Lee-Lewis et al v. Kerry et al

Filing 53

ORDER granting in part and denying in part 32 Motion to Dismiss; granting in part and denying in part 40 Motion to Strike. Plaintiffs' nunc pro tunc claim is DISMISSED WITHOUT PREJUDICE. Plaintiffs' Motion for a Thirty Minute Telephone Hearing to Present Oral Arguments is DENIED; and Defendants have sixty days from the date of this Order to response to Counts 6-7 of Plaintiffs' Second Amended Complaint. Signed by Chief Judge Lisa G. Wood on 11/8/2016. (ca)

Sn tl^e ^Uniteb ^tates( litsitritt Conit
for tl^e ^ontfieni Biotrttt of 4leorsta
Pntnsiltitclk Btbtsiioti
COLETTE LEE-LEWIS, M.D., et

al.,

Plaintiffs,
2:13-CV-80
V.

JOHN KERRY, United States

Secretary of State, et al..
Defendants.

ORDER

Plaintiffs

Collette

Lee-Lewis,

M.D.,

and

her

husband,

Selvin Charles Lewis, bring suit against multiple United States

government
waiver

officials

and

application.

regarding

Plaintiffs

Defendants'

Administrative

agencies

Procedure

alleged
Act

relating
seek

to

her

declaratory

violations

C^^APA");

(2)

of:
the

J-1

visa

judgments

(1)
Freedom

the
of

Information Act (''FOIA"); (3) due process; (4) the International
Covenant

on

Civil

and

Political

customary international law.
117-177.

A0 72A

('^ICCPR");

and

(5)

Dkt. No. 28 (^'2d Am. Compl.") HH

Plaintiffs also seek redress under FOIA.

183, p. 39 IK 26-27.

(Rev. 8/82)

Rights

Id. HH 178-

Defendants

John

Kerry,

Rajiv

Shah,

Linda

Walker,

Marcia

Pryce, Daniel Renaud, United States, Eric Holder, Jeh Johnson,
and Leon Rodriguez

{^^Defendants'') argue that this Court lacks

STobject matter jurisdiction because: (1) the claims are moot;
(2) the challenged actions are exempt from judicial review; (3)
Plaintiff failed to state a claim; and (4) the FOIA request was

not properly perfected.

Presently

Dkt. No. 32 (^^Def. Mot.") at 5-28.

before

the

Court

are

Defendants'

Motion

to

Dismiss (Dkt. No. 32) and Plaintiffs' Motion to Strike (Dkt. No.

40).

Although the Court empathizes with Plaintiffs, it cannot

grant most of the relief they seek.

However, it does appear to

have subject matter jurisdiction over Plaintiffs' FOIA claims.
Thus, for the reasons below. Defendants' Motion to Dismiss
(Dkt.

No.

32)

is

GRANTED

IN

PART

and

Plaintiffs'

Motion

to

Strike (Dkt. No. 40) is DENIED IN PART.
FACTUAL BACKGROUND

The

Court

begins

by

briefly

summarizing

the

relevant

provisions of the J-1 visa and its accompanying waiver process,
along with the circumstances surrounding the Caribbean island of
Montserrat, a British Overseas Territory.
The J-1 Visa and No Objection Waiver
The

having

a

United

States

residence

in

intention of abandoning

awards

a

visas

foreign

each

country

year

to

which

^^an

he

alien

has

no

who is a bona fide student, scholar.

trainee, teacher, professor, research assistant, specialist, or
leader in a field of specialized knowledge or skill."
§ 1101(a)(15)(J)

temporary

status

teaching,

C'J-l visa").

in

the

instructing

The J-1 visa grants its holders

United

or

8 U.S.C.

States

lecturing,

^^for

the

purpose

studying,

of

observing,

conducting research, consulting, demonstrating special skills or
receiving training."

Id.

No J-1 holder "'shall be eligible to apply for an immigrant

visa, or for permanent residence, or for a non-immigrant visa"

without

residing

and

being

physically

present

in

her

home

country for at least two years after leaving the United States.
8

U.S.C.

§ 1182(e).

Plaintiff

Lee-Lewis is subject to this

requirement because the United States Agency for International

Development ("USAID") sponsored her visa.

2d Am. Compl. H 23.

The residency requirement "may" be waived in three cases:

(1) "exceptional hardship upon the alien's spouse or child (if
such spouse or child is a citizen of the United States or a
lawfully resident alien)"; (2) "the alien cannot return to the
[required]

countary . . . because

[s]he

would be subject to

persecution on account of race, religion or political opinion";
and (3) "the foreign country of the alien's nationality or last
residence has furnished . . . a statement in writing that it has

no objection to such waiver in the case of such alien."

Id.

