Amit P. Mehta, United States District Judge.
On January 12, 2017, Defendant U.S. Citizenship and Immigration Services ("USCIS") revoked Plaintiff Marvin Yovany Cabrera Cabrera's previously approved Form I-360 visa petition for special immigrant juvenile status. USCIS determined that Plaintiff was not eligible for special immigrant juvenile status because he filed his Petition on the day of his 21
Defendants move to dismiss Plaintiff's Complaint both for lack of subject matter jurisdiction and for failure to state a claim. As to subject matter jurisdiction, Defendants argue that this court lacks the power to review agency decisions revoking I-360 Petitions because such actions are discretionary and specifically excluded by statute from judicial review. As for failure to state a claim, Defendants maintain that Plaintiff has not adduced facts that render it plausible that the agency's action was arbitrary and capricious. Defendants also point out that the court lacks jurisdiction as to Plaintiff's constitutional claims, which must be raised directly with the D.C. Circuit.
The court grants Defendants' Motion to Dismiss in part and denies it in part. The court lacks jurisdiction over Plaintiff's APA claim insofar as he alleges that the revocation of his Petition was arbitrary and capricious because the agency unreasonably delayed in taking such action. The court, however, has jurisdiction to review Plaintiff's challenge to the reasonableness of USCIS's regulations on filing petitions seeking special immigrant juvenile status and the implementation of those regulations. Finally, with respect to Plaintiff's constitutional claims, the court defers to Plaintiff as to whether those claims should be transferred now or later to the D.C. Circuit for review.
Section 204(a)(1)(G) of the Immigration and Naturalization Act ("INA") allows persons qualifying for Special Immigrant Juvenile ("SIJ") status to obtain a residency visa and eventually seek lawful permanent residence. See 8 U.S.C. § 1154(a)(1)(G)(ii). Section 101(a)(27)(J) of the INA defines an SIJ as:
8 U.S.C. § 1101(a)(27)(J). Essentially, the statute requires that anyone seeking SIJ status must have first been the subject of a local juvenile court order indicating that (1) he is a dependent of that court, (2) that reunification with one or both parents is not viable "due to abuse, neglect, abandonment, or a similar basis," and (3) that return to his home country is not in his best interest.
Satisfying the INA's definition of Special Immigrant Juvenile does not, however, by itself make one eligible for residency status. USCIS Regulations impose additional requirements. Those Regulations provide:
8 C.F.R. § 204.11(c).
For purposes of this case, the key requirement is that the applicant be "under
Plaintiff Cabrera Cabrera is a national of El Salvador, born December 9, 1993. Compl., ECF No. 1 [hereinafter Compl.], ¶ 6. Plaintiff last entered the United States on August 6, 2012. See id. According to Plaintiff, he "attempted to schedule a Court hearing in the Circuit Court for Prince George's County, Maryland," to secure the necessary juvenile-court certification for an I-360 Petition, "but the first available date was the day before Petitioner turned 21 years of age." Compl., ECF No. 1-11, Pl.'s Ex. 10 [hereinafter Pl.'s Appeal Br.], at 3.
On December 24, 2014, USCIS sent Plaintiff a Receipt Notice acknowledging that his I-360 Petition had been received on December 9, 2014, and assigning this date as his priority date. See Compl., ECF No. 1-4, Pl.'s Ex. 3. Four months later, on April 24, 2015, USCIS approved Plaintiff's I-360 petition, despite Plaintiff not being age-qualified under the agency's Regulations. Comp. ¶ 22. Based on this approval, Plaintiff completed and submitted his I-485 Application to Register Permanent Residence or Adjust Status, which was received by USCIS on January 11, 2016. Id. ¶ 23; Compl., ECF No. 1-7, Pl.'s Ex. 6.
On September 1, 2016, a little more than 16 months after approving his I-360 Petition, USCIS sent Plaintiff a "Notice of Intent to Revoke" ("NOIR") his SIJ Petition approval. Compl. ¶ 25; Compl., ECF No. 1-8, Pl.'s Ex. 7 [hereinafter NOIR]. The NOIR explained that Plaintiff was 21 years old on the date his application was filed and therefore he did not qualify for special juvenile status under 8 C.F.R. § 204.11(c). Id. at 2. The NOIR notified Plaintiff that he had 30 days from receipt of the NOIR "to rebut and/or submit evidence supporting why [his] petition should not be revoked." Id. The NOIR further indicated that "[i]f no response is received within [the 30-day] period the petition will be revoked as indicated." Id. Plaintiff admits that he did not respond, as he concedes "no additional evidence existed." Compl. ¶ 26.
