Onyenanu v. Garland

1

OBINNA C. ONYENANU, Plaintiff, v. MERRICK B. GARLAND, ALEJANDRO MAYORKAS, UR MENDOZA JADDOU, NIEVES CARDINALE, MARY E BRENNAN SENG, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES and DEPARTMENT OF HOMELAND SECURITY, Defendants.

No. 8:23-cv-138-CEH-TGW

United States District Court, M.D. Florida, Tampa Division

January 17, 2024

ORDER

Charlene Edwards Honeywell United States District Judge

This matter comes before the Court on the Federal Defendants' Motion to Dismiss (Doc. 11), filed pursuant to Fed.R.Civ.P 12(b)(1). Plaintiff opposes the motion (Doc. 12). In the motion, Defendants request dismissal of this action for lack of subject-matter jurisdiction. The Court, having considered the motion and being fully advised in the premises, will grant, in part, the Defendants' motion, dismiss Plaintiff's Complaint, and allow Plaintiff leave to file an amended complaint.

I. BACKGROUND^[1]

Plaintiff, Obinna Onyenanu, is a citizen of Nigeria, residing in Pasco County, Florida. Doc. 1 ¶ 14. He is a foreign national holding advanced professional degrees, with both bachelor's and master's degrees in Business Administration. Id. ¶¶ 3, 4, 15. Plaintiff has over 11 years of professional experience in the business management field with a specialization in cybersecurity management. Id. ¶¶ 4, 15. On November 23, 2020, Plaintiff submitted a Form I-140 Immigration Petition for Alien Worker, based on advanced degree and exceptional ability as a business development specialist. Id. ¶ 31. Plaintiff's business expertise is in cybersecurity, and he is currently the Assistant Vice President in Regulatory & Corp. Rep, a division of Citi's Enterprise O&T Global Functions & Other Corporate for Citibank. Id. ¶ 32.

Plaintiff seeks a national interest waiver (“NIW”) as a self-petitioner in the United States. Id. ¶ 3. The National Interest Waiver is a procedure to bypass the Labor Certification process, as administered by the Department of Labor, and which is typically a prerequisite to obtaining permanent residence through the EB-2 employment-based green card category. Id. ¶ 26. The USCIS (“United States Citizenship and Immigration Services”) may waive the labor certification requirement that a non-citizen's services be sought by an employer in the United States if it determines that such waiver is in the national interest. Id. ¶ 27. Plaintiff alleges that his waiver is in the national interest because the United States needs experts like Plaintiff who can provide cybersecurity management and design and develop strong and better business systems to prevent attacks and protect the U.S. business in various industries, such as finance, health, government, and national security. Id. ¶ 48.

On May 16, 2022, the USCIS requested additional evidence from Plaintiff establishing that he is a professional holding an advanced degree in the business field, that his proposed endeavor has substantial merit and national importance, that Plaintiff is well positioned to advance the proposed endeavor, and that it would benefit the United States to waive the requirements of having a job offer. Doc. 1 ¶ 35. On August 23, 2022, Plaintiff responded to USCIS with additional supporting evidence, including copies of his degrees, official academic transcripts, updated resume, and letters of recommendation. Id. ¶ 38. In support of his contention that this is in the national interest, Plaintiff submitted as additional evidence President Biden's May 12, 2021 Executive Order on Improving the Nation's Cybersecurity. Doc. 1-4 at 47-66.

On December 12, 2022, Plaintiff's petition was denied by the USCIS. Id. ¶ 53; Doc. 1-5. Plaintiff contends that the decision by USCIS to deny his Form I-140 Petition was arbitrary, capricious, contrary to law and published agency guidance, was not supported by substantial reasoning and evidence, and ignores or discounts overwhelming evidence submitted by Plaintiff in support of his petition, which amounts to an abuse of discretion. Doc. 1 ¶ 2. Plaintiff alleges that Defendant USCIS did not follow its established policy guidance to officers. Id. ¶ 68. Plaintiff also alleges that the USCIS's decision “violates the governing statute and regulations.” Id. ¶ 69.