Plaintiff Lee-Lewis seeks the third type of waiver, having

received

a

government.

no

objection

Id. H 47.

statement

from

the

Montserratian

This is only one component of a no

objection waiver application;

The State Department can ''request

the views of each of the exchange visitor's sponsors," and its
Waiver

Review

Division

("WRD")

"shall

review

the

policy, and foreign relations aspects of the case."
41.63(d)(1)-(2).

program,

22 C.F.R. §

WRD's recommendation is ordinarily adopted as

the State Department's.

Id. § 41.63(d)(2).

Volcanic Activity on Montserrat

In 1995, the Soufriere Hills volcano of southern Montserrat

erupted,

completely

destroying

the

island's

capital,

its

airport, and most of its fertile soil, and covering much of the
island in volcanic ash.

Id. H 15.

The volcano may destroy

Montserrat-it has continued to erupt and could annihilate the

island completely at any time.
and

the

United

States

Id. ^ 54.

Citizenship

and

The State Department
Immigration

Service

("USCIS") recognize that "returning residents possibly would be

subject to contracting the lung disease silicosis and other
health risks caused by ash that periodically covers much of the
island."

Id. H 15.

Plaintiff Lee-Lewis's Visa History

Plaintiff Lee-Lewis is a medical doctor who now lives with

her husband in Glynn County, Georgia; she was born in Plymouth,

Montserrat's longtime capital.
Montserrat citizens.

Id. HH 1, 15.

Id. ^ 2.

Both spouses are

On August 12, 1989, Plaintiff

Lee-Lewis entered the United States on a J-1 visa sponsored by

USAID, to pursue a biochemistry bachelor's degree.
She remained in this country until October 26, 1992.
She returned to Montserrat.

for work, but found none.

Id. H 25.

Id.

she

did

so,

Id. H 24.

She diligently searched

She returned to the United

States in December 1992 for medical school interviews.

Before

Id. f 22.

Montserrat's

Ministry

of

Id.

Education

informed her ''that she was released from her two-year foreign

residence requirement because she could not find a job."

Id.

It provided Plaintiff Lee-Lewis with a letter explaining "that
she had applied for a job, but there were none available."

Id.

This caused Plaintiff Lee-Lewis to "sincerely believe" that she

was released from the J-1 visa residency requirement.
She

returned

to

the

United

States

on

a

Id.

B-l/B-2

tourist

visa, then changed to an F-1 student visa upon matriculating to
medical school.

Id. H 26.

After graduating, she maintained H-

IB status from May 8, 1998 to July 7, 2005.

Id. H 27.

Believing that she was free of J-1 issues, and advised by
an attorney. Plaintiff Lee-Lewis applied for and received an I140 National Interest Waiver in May 2005.

Id.

34-35.

Shortly thereafter, the attorney asked Plaintiff Lee-Lewis
whether

she

had

ever

obtained

a

J-1

residency

requirement

waiver, to which Plaintiff responded ''that she did not have one,

nor did she think she needed one."

Id. H 35.

The attorney then

"sent her a letter on June 2, 2005 . . . notifying her that she

was ineligible

to apply for adjustment of

status until she

fulfilled her two-year foreign residence requirement."

Id.

Plaintiff Lee-Lewis's J-1 Waiver Application

Plaintiff

Lee-Lewis

submitted

application on October 27, 2006.

her

Id. H 53.

ongoing volcanic eruptions on Montserrat.
The

State

Department

no

issued

objection

waiver

It referenced the

Id. % 54.
a

"Not

Favorable

Recommendation," and the USCIS denied the application on October
2, 2008.

Id. nil 80, 92.

The denial read:

The United States Department of State has
advised that even though a "no objection"
statement from your country of nationality
has been issued, based on program and policy
considerations they are not recommending
that you be granted a waiver of the two-year

foreign

residence

requirement

of

section

212(e) of the Immigration and Nationality
Act, as amended. . . . Accordingly, on the
basis

of

the

unfavorable

recommendation

of

the USDOS, you are hereby denied a waiver of
the two-year foreign residence requirement
of section 212(e).

No appeal lies from this

decision . . . .

Id. II 93.

After this lawsuit began, the State Department reopened the
case and issued a "Favorable Recommendation," which was followed

by

an

USCIS

approval

notice

waiver on August 1, 2013.

granting

Id. at

Plaintiff

Lee-Lewis

a

99-100.

Plaintiff Lee-Lewis's FOIA Request

On

May

8,

2013,

Plaintiff

Lee-Lewis

filed

a

State

Department FOIA request seeking information about the denial of

her

application.

information as

practice

of

Id.

to

not

H

whether

38.
the

adhering

Plaintiff
WRD "'engaged

to

its

own

Lee-Lewis
in

a

sought

pattern and

regulations,

the

Constitution, and [whether it] commit[ed] other legal violations

in adjudicating no objection waiver applications that involve
U.S. Government funding."

Id. H 82.

On May 22, 2013, the State Department acknowledged receipt

of the request and issued a case number.

Id. H 112.

