526 petition is denied." (Id. ¶ 35). Plaintiff commenced this action on July 20, 2022, claiming that Defendants' refusal to act is "arbitrary and not in accordance with law" and that "Defendants willfully, and unreasonably, have delayed in and have refused to[ ] adjudicate Investor Plaintiff's petition, thereby depriving her of the right to a decision on her status and the peace of mind to which she is entitled. In addition, Plaintiff is unable to live, work, or invest and create new jobs in the United States as a result of this delay." (Id. ¶ 54). As such, Plaintiff is seeking adjudication of her petition within thirty days via a Writ of Mandamus and/or a Court order entered pursuant to the Administrative Procedure Act ("APA"). (Id. ¶ 74).

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). "Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). "Attacks on subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) come in two forms": facial and factual attacks. Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) (per curiam). "On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion, meaning that the court must consider the allegations of the complaint to be true." Fru Veg Mktg., Inc. v. Vegfruitworld Corp., 896 F. Supp. 2d 1175, 1179 (S.D. Fla. 2012). "Factual attacks challenge subject matter jurisdiction in fact, irrespective of the pleadings." Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). The burden is on the party seeking to invoke the Court's jurisdiction to establish that jurisdiction exists. Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673. If the Court determines that it lacks subject matter jurisdiction, it must dismiss the claim. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

Under Federal Rule of Civil Procedure 12(b)(6), the Court will grant a motion to dismiss if the complaint fails to state a claim for which relief can be granted. To survive dismissal, the complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). At this stage of the case, "the question is whether the complaint 'contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.' " Worthy v. Phenix City, 930 F.3d 1206, 1217 (11th Cir. 2019) (alteration adopted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). In ruling on a motion to dismiss, the Court "accepts the factual allegations in the complaint as true and construes them in the light most favorable to plaintiff." Speaker v. U.S. HHS CDC & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). A complaint must contain enough facts to plausibly allege the required elements. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295-96 (11th Cir. 2007). A pleading that offers "a formulaic recitation of the elements of a cause of action will not do." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal." Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

DISCUSSION

Defendant seeks dismissal of the Complaint on two grounds. First, Defendant argues that the Court lacks subject matter jurisdiction under the Mandamus Act. Second, Defendant argues that Plaintiff has failed to state a claim upon which relief can be granted under the Administrative Procedure Act. The Court addresses each in turn.

A. This Court Lacks Subject Matter Jurisdiction over the Mandamus Act Request.

The Mandamus Act provides district courts with "original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. A writ of mandamus is "an extraordinary remedy which should be utilized only in the clearest and most compelling of cases." Cash v. Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003) (citing Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969)). "Mandamus relief is only appropriate when: (1) the plaintiff has a clear right to the relief requested; (2) the defendant has a clear duty to act; and (3) 'no other adequate remedy is available.' " Cash, 327 F.3d at 1258 (quoting Jones v. Alexander, 609 F.2d 778, 781 (5th Cir. 1980)) (alterations incorporated). The burden is on the party seeking mandamus to demonstrate that the party's right to the writ is "clear and indisputable." Hakki v. Sec'y, Dep't of Veterans Affs., 7 F.4th 1012, 1036-37 (11th Cir. 2021). "[A] writ of mandamus 'is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.' " Cash, 327 F.3d at 1258 (quoting Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984)). Even if all three elements are satisfied, the decision is "granted only in the exercise of sound discretion." Whitehouse v. Illinois Central R. Co., 349 U.S. 366, 373, 75 S.Ct. 845, 99 L.Ed. 1155 (1955).

Defendant argues that Plaintiff has failed to meet her burden under the Mandamus Act because she has not met any of the factors. (Motion at 8). This Court agrees. "The first and second factors required for the entry of a writ of mandamus are related in this case, where the question of Defendants' having a clear duty determines in large part whether Plaintiff clearly has a right to the relief sought." Osechas Lopez v. Mayorkas, No. 22-CIV-21733, 649 F.Supp.3d 1278, 1284 (S.D. Fla. Jan. 10, 2023). The question here is whether Defendants have a clear duty to act on Plaintiff's I-526 petition in a certain timeframe, and if the amount of time since the submission of Plaintiff's I-526 petition constitutes an unreasonable delay by USCIS. Plaintiff alleges that "[b]ecause Defendants have a purely ministerial duty under the law to adjudicate Investor Plaintiff's application and petitions within a reasonable time, and have utterly failed, or refused, to do so, a Writ of Mandamus is proper to compel Defendants to perform their duty to adjudicate Investor Plaintiff's application and petition." (Compl. ¶ 72).

The Complaint points to 8 U.S.C. § 1571(b), which states that "[i]t is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application," for the proposition that Defendants have unreasonably delayed in processing her I-526 petition. (Compl. ¶ 37) (citing § 1571(b)) (emphasis added). In a recent case in this District requesting similar relief to that requested here, the court found that a plaintiff had "not demonstrated a clear right to the relief requested—that USCIS adjudicate her I-526 petition within thirty (30) days of this Court's order—largely because there is no congressionally or administratively prescribed timeframe within which USCIS has a duty to process or adjudicate I-526 petitions." Osechas, 649 F.Supp.3d at 1286. As the court noted, " 'should' is not 'must,' and [plaintiff] has failed to plead Defendants' clear duty and any right to the relief sought." Id.; see also Alfassi...