Osechas Lopez v. Mayorkas

649 F.Supp.3d 1278

Maria de la Consolacion OSECHAS LOPEZ, Plaintiff, v. Alejandro MAYORKAS, et al., Defendants.

Case No. 22-CIV-21733-WILLIAMS

United States District Court, S.D. Florida

Entered January 10, 2023

Signed January 9, 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

KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on the Motion to Dismiss (DE 14) ("Motion") filed by Defendants U.S. Department of Homeland Security ("DHS"), DHS Secretary Alejandro N. Mayorkas, U.S. Citizenship and Immigration Services ("USCIS"), USCIS Acting Director Ur M. Jaddou, and USCIS Chief Alissa Emmel (collectively, "Defendants"), to which Plaintiff filed a response in opposition (DE 15) ("Response") and Defendants replied (DE 16) ("Reply"). Plaintiff then filed a notice of supplemental authority (DE 22; DE 22-1), to which Defendants responded (DE 23) and then filed their own notice of supplemental authority (DE 24), to which Plaintiff responded (DE 25). Defendants filed a final notice of supplemental authority (DE 26) shortly thereafter, to which Plaintiff responded (DE 27). Defendants move to dismiss Plaintiff's Amended Complaint (DE 9) for lack of subject matter jurisdiction and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) ("Rule 12(b)(1)" and "Rule 12(b)(6)"), respectively. (DE 14 at 16, 20.) Upon careful consideration of the Motion, the record, and applicable law, Defendants' Motion (DE 14) is GRANTED and this matter is DISMISSED WITHOUT PREJUDICE.

I. BACKGROUND

Although the programmatic scheme as set forth by the Immigration and Nationality Act of 1965 ("INA") giving rise to the instant dispute is complex—a specific type of employment-based investor visa known as the "EB-5" visa, a regional investment center, and a qualifying immigration investment project resulting in development of a Tru by Hilton Hotel—the requests before the Court are relatively straightforward. (See DE 9 at 1-2.) Plaintiff Maria Alejandra de la Consolacion Osechas Lopez ("Plaintiff" or "Ms. Osechas Lopez"), asks that the Court enter a writ of mandamus or other order requiring the Defendants to adjudicate her pending immigration petition within thirty (30) days. (Id. at 9.) Defendants, in response, move to dismiss the Amended Complaint for lack of subject matter jurisdiction and for failure to state a claim, arguing that this Court is not vested with the authority to do what Plaintiff requests and that, even if it were, Plaintiff has failed to sufficiently plead a claim for relief. (DE 14 at 1-2.) Defendants also assert that, in essence, Plaintiff's Amended Complaint requests that the Court skip Plaintiff's pending immigration visa petition "to the front of the line" ahead of the petitions of other similarly situated individuals. (See id. at 17.) As to the last point the Court agrees: adjudication of this matter in Plaintiff's favor would improperly move her petition to the front of an admittedly backlogged immigration queue.

The facts giving rise to this matter are as follows: Plaintiff, a Venezuelan national, invested $500,000 in a commercial enterprise which in turn generated at least ten (10) jobs for U.S. workers, therefore qualifying Plaintiff to petition to apply for an immigration visa and subsequent lawful permanent resident status in the United States. (DE 9 at 2.) Pursuant to the relevant statutory scheme, Ms. Osechas Lopez submitted an immigration petition—the I-526 petition—on June 4, 2019 and paid the required fee. (Id.) As pled in the Amended Complaint, that initial petition was returned and a new petition was filed on June 26, 2019. (Id.) To date, Ms. Osechas Lopez's I-526 petition remains pending. (Id.)