To date,

the State Department has failed to confirm or deny the existence
of responsive documents.

Id.

113-115.

PROCEDURAL BACKGROUND

On June 17, 2013, Plaintiffs filed suit against Defendants,

seeking
Dkt.

No.

declaratory,
1.

Plaintiffs filed a

August 20, 2014.
Defendants

injunctive,

mandamus,
Second

and

Amended

FOIA

relief.

Complaint on

Dkt. No. 28.
filed

a

Motion

to

Dismiss

(Dkt.

No.

32),

Plaintiffs responded (Dkt. No. 36), Defendants replied (Dkt. No.
37), and Plaintiffs filed a surreply (Dkt. No. 42).

Plaintiffs

moved

to

strike

Defendants'

reply

(Dkt.

Court

are

No.

40);

Defendants

responded (Dkt. No. 41).

Now

pending

before

the

Defendants'

Motion

to

Dismiss (Dkt. No. 22), which is GRANTED IN PART, and Plaintiffs'
Motion to Strike (Dkt. No. 40), which is DENIED IN PART.
LEGAL STANDARD

Defendants move to dismiss this action for lack of subject

matter

jurisdiction

12(b)(1).

A

under

12(b)(1)

Federal

motion

Rule

can

jurisdiction facially or factually.

of

Civil

challenge

Procedure

subject

matter

McElmurray v. Consol. Gov't

of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007).
In a facial challenge, the court only considers the pleadings,
so ''the

plaintiff

is

left

with

safeguards

similar

to

those

retained when a Rule 12(b)(6) motion to dismiss for failure to
state a claim is raised."

412 (5th Cir. 1981).

true,

and

sufficiently

the

The complaint's allegations are taken as

court

alleges

Williamson v. Tucker, 645 F.2d 404,

a

determines

basis

for

whether

the

jurisdiction.

complaint

Scarfo

v.

Ginsburg, 175 F.3d 957, 960 (11th Cir. 1999) (citing Lawrence v.

Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)).

The complaint

may be dismissed only "if it is clear that no relief could be

granted under any set of facts that could be proved consistent
with the allegations."

Jackson v. Okaloosa Cty., 21 F.3d 1531,

1534 (11th Cir. 1994) (citation omitted).

In

a

factual

evidence."

a

Lawrence,

See

challenge,

919

Williamson,

645

F.2d

CMMJatters

outside

at

the

free

F.2d

412);

at

Scarfo,

pleadings,

affidavits, are considered.").

does not attach.

court

to

1528-29
175

such

weigh

the

(quoting
at

960

testimony

as

F.3d

and

The presumption of truthfulness

See Scarfo, 175 F.3d at 960.^
DISCUSSION

I.

Motion to Strike

Plaintiffs have moved to strike

or for leave to file a surreply.
Defendants

failed

to

notify

Defendants' reply briefs,

Dkt. No. 40.^

the

Clerk

of

They argue that
Court

of

their

intention to file a reply, contrary to Local Rule 7.6.

"
[P]arties may file as many reply briefs as they like . . .
[and] failure to satisfy the notice and timing provisions of
Local Rule 7.6 cannot be used by an opposing party as a sword to
have a brief stricken."

Brown v. Chertoff, No. 406-cv-002, 2008

WL 5190638, at *2 (S.D. Ga. Dec. 10, 2008) (citing Podger v.

^ Plaintiffs contend that this motion should be converted to one for summary

judgment because Defendants relied on evidence other than the pleadings.
Pl.'s 0pp.

at

1-5.

The

doctrine

of

incorporation

by

reference

allows

reliance on documents that are ^Ml) central to the plaintiff's claim; and (2)

undisputed."

Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002).

"[A]

document need not be physically attached to a pleading. . . ."
Day v.
Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005).
An "undisputed" document is
one whose authenticity is not challenged. Horsley, 304 F.3d at 1134.
Defendants used Dkt. No. 27-1, Exs. 4, 5,

Pl.'s to Am. and Supplement the Pleading at 14.

and

7 and

Id. at 2-3.

Opp'n

Mot. for

These documents

regard Plaintiff's FOIA request. Plaintiff herself relies on several of them
in her Complaint. See 2d Am. Compl.,
108, 112-114. There is no dispute
regarding the authenticity of any of them. Conversion is thus DENIED.
^ Plaintiffs also request oral arguments on this Motion.
This is unnecessary.

The request is hereby DENIED.

Pl.'s 0pp. at 1.

Gulfstream

PART.

Corp.,

212

Plaintiffs'

2003)).

Aerospace

F.R.D.

Motion

(Dkt.

609,

No. 40)

See Podger, 212 F.R.D. at 610.

is

610

(S.D.

Ga.

thus DENIED IN

However, Plaintiffs'

Motion for Leave to File a Surreply (Dkt. No. 40) is GRANTED.
II.

