Thu Thanh Thi Pham v. Navarrete

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Thu Thanh Thi PHAM, Plaintiff, v. Yasser NAVARRETE, Seattle District Director of U.S. Citizenship and Immigration Services, et al., Defendants.

No. 2:22-cv-588-RAJ

United States District Court, W.D. Washington, Seattle

June 11, 2024

ORDER

THE HONORABLE RICHARD A. JONES, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION AND BACKGROUND

This matter comes before the Court on Defendants United States Citizenship and Immigration Service's (“Defendants” or “USCIS”) Motion to Dismiss. Dkt. # 20. Plaintiff Thu Thanh Thi Pham (“Plaintiff” or “Pham”) opposes the motion to dismiss (Dkt. # 21) and filed a surreply (Dkt. # 25). Defendants have filed a reply in support of their motion to dismiss (Dkt. # 22) and several notices of supplemental authority. Dkt. ## 28, 29, 31, 35, 36. Having reviewing the memoranda, declarations, exhibits submitted by the parties and supplemental authority, the Court finds as follows:

Plaintiff is a citizen of Vietnam and lives in Lewis County Washington. Dtk. # 16 (Amended Complaint) ¶ 2. Plaintiff entered the United States in 2015 via a B-2 visitor visa with authorization to stay in the country until April 2, 2016. Id. ¶ 9. Plaintiff sought to change her status from a B-2 visa holder to that of an M-1 holder by filing a Form I-539, and USCIS approved her application. Id. ¶ 10, 11. Plaintiff's status was valid from June 20, 2016 to June 19, 2017, and Plaintiff enrolled in a training program at the Santa Ana Valley College, Inc. Santa Ana Beauty College (“SABC”). Id. ¶ 11. SABC issued to Plaintiff a Form I-20 Certificate of Eligibility for Nonimmigrant Student Status that stated that Plaintiff would attend the training program from July 5, 2016 through July 17, 2017. Id. On May 9, 2017 Plaintiff sought to extend her M-1 status, and USCIS approved her application with validity from June 20, 2017 to June 19, 2018. Id. ¶ 12. On September 2, 2017, Plaintiff completed her training and began preparing for a state licensing exam, which she passed in November 2017. Id. ¶ 13. On April 11, 2018, Plaintiff again filed to extend her M-1 visa. Her Form I-539 was approved with validity from June 20, 2018 to June 19, 2019. Id. ¶ 14. On August 14, 2018, SABC issued to Plaintiff a Form-120 reflecting a program from July 5, 2016 to June 1, 2018 and “Optional Practical Training” in the field of cosmetology from September 10, 2018 to March 2, 2019. Id.

Plaintiff became interested in applying for a job with Merit Logistics in Washington. Merit Logistics filed a labor certification around December 15, 2017. Id. ¶ 15. Merit Logistics then filed a Form I-140 (Immigrant Petition for Alien Worker) on Plaintiff's behalf on August 30, 2018, and Plaintiff simultaneously filed a Form I-485, Application to Register Permanent Residence or Adjust Status - a green card application. Id. On September 10, 2018, USCIS issued to Plaintiff an employment authorization in the optional practical training category, id. ¶ 16, and on October 12, 2018, Plaintiff received an employment authorization document based on her pending green card application. Id. ¶ 17. In December 2018, Plaintiff moved to Washington and started working at Merit Logistics. Id. ¶ 18.

Plaintiff was interviewed by USCIS on December 3, 2019 and December 1, 2021 regarding her green card application. Id. ¶ 19. After not hearing anything for months, Plaintiff filed the instant action in May 2022, seeking to compel USCIS to make a decision on her green card application. Id. ¶ 20; see also Dkt. # 1 (Complaint). Soon thereafter, USCIS issued a Notice of Intent to Deny, and on August 23, 2022, USCIS denied Plaintiff's application. Dkt. # 16 ¶ 20, 21. According to the Notice of Intent to Deny, USCIS found that Plaintiff failed to maintain her status and violated the terms of her M-1 visa because the Form I-20s did not reflect Plaintiff's true attendance at Santa Ana Beauty College. Dkt. # 23 (Declaration of Frederich S. Schneider), Ex. A (Notice of Intent to Deny). USCIS found that Plaintiff's course of study at SABC was completed on September 1, 2017, and after that date, she was no longer pursuing a full course of study at an established vocational or other recognized nonacademic institution, and therefore no longer eligible to be classified as an M-1 immigrant. Id. According to USCIS, Plaintiff violated the terms of the M-1 classification by failing to further pursue a course of study or participate in Optional Practical Training in the time period of September 2, 2017 to August 30, 2018. Id.

