RAMALINGAM et al v. BEERS et al
Filing
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MEMORANDUM OPINION. Signed by Judge Kevin McNulty on 03/30/2016. (ek)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MOHANRAM RAMALINGAM,
AARTI RAMAKRISHNAN,
Civ. No. 13-7416 (KM)
Plaintiffs,
:
MEMORANDUM OPINION
V.
JEH JOHNSON, Secretary of the
Department of Homeland
Security, et al.,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
The plaintiffs, Monhanram Ramalingam and Aarti Ramakrishnan, who
are husband and wife, seek this Court’s review of the decision of the United
States Citizenship and Immigration Service (“USCIS”) to revoke the 1-140
Immigrant Petition for Alien Worker (“1-140 petition”) filed by Ramlingam’s
former employer, Vision Systems Group, Inc. (“VSG”). Also challenged are the
USCIS’s later decisions to deny Plaintiffs’ Form 1-485 Applications for
Adjustment of Status to Lawful Permanent Resident (“1-485 Applications”).
Because the Court lacks jurisdiction, the motion to dismiss is granted as to
Count I of the Complaint, but denied as to Count II.
I.
Background
A.
Employment-based “Green Cards” and Portability
The Immigration and Nationality Act (INA) provides that certain
immigrant aliens may apply for green card status based on an employer’s offer
of a permanent job as a skilled worker. See 8 U.S.C.
§ 1 153(b)(3)(A)(i).
Classifications and decisions as to such employment-based immigration are
the province of USd5. See 8 U.S.C.
Security); 8 C.F.R.
§ 1 103(a)(1) (delegation to Homeland
§ 2.1 (sub-delegation to USCIS). A prerequisite to such
status is that the prospective employer obtain from the U.S. Department of
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Labor (“DOL”) a certification stating that there are no qualified, able and willing
U.S. workers available to fill the position, and that the wages and conditions of
similarly employed U.S. workers will not be affected. See 8 U.S.C.
§
1 182(a)(5)(A)(i). The prospective employer’s application to DOL for such a
certification is known as a Form ETA-9089 (formerly Form ETA-750).
Based on such a DOL certification, the employer may file an 1-140
petition with USCIS to have the prospective employee classified as an
employment-based immigrant. See 8 C.F.R.
1-140 petition is conferred by 8 u.s.c.
881, 887
(9th
§ 204.5(c). Authorization to grant a
§ 1154. See Herrera v. USCIS, 571 F.3d
Cir. 2009).
The Secretary of Homeland Security, “for what he deems good and
sufficient cause,” may at any time revoke the approval of an 1-140 petition. See
§ 1155. USCIS may be required to give the employer notice and an
opportunity to respond. See 8 C.F.R. § 205.2(b); id. § 205.2(a) (authority
8 U.S.C.
delegated to USd5).
An alien worker, either concurrently with or following an 1-140 petition,
may apply for adjustment of status to that of lawful permanent resident. See 8
U.S.C.
§ 1255(a); 8 C.F.R. § 245.2(a)(2)(i)(B). The 1-140 petition, however, must
be approved first; an approved, valid petition is the precondition to adjustment
of status. See 8 C.F.R.
§ 245.1(c). It follows that, if USd15 denies or revokes an
1-140 petition, it must also deny any dependent, pending 1-485 adjustment of
status petition. See George v. Napolitano, 693 F. Supp. 2d 125, 130 (D.D.C.
2010); 8 U.S.C.
§ 1255(a); 8 C.F.R. § 254.2(a)(2)(i)(B). If, however, both the I-
140 petition, and then the 1-485 petition, are granted, the alien may become a
lawful permanent (“green card”) resident.
There is a waiting list for green cards, and the process can take a long
time. Congress has therefore enacted a “portability provision” so that a worker
who switches jobs while an application is pending does not need to restart the
entire process. Under certain circumstances, an alien worker who is the
beneficiary of Employer #1’s approved 1-140 petition may “port” to a similar
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occupation with Employer #2 without losing his or her place in line. The
eligibility requirements are that the alien worker (1) be the beneficiary of
Employer #1’s approved 1-140 petition; (2) have had an 1-485 application
pending with USCIS for at least 180 days; and (3) be “porting” to work with
Employer #2 in a job that is the same or similar to that for which Employer
#1’s 1-140 petition was filed. See Herrera v. USCIS, 571 F.3d 881, 887
2009) (citing 8 U.S.C.
tt1
9
(
Cir.