The Court Lacks Subject Matter Jurisdiction to Review Most
of Plaintiffs' Claims

Defendants

argue

that

the

Court

lacks

subject

matter

jurisdiction because: (1) Plaintiffs' claims are moot; (2) the
waiver denial is not subject to judicial review; (3) Plaintiffs
failed to state a claim; and (4) Plaintiffs failed to exhaust
their FOIA administrative remedies.

at 5-28.

Dkt. No. 32 (^^Def.'s Mot.")

The first three arguments are at least partly valid;

the last is not.

Plaintiffs' international law, ICCPR, and FOIA

claims survive, but their other claims do not.

a.

Many of Plaintiffs' Claims are Moot

Much of

denial

of

the

redress Plaintiffs

Plaintiff

Lee-Lewis's

seek

waiver

concerns the

application.

initial

2d

Am.

Compl. nil 118-19, 121-23, 126, 129-33, 137, 140-41, 143-44, 150-

51, 156-58, 161, 164, 166, 172, 177; id. at 35 1| 2, 36 UK 3, 5-

6, 37 nn 8-9, 13, 38 HI! 18/ 20, 23.

These claims are moot.^

^ Plaintiffs argue that Defendants failed to respond to these claims.
Defendants adequately addressed most of them.
See Def.'s Mot. at 10-12
(discussing 2d Am. Compl.,
124-128, 150-153);
at 20-22 (discussing 2d
Am. Compl.
129-130); Id. at 10-12 (discussing 2d Am. Compl.
124-128);
Id. at 8-12 (discussing 2d Am. Compl.
131-133); Id. at 22-28 (discussing
2d Am. Compl.
141-145); Id. at 12-15 (discussing 2d Am. Compl.
146149). But they did not address customary international law and the ICCPR.
See Def.'s Mot. at 1-28.
Their reply briefly noted those claims, and they
requested time to file a responsive pleading addressing any arguments that
10

Federal

courts

jurisdiction."
2003).

must

^'examine

sua

sponte

their

Kelly v. Harris, 331 F.3d 817, 819 (11th Cir.

Jurisdiction is proper under Article III of the U.S.

Constitution only where there is a '^Case" or '''Controversy."
A court can always test mootness.

Bankwest, Inc. v. Baker,

446 F.3d 1358, 1363 (11th Cir. 2006).

"[A] case is moot when

the issues presented are no longer 'live' or the parties lack a

legally cognizable interest in the outcome," or when the court
cannot "give meaningful relief."

Powell v. McCormack, 395 U.S.

486, 496 (1969); Ethredge v. Hail, 996 F.2d 1173, 1175 (11th
Cir. 1993).

A moot claim "must be dismissed."

Fla. Ass'n of

Rehab. Facilities, Inc. v. Fla. Dep't of Health & Rehab. Servs.,

225 F.3d 1208, 1217 (11th Cir. 2000) (citing Pacific Ins. Co. v.
Gen. Dev. Corp., 28 F.3d 1093, 1096 (11th Cir. 1994)).

Mootness applies

to claims for declaratory relief.

28

U.S.C. § 2201(a); Burke v. Barnes, 479 U.S. 361, 364 (1987);
Nat'l Solid Wastes Mqmt. Ass'n v. Ala.

924 F.2d 1001, 1003 (11th Cir. 1991).

Dep't of Envtl. Mgmt.,

A request for declaratory

judgment is moot if the challenged action has no continuing
adverse

effects

on

the

parties.

Super

Tire

Enq'g

Co.

v.

McCorkle, 416 U.S. 115, 122 (1974).

were lacking.
See Dkt. No. 38 at 6 n.3, 7 n.4.
The Court GRANTS this
request. Defendants have sixty days from the issuance of this Order to amend
their Motion to Dismiss to address Coxints 6-7.
is DENIED.

11

Dismissal as to these Coiints

Plaintiffs

ask

the

in

the

initial denial of Plaintiff Lee-Lewis's waiver application.

2d

Am. Compl. tH 125, 145.
100.

The

State

Recommendation."

Court

to

declare

deficiencies

But USCIS reversed this denial.

Department

Id. H 99.

then

issued

a

Id. H

''Favorable

Plaintiffs' claim is thus moot.

2d

Am. Compl. UK 99-100; cf. Bankwest, Inc., 446 F.3d at 1364; Fla.
Ass'n of Rehab. Facilities, Inc., 225 F.3d at 1217.

Plaintiffs
mootness.

argue

that

voluntary

Pl.'s 0pp. at 7-8.

action being

cessation

prevents

This doctrine applies if "the

challenged by the lawsuit is capable

repeated and evading review."

of

being

Al Najjar v. Ashcroft, 273 F.3d

1330, 1336 (11th Cir. 2006) (emphasis omitted).