Plaintiff alleges that USCIS found allegedly conflicting testimony by Plaintiff, an inconsistency in a letter provided by SABC, and the fact that Plaintiff never worked as a cosmetologist with her OPT card, and relied on this in denying her application. Dkt. # 16 ¶ 22. Plaintiff further alleges that she was entitled to rely on USCIS's prior action in approving her M-1 extension and her OPT work authorization. Id. ¶ 23. Plaintiff states that both she and her employer Merit Logistics have invested significant time, money, and energy into the permanent residence process and relied on USCIS's prior M-1 adjudications and work authorization. Id. ¶ 25. Ultimately, Plaintiff was laid off by Merit Logistics. Id.

Plaintiff brings two causes of action under the Administrative Procedure Act (APA), 5 U.S.C. § 702. First, she alleges that Defendants' denial of her adjustment of status request is arbitrary, capricious, and an abuse of discretion in that it disregards USCIS's prior approval to extend Plaintiff's nonimmigrant status. Id. ¶ 27, 28. Second, Plaintiff alleges that Defendants' denial decision is contrary to a constitutional right in that “the decision purports to undo USCIS's prior approval of Plaintiff's application to extend her nonimmigrant status.” Id. Plaintiff asserts that she has a protected interest in her approved M-1 status, and Defendants' denial has harmed her and her former employer. Id. ¶ 29, 30. Plaintiff requests that this Court set aside USCIS's denial and remand this matter to the agency for “a new decision to be issued in compliance with the law and regulations within 30 days,” retain jurisdiction over this action and any attendant proceedings until Defendants have re-adjudicated Plaintiff's application, and award Plaintiff reasonable attorney's fees under the Equal Access to Justice Act. Id. at 8.

In Plaintiff's surreply, she asked this Court to strike the Declaration of Frederich Schneider (Dkt. # 23) filed with Defendants' reply and order the parties to file the entire administrative record. Dkt. # 25. In response, this Court provided Plaintiff with the opportunity to file on the docket specific records that she wished to have the Court review in support of her opposition to USCIS's motion to dismiss, and provided Defendants with an opportunity to respond. See Dkt. # 32. Plaintiff filed a response urging this Court to again strike the Schneider Declaration, deny the motion to dismiss, and order Defendants to produce the entire administrate record. Dkt. # 33. Further, Plaintiff provided several excerpts from the administrative record, including Plaintiff's various I-20 forms, approval notices from USCIS, employment authorization documents, and exhibits submitted by Plaintiff in response to USCIS's Notice of Intent to Deny. Dkt. # 33-1, 33-2. Defendants filed a response arguing that the documents submitted by Plaintiff do not contradict the Schneider Declaration and highlighting numerous recent judicial rulings on the issue of jurisdiction over Plaintiff's claim. Dkt. # 34.

Defendants seek dismissal of Plaintiff's claims, arguing that 8 U.S.C. § 1252(a) removes any jurisdiction the Court would otherwise have to review a decision made pursuant to 8 U.S.C. § 1255, and that USCIS's decision to adjust under 8 U.S.C. § 1255 is committed to agency discretion and is therefore not susceptible to attack under the APA. Dkt. # 20.

II. LEGAL STANDARD

Federal courts are tribunals of limited jurisdiction and may only hear cases authorized by the Constitution or a statutory grant. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The burden of establishing subject-matter jurisdiction rests upon the party seeking to invoke federal jurisdiction. Id. Once it is determined that a federal court lacks subject-matter jurisdiction, the court has no choice but to dismiss the suit. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).

In the instant matter, Defendants initially put forth a facial challenge. See Dkt. # 20. A challenge brought under Rule 12(b)(1) may be facial, where the inquiry concerns the allegations made in the complaint; or factual, where the court may look beyond the complaint to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); see also McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir. 1988) (“Moreover, when considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.”).

In their Reply, Defendants asked this Court to view their motion to dismiss as a factual challenge rather than a facial one and consider Plaintiff's immigration history introduced by Defendants in the Declaration of Senior Immigration Services Officer Frederich S. Schneider. Dkt. # 23, 22. According to Defendants, Plaintiff has pivoted from challenging the denial of application to adjust status to challenging USCIS's decision to “retroactively invalidate” her second M-1 visa and place Plaintiff out of lawful status without due process of...