ELI RICHARDSON, District Judge.
Plaintiff Edwin Castro Bustillo brings this action against Defendants Kevin McAleenan, Secretary for the Department of Homeland Security; L. Francis Cissna, Director of United States Citizenship and Immigration Services ("USCIS"); Robert Cowan, Director of the National Benefits Center, and USCIS (collectively "Defendants"), seeking relief for the denial of Plaintiff's application for employment authorization. (Doc. No. 1). Currently before the Court is Defendants' Motion to Dismiss (Doc. No. 18, "the Motion"). Plaintiff responded in opposition (Doc. No. 20), and Defendants have replied (Doc. No. 23). As discussed below, the Complaint will be dismissed with prejudice.
Plaintiff Edwin Castro Bustillo ("Plaintiff") is a native and citizen of El Salvador who currently lives in Smyrna, Tennessee. (Doc. No. 1 at ¶¶ 1, 10). At all times relevant to this action, removal proceedings were pending against Plaintiff before the United States Department of Justice Executive Office for Immigration Review ("EOIR").
On April 2, 2018, USCIS sent a Request for Evidence ("RFE") document to Plaintiff requesting that he provide evidence that his Form EOIR-42b had been properly filed with the immigration court and remained pending so as to establish his ongoing eligibility for employment authorization. (Id. at ¶ 21). Plaintiff responded to the RFE within the time provided (Id. at ¶ 22). On May 29, 2018, USCIS denied Plaintiff's Form I-765 application, stating that
(Id. at ¶ 24). Plaintiff filed a motion to reopen the denial on June 28, 2018, and USCIS denied the motion to reopen on November 8, 2018. (Id. at ¶ 16).
On May 9, 2019, Plaintiff filed with this Court a "Petition for Writ of Mandamus and Complaint for Injunctive and Declaratory Relief," wherein Plaintiff requests the Court reopen and properly adjudicate his application for employment authorization previously filed with the USCIS, and order Defendants to grant employment authorization and issue an employment authorization document to Plaintiff. (Id. at ¶ 11). Alternatively, Plaintiff seeks judicial review under the Administrative Procedures Act ("APA") of the denial of his application for employment authorization. (Id.).
Rule 12(b)(1) "provides for the dismissal of an action for lack of subject matter jurisdiction." Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014). "Where subject matter jurisdiction is challenged pursuant to Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (citation omitted). There are two types of motions to dismiss for lack of subject-matter jurisdiction: facial and factual attacks. A facial attack on subject-matter jurisdiction, as Defendants have made here, goes to whether the plaintiff has properly alleged a basis for subject matter jurisdiction. See Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). Upon facial attack, "the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party." United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994) (citation omitted). "A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject-matter jurisdiction." Id.
For purposes of a motion to dismiss brought pursuant to Rule 12(b)(6), the Court must view all the factual allegations in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss brought pursuant to Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. at 679. A legal conclusion, including one couched as a factual allegation, need not be accepted as true on a motion to dismiss, nor are mere recitations of the elements of a cause of action sufficient. Id. at 678; Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010); Abriq v. Hall, 295 F.Supp.3d 874, 877 (M.D. Tenn. 2018). Moreover, factual allegations that are merely consistent with the defendant's liability do not satisfy the claimant's burden, as mere consistency does not establish plausibility of entitlement to relief even if it supports the possibility of relief. Iqbal, 556 U.S. at 678.
In determining whether a complaint is sufficient under the standards of Iqbal and its predecessor and complementary case, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), it may be appropriate to "begin [the] analysis by identifying the allegations in the complaint that are not entitled to the assumption of truth." Iqbal, 556 U.S. at 680. Identifying and setting aside such allegations is crucial, because they simply do not count toward the plaintiff's goal of showing plausibility of entitlement to relief. As suggested above, such allegations include "bare assertions," formulaic recitation of the elements, and "conclusory" or "bald" allegations. Id. at 681. The question is whether the remaining allegations—factual allegations, i.e., allegations of factual matter — plausibly suggest an entitlement to relief. Id. If not, the pleading fails to meet the standard of Fed. R. Civ. P. 8 and thus must be dismissed pursuant to Rule 12(b)(6). Id. at 683.