But "when the

defendant is . . . a government actor, there is a rebuttable

presumption that the objectionable behavior will not recur."
Troiano v. Supervisor of Elecs. in Palm Beach Cty., 382 F.3d
1276, 1283 (11th Cir. 2004); see also Coral Springs St. Sys.,

Inc. V. City of Sunrise, 371 F.3d 1320, 1328-29 (11th Cir.
2004).

This is especially so where the government has favorably

adjusted an applicant's immigration status.
F.3d

1005,

1009

(9th

Cir.

1998),

limited

Cf. Sze v. INS, 153
on

other

grounds.

United States v. Hovsepian, 359 F.3d 1144, 1161 (9th Cir. 2004)
(en

banc)

("Inasmuch

as

the

named

plaintiffs

have

been

naturalized, it is highly unlikely that they would ever have to
repeat the process.").
12

Plaintiff Lee-Lewis does not rebut the presumption that the

USCIS and State Department will not reverse grant of her waiver.
Mootness thus bars most of Plaintiffs' claims.

Bradford,
herself

423

of

U.S.

147,

voluntary

149

(1975)

cessation,

See Weinstein v.

(noting

^'the

same

that,

to

avail

complaining

party

[must be likely to] be subjected to the same action again.").
b.

The Court Cannot Review the Waiver Decision under the
APA

Even

assuming

that

Plaintiffs'

claims

were

not

moot,

judicial review of the State Department's discretionary waiver
decision is prohibited.

The APA does not extend judicial review

to actions committed to agency discretion by law.

701(a).

[A]n

agency

action

is

committed

to

5 U.S.C. §

the

agency's

discretion . . . when an evaluation of the legislative scheme as

well as the practical and policy implications demonstrate that
review

should

not be

allowed."

1042, 1046 (5th Cir. 1980).

Webster

v.

Bullard,

623

F.2d

Criteria here are:

(1) the broad discretion given" an agency in

a

particular

area

of

operation,

(2)

the

extent to which the challenged action is the

product

of

political,

economic,

or

managerial choices that are inherently not

subject

to

judicial

review,

and

(3)

the

extent to which the challenged agency action
is
based on some
special knowledge
or
expertise.
Am. Fed'n of Gov't Emps., Local 2017 v. Brown, 680 F.2d 722, 726

(11th Cir. 1982) (citing Bullard, 623 F.2d at 1046).

13

Such

criteria

decisions

by

have

various

within this Circuit.
i.

Six

been

deemed

federal

satisfied

appellate

cases

by

J-1

and

waiver

judgments

The Court follows suit,

Circuit court decisions

circuit

courts

have

expressly

decided

whether

decision to deny a waiver is judicially reviewable.
V. Ilchert,

774

the

Abdelhamid

F.2d 1447, 1450-51 (9th Cir. 1985); Dina v.

Att'y Gen, of U.S., 793 F.2d 473, 476 (2d Cir. 1986); Chong v.

Dir.,

U.S.

Info.

Agency,

821 F.2d

171,

176

(3d

Cir.

1987);

Slyper v. Att^y Gen., 827 F.3d 821, 824 (B.C. Cir. 1987); Singh
V. Moyer, 867 F.2d 1035, 1039 (7th Cir. 1989); Korvah v. Brown,
66 F.3d 809, 812 (6th Cir. 1995).
See,

e.g.,

Dina,

793

F.2d

Five hold that it is not.

476

(''The

USIA's

statutory

authorization contained in 8 U.S.C. § 1182(e) is entirely bereft

of

any

guiding

principles

by

which

the

USIA's

action

may

subsequently be judged . . . Given the fact that foreign policy
concerns are integrally involved in

waiver decisions,

discretion in this area should be broad.")/

agency

Slyper, 827 F.2d at

823 ("The statute contains no standard or criterion upon which
the

Director

favorable

is

to

base

a

decision

recommendation.

This

to

make

broad

or

withhold

delegation

a
of

discretionary authority is 'clear and convincing evidence' of

congressional intent to restrict judicial review in cases such
as those we now face."); Singh, 867 F.2d at 1039 ("[B]y virtue
14

of

the

statutory

language,

the

statutory

structure,

the

legislative history, and the nature of the USIA's actions under
§ 1182(e), Congress has provided
reviewing

the

USIA's

action,

^no meaningful standard' for

and

has

^committed'

the

USIA's

waiver recommendation function' to that agency's discretion.").

Plaintiffs rely on the outlier, Chong.

PI.'s 0pp. at 9-13.

In Chong, the Third Circuit held that the denial of a J-1 waiver

is subject to judicial review for abuse of discretion.
821 F.2d at 175-80.
[O]ur

But even it recognized many constraints:

scope

recommendation

1182(e)
statute

Chong,

of

review

of

function

the

under

USIA's
section

is severely limited because the
and
the
USIA's
regulations
vest

rather
broad
discretion
in
the
Director . . .
.
The
extent
of
our
review . . . is limited to whether the USIA

followed its own guidelines.

