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

ABDUL QADIR SHAIKH, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

No. 4:20-CV-1511 RLW

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

September 14, 2021

MEMORANDUM AND ORDER

RONNIE L. WHITE, UNITED STATES DISTRICT JUDGE.

This matter is before the Court on Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. (ECF No 25).^[1]The motion is fully briefed and ready for disposition. For the reasons below, the motion will be granted and this case will be dismissed for lack of subject matter jurisdiction.

BACKGROUND

Plaintiff Abdul Qadir Shaikh is a citizen of India. (ECF No. 29 Pl.'s Mem. in Opp'n, p. 2). He submitted a nonimmigrant visa application on January 14, 2015 to the United States Consulate in Mumbai, India. (ECF No. 29-1 Pl.'s Ex. A, p. 1). In his application, Plaintiff represented that he was traveling to the U.S. to attend a trade exposition in Atlanta, Georgia. Id. Plaintiff stated in his application that he planned to arrive in the U.S. on January 27, 2015 and leave on February 1, 2015. Id. As part of the application process, Plaintiff attended an interview at the U.S. Consulate in Mumbai where he confirmed that he planned to attend a trade exposition in Atlanta. Id. at 1-2. The United States Citizenship and Immigration Services (“USCIS”) issued Plaintiff a B-1/B-2 nonimmigrant visa on February 3, 2015. Id. at 2.

Plaintiff arrived in Houston, Texas as a nonimmigrant visitor on March 1, 2015. Id. He was authorized to remain in the country until August 31, 2015. Id. On August 4 2015, Plaintiff applied for an extension of his nonimmigrant status. Id. USCIS granted the application and extended Plaintiff's stay to February 28, 2016. Id.

Plaintiff married Terri Lynn Armstrong, a U.S. citizen, on January 27, 2016. Id. On April 25, 2016, Plaintiff's spouse filed a Form I-130, Petition for Alien Relative, on Plaintiff's behalf. Id. Plaintiff concurrently filed a Form I-485, Application to Register Permanent Resident or Adjust Status. Id. USCIS granted Mrs. Shaikh's I-130 on April 27, 2020. Id. at 1.

On January 9, 2019, Plaintiff appeared for an interview with USCIS to determine his eligibility for adjustment of status. Id. at 2. During the interview, Plaintiff testified under oath that he paid a travel agency $10, 000 to help obtain his nonimmigrant visa. Id. Plaintiff further admitted that his visa application misrepresented the fact that he was visiting the U.S. to attend an exposition in Atlanta. Id. Plaintiff admitted that he did not go to Atlanta but instead stayed with a friend in Houston. Id.

On May 27, 2020, not having received a decision on his application to adjust status, Plaintiff filed the present action seeking an order from the Court directing USCIS to finally adjudicate Plaintiff's Form I-485. (ECF No. 1). The following month, USCIS issued Plaintiff a Notice of Intent to Deny his Form I-485. (ECF No. 29-1). The primary basis for the denial was USCIS's finding that Plaintiff made material misrepresentations in his visa application. Id. Based on this determination, USCIS concluded that Plaintiff 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.”). Id.

One month later, Plaintiff filed a Form I-601, Application for Waiver of Grounds of Inadmissibility. (ECF No. 29-2, Pl.'s Ex. B, p. 17). USCIS denied Plaintiff's application on August 25, 2020. (ECF No. 29-3, Pl.'s Ex. C, p. 1). The denial explained that “granting of a waiver of inadmissibility is a discretionary benefit” and “adverse factors may preclude a favorable exercise of discretion by USCIS.” Id. at 2. The denial further stated: “In your case, after full consideration of all of the evidence, USCIS concludes that your case presents significant adverse factors which show that discretion in this matter should not be exercised in your favor.” Id. While the denial acknowledged favorable factors for Plaintiff-including his marriage to a U.S. citizen and her physical and mental health conditions-it ultimately concluded:

Your repeated abuses of the immigration system in order to enter and remain in the United States fraudulently and engage in unauthorized employment are serious and overriding discretionary factors that outweigh the favorable discretionary factors in this matter.

Id. at 3.