On January 12, 2017, USCIS sent Plaintiff its decision to revoke his approved I-360 Petition, Compl. ¶ 27; Compl., ECF No. 1-9, Pl.'s Ex. 8, as well as its decision to deny his I-485 application based on the revocation of his I-360 approval, Compl.
On July 6, 2018, Plaintiff filed the instant suit against the Secretary of the Department of Homeland Security; the Director of USCIS; the Chief of the Administrative Appeals Unit; and the Field Office Director of the Virginia-Washington Field Office of USCIS. His Complaint advances two claims. First, he alleges that Defendants violated the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., by arbitrarily and capriciously revoking Plaintiff's I-360 Petition based on (1) the maintenance of "unreasonable filing requirements for I-360 applications" and (2) "the time elapsed between approval and revocation was unreasonable." Compl. ¶ 40. Second, Plaintiff claims that Defendants violated his constitutional rights of Equal Protection and Due Process by allowing "[c]ertain immigration applicants, including those listed at https://www.uscis.gov/file-online," to electronically file applications whereas SIJ applicants cannot. Compl. ¶¶ 47-49.
On October 9, 2018, Defendants filed a Motion to Dismiss Plaintiff's Complaint in its entirety for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. Defs.' Mot. to Dismiss, ECF No. 6 [hereinafter Defs.' Mot.].
Defendants' motion to dismiss for lack of subject-matter jurisdiction arises under Federal Rule of Civil Procedure 12(b)(1). See Fed. R. Civ. P. 12(b)(1). When deciding a motion under Rule 12(b)(1), a court must accept all well-pleaded factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005). In addition, the court may consider "such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, et al., 104 F.Supp.2d 18, 22 (D.D.C. 2000); see Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). Specifically, when it is necessary to look beyond the face of the complaint to determine whether the court has subject matter jurisdiction, "the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation marks and citation omitted). The plaintiff bears the burden of establishing the court's subject matter jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Defendants' alternative ground for dismissal for "failure to state a claim upon which relief can be granted" arises under Rule 12(b)(6). Fed. R. Civ. P. 12(b)(6). To
In evaluating a motion to dismiss under Rule 12(b)(6), the court must accept a plaintiff's "factual allegations ... as true," Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 67 (D.C. Cir. 2015), and "construe the complaint `in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged,'" Hettinga, 677 F.3d at 476 (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). The court need not accept as true, however, "a legal conclusion couched as a factual allegation," Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), or "inferences... unsupported by the facts set out in the complaint," Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Defendants assert that the court lacks subject matter jurisdiction in this case by operation of the INA's jurisdiction-stripping clause. As pertinent here, that statutory provision provides:
8 U.S.C. § 1252(a)(2)(B). Defendants rely on subsection (ii), arguing that revoking Plaintiff's I-360 Petition qualifies as "any other decision or action of ... the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the ... Secretary of Homeland Security." Defendants point to 8 U.S.C. § 1155 as the source of the Secretary's discretionary action here, which provides: "The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 1154 of this title." 8 U.S.C. § 1155.