As a general rule, matters outside the pleadings may not be considered in ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) unless the motion is converted to one for summary judgment under Rule 56. Fed. R. Civ. P. 12(d). However, when a document is referred to in the pleadings and is integral to the claims, it may be considered without converting a motion to dismiss into one for summary judgment. Doe v. Ohio State Univ., 219 F.Supp.3d 645, 652-53 (S.D. Ohio 2016); Blanch v. Trans Union, LLC, 333 F.Supp.3d 789, 791-92 (M.D. Tenn. 2018).
Section 702 of the APA states that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. Further, the reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . ." 5 U.S.C. § 706(2). However, the APA precludes jurisdiction to the extent that "statutes preclude judicial review" or "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a). "The so-called `committed to agency discretion exception' is `very narrow,' and is only applicable where `statutes are drawn in such broad terms that in a given case there is no law to apply.'" Jimenez v. Sec'y, Dep't of Homeland Sec., No. 618CV1113ORL40GJK, 2019 WL 175274, at *2 (M.D. Fla. Jan. 11, 2019) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)). Thus, judicial review is "unavailable where `a court would have no meaningful standard against which to judge the agency's exercise of discretion.'" Id. (quoting Lenis v. U.S. Attorney Gen., 525 F.3d 1291, 1293 (11th Cir. 2008)).
Defendants argue that the denial of Plaintiff's application for employment authorization was a discretionary decision, and that therefore, the APA precludes jurisdiction and the Court lacks subject-matter jurisdiction. (Doc. No. 19 at 6-7). Defendants assert that the plain language of 8 U.S.C. § 1324a(h)(3)(B)
In response, Plaintiff argues that "the [USCIS] decision here did not rely upon the agency's exercise of its inherent discretion. Rather, the agency's decision was that Plaintiff had not complied with the requirements of establishing his eligibility for employment authorization as required by § 274a.12(c)(10)." (Doc. No. 20 at 6). Plaintiff asserts that "nothing about the agency's denial letter suggests that the decision to deny the Form I-765 was based on the agency's exercise of its discretionary authority." (Id.). Rather, Plaintiffs contend that Defendants' decision was based on a finding that he was ineligible to apply because he had not submitted the proper evidence to comply with the terms of § 274a.12(c)(10), which was a non-discretionary decision. In support, Plaintiff cites Jimenez v. Sec'y, Dep't of Homeland Sec., No. 618CV1113ORL40GJK, 2019 WL 175274 (M.D. Fla. Jan. 11, 2019). In Jimenez, the court concluded that USCIS' decision to deny an alien's employment authorization application based upon the alien's failure to show a properly filed application for cancellation of removal that was accepted by the EOIR (i.e., compliance with 8 C.F.R. § 274a.12(c)(10)), was a non-discretionary decision and thus subject to federal court review. 2019 WL 175274, at *2. The court explained that "[w]hile generally USCIS decisions to approve or deny applications for employment authorization are discretionary, see 8 C.F.R. § 274a.13(a)(1), there is a `meaningful standard against which to judge [USCIS'] exercise of discretion' in this case." Id. (citing Lenis, 525 F.3d at 1293) (alterations in the original). Therefore, the court held that it had subject matter jurisdiction and denied the defendants motion to dismiss.