Plaintiff filed his Second Amended Complaint in the present case on December 22, 2020. (ECF No. 23). In Count I, Plaintiff asks this Court to review USCIS's denial of his Form I-601, Application for Waiver of Grounds of Inadmissibility. Id. at 6. Plaintiff states that USCIS denied the application “because they refused to and/or failed to consider the evidence submitted by Plaintiff and sought to punish Plaintiff for having the temerity to sue the Defendants over his long-delayed applications.” Id. Plaintiff claims that Defendants acted arbitrarily, capriciously, and contrary to law in violation of the Administrative Procedures Act, 5 U.S.C. §§ 500, et seq. Id.

In Count II, Plaintiff alleges that Defendants denied him procedural due process in violation of the Fifth Amendment Due Process Clause because USCIS did not consider hardship and “refused to apply the proper legal standard.” Id. at 7. Plaintiff asks this Court to: (1) accept jurisdiction and review the USCIS decision to deny Plaintiff's Form I-601; (2) declare that Defendants' decision violated the Administrative Procedures Act because it was arbitrary and capricious; (3) declare that USCIS's decision to deny Plaintiff's Form I-601 was unlawful, a violation of the Immigration and Nationality Act (“INA”) and the relevant regulations, and a violation of the United States Constitution; (4) enjoin USCIS from denying Plaintiff's Form I-601; (5) order USCIS to approve Plaintiff's Form I-601; and (6) grant attorneys' fees and costs to Plaintiff. Id. at 7-8.

LEGAL STANDARD

“Federal courts are courts of limited jurisdiction. The requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception.” Godfrey v. Pulitzer Pub. Co., 161 F.3d 1137, 1141 (8th Cir. 1998) (internal citations and quotation marks omitted). In deciding a motion under Rule 12(b)(1), the 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 ex rel. Croyle v. United States, 908 F.3d 377, 380 (8th Cir. 2018). In either scenario, Plaintiff bears the burden of establishing subject matter jurisdiction. Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir. 2019).

STATUTORY CONTEXT

A nonimmigrant resident may become a lawful permanent resident under the INA if: (1) the nonimmigrant makes an application for such adjustment, (2) the nonimmigrant is eligible to receive an immigrant visa and is admissible to the U.S. for permanent residence, and (3) an immigrant visa is immediately available to him when the application is filed. 8 U.S.C. § 1255(a). The applicant bears the burden of proving that he is not inadmissible. Nyumah v. Wolf, 500 F.Supp.3d 821 (E.D. Mo. 2020) (citing Godfrey v. Lynch, 811 F.3d 1013, 1017 (8th Cir. 2016)), appeal dismissed sub nom. Nyumah v. Mayorkas, No. 20-3550, 2021 WL 2333132 (8th Cir. May 6, 2021). 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 provided under this chapter is inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(i). Even if an applicant meets the statutory criteria, whether he receives an adjustment of status is ultimately within the discretion of the Attorney General. Mutie-Timothy v. Lynch, 811 F.3d 1044, 1048 (8th Cir. 2016); see also 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 . . . 1182(i) . . . or 1255 of this title, or (ii) any other decision or action of the Attorney General . . . the authority for which is specified under this subchapter to be in the discretion of the Attorney General[.]”).

The Attorney General may, in the discretion of the Attorney General, waive the application of 8 U.S.C. § 1182(a)(6)(C)(i) “if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse[.]” 8 U.S.C. § 1182(i)(1). No. court, however, shall have jurisdiction to review such decision by the Attorney General. 8 U.S.C. § 1182(i)(2).

And while judicial review may be available for legal or constitutional claims, “factual arguments couched in legal or constitutional terms are insufficient to overcome the jurisdictional bar.” Mutie-Timothy, 811 F.3d at 1048 (citation omitted).

DISCUSSION

Because the parties do not dispute the underlying facts, the Court will interpret Defendants' Motion to Dismiss as a facial attack and will accept as true all facts alleged in the Second Amended Complaint. See Pritchett v. United States Dep't of Homeland Sec., No. 4:19-CV-458 RLW, 2020 WL 1032444, at *3 (E.D. Mo. Mar. 3, 2020) (citing Carlsen v GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016)). The Court will also consider ...