Plaintiff disputes that the jurisdiction-stripping provision applies in this case. He argues that where, as here, "the government
The D.C. Circuit has not yet opined on whether revocations pursuant to section 1155 are unreviewable acts of discretion by the Secretary of Homeland Security. Defendants are correct that a majority of circuits that have examined the issue have held that section 1155 renders petition revocations unreviewable. See Defs.' Mot. at 4-5 (citing Bultasa Buddhist Temple of Chicago v. Nielsen, 878 F.3d 570, 573-74 (7th Cir. 2017); Bernardo ex rel. M & K Eng'g, Inc. v. Johnson, 814 F.3d 481, 482 (1st Cir. 2016); Mehanna v. U.S. Citizenship & Immigration Servs., 677 F.3d 312, 314-15 (6th Cir. 2012); Green v. Napolitano, 627 F.3d 1341, 1344-46 (10th Cir. 2010); Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009); Sands v. U.S. Dep't of Homeland Sec., 308 Fed.Appx. 418, 419-20 (11th Cir. 2009); Ghanem v. Upchurch, 481 F.3d 222, 223-24 (5th Cir. 2007); Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 205-06 (3d Cir. 2006); El-Khader v. Monica, 366 F.3d 562, 566 (7th Cir. 2004)). Those cases have focused on Congress's use of the terms "may," "at any time," and "deems" in section 1155 to conclude that petition revocations are judicially unreviewable. See, e.g., Jilin Pharm. USA, 447 F.3d at 205-06. Two cases from this District have followed the majority approach. See Mohammad v. Napolitano, 680 F.Supp.2d 1, 6 (D.D.C. 2009); see also Systronics Corp. v. Immigration and Naturalization Serv., 153 F.Supp.2d 7, 12 (D.D.C. 2001) ("In the absence of any factual standards to discern when the Attorney General has `good and sufficient cause' to revoke a petition, this Court finds that matter to be in the discretion of the Attorney General and unreviewable."). Only the Ninth Circuit has found that courts may review permit revocations, finding that the phrase "good and sufficient cause" in section 1155 provides a standard for judicial review. See ANA Int'l, Inc. v. Way, 393 F.3d 886 (9th Cir. 2004).
As Plaintiff points out, however, none of the above-identified cases concern the situation presented in this case, namely, where USCIS's revocation is rooted in a requirement that involves little or no exercise of judgment—Plaintiff was not "under twenty-one years of age" at the time of filing—as opposed to one in which the agency exercises some judgment about eligibility criteria. See, e.g., Jilin Pharm. USA, 447 F.3d at 198 (revocation decision based on finding that the petitioner was not working in an executive or managerial capacity); Bernardo, 814 F.3d at 483 (revocation decision based on insufficient work qualifications). As Plaintiff puts it, "where the government contends that the result was compelled by rule without the need for any exercise of discretion, there is no bar on jurisdiction." Pl.'s Opp'n at 3.
Ultimately, the court need not determine whether the distinction Plaintiff attempts to draw is one of legal consequence because Plaintiff's APA claim does not rest on whether the agency correctly determined that he was "under twenty-one years of age" at the time the agency received his Petition. Instead, Plaintiff makes two different challenges under the APA, neither of which involves questioning the agency's determination of Plaintiff's age at the time of filing. First, he contests "defendants' unreasonable filing requirements" for I-360 applications. Compl. ¶ 40. Specifically, he questions "USCIS' filing
As explained below, the court concludes that it has jurisdiction to hear Plaintiff's challenge to the agency's "unreasonable filing requirements," but not the agency's "unreasonable" delay in revoking the Petition.
As noted, Defendants rely on section 1252(a)(2)(B)(ii) as barring jurisdiction over USCIS's decision of revocation. See Defs.' Mot. at 4. That provision forecloses review of "discretionary" acts of the Secretary of Homeland Security "the authority for which is specified under this subchapter." 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). The referenced "subchapter" is Subchapter II of Title 8, Chapter 12, entitled "Immigration." Subchapter II contains nine Parts, covering a range of subjects, including "Admission Qualifications for Aliens" (Part II), "Issuance of Entry Documents" (Part III), and "Adjustment and Change of Status" (Part V).
Subchapter II does not, however, contain Congress's delegation of authority to the Secretary to promulgate regulations necessary to carry out his functions under the INA. That congressional delegation is found elsewhere, in Subchapter I. Section 1103(a) charges the Secretary of Homeland Security "with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens," except as otherwise provided by statute. 8 U.S.C. § 1103(a)(1). Congress granted the Secretary broad authority to "establish such regulations ... [and] issue such instructions ... as he deems necessary for carrying out his authority under the provisions of this chapter." Id. § 1103(a)(3). It is pursuant to this delegation of authority that the Secretary promulgated the Regulations governing eligibility for special immigrant juvenile status and the date on which eligibility is determined. And it is this constellation of regulations, and the agency's implementation of them, that Plaintiff claims is arbitrary and capricious. Nothing in section 1252(a)(2)(B)(ii) forecloses review of such agency action.