§ 1 154(j)). If so, then USCIS continues to process the I-
485 application just as if the worker had remained with Employer #1. If
approval eventually results, the worker may obtain a green card.
Irrespective of “porting,” however, a valid, approved 1-140 application
must underlie the 1-485 application. “Portability” does not affect the
discretionary authority of USCIS to revoke approval of an 1-140 application for
good and sufficient cause. See Herrera, 571 F.3d at 889. And a revoked 1-140
implies that the 1-485, too, must be rejected. Id. at
B.
Plaintiffs’ Applications
The following facts, taken from the Complaint and the documents
attached (ECF nos. 1, 1-1), do not seem to be in dispute.
Plaintiffs are citizens of India. Mr. Ramalingam’s previous employer,
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Sybase, filed a non-immigrant petition that he be granted H-lB status.
Ramalingam changed jobs from Sybase to VSG. VSG filed a labor certification
with DOL, and DOL approved it in May 2006.
VSG then filed an 1-140 immigrant petition with USCIS, seeking to
classify Ramalingam as a professional or skilled worker holding an advanced
degree, or of exceptional ability. See 8 U.S.C.
§ 1 153(b)(2). (These are known as
“EB-2” immigrants.) On June 25, 2007, USCIS approved VSG’s 1-140 petition.
(EcFno. 1-1 at2)
On July 2, 2007, Ramalingam, as beneficiary of VSG’s 1-140 approval,
then filed an 1-485 petition seeking to adjust his status to that of lawful
his.
I focus on Mr. Ramalingam’s history because his wife’s status is derivative of
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permanent resident. That application remained pending for some time, as no
appropriate immigrant visa was immediately available. See 8 C.F.R.
§
245.2(a)(2)(i)(A).
In 2008, while the 1-485 application remained pending, Mr. Ramalingam
switched jobs from VSG to Bank of America. In October 2010, VSG’s president
pled guilty to mail fraud, see 18 U.S.C.
§ 1341, in connection with a non-
immigrant filed in connection, not with Ramalingam, but another employee.
Other VSG officers were apparently convicted as well.
USd5 therefore sent VSG a Notice of Intent to Revoke (“NOIR”) approval
of VSG’s petitions, including the 1-140 for Ramalingam. VSG failed to respond
to the NOIR. On July 30, 2012, USCIS did revoke the 1-140 approval VSG had
obtained on behalf of Ramalingam.
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Ramalingam’s 1-485 petition remained pending. On September 7, 2012,
the other shoe dropped. USCIS denied Ramalingam’s pending 1-485 petition
because the 1-140 approval upon which it was based had been revoked. The
derivative 1-485 petition of Ramalingam’s spouse, Ms. Ramakrishnan, was
denied as well.
Plaintiffs filed this action to challenge USCIS’s revocation of VSG’s 1-140
petition and the denial of their 1-485 applications. Count 1 of the Complaint
(ECF no. 1) asserts a challenge under the Administrative Procedures Act, 5
U.S.C. § 706, to the agency’s revocation of approval of the 1-140 application,
and the resulting denial of the 1-485 petition. Count II of the Complaint asserts
a violation of due process.
II.
Legal Standard
The defendants have moved to dismiss the complaint for lack of
jurisdiction. Rule 12(b)(1), Fed. R. Civ. P., governs jurisdictional challenges to a
complaint. These may be either facial or factual attacks. See 2 Moore’s Federal
Practice
§ 12.30[4} (3d ed. 2007); Mortensen v. First Fed. Say. & Loan Ass’n,
Ramalingam complains that, having left VSG behind long ago, he was not
notified of this process and knew nothing about it until it was over.
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549 F.2d 884, 891 (3d Cir. 1977). A facial challenge asserts that the complaint
does not allege sufficient grounds to establish subject matter jurisdiction.
Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 438 (D.N.J. 1999). A court
considering such a facial challenge assumes that the allegations in the
complaint are true, and may dismiss the complaint only if it nevertheless
appears that the plaintiff will not be able to assert a colorable claim of subject
matter jurisdiction. Cardio—Med. Assoc., Ltd. v. Crozer—Chester Med. Ctr., 721
F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F. Supp. 2d at 438. As on a Rule
12(b)(6) motion, the court may consider documents attached to or relied on in
the complaint. See Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014); In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997).