Id. at 176 (emphasis added).

Chong

upheld

the

waiver

denial

at

issue,

because

even

though USIA's letter was ''not very specific, it [did] indicate
that

the

USIA

'review[ed]

the

relations aspects of the case.'"
that

the

J-1

international

visa

cooperative

educational exchanges.
2452(a)(1)).

program

policy,

program,

Id. at 177.
is

designed

relations"

by

and

foreign

Chong emphasized
to

"strengthen

providing

for

821 F.2d at 177 (quoting 22 U.S.C. §

It was not structured to provide an easy pathway

for entry.

15

Chong also accepted the government's strict waiver policy,
deciding that Congress clearly ^^intended
granted leniently."
ii.

that

waivers

not be

821 F.2d at 179.

Fifth and Eleventh Circuit authority

This review-averse attitude is supported by cases from the
Eleventh and Fifth Circuits.

See, e.g., Nwankpa v. Kissinger,

376 F. Supp. 122, 125 (M.D. Ala. 1974), aff'd, 506 F.2d 1054
(5th

Cir.

1975);

Al-Khayyal

v.

U.S.

Immig.

Serv., 818 F.2d 827, 830-32 (11th Cir. 1987).

&

Naturalization

In Nwankpa, a J-1

waiver case, a sister district court held that Congress '^wisely

gave limited power for judicial review of the discretionary
functions of the Attorney General and the Secretary of State,

and this [type of] case does not . . . fall within" the APA's
allowance of judicial review.

376 F. Supp. at 125.

Similarly, in Al-Khayyal, appellant challenged the denial
of his J-1 waiver.

that ''legislative

818 F.2d at 828.

The Eleventh Circuit noted

history . . . strongly supports stringent

enforcement of the two-year home country residence requirement."
Id.

at 831.

It also

remarked

that, "in

light

of

the

broad

discretion given the agency in granting a waiver, the [district]
court was unable to find that the INS's decision in Al-Khayyal's

case

varied

so

significantly

from

earlier

constitute an abuse of that discretion."

16

decisions

Id. at 830.

as

to

ill. Application

At the very most, Al-Khayyal hinted that waivers could be
reviewed for

abuse

of

discretion.

Regardless

of

whether the

Court took such a look or followed the majority approach, its
decision would be the same.

The facts of this case are simply

too similar to those of Al-Khayyal and Chong to find abuse of

discretion.

See Al-Khayyal, 818 F.2d at 830 (declining to find

abuse of discretion given factual similarities to precedent).

In Al-Khayyal, the appellant knew of the residency requirement
when he first applied for his J-1 visa—this meant that the facts
that he did not ''pay sufficient attention" and "made long terms

plans to stay" did not support review.
Plaintiff

Lee-Lewis

clearly

knew

818 F.2d at 832.

that

she

faced

a

Here,

residency

requirement because she returned to Montserrat immediately upon

graduation in 1992.

2d Am. Compl. H 25.

That she lost track of

her obligation and built a life in this coimtry is no excuse.
The denial letters in Chong and this case are very similar.

If anything, the one here is more detailed.

Compare Chong, 821

F.2d at 177 ("It is not felt the hardship outweighs the intent

of Public Law 94-84.") with 2d Am. Compl. H 93 ("The United
States Department of State has advised that even though a 'no

objection' statement from your country of nationality has been
issued, based on program and policy considerations they are not
recommending

that

you

be

granted
17

a

waiver

of

the

two-year

foreign

residence

requirement

of

section

212(e)

of

Immigration and Nationality Act, as amended . . .

the
This

case fits squarely within the parameters set by precedent.

Even looking beyond factual similarities with other cases,
Defendants

did

not

abuse

their

discretion.

None

of

the

statutory criteria for evaluating a no objection waiver direct
an agency to consider whether physical circumstances outside of
the alien's control prevent return, or health risks.
C.F.R.

§

41.63(d)(2).

Defendants

could

not

analyze Plaintiff Lee-Lewis's application
they did.

be

See 22

ordered

to

more favorably than

Plaintiffs' APA claim fails.
c.

Most of the Other Declaratory Judgment Claims
Fail

Plaintiffs

judgments

request

that

the

excusing Plaintiff

Court

Lee-Lewis's

waive the residency requirement.

issue

failure

declaratory

to

properly

Most of her requests fail to

state a claim upon which the Court can grant relief, and she
lacks standing to bring others.

Plaintiff Lee-Lewis argues that her claim should be subject
to a more relaxed standard of review because she imparted her

cultural heritage in the United States.
Sharing

''cultural

requirement waiver.

heritage"

is

not

2d Am. Compl. ^ 132.

germane

to

See 22 C.F.R. § 41.63(d)(2).

a

residency

Besides, the

J-1 visa program is meant to "strengthen international ties."