On June 7, 2022, Plaintiff filed the Complaint, and shortly thereafter, the Amended Complaint. (DE 1; DE 9.) Plaintiff asserts in the Amended Complaint that USCIS approved the first I-526 petition arising from the same investment project that she invested in on December 22, 2020. (DE 9 at 9.) Therefore, Plaintiff contends that USCIS "has already made a determination of EB-5 compliance for the document associated with the [relevant investor project] and simply has to approve the legality of the source of funds for individual investors as part of their individual I-526 petitions." (Id.) Plaintiff argues that Defendants "willfully, and unreasonably, have delayed in and have refused to" adjudicate her I-526 petition, and that such delay is in violation of Defendants' duties pursuant the INA and governing regulations. (Id. at 13-14.) Plaintiff seeks the prompt processing of her I-526 petition via two avenues: a writ issued pursuant to the Mandamus Act, 28 U.S.C. § 1361 ("Mandamus Act") and/or a Court order entered pursuant to the Administrative Procedure Act, 5 U.S.C. § 706 ("APA"). (DE 9 at 16.)

II. LEGAL STANDARD

"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) (internal citations omitted). Consequently, courts must determine whether subject-matter jurisdiction exists. Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004). If a federal court determines at any time during the litigation that it lacks subject-matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3). The Eleventh Circuit has held that "the party invoking the court's jurisdiction bears the burden of proving, by a preponderance of the evidence, facts supporting the existence of federal jurisdiction." McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002).

In ruling on a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the court assumes as true all well-pled factual allegations and determines whether they plausibly give rise to an entitlement for relief. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). To survive a motion to dismiss, a complaint must contain sufficient facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plaintiffs make a facially plausible claim when they plead factual content from which the court can reasonably infer that defendants are liable for the misconduct alleged. Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "The plausibility standard is not akin to a 'probability requirement' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Id. at 1950.

Although the Court resolves all doubts or inferences in the plaintiff's favor, the plaintiff bears the burden to frame the complaint with sufficient facts to suggest that she is entitled to relief. Twombly, 550 U.S. at 556, 127 S.Ct. 1955. A pleading that offers labels and conclusions, a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement will not stand. Id. at 557, 127 S.Ct. 1955. Dismissal pursuant to a Rule 12(b)(6) motion is warranted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint." Shands Teaching Hosp. & Clinics, Inc. v. Beech St. Corp., 208 F.3d 1308, 1310 (11th Cir. 2000) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)).

III. DISCUSSION

Defendants move to dismiss the Amended Complaint for lack of subject matter jurisdiction and failure to state a claim under the Mandamus Act, and failure to state a claim under the APA. The Court first addresses the issue of subject matter jurisdiction pursuant to the Mandamus Act, and then whether Plaintiff has adequately stated a claim pursuant to the APA.

A. The Court lacks subject matter jurisdiction over Plaintiff's Mandamus Act request.

A district court may issue a writ of mandamus to compel a government agency to perform a duty pursuant to the Mandamus Act. However, a district court can issue a writ of mandamus only if: (1) the plaintiff clearly has a right to the relief that is being sought, (2) the defendant has a clear duty to act in the situation, and (3) there is no other adequate remedy available. Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003). Mandamus is "an extraordinary remedy which should be utilized only in the clearest and most compelling of cases." Id. at 1257 (quoting Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969)). It is Plaintiff who bears the burden of showing that the right to issuance of the writ is "clear and indisputable." Carpenter v. Mohawk Indus. Inc., 541 F.3d 1048, 1055 (11th Cir. 2008). Even if all three elements are satisfied, a writ is "granted only in the exercise of sound discretion." Whitehouse v. Ill. Cent. R. Co., 349 U.S. 366, 373, 75 S.Ct. 845, 99 L.Ed. 1155 (1955).

As a preliminary matter, Defendants are correct that Plaintiff does not explicitly discuss the three factors required by the Eleventh Circuit for mandamus relief in her Amended Complaint. (Compare DE 14 at 10, with DE 9.) However, upon review of the Amended Complaint, the Court concludes that Plaintiff does broadly discuss the factors necessary in a mandamus analysis. Because courts are required to accept well-pleaded allegations in a complaint as true, the Court proceeds in determining whether Ms. Osechas Lopez has sufficiently established this Court's subject matter jurisdiction pursuant to the Mandamus Act. Hoffend v. Villa (In re Villa), 261 F.3d 1148, 1150 (11th Cir. 2001); (DE 9 at 9-16).

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...