Nyumah v. Wolf

500 F.Supp.3d 821

John NYUMAH and Victoria Roberts, Plaintiffs,

v.Chad WOLF, Acting Secretary of the Department of Homeland Security, et al., Defendants.

Case No. 4:19-CV-03283-JAR

United States District Court, E.D. Missouri, Eastern Division.

Signed November 12, 2020

Javad M. Khazaeli, Khazaeli and Wyrsch LLC, Saint Louis, MO, for Plaintiffs.

Jane Rund, United States Attorneys Office, Saint Louis, MO, for Defendants.

MEMORANDUM AND ORDER

JOHN A. ROSS, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendants’ Motion to Dismiss. (Doc. 11). Plaintiffs have responded (Doc. 15), and Defendants have replied. (Doc. 19). For the reasons discussed below, the motion will be granted and this case will be dismissed for lack of subject matter jurisdiction.

I. BACKGROUND

John Nyumah came to the United States as a visitor on October 31, 2013 and proceeded to marry Virginia Roberts, a U.S. citizen, on December 19, 2014. (Doc. 10 at ¶¶ 7-8). On April 3, 2015, Roberts filed Form I-130 Petitions for Alien Relative ("I-130 Petitions") for Nyumah and his son with United States Citizenship and Immigration Services ("USCIS"), while Nyumah filed on his own behalf a Form I-485 Application to Register Permanent Residence or Adjust Status ("I-485 Application"). (Id. at ¶ 9). Having not received a decision for over four years despite submitting to multiple interviews and providing substantial documentation, Plaintiffs filed a Complaint in this Court on December 17, 2019. (Doc. 1).

On March 3, 2020, before Defendants had filed any responsive pleading, USCIS issued Notices of Intent to Deny the I-130 Petitions and the I-485 Application. (Doc. 10 at ¶ 23; Doc. 10-14 at 7-13). After receiving additional evidence, however, USCIS approved the I-130 Petitions while formally denying the I-485 Application. (Doc. 10 at ¶¶ 34-35; Docs. 12-1, 12-2, 12-3). The primary basis for denying the I-485 Application was USCIS’ finding that Nyumah had submitted fraudulent documentation in order to prove the validity of his previous marriage to Abigail Ceoh Nyumah in Liberia when seeking a nonimmigrant visa in 2013. (Doc. 10-14 at 8; Doc. 12-3 at 3-5). Based on this determination, Nyumah did not qualify for an adjustment under 8 U.S.C. § 1255(a). See 8 U.S.C. § 1182(a)(6)(C)(i) ("Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible."). USCIS also determined that "the favorable factors [ ] do not warrant a favorable exercise of discretion in light of the adverse factors," and alternatively denied the I-485 Application as an apparent exercise of its discretionary authority. (Doc. 12-3 at 5).

Plaintiffs have amended their complaint without objection from Defendants and now challenge the denial of Nyumah's I-485 Application as unlawful. (Doc. 10). Specifically, Plaintiffs allege that the finding that Nyumah's Liberian marriage license was fraudulent is "fatally flawed, arbitrary, and capricious." (Id. at ¶ 36). Plaintiffs contend they have a right of review in this Court under the Administrative Procedure Act (Count I) and request a declaratory judgment against Defendants per 28 U.S.C. § 2201 (Count II). Defendants seek dismissal for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).¹

II. LEGAL STANDARD

When a party challenges this Court's subject matter jurisdiction, at issue is this Court's "very power to hear the case." Osborn v. United States , 918 F.2d 724, 730 (8th Cir. 1990) (quoting Mortensen v. First Fed. Sav. & Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977) ). In deciding a motion under Rule 12(b)(1), this Court "must distinguish between a facial attack – where it looks only to the face of the pleadings – and a factual attack – where it may consider matters outside the pleadings." Croyle by and through Croyle v. United States , 908 F.3d 377, 380 (8th Cir. 2018). In either case, Plaintiff bears the burden of proving the existence of subject matter jurisdiction. Buckler v. United States , 919 F.3d 1038, 1044 (8th Cir. 2019).

Defendants do not state whether they are lodging a facial or factual attack. While there are contested facts as to the underlying denial (i.e. , whether Nyumah's prior marriage was legitimate or fraudulently misrepresented), these facts need not be resolved to determine whether this Court has jurisdiction. The parties only dispute whether the denial of Nyumah's application was a discretionary determination not subject to this Court's review. Accordingly, it is appropriate to accept as true all facts alleged in the Amended Complaint and consider only those materials necessarily embraced by the pleadings.² Osborn , 918 F.2d at 729 n.6 ("[N]on-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6)."). Other courts have reached the same conclusion under similar circumstances. See, e.g. , Pritchett v. U.S. Dep't of Homeland Security , Case No. 4:19-CV-458-RLW, 2020 WL 1032444, at *3 (E.D. Mo. Mar. 3, 2020) ; Sarvestani v. Chertoff , Case No. 4:06-CV-01807-ERW, 2007 WL 1774439, at *1 (E.D. Mo. June 18, 2007).