III.
Discussion
A.
Count I
Count I challenges the USCIS’s decisions to revoke its approval of VSG’s
1-140 application and, as a result, deny the 1-485 petition. Defendants raise a
number of grounds for dismissal. Finding that I lack jurisdiction to entertain
the claims in Count 1, I go no further.
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Count I seek to review agency action under the Administrative Procedure
Act (APA), see 5 U.S.C. § 702. Such review is unavailable, however, to the
extent that the relevant statutes “preclude judicial review.” 5 U.S.C. 701(a)(1);
§
see Block v. Community Nutrition Inst., 467 U.S. 340, 349 (1984). If Congress,
in a more specific enactment, has precluded judicial review of particular
actions of an agency, then an APA challenge is precluded. See Wheaton
Industries v. EPA, 781 F.2d 354, 357 (3d Cir. 1986).
I assume arguendo that, if plaintiffs possessed a cause of action over which the
court had jurisdiction, they would have standing to pursue it. See Shalom Pentecostal
Church v. Acting Secj U.S. Dept of Homeland Sec., 783 F.3d 156, 161—64 (3d Cir.
20 15) (finding constitutional and zone of interest standing, and also finding regulatory
standing where regulation for special religious workers, unlike that for employees,
grants the alien standing to file a petition).
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Congress has specifically precluded judicial review of discretionary
decisions of USCIS like the one here:
Notwithstanding any other provision of law (statutory or nonstatutory),
including section 2241 of Title 28, or any other habeas corpus provision,
and sections 1361 and 1651 of such title, and except as provided in
subparagraph (D), and regardless of whether the judgment, decision, or
action is made in removal proceedings, no court shall have jurisdiction to
review-
(i) any judgment regarding the granting of relief under section
1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General or the
Secretary of Homeland Security the authority for which is specified
under this subchapter to be in the discretion of the Attorney General
or the Secretary of Homeland Security, other than the granting of
relief under section 1158(a) of this title.
8 U.S.C.
§ 1252(a)(2)(B)(ii).
A “discretionary” decision is one made pursuant to a statute that vests
discretion in the agency. The statute under which the Secretary of Homeland
Security may revoke approval of a visa petition provides as follows:
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. VSG’s 1-140 petition was approved under the authority of
Section 1 154(b)(3). Section 1155 was the source of the discretionary authority
of USCIS to revoke its approval of VSG’s 1-140 petition.
Section 1155 vests unreviewable discretion in USd5. The U.S. Court of
Appeals for the Third Circuit has explicitly rejected the contention that Section
1155’s authorization of revocation “for what Ithe Secretary] deems good and
sufficient cause” imposes a nondiscretionary, reviewable statutory standard.
Jilin Pharrn. USA, Inc. v. Chertoff 447 F.3d 196, 203—05 (3d Cir. 2006).
“Accordingly,” the Court held, “we have no difficulty concluding that the
decision to revoke an approved visa petition pursuant to 8 U.S.C.
§ 1155 is left
to the discretion of the Secretary of Homeland Security.” Id. at 205. And as
such, it is “shielded from court review pursuant to 8 U.S.C.
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§ 1252(a)(2)(B)(ii).”
Id. at 206. The nature of the claims—whether they were of constitutional
dimension, for example—did not matter. Jilin upheld the District Court’s
decision “that it lacked jurisdiction to review this administrative decision.” Id.
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I am constrained to hold likewise. Jilin instructs that because Section
1155 vests unreviewable discretion in the agency to revoke approval of a
petition, Congress has denied the district court jurisdiction to hear a challenge
to the agency’s action. Count I must therefore be dismissed
B.
Count II
Count II, alleging a due process violation, is different. It alleges that the
plaintiffs were not given a “meaningful opportunity to challenge the basis” of
the revocation of approval of VSG’s 1-140 petition and the resulting denial of
the 1-485 petition. What Mr. Ramalangam primarily complains of here, I think,
is that USCIS acted without his knowledge. He had left VSG behind long ago
when its principals were criminally convicted, the USCIS understandably
became suspicious of VSG’s previously filed petitions, and it served notice on
VSG (but not on Ramalingam) of its intent to revoke those approvals.