There exists a "strong presumption that Congress intends judicial review of administrative action." Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986). Defendants point to no statutory provision that would foreclose the court's jurisdiction to review the applicable regulations and their implementation. Without any statutory bar, there is nothing to preclude this
The court reaches a different conclusion with respect to Plaintiff's assertion that USCIS violated the APA because of the "unreasonable" delay in revoking his Petition. The court lacks subject matter jurisdiction to review that claim. Section 1155 empowers the Secretary to "revoke the approval of any petition" "at any time." 8 U.S.C. § 1155 (emphasis added). Congress therefore placed no time limitation on the Secretary's ability to revoke a previously approved petition. Given the unlimited discretion afforded the Secretary as to the timing of a revocation decision, review of the "reasonableness" of the time it took the Secretary to revoke Plaintiff's Petition falls squarely outside the court's jurisdiction. Accordingly, the court cannot review the temporal aspect of Plaintiff's APA claim.
Defendants also argue that Plaintiff's Complaint fails to state a claim upon which relief can be granted, under Fed. R. Civ. P. 12(b)(6), "by failing to provide evidence that [Plaintiff] was indeed eligible for I-360 SIJ status at the time his petition was filed." Defs.' Mot. at 6. Essentially, Defendants' argument hinges on the contention that a "petitioner must meet all of the requirements of 8 C.F.R. § 204.11(c), including the age restriction" because "[s]uch requirements are mandatory," Defs.' Mot. at 7, but "Plaintiff has not offered any factual evidence to refute" that he had reached the age of 21 at the time that his petition was considered filed, id. at 8.
This argument, however, misconstrues the nature of Plaintiff's claim, or at least the one that the court can review. Put succinctly, Plaintiff alleges that USCIS acted arbitrarily and capriciously by affording him no means by which to timely file his Petition on the day before his 21st birthday, when he received the necessary certification from the juvenile court. To bolster that claim, Plaintiff seems to suggest different treatment from similarly situated applicants. He alleges, for instance, that USCIS offers same-day electronic filing for other types of Petitions, but not I-360 Petitions. Compl. ¶ 47. Such an allegation of disparate treatment makes out a plausible APA claim. Cf. Regents of the Univ. of California v. Burwell, 155 F.Supp.3d 31, 53 (D.D.C. 2016), aff'd sub nom. Regents of the Univ. of California v. Price, 681 F. App'x 5 (D.C. Cir. 2017) ("disparate treatment of similarly situated entities may give rise to a valid APA challenge") (internal quotation marks and citation omitted). Defendants may be able to successfully defend the regulations and paper-filing system required for I-360 petitions in the final analysis, but the motion to dismiss stage is not the proper procedural posture at which to make that determination. The court therefore denies Defendants' Motion to Dismiss for failure to state a claim.
Plaintiff's Complaint also advances claims under the Equal Protection and Due Process Clauses on the theory that his inability to file electronically, when other applicants are able to do so, gives rise to a constitutional violation. See Compl. ¶¶ 43-49. Defendants assert that this court lacks jurisdiction to consider these claims. See Defs.' Mot. at 6. They are correct.
Under the INA, jurisdiction to review constitutional claims rests exclusively in the circuit courts of appeal. The Act provides:
8 U.S.C. § 1252(a)(2)(D) (emphasis added). As applied here, this provision makes it clear that Plaintiff's constitutional challenges to his I-360 Petition revocation can be heard only by the D.C. Circuit. See Adam v. Chertoff, No. CIVA 05-1710 RMC, 2006 WL 3334962, at *2 (D.D.C. Nov. 16, 2006) ("Judicial review of the denial of an [I-485 Petition] is precluded, except upon petition for review filed with a court of appeals. 8 U.S.C. § 1252(a)(2)(D). Even then, such review is limited to constitutional claims or questions of law.").
Rather than dismiss the claims, Plaintiff urges that "it would be more appropriate to transfer the constitutional claims to the court of appeals." Pl.'s Opp'n at 6. The court is inclined to grant the requested transfer but is unclear on whether Plaintiff wishes to transfer the claims now or after this court has resolved his APA claim. Plaintiff shall be prepared to address this question at the status hearing set below.
For the reasons outlined above, the court grants in part and denies in part Defendants' Motion to Dismiss as to Plaintiff's APA claim, and holds Plaintiff's constitutional claims in abeyance. The parties shall appear for a status conference on April 10, 2019, at 11:00 a.m. in Courtroom 10.