Plaintiff seeks review of the USCIS's denial under the Administrative Procedure Act. Plaintiff sues Merrick Garland, in his official capacity as the Attorney General for the United States government; the Department of Homeland Security (“DHS”); Alejandro Mayorkas in his official capacity as the Secretary of the DHS who is charged with enforcement of the Immigration and Nationality Act (“INA”); USCIS, a department within the DHS that is responsible for the administration and enforcement of the INA; Ur Mendoza Jaddou in her official capacity as Director of the USCIS; Mary Elizabeth Brennan Seng who is the Acting Director of the USCIS Texas Service Center; and Nieves Cardinale, in her official capacity as Field Director for the USCIS Tampa Field Office. Doc. 1.

Defendants move to dismiss the Complaint for lack of jurisdiction arguing that Congress has provided USCIS with the discretion to adjudicate Plaintiff's Form I-140 NIW and therefore its decision is barred from judicial review. Doc. 11. Plaintiff responds in opposition arguing that he is not challenging the merits of a discretionary immigration decision, but rather, challenging the nondiscretionary process leading up to Defendants' decision. Doc. 12.

II. LEGAL STANDARD

An action may be subject to dismissal if the court lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Motions to dismiss under Rule 12(b)(1) may assert either a facial or a factual attack on jurisdiction. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990); Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003) (stating same). “A facial attack on the complaint requires the court merely to look and see if the 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.” Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232-33 (11th Cir. 2008). In assessing a motion to dismiss pursuant to Rule 12(b)(1) the Court affords Plaintiff the same safeguards as those provided in opposing a Rule 12(b)(6) motion. It considers all allegations of the complaint as true and is confined to the four corners of the complaint. Lawrence, 919 F.2d at 1529. “Factual attacks, on the other hand, challenge the existence of subject-matter jurisdiction in fact, and the district court may consider matters outside of the pleadings.” Koury v. Sec'y, Dep't of Army, 488 Fed.Appx. 355, 356 (11th Cir. 2012). It may consider extrinsic evidence such as deposition testimony and affidavits. Odyssey Marine Expl., Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1169 (11th Cir. 2011).

III. RELEVANT IMMIGRATION STATUTES

Title 8, United States Code, Section 1153(b)(2) provides, in pertinent part:

(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability

(A) In general

Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraph (1), to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.

(B) Waiver of job offer

(i) National interest waiver Subject to clause (ii), the Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.

8 U.S.C. § 1153(b)(2)(A)-(B)(i).

IV. DISCUSSION

In filing his Form I-140 petition, Plaintiff sought a National Interest Waiver pursuant to 8 U.S.C. § 1153(b)(2). When the USCIS denied his petition, Plaintiff appealed the denial of his NIW to this Court under the Administrative Procedure Act, 5 U.S.C. § 701 (“APA”), arguing the agency's decision is arbitrary, capricious and contrary to law. Defendants assert that the Court lacks subject-matter jurisdiction to consider Plaintiff's claims. Plaintiff invokes the jurisdiction of the Court under 5 U.S.C. § 702 (the APA) and 28 U.S.C. §§ 2201-2202 (the Declaratory Judgment Act). Doc. 1 ¶ 9.

The Declaratory Judgment Act “does not, of itself, confer jurisdiction upon the federal courts; a suit brought under the Act must state some independent source of jurisdiction, such as the existence of diversity or the presentation of a federal question.” Borden v. Katzman, 881 F.2d 1035, 1037 (11th Cir. 1989) (citing Skelly Oil Co. v. Phillips Co., 339 U.S. 667 (1950)). For this reason, Defendants submit Plaintiff cannot establish the Court's jurisdiction under the Declaratory Judgment Act. But Plaintiff does not rely solely on the Declaratory Judgment Act for the Court's jurisdiction. Plaintiff also relies on the provisions of the APA, which provide that a federal court may “set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

There are two circumstances, however, in which the provisions of the APA do not confer jurisdiction. Brasil v. Sec'y Dep't of Homeland Sec., 28 F.4th 1189, 1192 (11th Cir. 2022) (citing 5 U.S.C. § 701(a)). “The first is when a statute expressly ‘preclude[s] judicial...