III. STATUTORY CONTEXT

Congress has created a process for adjusting one's status from nonimmigrant to lawful permanent resident under the Immigration and Nationality Act ("INA").

8 U.S.C. § 1255. To be eligible for an adjustment, the nonimmigrant must be "admissible to the United States" among other requirements. 8 U.S.C. § 1255(a)(2). The applicant bears the burden of proving that he is not inadmissible. See Godfrey v. Lynch , 811 F.3d 1013, 1017 (8th Cir. 2016). A nonimmigrant "who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit ... is inadmissible." 8 U.S.C. § 1182(a)(6)(C)(i).

Even if an applicant meets the criteria for admissibility established by the statute, it is ultimately within the Attorney General's discretion whether to grant adjustment of status. See Mutie-Timothy v. Lynch , 811 F.3d 1044, 1048 (8th Cir. 2016) ("Adjustment of status is a discretionary decision committed to the Attorney General."). Through the Illegal Immigration Reform and Immigrant Responsibility Act and REAL ID Act of 2005, Congress has expressly prohibited federal courts from exercising jurisdiction over this discretionary decision. Pub. L. No. 104-208, 110 Stat. 3009- 546 (1996); Pub. L. 109-13, 119 Stat. 302 (2005) ; see 8 U.S.C. § 1252(a)(2)(B) ("Notwithstanding any other provision of law ... 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 ... the authority for which is specified in this subchapter to be in the discretion of the Attorney General."). In the Eighth Circuit, claims regarding the discretionary denial of status adjustment applications have frequently been dismissed for lack of subject matter jurisdiction. See, e.g. , Toby v. Holder , 618 F.3d 963 (8th Cir. 2010) ; Pritchett , 2020 WL 1032444. Judicial review is available in an appropriate appellate court, however, if a complaint raises a legal or constitutional claim. Mutie-Timothy , 811 F.3d at 1048 ; see 8 U.S.C. § 1252(a)(2)(D).

IV. DISCUSSION

Discretionary Acts Under 8 U.S.C. § 1252(a)(2)(B)

Defendants contend that, pursuant to 8 U.S.C. § 1252(a)(2)(B), this Court lacks jurisdiction over the discretionary denial of Nyumah's I-485 Application. Plaintiffs "agree that this is the law as it pertains to discretionary denials" but argue that "Defendants never engaged in the balancing test required by Eighth Circuit law and their own findings to make a discretionary analysis." (Doc. 15 at 1).³ In its Notice of Decision, USCIS first outlined the basis for its determination that Nyumah had fraudulently or willfully misrepresented a material fact, the legality of his prior marriage to Abigail Ceoh Nyumah.

Because you have not established that you were in fact legally married to Abigail Ceoh Nyumah, USCIS has determined that you have not met your burden to establish that you are not inadmissible for fraud and willful misrepresentation of a material fact under INA 212(a)(6)(C)(i) and therefore, you are not qualified to adjust. (Doc. 12-3 at 4).

This determination would be sufficient to deny Nyumah's I-485 Application but may be subject to this Court's jurisdiction on appeal. USCIS proceeded, however, to find in the alternative that Nyumah did not warrant an exercise of favorable discretion. Given its central role in this case, the basis for USCIS’ allegedly discretionary determination is worth quoting in full:

Alternatively, even if you had established statutory eligibility for adjustment of status (which you have not), USCIS would nevertheless deny your application in the exercise of discretion. The granting of adjustment of status to that of a lawful permanent resident is a discretionary benefit. See section 245(a) of the INA. Mere eligibility is not the only factor considered in adjustment of status. Adverse factors may preclude a favorable exercise of discretion by USCIS.

An applicant must demonstrate eligibility for adjustment of status as a matter of law and in the exercise of discretion. Generally, favorable factors such as family ties, hardship, and length of residence in the United States can be considered in the favorable exercise of discretion.

You have provided to USCIS evidence of factors to be considered in your favor. These factors include: (1) your marriage to your U.S. citizen spouse, Victoria Roberts, (2) your employment as a Developmental Assistant I with the St. Louis County Developmental Disabilities Treatment Center in St. Louis County, Missouri, (3) your lack of a criminal history, and (4) your

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