Defendants maintain that this is between them and VSG; they served
their NOIR on VSG, and were not required to notify Ramalingam that his status
was in jeopardy.
Many facts remain to be explored, but I think this states a reviewable
claim. It is not, as such, a challenge to the agency’s discretionary decision, but
to its procedures. The reasoning of Section III.A, supra, is therefore
distinguishable.
As luck would have it, the Second Circuit has spoken on this very
issue—and by this “very issue,” I mean the revocation of VSG’s 1-140 petitions.
In Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015), another ex-employee of
VSG named Mantena brought such a due process challenge, which was
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Jilin explicitly noted that, even though rejection of a petition as an initial matter
might have been reviewable, the revocation of approval of the same petition would not.
That, said Jilin, is the system Congress devised, and the courts are powerless to
change it. 447 F.3d at 205 n. 11.
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dismissed for lack of jurisdiction. The U.S. Court of Appeals for the Second
Circuit reversed, in an opinion written by Judge Calabresi.
Mantena held that a due process challenge to agency procedures fell
outside of the jurisdiction-stripping provision, 8 U.S.C.
§ 1252(a)(2)(B)(i). IcL at
728—3D. Its approach in so holding is consonant with that of this Circuit in
Alaka v. Attorney Gen. of U.S., 456 F.3d 88 (3d Cir. 2006) (as amended Aug. 23,
2006). Alaka, distinguishing Jilin, see id. at 98, focused closely on the precise
scope of the matters that the statute committed to the agency’s unreviewable
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discretion. In Mantena, the Second Circuit held that the agency’s adherence to
procedures was not a matter committed to its sole discretion.
Mantena also rejected the defendants’ standing challenge, in terms not
dissimilar to those expressed by the Third Circuit in Shalom Pentecostal Church
v. Acting Sec’y U.S. Dep’t of Homeland Sec., 783 F.3d 156, 16 1—64 (3d Cir.
2015). Mantena’s standing rationale was intertwined with the related holding
that a due process claim, belonging to the employee, was viable.
Judge Calabresi reasoned that, particularly in portability cases, the
original employer may have no interest whatever in the viability, or not, of the
1-140 approval with respect to its now-ex-employee. “The revocation of VSG’s I140 petition mattered little if anything to VSG, which no longer employed
Mantena (and might not even remain in existence).” Id. at 734. In such a
situation, the only current, live interest in the matter may reside with the ex
employee and her current, successor employer:
Relying solely on notice to VSG effectively precluded Mantena from
being notified until it was too late to act, until her adjustment of
status application was consequentially denied. More broadly,
limiting the notice to the original petitioner precludes the new
employer, the one who has, under the portability provisions, been
allowed to adopt the original 1—140 petition, *735 from asserting its
interest in the matter. And this runs directly against the aim of the
statutory amendments. By placing beneficiaries and successor
employers in a position of either blind faith in the original
Alaka held that the statute, while unquestionably empowering he Secretary or
the Attorney General to “decide” whether to withhold deportation of certain persons
convicted of crimes, did not “specify” that the decision was solely a discretionary one.
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petitioners goodwill and due diligence or a forced and continued
relationship with the now-disinterested and perhaps antagonistic
original petitioner, such a scheme would completely undermine the
aims of job flexibility that those amendments sought to create.
Id. at 734—35.
I am persuaded. The regulatory requirement of notice only to the ex
employer, as the “affected” party, is an artifact of the pre-porting regime. To
apply it without consideration of the real interests at stake could give rise to a
due process violation. The result, with proper notice, might or might not have
been the same. But at the very least, Ramalingam’s due process claim should
survive a motion to dismiss and permit an exploration of the factual context in
discovery.
As to Count II, the motion to dismiss is denied.
CONCLUSION
For the foregoing reasons, the Defendants’ motion to dismiss the
complaint for lack of jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(l), is
GRANTED as to Count I. Defendants’ motion to dismiss the complaint for lack
of jurisdiction, pursuant to Fed. R. Civ. P. l2(b)(l), and for failure to state a
claim, pursuant to Fed. R. Civ. P. l2(b)(6), is otherwise DENIED.
An appropriate Order follows.
Dated: March 30, 2016
HON. KEVIN MCNULTY, U’ .J.
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