18

Such ties are not strengthened when a visitor remains in the
United States without imparting knowledge in her home country.
Plaintiff Lee-Lewis next asserts a constitutional property

right to her application fee and a constitutional life interest

against death or health problems.

2d Am. Compl. HH 129-130.

But

a

aliens

simply

do

not

have

discretionary immigration relief.

due

process

right

to

Alhuay v. U.S. Att^y Gen.,

661 F.3d 534, 548-49 {11th Cir. 2011) (citing Scheerer v. U.S.
Att^y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008)).
Third, Plaintiff Lee-Lewis requests that the Court declare

that the USCIS and the State Department erred by changing her

status from F-1 to H-IB on July 1, 1998.

2d Am. Compl. ^ 142.

Plaintiff cites to Matter of Kim, 131 I. & N. Dec. (BIA) 316,

1968 WL 14064, *317 (1968), arguing that but for this supposed

error, she would have found her J-1 problem.
Matter

of

Kim

itself

discounts

the

having had multiple types of visas.
came

to

the

United

States

visitor

program

should

program

notwithstanding

the

be

as

that

he

significance

of

an

But
alien

It held that an "alien who

the

held

Id. H 28.

beneficiary of

to

the

may

classification

of

an

requirements

have

a

exchange

of

the

incidentally

and

temporarily

had

foreign

employee."

I. & N., at *318 (emphasis added).

government
It is thus

immaterial that lawyers, employers, and even the government mis-

19

categorized

Plaintiff

Lee-Lewis-she

knew

requirement and did not properly avoid it.
Fourth,

Plaintiff

Lee-Lewis

seeks

(that is, retroactive adjustment of

of

the

residency

2d Am. Compl. H 143.
nunc

pro

tune

relief

her immigration status),

relying on: (1) Defendants' ''pattern and practice of denying

nearly

all

U.S.

Government-funded

no

objection

waiver

applications," 2d Am. Compl. H 128; (2) the state of the law
regarding judicial review of waiver decisions, id.
and

(3)

Defendants'

request, id.

failure

to

respond

to

144-45;

Plaintiffs'

FOIA

146, 148.

Nunc pro tune relief in the immigration context must be
based on government error.
308-09

(2d

"error."

Cir.

Cir.

2004).

See Edwards v. INS, 393 F.3d 299,
The

state

of

American

law

is

not

Chen v. U.S. Att'y Gen., 439 F. App'x 874, 876 (11th

2011)

(per

curiam)

(unpublished
like

those

opinion).
made

Nor

regarding

is

a

discretionary

decision,

waiver

applications.

See, e.g., Zhang v. Holder, 617 F.3d 650, 667 (2d

Cir. 2010).

Considering Defendants' FOIA error, the Court agrees that
there was one, as discussed below.

But to award nunc pro tune

relief

would

on

this

basis,

the

Court

have

to

hold

that

Plaintiff Lee-Lewis would have been entitled to a waiver had she

been armed with the information she requested.

already

held

that

Defendants

were
20

within

The Court has

their

very

broad

authority to deny the waiver.
document

would

Plaintiffs

have

shown

would

denial

The Court cannot imagine any

have

to

received

be

the

known to the U.S. court system.

from

first

Defendants

abuse

of

that

discretion

Plaintiff Lee-Lewis has thus

failed to state a claim for nunc pro tune relief.^
Fifth, Plaintiffs seek declarations relating to an alleged

pattern

or

practice

applications.

of

improprieties

in

considering

2d Am. Compl. UK 82, 127-29, 151, 157.

waiver

Many of

these only raise pattern or practice by way of criticizing the
initial decision not to grant Plaintiff Lee-Lewis a waiver, and
so they are plainly moot.
One

relates

to

Id.

128-29, 151, 157.

Plaintiffs'

below and will not be dismissed.
The rest stand free.

FOIA

claim;

it

is

addressed

Id. H 82.

Because this case was not brought by

a class, and Plaintiffs no longer suffer injury from any pattern

or practice Defendants have, these claims must be dismissed for
want of standing.

See City of Houston v. Dep't of Hous. & Urban

Dev., 24 F.3d 1421, 1430 (D.C. Cir. 1994) ('MlJf a plaintiff
challenges

an

ongoing

agency

policy

by

seeking

declaratory

relief, but lacks standing to attack future applications of that

policy,

then

the

mooting

of

the

plaintiff's

specific

claim

obviously leaves the court unable to award relief.").

* Defendants' response could conceivably yield some document showing denial of
her waiver to be the as-yet-unencountered abuse of discretion.
Therefore,
Plaintiffs' nunc pro tune claim is only DISMISSED WITHOUT PREJUDICE.
21

The

Court

cannot

grant

most

of

Plaintiffs'

sought

statutory relief

because

declaratory relief.
d.

FOIA

Plaintiffs

seek

declaratory and

the State Department failed to timely respond to their FOIA

request.

2d Am., Compl.

HH

147-148, 178-83.