The Court agrees with Plaintiff that Defendants' denial of Plaintiff's application was not a discretionary decision. While the applicable regulations state that approval of employment authorization applications "are within the discretion of USCIS,"
Thus, the Court finds that the determination that Plaintiff did not submit evidence that established his eligibility for employment authorization did not require any discretionary decision on the part of Defendants. Instead, it involved a mere comparison between the list of items Plaintiff had provided and the list of items required by Section 274a.12(c)(10). Cf. Pulotov v. U.S. Citizenship & Immigration Servs., No. CV 16-6067, 2018 WL 934612, at *6 (E.D. Pa. Feb. 16, 2018) (explaining that "the denial of Plaintiff's employment authorization application . . . was non-discretionary because no discretion was involved in Defendant USCIS' decision since it merely computed the days between the filing of his Form I-589, the Application for Asylum and for Withholding of Removal and the filing of his Form I-765"); see also Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th Cir. 2005) (distinguishing between the director's nondiscretionary factual determinations of eligibility for adjustment of status and discretionary determinations of whether to adjust status once eligibility has been determined). "Non-discretionary actions . . . and purely legal determinations made by the agency remain subject to judicial review." Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir. 2005). Accordingly, because USCIS' decision was non-discretionary, the Court finds that subject matter jurisdiction is present in this case, and Defendant's Motion to Dismiss filed pursuant to Rule 12(b)(1) will be denied.
Alternatively, Defendants argue that Plaintiff's claims are subject to dismissal pursuant to Rule 12(b)(6). Defendants assert that Plaintiff has failed to state a claim because he did not allege that he properly filed his cancellation of removal application (Form EOIR-42b) with an immigration court (a.k.a., the EOIR)—a step which, according to Defendants, is necessary to establish eligibility for employment authorization pursuant to 8 C.F.R. § 274a.12(c)(10). Consequently, Defendants argue that Plaintiff has not alleged that Defendants improperly denied his application for employment authorization. (Doc. No. 19 at 8).
In rebuttal, Plaintiff points to 8 C.F.R. § 274a.12(c)(10), which provides that one of the categories of aliens that are eligible to apply for employment authorization includes any "alien who has filed an application for . . . cancellation of removal pursuant to [8 U.S.C. § 1229b] . . . and whose properly filed application has been accepted by the Service or EOIR[.]" (Doc. No. 20 at 7 (emphasis in original)). Plaintiff contends that because he submitted his application and fee to the USCIS (a.k.a., the "Service"), "the clear, unambiguous language" of the regulation demonstrates that Plaintiff properly submitted his Form EOIR-42b, and that he therefore is eligible to seek employment authorization despite not submitting his Form EOIR042b to the EOIR. (Doc. No. 20 at 7-8). Accordingly, Plaintiff contends that he states a claim upon which relief can be granted.
In reply, Defendants argue that Plaintiff's reading of the regulation is overbroad and incorrect. (Doc. No. 23). Defendants contend that "Plaintiff erroneously focuses on the word `or' in the regulation . . . to come up with an ultra vires reading of the DHS regulation that would give an applicant for employment authorization the option of filing his Form EOIR-42b with either DOJ or DHS." (Id. at 4). Defendants maintain that "[t]he practical result [of Plaintiff's reading of the regulation] is that any alien, whether to not he is prima facie eligible for cancellation of removal, could mail a Form EOIR-42B with fee to USCIS and unilaterally make himself eligible to apply for employment authorization forever, without ever actually prosecuting the application." (Id. at 4-5). Defendants assert that this is not the intent of 8 C.F.R. § 274a.12(c)(10). (Id. at 5). Additionally, Defendants argue that Plaintiff "completely ignores the last clause of the regulation which requires that an applicant for employment authorization under 8 C.F.R. § 274a.12(c)(10) show that he or she has `properly filed' one of the three applications,
Thus, the issue before the Court is whether filing an application for cancellation of removal proceedings (Form EOIR-42b) with the USCIS (and not an immigration court within the EOIR) renders an alien eligible to seek employment authorization under 8 C.F.R. § 274a.12(c)(10). In full, the regulation at issue provides,
8 C.F.R. § 274a.12(c)(10).
The Court disagrees with Plaintiff that "the clear, unambiguous language" of the regulation demonstrates Plaintiff's eligibility for employment authorization. The regulation read in its entirety, rather Plaintiff's quoted portion of the regulation, references three different categories of applications—cancellation of removal applications, suspension of deportation applications, and special rule cancellation of removal applications. Id. While an application for cancellation of removal and suspension of deportation must be filed with the EOIR
Nevada-Martinez v. Ahmad, No. 5:15-CV-239-JMH, 2016 WL 7888046, at *1 n.2 (E.D. Ky. June 17, 2016) (emphasis added). Based on these authorities, the Court concludes that a Form EOIR 42-b is not "properly filed" until it is submitted to the EOIR (a.k.a. an immigration court).