These claims

survive dismissal.

Plaintiffs

argue

that

failed

to

respond to Plaintiff Lee-Lewis's May 8, 2013 FOIA request.

2d

Am. Compl., UK 147-148.
to

exhaust

light

of

pleadings,

the

Court

State

Department

Defendants argue that Plaintiffs failed

administrative

Defendants'

the

remedies.

reliance

treats

jurisdiction as factual.

on

their

Def.'s

matters

attack

Mot.,

going

on

SI

13.

In

beyond

the

subject

See Dkt. No. 32 at 12-15.

matter

The Court

thus considers ''the complaint supplemented by undisputed facts."
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).

The

Complaint

jurisdiction.
respond

alleges

facts

to

establish

It alleges that "[t]he Defendants have failed to

to the

Plaintiffs's

receipt acknowledgment letter.
id. H 113.

enough

[sic]

request" beyond issuing a

2d Am. Compl. K 180; see also

"If [an] agency does not adhere to FOIA's explicit

timelines, the 'penalty' is that the agency cannot rely on the
administrative exhaustion requirement to keep cases from getting
into court."

Citizens for Responsibility & Ethics in Wash, v.
22

FEC, 711 F.3d 180, 189 (D.C. Cir. 2013).

The State Department's

40-month delay is far beyond FOIA's deadlines.

See id.

Thus,

Defendants' exhaustion argument is no shield.

The undisputed facts do not defeat Plaintiffs'
valid allegation.

facially-

The receipt acknowledgment letter indicates

only that the State Department

[would] begin the processing of

[Plaintiff Lee-Lewis's] request" and ''[would] notify [her] as

soon as responsive material has been retrieved and reviewed."
Dkt. No. 27-1 at 17.

Defendants respond that another, later letter establishes
that

Plaintiff

Lee-Lewis

failed

to

perfect

her

request

by

"fail[ing] to respond to [the State Department's] requests for
clarification or acceptance of the estimated costs."
32

at 14-15.

That

letter

was

not

sent

nearly seven months after the request.

says

that "[the

State

Department

until

Dkt. No.

December

2013,

Dkt. No. 27-1 at 20.

has]

attempted

to

It

contact

[Plaintiff] by telephone numerous times to discuss her request
but [has] been vinable to reach her. . . . We anticipate the fees

will be much higher [than Plaintiff agreed to pay] and would
like to discuss the request with her before proceeding with it."
Id.

This does not prove failure to perfect.

The government

could have called Plaintiff Lee-Lewis for the first time after

its response deadline had elapsed, in which case it would not be
23

able to rely on failure to exhaust administrative remedies.

See

Tereshchuk

157,

161

restart

the

(D.D.C.

v.

Bureau

2012)

C'A

of

Prisons^

belated

fee

851

letter

F.

Supp.

does

2d

not

exhaustion clock

The Court will not attempt to resolve the factual dispute

at this stage.

Subject matter jurisdiction will instead be

revisited

should

additional

Plaintiff

indeed failed

to

evidence
exhaust

persuade

the

administrative

refusing to pay properly requested fees.

that

remedies

by

See, e.g., Cunningham

V. Holder, 842 F. Supp. 2d 338, 346 (D.D.C. 2012).

being, though.

Court

For the time

Defendants' motion to dismiss Plaintiffs'

FOIA

claims is DENIED.
CONCLUSION

As Chong said. Plaintiff ''made a bargain with the United

States."

lawyers,

821 F.2d at 179.

employers,

It may be fourteen years later-and

government

agencies,

and

even

Plaintiff

herself, may have overlooked Plaintiff's residency requirement—

but she must now uphold her end.

However, American fair-dealing

also requires the State Department to uphold its FOIA duties.
For the reasons set forth above, it is hereby ORDERED that:

(1) Defendants' Motion to Dismiss (Dkt. No. 32) is GRANTED

IN PART, as to all claims other than those specifically exempted
below;

24

(2) Plaintiffs' nunc pro tune claim is DISMISSED WITHOUT
PREJUDICE;

(3) Defendants' Motion to Dismiss (Dkt. No. 32) is DENIED
IN PART, as to Plaintiffs' international law, ICCPR, and FOIA
claims;

(3) Plaintiffs' Motion to Strike (Dkt. No. 40) is DENIED IN

PART, in that the Court considers Defendants' reply brief;
(4) Plaintiffs' Motion to Strike (Dkt. No. 40) is GRANTED

IN PART, in that the Court allows Plaintiffs' Sur-reply;
(5)

Plaintiffs'

Motion

for

a

Thirty

Minute

Telephone

Hearing to Present Oral Arguments is DENIED; and
(6) Defendants have SIXTY DAYS from the date of this Order

to

respond

to

Counts

6-7

of

Plaintiffs'

Second

Amended

Complaint.

SO ORDERED, this 8th day of November, 2016.

LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

25