This rejection is further supported by the instructions attached to the Form I-765. The instructions read as follows: "Applicant for Cancellation of Removal—(c)(10). File Form I-765 with evidence one of the following forms is pending with EOIR: EOIR-42A or EOIR-42B. See Instructions for Application for Employment Authorization (Form I-765), OMB No. 1615-0040 at 11. (emphasis added). As noted above, 8 C.F.R. § 103.2(a)(1) provides that applications "must be submitted to [USCIS)] and executed in accordance with the form instructions regardless of a provision of 8 CFR chapter I to the contrary." 8 C.F.R. § 103.2(a)(1) (emphasis added). Therefore, in light of the Form I-765 instructions, which as the regulation notes overrides any regulation to the contrary, the Court concludes that Plaintiff was required to file his application for cancellation of removal with an immigration court prior to seeking employment authorization with the USCIS.
Here, although Plaintiff alleged that he filed his Form EOIR-42b with the USCIS, Plaintiff did not allege that he filed his Form EOIR 42-b with an immigration court (i.e., EOIR) prior to seeking employment authorization with the USCIS, nor argues that he did so in his response. As discussed above, the regulations and form instructions make clear that an individual seeking employment authorization must file their Form EOIR 42-b with the EOIR prior to seeking employment authorization for it to be considered "properly filed."
Finally, the Supreme Court decisions in Auer v. Robbins, 519 U.S. 452 (1997) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) provide an alternative basis for upholding Defendant's decision, i.e., a rock-solid basis for upholding the decision even if it was not clearly correct as the Court has concluded above. Those decisions require a court to defer to an agency's reasonable reading of a genuinely ambiguous regulation. That deference (known, for obvious reasons, as Auer or Seminole Rock deference) rests on the proposition that "when granting rulemaking power to agencies, Congress usually intends to give them, too, considerable latitude to interpret the ambiguous rules they issue." Kisor v. Wilkie, 139 S.Ct. 2400, 2412 (2019) (reaffirming Auer and Seminole Rock). As Kisor made quite clear, the doctrine of Auer deference has come under significant attack in recent years. And yet, via Kisor, it has survived those attacks essentially intact. And so the Court must recognize Auer deference and afford it to the agency decision if it applies.
As explained above, the Court does not find that 8 C.F.R. § 274a.12(c)(10) is ambiguous and instead concludes that the regulation unambiguously entails that a Form EOIR 42-b must be filed with the EOIR to render an alien eligible to apply for employment authorization. Nevertheless, assuming arguendo that the regulation is ambiguous, which is the best case scenario for Plaintiff,
For the above-mentioned reasons, Plaintiff is not entitled to relief under the APA, or a writ of mandamus from this Court. Accordingly, his claims will be dismissed the Court will grant in part and deny in part Defendants' Motion to Dismiss. The Court will deny Defendants' Motion to Dismiss filed pursuant to Rule 12(b)(1). However, the Court will grant Defendants' Motion to Dismiss filed pursuant to Rule 12(b)(6), and this case will be dismissed. Although the Court will dismiss Plaintiff's case it notes that, as Defendants point out, Plaintiff is not completely without recourse because Plaintiff may file his Form EOIR-42b with an immigration court, which will render him eligible to apply for employment authorization with USCIS pursuant to 8 C.F.R. § 274a.12(c)(10).
An appropriate order will be entered.
